Lemlem (Migration) - [2023] AATA 3515

Lemlem (Migration) [2023] AATA 3515 (3 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Kidane Chekol Lemlem
VISA APPLICANT:  Mr Mulugeta Asmelash Haile
REPRESENTATIVE:  Mr Graham T Scarratt (MARN: 9801552)
CASE NUMBER:  2118240
HOME AFFAIRS REFERENCE(S):          BCC2020/2570240
MEMBER:Meena Sripathy
DATE:3 October 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 03 October 2023 at 5:25pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicant over 18– the study requirement is not met at the time of decision – not satisfied that he is incapacitated for work because of loss of bodily or mental functions – not satisfied that the on the job training leading to the award of a professional, trade or vocational qualification – decision under review affirmed

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

CASES
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463
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 13 October 2021 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 applied for the visa on 17 March 2020. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.213.
The delegate refused to grant the visa on the basis that cl 101.213 was not met because the delegate found there was no evidence the applicant was enrolled in or participating in full time education since he turned 18 and there was also no evidence that he was incapacitated for work due to the total or partial loss of bodily or mental functions.
The visa applicant’s sponsor, his mother, applied for review to the Tribunal.
The review applicant appeared before the Tribunal on to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya, Tigrinya (Ethiopian) and English languages. The review applicant was represented in relation to the review.
The issue in this case is whether the visa applicant has, 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: cl103.213(1)(c). The visa applicant must continue to meet this requirement at…

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 Lemlem (Migration)

Details

AGLC: Lemlem (Migration) [2023] AATA 3515
Case: [2023] AATA 3515
Decision Date: 3 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to refuse a Child (Migrant) (Class AH) visa, subclass 101, for an applicant born in 1995. The applicant, an Eritrean citizen residing in Ethiopia, was sponsored by his mother, an Australian citizen. The Department had initially requested evidence regarding the applicant's student status and financial support, and later requested DNA testing to confirm the biological relationship, which was provided. The delegate refused the visa application, finding that the applicant did not meet certain criteria under the Migration Regulations.

The primary legal issues before the Tribunal were whether the applicant met the requirements of clause 101.213(1)(c) and clause 101.213(2) of the Migration Regulations. Specifically, the Tribunal had to determine if the applicant was a full-time student at the time of application and had been continuously so since turning 18, or if he was incapacitated for work due to loss of bodily or mental functions, or if he was undertaking on-the-job training leading to a professional, trade, or vocational qualification. The Tribunal also considered a recent Federal Court decision, *Khan v Minister for Immigration, Citizenship and Multicultural Affairs* [2023] FCA 463, which clarified that the relevant study must have commenced at the time of visa application.

The Tribunal affirmed the delegate's decision, finding that the applicant had not satisfied the requirements of the visa. Despite the sponsor's statutory declaration indicating the applicant was studying Auto Mechanic, no enrolment letter was provided, and the explanation for its absence was deemed insufficient. Furthermore, the Tribunal was not satisfied that the applicant met the criteria for incapacity for work or for on-the-job training. The evidence provided, including money transfers and a rental agreement, did not establish that the applicant was a full-time student as required by the regulations at the time of application. The Tribunal noted that the applicant could still make a request directly to the Minister and that further evidence addressing the broader circumstances might be considered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department The following information was provided in the application form. The visa applicant was born in 1995 in Emrakuba, Sudan. He is an Eritrean citizen and has been residing in UNHCR Hitsats Camp Tigray, Ethiopia since June 2016. He indicates he is never married. No other members of the family unit are indicated. His father is deceased and his mother resides in Australia. He studied at Adi Guri School in Mendefera, Eritrea from September 2011 to December 2012. At the time of application he is not undertaking any post secondary course of study. He indicates no employer and is financially supported by his mother in Australia since June 2016 and ongoing. The visa applicant is sponsored by his mother, who was born in 1961 in Ethiopia and is an Australia citizen by grant in April 2016. She indicates the visa applicant is her natural child. A completed Form 80 was also submitted at time of application. On 18 January 2021 and again on 26 February 2021 the Department requested evidence the applicant was a full time student at the time the application was lodged, and is still a student; evidence he has been a continuous full time student since turning 18; and an explanation of any periods when the applicant was not studying, including why he was not studying, how he supported himself and full details of any employment including income and hours worked. On 3 June 2021 evidence of money transfers, telephone charges and a rental property agreement was provided in response. On 14 June 2021 the Department invited the applicant to undergo DNA testing. This invitation was taken up and evidence of the biological relationship was provided on 24 September 2021. On 13 October 2021 the delegate refused the application, not being satisfied that cl. 101.213(1)(c) or cl.101.213(2) was met. Evidence before the Tribunal The sponsor applied for review to the Tribunal on 3 December 2021. No further evidence was submitted. On 23 July 2023, upon constitution of the matter, an officer of the Tribunal wrote to the review applicant and invited evidence addressing the issued under consideration , cl101.213(1)(c), and any submissions addressing a recent Federal Court decision Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463 which confirmed that cl. 101.213(1)(c) requires that the visa applicant must have commenced the relevant study at the time of application for the visa (at para [70]). On 7 August 2023 the Tribunal received evidence of three further money transfers from the sponsor to the visa applicant in 2022 and 2023 and a Statutory Declaration by the sponsor stating that the visa applicant has been studying Auto Mechanic but she is unable to provide a letter of school enrolment due to her son’s manager being on leave and she requests 2-3 weeks for his return. She also wishes to advise her son is experiencing hardship and his safety and wellbeing are at risk as an Eritrean citizen and she is extremely worried about his safety as his mother.

Decision

Reasons for decision

The Tribunal notes that the applicant can still make a request directly to the Minister. The review applicant may wish to provide further evidence and supporting documentation addressing the broader circumstances of the visa applicant in a submission. DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Meena SripathyMember

Ratio Decidendi

Legal Principle Established

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