Karnjanapuwadol (Migration) - [2020] AATA 5089

Karnjanapuwadol (Migration) [2020] AATA 5089 (21 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sawapon Karnjanapuwadol
CASE NUMBER:  1820126
HOME AFFAIRS REFERENCE(S):          CLF2017/26463
MEMBER:Moira Brophy
DATE:21 August 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl.802. 214(1)(c) of Schedule 2 to the Regulations; and
·cl.802. 221(2)(b) of Schedule 2 to the Regulations.

Statement made on 21 August 2020 at 1:06pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18– applicant is still undertaking studies at the time of the decision – his studies were ongoing – meet the requirement in cl.101.213(1)(c) at the time of decision –decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.213, 101.221, 802.214, 802.221

CASES
Moore J in Babicci v MIMIA [2004] FCA 1645
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 June 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 3 April 2017. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, cl.802.226A), the criteria to be met in this case include cl.802.214 and cl.802.221 which requires that an adult child has turned 18, and that he be a full-time student at the time of application and continue to be a full-time student at time of decision.
The delegate refused to grant the visa on the basis that cl.802.221 was not met because the applicant was no longer studying, and he was therefore not able to continue to meet the requirements as set out in cl.802.214.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Karnjanapuwadol (Migration) [2020] AATA 5089
Case: [2020] AATA 5089
Decision Date: 21 August 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Sawapon Karnjanapuwadol. The applicant, who had turned 18, was sponsored by his stepfather, Ashley Johannes De Wit. The core of the dispute revolved around whether the applicant met the study requirements for the visa, particularly after turning 18 and at the time of the decision.

The primary legal issue before the Tribunal was to determine if the applicant met the criteria for a Subclass 802 visa, specifically concerning his age and ongoing studies. The delegate had previously refused the visa on the grounds that the applicant, having turned 18, was not undertaking a full-time course of study at the time of the decision, thus failing to meet clause 802.221(2)(b) of the Migration Regulations 1994. The Tribunal also considered whether the applicant was incapacitated for work due to loss of bodily or mental functions, as an alternative criterion.

The Tribunal found that the applicant met the relationship requirements under clause 802.214(1)(a) and continued to meet this at the time of the decision. Crucially, the Tribunal considered evidence provided by the applicant, including a Diploma of Events Management from TAFE NSW and confirmation of enrolment and payments for a Bachelor of Information Technology at the University of Newcastle. This evidence demonstrated that the applicant was undertaking full-time study after turning 18 and continued to do so at the time of the decision. Therefore, the Tribunal concluded that the applicant met the requirements of clause 802.214(1)(c) and clause 802.221(2)(b).

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant had met the specified criteria for the Subclass 802 visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The applicant, Sawapon Karnjanapuwadol, was born in Chiang Rai, Thailand on 19 September 1994. He is the holder of passport issued from Thailand. His parents reside in Thailand and he has one brother residing in Australia. At the time of application, the applicant stated he had completed his secondary schooling at the Samakkhiwitthayakhom School on 20 March 2013. A Basic Education Transcript (Upper Secondary Level) issued on 24 March 2014 was provided at time of application. He was enrolled from 11 January 2016 in an Advanced Diploma of Computer Systems Technology at the Infotech Institute of Business and IT with the estimated date of completion being 5 January 2018. The review applicant, Ashley Johannes De Wit was born in Lismore, Australia. In the application Mr De Wit claimed to be the stepfather of the applicant, having married the mother of the applicant and sponsoring her to Australia on a Partner visa (Subclass 309) on 18 November 2015. When that visa was granted on 29 November 2016 the applicant was deemed to be a non-migrating family member. The brother of the applicant was included in the application and granted a visa as a dependant. The review applicant claims it was an error that led to the present applicant not being included as a dependant on his mother’s visa. At the time of grant he was in Australia studying. In the delegate’s decision dated 22 June 2018 it was found the applicant had last been enrolled in a course of study in January 2018 when he had completed his Advanced Diploma of Computer Systems Technology course. That being the case the delegate found he was not able to meet cl.802.221(2)(b) of Schedule 2 of the Migration Regulations because he was aged over 18 years at time of application and not undertaking a full-time course of study at the time of decision. Prior to hearing the applicant provided to the Tribunal:·Submission dated 14 July 2020·Copy of Advanced Diploma of Computer Systems Technology dated 5 January 2018·Letter dated 13 July 2018 from TAFE NSW confirming enrolment into Diploma of Events management·Copy of receipts for enrolment of Diploma of Events management dated 29 June 2018·Copy of 3 receipts for school fees for the Diploma of Events management dated 4 September 2018, 4 October 2018 and 2 November 2018·Copy of Diploma of Events management from TAFE NSW·Copy of receipt from University of Newcastle dated 8 January 2019 for $11,805·Copy of letter from University of Newcastle dated 26 August 2019 and 3 July 2020 confirming verification of enrolment in the Bachelor of Information Technology·A number of ANZ bank transfers between August 2018 and April 2020 from the mother of the visa applicant, Ms Phongwiwat to the visa applicant confirming continued support for school fees, rent and general living expenses.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the visa applicant was undertaking full-time study since turning 18 years of age and if not, whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions.

Evidence

Evidence Before The Court

Prior to hearing the applicant provided to the Tribunal:·Submission dated 14 July 2020·Copy of Advanced Diploma of Computer Systems Technology dated 5 January 2018·Letter dated 13 July 2018 from TAFE NSW confirming enrolment into Diploma of Events management·Copy of receipts for enrolment of Diploma of Events management dated 29 June 2018·Copy of 3 receipts for school fees for the Diploma of Events management dated 4 September 2018, 4 October 2018 and 2 November 2018·Copy of Diploma of Events management from TAFE NSW·Copy of receipt from University of Newcastle dated 8 January 2019 for $11,805·Copy of letter from University of Newcastle dated 26 August 2019 and 3 July 2020 confirming verification of enrolment in the Bachelor of Information Technology·A number of ANZ bank transfers between August 2018 and April 2020 from the mother of the visa applicant, Ms Phongwiwat to the visa applicant confirming continued support for school fees, rent and general living expenses.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the visa applicant was undertaking full-time study since turning 18 years of age and if not, whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions. The criteria for a Subclass 802 visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, if, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b). The delegate refused to grant the visa on the basis that cl.802.221(2)(b) was not met because there was no evidence that the applicant was at the time of decision, a full-time student or undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification. There was no evidence before the delegate that he continued to be a full-time student beyond 5 January 2018.Criteria for applicants over 18Relationship status and history At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a). This must continue to be the case at the time of this decision: cl.802.221(2)(b). Based on the information provided to the Tribunal, I am satisfied that the applicant was not engaged to be married, was not married, and did not have a spouse or de facto partner at the time of application, and this remains the case at the time of decision. Therefore, the applicant meets the requirements of cl.802.214(1)(a) at the time of application and continues to meet this requirement at the time of decision.Not engaged in full-time work At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:·cl.802. 214(1)(c) of Schedule 2 to the Regulations; and·cl.802. 221(2)(b) of Schedule 2 to the Regulations.Moira BrophyMember

Ratio Decidendi

Legal Principle Established

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