Mujibullah (Migration) - [2024] AATA 4013

Mujibullah (Migration) [2024] AATA 4013 (9 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mujibullah Mujibullah
VISA APPLICANT:  Miss - Halaza
REPRESENTATIVE:  Mr Mohammed Anwar (MARN: 2318178)
CASE NUMBER:  2317070
HOME AFFAIRS REFERENCE(S):          BCC20224746048
MEMBER:Kira Raif
DATE:9 October 2024
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 09 October 2024 at 9:30am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 – study requirement – living as refugee in another country with no access to formal education – incapacity for work – mental health – medical report based on one telephone interview – no claim of mental health in application – unsafe situation in third country – possibility of applying for ministerial consideration – decision under review affirmed
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
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 31 August 2023 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 claims to be a stateless person, born in July 2004. She applied for the visa on 4 November 2022. The delegate refused to grant the visa on the basis that cl 101.213 was not met because the delegate was not satisfied the visa applicant met the study requirement. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 24 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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. It provides that if, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).
Does the visa applicant meet the study requirement?
Relationship status and history
At the time of application, the visa applicant must not be engaged to be…

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

AGLC: Mujibullah (Migration) [2024] AATA 4013
Case: [2024] AATA 4013
Decision Date: 9 October 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a visa applicant who was over 18 years of age. The applicant was living as a refugee in another country and claimed to have no access to formal education, be incapacitated for work, and suffer from mental health issues. The Tribunal's decision was based on a medical report that was prepared following a single telephone interview.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Subclass 101 visa, particularly in light of their age and circumstances. The Tribunal also implicitly considered whether the applicant's stated inability to access education, incapacity for work, and mental health issues were sufficiently established to warrant a departure from the standard visa requirements. The Tribunal noted that no claims had been advanced in respect of other visa subclasses within Class AH, namely Subclass 102 and Subclass 117.

The Tribunal affirmed the delegate's decision not to grant the visa. The reasoning appears to have been that the criteria for the visa were not met. While the applicant presented information regarding their refugee status, lack of educational access, work incapacity, and mental health, the Tribunal found these circumstances did not satisfy the requirements for the Subclass 101 visa. The Tribunal also noted the possibility of applying for ministerial intervention, suggesting that the applicant's situation might warrant consideration outside the standard visa application process.

The Tribunal affirmed the decision not to grant the visa applicant a Child (Migrant) (Class AH) 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 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Kira Raif Senior Member

Ratio Decidendi

Legal Principle Established

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