Le (Migration) - [2025] ARTA 403

LE (MIGRATION) [2025] ARTA 403 (4 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Thi Tu Le
Visa Applicant:  Mr Phan Anh Khoa Le
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2317224

Tribunal:Kira Raif
Place:Sydney
Date:4 March 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 04 March 2025 at 2:21pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – applicant was over the age of 18 – not satisfied the visa applicant had been undertaking a full-time course of study – study requirement not met – Tribunal has not been necessarily to consider the application of PIC 4020 – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221, 101.223

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

STATEMENT OF REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 November 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant is a national of Vietnam, born in March 1994. He made the application for the visa on 10 December 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 101.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the visa applicant met Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) seeks review of the delegate’s decision.
In May 2019 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review and the matter has been remitted to the Tribunal for reconsideration.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The review applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Procedural history
On 4 December 2024 the Tribunal wrote…

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.

Continue reading Le (Migration)

Details

AGLC: Le (Migration) [2025] ARTA 403
Case: [2025] ARTA 403
Decision Date: 4 March 2025

CaseChat Overview and Summary

The matter under consideration was an application for review of a decision by the delegate of the Minister for Immigration and Border Protection, who had refused to grant the applicant a subclass 101 (Child) visa. The applicant, who was over the age of 18 at the time of the decision, contested the delegate's determination on the basis that he had been undertaking a full-time course of study, thus satisfying the study requirement for the visa. The applicant also argued that he met Public Interest Criterion 4020 (PIC 4020) under clause 101.223, which requires a positive public interest assessment. The Federal Circuit and Family Court of Australia was tasked with reviewing the decision of the delegate.

The primary legal issue was whether the applicant met the study requirement for the subclass 101 (Child) visa, which necessitates that the applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification since turning 18 or within a reasonable time after completing the equivalent of year 12 in the Australian school system. The court was also required to determine if the Tribunal had correctly assessed the application of PIC 4020, which involves a positive public interest assessment.

The court found that the Tribunal had correctly decided that the study requirement was not met, as there was insufficient evidence to substantiate that the applicant had been undertaking a full-time course of study. Furthermore, the court held that the Tribunal was not necessarily required to consider the application of PIC 4020, as the primary issue of the study requirement was not satisfied. The court determined that the delegate's decision to refuse the visa was correct and affirmed the decision under review.

The final orders of the court were that the decision of the delegate be affirmed, and the application for review be dismissed. The applicant was also ordered to pay the respondent's costs of the proceeding.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The delegate noted that the certification from the People’s Committee confirmed that the Adoption Petition was valid, however, the previous verbal advice from the civil registrar of the People’s Committee indicated that the adoption was not recorded, supporting the finding that the Adoption Petition was false or misleading. Evidence to the first Tribunal The following is a brief summary of evidence that was before the previous Tribunal. The review applicant informed the previous Tribunal that Mr Nguyen was the vice-chairman of the People’s committee and had signed the adoption document. The seal was not available at the time and could not be affixed. The visa applicant’s parents were asked to return later to have the seal affixed but had not done so. When the visa applicant prepared to make the visa application, they had approached Mr Nguyen who agreed to affix the overdue seal. The visa applicant stated that the adoption was voluntary between siblings and there was no written document, so the authority had indicated that there was no evidence of registration of the adoption. The review applicant provided to the previous Tribunal a number of documents including a legal opinion and articles concerning legal adoption requirements. The Tribunal did not consider it plausible that the visa applicant’s parents did not return to the office to have the seal affixed. The Tribunal did not accept that the adoption was issued in 1997 and ultimately found that the Adoption document purportedly issued in December 1997 was a bogus document. The delegate also noted that while the visa applicant provided a statement confirming the adoption was valid, the oral advice from the Commune indicated there was no evidence of adoption. It was concluded that the information provided in the certification issued in February 2016 contained false or misleading information. Study requirement At the time of application, the applicant must have, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl 101.213 (1)(c). This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl 802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl 101.213.

Decision

Reasons for decision

Another issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 101.223. Primary decision The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant made the application in December 2015. In March 2016 the visa applicant submitted in support of the application a Petition of Adoption, dated 20 December 1997, issued by the local Peoples Committee. The Petition for Adoption was certified with the stamp of the People’s Committee showing the abbreviation for Thi Xa Cai Lay town. The delegate notes that Thi Xa Cai Lay was only established as a town from December 2013 and previously (and at the time of the Adoption Petition) the stamp should have read Huyen Cai Lay. The delegate found that this inconsistency indicated that the Petition for Adoption was not stamped in 1997. The delegate also noted that investigations confirmed that while the Adoption Document was signed by Mr Nguyen, he listed himself as a chairman but at the time of the Petition he was the vice-chairman. The delegate wrote to the visa applicant requesting further evidence of adoption. The visa applicant and sponsor claimed, in response, that there were no legal documents relating to child adoption available in 1997 so the adoption was written by the child’s biological parents on paper and notarised by the local People’s Committee. The visa applicant provided a statement from the local People’s Committee, issued in February 2016, confirming the Petition for Adoption was still valid and adoption was recorded with the local authorities and a statement from the local leader confirming the 1997 adoption was true. The delegate notes that according to the relevant laws at the time, the adoption is recognised by the local People’s Committee. However, it is stated that the current civil registrar of the local People Committee verbally confirmed in July 2016 that there was no record of the applicant’s adoption recorded on the file. The Local Committee provided confirmation certificate by the Chairman in August 2016 stating that the applicant’s adoption by the sponsor was genuine but the People’s Committee had no record of this on their files. The delegate invited the visa applicant’s comments on the suspected fact that the Petition of Adoption issued in December 1997 and the Certification by the People’s Committee issued in February 2016 were not genuine documents. In response, the visa applicant claimed that his parents approached the local People’s Committee in December 1997 to witness the adoption and they were told to make an application. The vice-chairman had signed the document but the seal was not affixed at the time. The visa applicant explained that before he lodged the application, his mother travelled to the People’s Committee and the stamp was affixed to assist with the visa application process. The visa applicant explains that the seal showing Thi Xa Cai Lay was used because it was affixed late to the document. The visa applicant presented a number of statements in support of these claims, including a statement from the vice-chairman of the People’s committee Mr Nguyen.

Ratio Decidendi

Legal Principle Established

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