Moodley (Migration) - [2024] AATA 3992

Moodley (Migration) [2024] AATA 3992 (17 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Tiger Jean Samuel Moodley
REPRESENTATIVE:  Miss Waranun Ekkasame
CASE NUMBER:  2015220
HOME AFFAIRS REFERENCE(S):          CLF2019/45026
MEMBER:Kira Raif
DATE:17 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 17 September 2024 at 1:06pm
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18 – is presently engaged in full-time work – applicant had not engaged in any formal study at the time of application – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cls 802.214, 802.221

CASES
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 30 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the UK, born in September 2000. He applied for the visa on 25 October 2019. The delegate refused to grant the visa on the basis that cl 802.214 was not met because the delegate was not satisfied the applicant met the study requirements. The applicant seeks review of the delegate’s decision.
The Tribunal’s hearing was scheduled to take place on 11 September 2024. On the late afternoon of 10 September 2024 the applicant’s representative requested the hearing to be postponed on the basis that the applicant’s parents were not available to give evidence. The Tribunal has considered the request but decided not to postpone the hearing. The Tribunal notes that the applicant has been given the prescribed period of notice of the hearing and received two hearing reminders, by SMS, prior to the hearing. He was aware of the hearing date and time well before the hearing was due to take place. The Tribunal notes that the key issue on review is the visa applicant’s study, including his study at the time the application was made. This is a finding of fact for the Tribunal and it does not depend, in any way, on the evidence of the applicant’s parents. The Tribunal is also mindful that the applicant’s parents have had the opportunity to provide written submissions to the Tribunal in the four years since the application was made. Having regard to these factors, the Tribunal decided not to postpone the hearing and determined that the hearing should proceed at the scheduled time.
The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his father Mark Moodley (who has not made any claims about his unavailability). The applicant was represented in relation to the review.
At the request…

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 Moodley (Migration)

Details

AGLC: Moodley (Migration) [2024] AATA 3992
Case: [2024] AATA 3992
Decision Date: 17 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Subclass 802 (Child) visa. The applicant, who had turned 18, was presently engaged in full-time work but had not undertaken any formal study at the time of the visa application. The Tribunal affirmed the decision not to grant the visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Subclass 802 visa, specifically in light of their age and employment status at the time of application, and the absence of formal study. The Tribunal also noted that no claims had been advanced in respect of any other visa subclass within Class BT.

The Tribunal's reasoning focused on the eligibility requirements for the Subclass 802 visa. As the applicant had passed their 18th birthday and was not engaged in formal study, they did not satisfy the relevant criteria for this visa subclass. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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