Noan (Migration) - [2025] ARTA 135

NOAN (MIGRATION) [2025] ARTA 135 (30 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Daniel Salkimut Kanawi Noan
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2101728

Tribunal:Kira Raif
Place:Sydney
Date:30 January 2025
Decision:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 30 January 2025 at 09:13am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – study requirements – not engaged in studies when application made – later studies, with long gap, and current study – limited options – no evidence of mental health provided – delays in processing of application – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.214(1)(c), 802.221(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 REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 27 January 2021 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant is a national of PNG, born in December 1998. He applied for the visa on 17 July 2019. The delegate refused to grant the visa on the basis that the requirements of cl. 802.214 were not met as the delegate was not satisfied the applicant met the study requirements. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 14 and 29 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, sister and step-father. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law

5. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
6. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.214.

If,…

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 Noan (Migration)

Details

AGLC: Noan (Migration) [2025] ARTA 135
Case: [2025] ARTA 135
Decision Date: 30 January 2025

CaseChat Overview and Summary

The case of Noan involved an applicant seeking a Child (Residence) (Class BT) visa, specifically a subclass 802 (Child) visa. The primary issue was whether the applicant met the necessary study requirements and the impact of a significant gap in his studies on his eligibility for the visa. The matter was heard and determined by the Tribunal, which was tasked with reviewing the decision not to grant the visa.

The legal issues before the Tribunal included whether the applicant had fulfilled the study requirements for the subclass 802 visa, particularly given the substantial gap in his studies. Additionally, the Tribunal considered the effect of delays in the processing of the application and the applicant's overall eligibility for the visa. The Tribunal needed to determine if the applicant was an orphan relative or an adopted child, as these categories would affect his eligibility for the visa.

The Tribunal reviewed the evidence and concluded that the applicant, being over the age of 18 at the time of application, did not qualify as an orphan relative. There was also no evidence to support that the applicant was an adopted child of the sponsor, leading the Tribunal to find that he did not meet the requirements for the Adoption visa. The Tribunal found that the applicant had not provided evidence of mental health issues and noted the long gap in his studies, which negatively impacted his eligibility. The Tribunal also acknowledged delays in processing the application but found these did not alter the substantive outcome. Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Residence) (Class BT) visa.

The Tribunal's final orders affirmed the decision not to grant the applicant the Child (Residence) (Class BT) visa. The applicant's appeal was dismissed, and the earlier decision remained in effect.

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

As the applicant was over the age of 18 at the time of application, he does not meet the definition of orphan relative and the requirements for the grant of the Orphan Relative visa. There is also no evidence to indicate the applicant is an adopted child of the sponsor and the Tribunal is not satisfied he meets the requirements for the grant of the Adoption visa. DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Date(s) of hearing 14 and 29 January 2025Representative for the Applicant:

Ratio Decidendi

Legal Principle Established

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