Mudzinganganya (Migration) - [2021] AATA 656

Mudzinganganya (Migration) [2021] AATA 656 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Chiedza Mudzinganganya
VISA APPLICANTS:  Miss GAMUCHIRAI MUDZINGANYAMA
Mr CHARLES PANASHE MUDZINGANYAMA
CASE NUMBER:  2006173
HOME AFFAIRS REFERENCE(S):          OSF2019/022296
MEMBER:Margie Bourke
DATE:10 March 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations; and

DECISION:The Tribunal affirms the decision not to grant the second named visa applicant the Child (Migrant) (Class AH) visa.

Statement made on 10 March 2021 at 1:28pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – study requirement for applicants over 18 – undertaking full-time study within reasonable time after completing high school – second applicant failed final high school exams – first applicant took gap year then enrolled at university – late payment of fees, state of emergency, COVID-19 restrictions and frequent power cuts – unable to study – enrolled at another university in another country, but unable to travel or study online – decision under review remitted for first applicant, affirmed for second applicant
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Reyes v MIAC [2007] FMCA 1721
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 26 February 2020 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 15 May 2019. 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 sets out the requirements for visa applicants aged 18 years and over at the time of application.
The delegate refused to grant the visas on the basis that cl 101.213 was not met because the delegate was not satisfied that either visa applicant met the study requirements at the time of application.
The Tribunal had regard to the circumstances of the review applicant and the visa applicants and the nature of the review. The Tribunal had regard to its objective is to provide a mechanism for review that was fair, just, economical, informal and quick. The Tribunal was satisfied he did not need to put a large quantity of documents to the applicant…

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.

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Details

Case: [2021] AATA 656
Decision Date: 10 March 2021

CaseChat Overview and Summary

This matter concerned an appeal before the Migration Review Tribunal regarding applications for Child (Migrant) (Class AH) visas, specifically Subclass 101 (Child) visas, made by two applicants. The core dispute revolved around whether the applicants, who were over 18 at the time of application, met the study requirements stipulated by the relevant regulations. The first applicant had completed high school, taken a gap year, and then enrolled at university, but faced significant obstacles including late fee payments, a state of emergency, COVID-19 restrictions, and power outages, which prevented her from studying. She subsequently enrolled at a university in another country but was unable to travel or study online. The second applicant had failed their final high school exams.

The Tribunal was required to determine if both applicants met the criteria for a Subclass 101 visa, particularly concerning the requirement for applicants over 18 to be undertaking a full-time course of study within a reasonable time after completing the equivalent of Year 12, or if they were incapacitated for work. The Tribunal also had to consider whether these requirements continued to be met at the time of the decision. The applicants also needed to satisfy requirements regarding their relationship status and not being engaged in full-time work.

The Tribunal found that both applicants met the criteria relating to their relationship status and not being engaged in full-time work. However, the assessment of the study requirement differed for each applicant. For the first applicant, the Tribunal accepted that the circumstances she encountered, including the state of emergency, COVID-19 restrictions, and power outages, constituted a reasonable explanation for the delay and inability to study, and that her subsequent attempts to enrol in overseas study were also hindered by external factors. Consequently, the Tribunal determined that the decision under review for the first applicant should be remitted back to the Department for reconsideration, with a direction that she met the relevant criteria. For the second applicant, who had failed their final high school exams and did not appear to have met the study requirement within a reasonable time, the Tribunal affirmed the decision not to grant 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

For the following reasons, the Tribunal has concluded that the decision under review of the first named visa applicant should be remitted back to the Department for reconsideration, and the decision under review of the second named visa applicant should be affirmed.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). Based on the consistent evidence of the review applicant and both visa applicants’ father, I am satisfied that both visa applicants have never been engaged to be married, have never been married and have never had a de facto partner. Accordingly, I am satisfied that both visa applicants meet the requirements of cl 101.213(1)(a) and continue to meet the requirements of cl.101.213(1)(a) 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). Based on the consistent evidence of the review applicant and both visa applicants’ father, I am satisfied that both visa applicants have never been engaged in any employment, either part-time or full-time. Accordingly, I am satisfied that both visa applicants meet the requirements of cl 101.213(1)(b) and continue to meet the requirements of cl.101.213(1)(b) 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

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met by the second named visa applicant. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117) by the second named visa applicant.DECISION The Tribunal remits the application for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations; and The Tribunal affirms the decision not to grant the second named visa applicant the Child (Migrant) (Class AH) visa.Margie BourkeMember

Ratio Decidendi

Legal Principle Established

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