Moreno (Migration) - [2017] AATA 805

Moreno (Migration) [2017] AATA 805 (2 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Loida Moreno
VISA APPLICANT:  Mr Sander Moreno
CASE NUMBER:  1517958
DIBP REFERENCE(S):  OSF2015/032513
MEMBER:Catherine Wall
DATE OF DECISION:  2 May 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Statement made on 02 May 2017 at 8:59am

CATCHWORDS
Migration – Child (Migrant)(Class AH) visa – Subclass 101 – Full-time study requirements – Not dependent child – Not undertaking full-time study leading to professional, trade or vocational qualification – No waiver on compassionate grounds

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.213, cl 101.221(2)(b)

CASES
Sok v MIMIA [2005] FMCA 190
Wake v MIAC [2010] FMCA 272

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 November 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Sander Moreno is a 25 year old citizen of the Philippines. He applied to the Department of Immigration for the visa on 9 April 2015. His visa application is sponsored by his mother, Ms Loida Moreno, a 45 year old Australian citizen. Mr Moreno is the review applicant in this matter. 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).

3. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied that the full-time study requirements were met.

4. A record of the delegate’s decision was provided to the Tribunal for the purpose of review.

5. Ms Moreno appeared before the Tribunal on 28 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Sander Moreno, and from his sister, Carla Luis.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Additional criteria for applicants over 18

7. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

Full-time study (or incapacitated for work)

8. 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). However, this requirement does not apply in the case…

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 Moreno (Migration)

Details

AGLC: Moreno (Migration) [2017] AATA 805
Case: [2017] AATA 805
Decision Date: 2 May 2017

CaseChat Overview and Summary

The applicant, Moreno, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse her application for a Child (Migrant) (Class AH) visa, subclass 101. The application was made by her mother on her behalf. The core of the dispute concerned whether Moreno met the criteria for the visa, specifically the requirements relating to full-time study and dependency.

The Federal Court was required to determine whether the Minister's delegate had erred in finding that Moreno was not a dependent child and was not undertaking full-time study leading to a professional, trade, or vocational qualification, as required by the Migration Regulations 1994. The Court also considered whether there were any grounds for a waiver of these requirements on compassionate grounds.

Justice Wall found that the delegate's decision was not affected by jurisdictional error. The delegate had correctly applied the relevant criteria in the Migration Regulations. The evidence before the delegate did not establish that Moreno was undertaking full-time study leading to a professional, trade, or vocational qualification. Furthermore, the delegate was not satisfied that Moreno was a dependent child as defined by the regulations. Consequently, the delegate was not empowered to grant the visa, and there were no compassionate grounds that could override these specific visa requirements.

Orders