Nguyen (Migration) - [2021] AATA 3832

Nguyen (Migration) [2021] AATA 3832 (20 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Thi Lai Nguyen
VISA APPLICANT:  Ms Truc Ly Nguyen
CASE NUMBER:  1835488
HOME AFFAIRS REFERENCE(S):          2018/009542 OSF2018/009542
MEMBER:M. Edgoose
DATE:20 September 2021
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 20 September 2021 at 11:51am
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – part-time English studies between degrees – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 26 October 2018 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 applied for the visa on 12 January 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 cl 101.213 and cl 101.221.
The delegate refused to grant the visa on the basis that cl 101.213 and cl 102.221was not met.
The review applicant appeared before the Tribunal on 20 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Truc Ly Nguyen the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The review applicant was represented in relation to the review by her representative.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria 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).
The visa applicant confirmed at hearing that she is not engaged to be married and does not have and never has had a…

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2021] AATA 3832
Case: [2021] AATA 3832
Decision Date: 20 September 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the applicant was over 18 years of age at the time of application. The Administrative Appeals Tribunal was required to determine whether the applicant met the relevant criteria for the visa, specifically concerning full-time study.

The primary legal issue before the Tribunal was whether the applicant had met the requirement under clause 101.213(1)(c) of the Migration Regulations 1994, which mandates that an applicant over 18 must have, since turning 18 or within a reasonable time after completing Year 12, been undertaking a full-time course of study leading to a qualification. This requirement must also continue to be met at the time of the decision, as per clause 101.221(2)(b). The Tribunal had to consider the applicant's study history, including a gap between degrees and part-time English studies, to determine if this criterion was satisfied.

The Tribunal reasoned that clause 101.213(1)(c) contemplates a continuous period of full-time study, or a reasonable time after completing Year 12 during which relevant activities were undertaken. While acknowledging that a single qualification might involve study at different institutions, the Tribunal found that the applicant's history did not demonstrate a continuous undertaking of full-time study. Specifically, a period of part-time English studies between completing one degree and commencing another was not considered to satisfy the requirement of undertaking a "full-time course of study" in the manner contemplated by the regulation. The Tribunal applied the principles from cases such as *Sok v MIMIA* and *Hussain v MIBP*, focusing on the characterisation of the applicant's conduct over the relevant period.

Consequently, the Tribunal concluded that the applicant had not met the criteria for the grant of a Subclass 101 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.

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 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). The visa applicant confirmed at hearing that she is not engaged to be married and does not have and never has had a spouse or de facto partner. Accordingly, cl 101.213(1)(a) is met. It continues to be met 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). The visa applicant informed the Tribunal at hearing that she is not engaged in any form of work as she is a full-time student. Accordingly, cl 101.213(1)(b) is met. It continues be met 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). Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

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.M. EdgooseMember

Ratio Decidendi

Legal Principle Established

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