Mandipensa (Migration) - [2022] AATA 2270

Mandipensa (Migration) [2022] AATA 2270 (6 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Efren Hospital Mandipensa
VISA APPLICANTS:  Miss Sidona Benongcasan Mandipensa
Miss Tawaga Benongcasan Mandipensa
CASE NUMBER:  2104338
HOME AFFAIRS REFERENCE(S):          2018362346
MEMBER:Margie Bourke
DATE:6 April 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named visa applicants meet the following criteria for a Subclass 101 (Child) visa:
·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 06 April 2022 at 4:23pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicants over 18 – applicants undertaking a full-time course of study at an educational institution leading to an award of a professional trader vocational qualification – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.04, Schedule 2, cls 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
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 9 March 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visas on 25 October 2018. 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 the requirements for visa applicants that had turned 18 at the time of application in cl 101.213 and cl.101.221.
The delegate refused to grant the visas on the basis that the first named visa applicant, Sidona Mandipensa, did not meet the requirements of cl.101.221(2)(b), amd the second named visa applicant, Tawaga Mandipensa, did not meet the requirements of cl 101.213 and cl.101.221(2)(b) because the delegate was not satisfied that the visa applicants met the requirements in relation to being a full-time student.
The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the visa applicants and the nature of the review. The Tribunal had regard to considerations that the conduct of the hearing by video would give the applicants the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to assess the evidence before it. The Tribunal noted that the hearing did not involve a large amount of paperwork to…

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 Mandipensa (Migration)

Details

AGLC: Mandipensa (Migration) [2022] AATA 2270
Case: [2022] AATA 2270
Decision Date: 6 April 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered applications for Child (Migrant) (Class AH) visas, subclass 101, made by two applicants who had turned 18. The dispute centred on whether these applicants met specific criteria for the visa, particularly those relating to their relationship status, engagement in full-time work, and undertaking a full-time course of study.

The Tribunal was required to determine if the applicants satisfied the requirements of clause 101.213 and clause 101.221(2)(b) of Schedule 2 to the Migration Regulations. Specifically, this involved assessing whether the applicants, having turned 18, were not engaged to be married or in a spousal or de facto relationship, were not engaged in full-time work, and were undertaking a full-time course of study leading to a professional, trade, or vocational qualification, both at the time of application and at the time of the decision.

The Tribunal found that the applicants met the criteria regarding their relationship status and their engagement in full-time work, both at the time of application and at the time of the decision. The Tribunal noted that clause 101.213(1)(c) contemplates a single full-time course of study, referencing the principles established in *Sok v MIMIA* [2005] FMCA 190 regarding the interpretation of a "reasonable time" for commencing such study. While the Tribunal was satisfied on the evidence that the applicants met the relationship and work criteria, it did not make a specific finding on the full-time study requirement in the provided text.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister, with a direction that the first and second named visa applicants met the criteria specified in cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCECriteria for applicants over 18 If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).Relationship status and history At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b). I am satisfied based on the oral evidence before me that the two visa applicants were not engaged to be married and did not have a spouse or de facto partner and had never had a spouse or de facto partner at the time of application. I am further satisfied that at the time of decision the two visa applicants were not engaged to be married and did not have a spouse or de facto partner, and have never had a spouse or de facto partner. Accordingly, the Tribunal is satisfied that the two visa applicants meet the requirements of cl 101.213(1)(a) at the time of application, and continue to meet these requirements at the time of decision.Not engaged in full-time work At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b). I am satisfied based on the oral evidence before me that the two visa applicants were not engaged in full-time work at the time of application. I am further satisfied that at the time of decision the two visa applicants were not engaged in full-time work. Accordingly, the Tribunal is satisfied that the two visa applicants meet the requirements of cl 101.213(1)(b) at the time of application, and continue to meet these requirements at the time of decision.Full-time study (or incapacitated for work) At the time of application, the visa 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 101.213(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(2).

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matters to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named visa applicants meet the following criteria for a Subclass 101 (Child) visa:·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations. Margie BourkeMember

Ratio Decidendi

Legal Principle Established

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