Opoku-Ware v MIBP

The applicant, Opoku-Ware, sought judicial review of a decision by the Migration Review Tribunal (MRT) to refuse her application for a Child (Migrant) (Class AH) visa. The application was heard by Lloyd-Jones J in the Federal Court of Australia.

The central legal issue before the court was whether the MRT had erred in its construction of clauses 101.213(1)(c) and 101.221(2)(b) of the Migration Regulations. The applicant contended that a literal interpretation of these clauses, particularly the use of the present perfect continuous tense in clause 101.213(1)(c), would lead to unfairness and absurdity, and was inconsistent with the purpose of the regulation, which she argued was to facilitate migration for children genuinely dependent on their parents.

Lloyd-Jones J considered the grammatical construction of the relevant clauses. Clause 101.213(1)(c) required the applicant to have "been undertaking" further full-time studies, a phrase in the present perfect continuous tense. Clause 101.221(2)(b) stipulated that for applicants over 18 at the time of application, they must "continue to satisfy the criterion in clause 101.213" at the time of the decision. The court accepted the Minister's submission that the present perfect continuous tense, in the absence of further contextual words indicating a cessation of the action, describes an action that has commenced and remains ongoing. The judge reasoned that the word "continues" in clause 101.221(2)(b) further reinforced the requirement that the applicant must still be undertaking studies at the time of the decision. To interpret the clauses otherwise, the court found, would permit applicants to cease meeting the dependency criteria immediately after lodging their application, which would be inconsistent with the purpose of the visa subclass.

The court ordered that the applicant be granted an extension of time to file her application, but ultimately dismissed the application as amended. The applicant was also ordered to pay the first respondent's costs.