Pasuengos (Migration) - [2023] AATA 1422

Pasuengos (Migration) [2023] AATA 1422 (11 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Melanor Cabrera Pasuengos
REPRESENTATIVE:  Ms Cyril Gabito (MARN: 1383988)
CASE NUMBER:  2015829
HOME AFFAIRS REFERENCE(S):          CLF2020/2051
MEMBER:Peter Emmerton
DATE:11 May 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 11 May 2023 at 12:15pm
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had not been a continuous full-time student since turning 18 – applicant has turned 18 – have not studied for a period in excess of 3.5 years post turning 18 – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cls 802.214, 802.221

CASES
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 13 October 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 21 January 2020. 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).
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.
The requirements of cl.802.214 (requirement to be met at time of application) are as follows.
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full-time work; and
(c) subject to subclause (2), the applicant has, 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.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the
application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
The delegate refused to grant the visa on the basis that cl 802.214(1)(c) and cl.802.214(2) were not met (requirement to be met at time of application). This was because the applicant has not been a continuous full-time student since they turned 18 nor was the applicant dependent due to being incapacitated for work…

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 Pasuengos (Migration)

Details

AGLC: Pasuengos (Migration) [2023] AATA 1422
Case: [2023] AATA 1422
Decision Date: 11 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by Melanor Cabrera Pasuengos. The dispute centred on whether the applicant met the specific criteria for the visa, particularly those applicable to applicants over 18 years of age.

The primary legal issue before the Tribunal was to determine if the applicant satisfied the requirements of clauses 802.214(1)(c) and 802.214(2) of the Migration Regulations. These clauses relate to the applicant's study history and the continuation of meeting certain criteria at the time of the decision. Specifically, the Tribunal had to assess whether the applicant had been a continuous full-time student since turning 18.

The Tribunal's reasoning focused on the applicant's study history post-18 years of age. It noted that the applicant had not been a continuous full-time student and had not studied for a period exceeding 3.5 years after turning 18. While the applicant met the relationship status criteria (cl 802.214(1)(a)) and the criterion of not being engaged in full-time work (cl 802.214(1)(b)), the failure to meet the study requirement under cl 802.214(1)(c) was determinative. The Tribunal applied the principle that all relevant criteria must be met at the time of the decision, as stipulated by cl 802.221(2)(b).

Consequently, the Tribunal concluded that the applicant did not meet the criteria for the grant of a Subclass 802 visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed by the Tribunal.

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 EVIDENCE The issue in the present case is whether or not the applicant meets the requirements of cl 802.214(1)(c) and cl.802.214(2). The Tribunal has reviewed and considered the following evidence presented to the delegate and the Department.·IMMI Acknowledgement of Valid Application - Post Lodgement Melanor Cabrera.PDF·Covering letter (email) - point_of_contact, Cyril Gabito ·802 - Melanor Cabrera Pasuengos ·CLF2020-2051 – Application for Child Visa·CLF2020-2051 – Application for Child Visa·CLF2020-2051 – Application for Child Visa·CLF2020-2051 – Application for Child Visa·s56 Request for More Information ·s56 Request for More Information ·Covering letter (email) – point of Contact Cyril Gabito ·s56 Request for Information·Supporting document - s56 Request for Information·IMMI Refusal Notification with Decision Record ·Covering letter (email) - Point_of Contact Cyril Gabito ·AAT Disclosure Checklist - Melanor Cabrera Pasuengo The Tribunal has reviewed and considered the following evidence presented to it prior to the hearing.·Passport – Melanor Cabrera Pasuengos·Birth Certificate - Melanor Cabrera Pasuengos·Notice of Visa Grant – subclass 100 – Melanie Vaska·Secondary Education – Academic Records·BA in Business Administration – Academic Records·Cert III in Individual Support – Academic Records·Certificate IV in Human Resources – Academic Records·Bank Statements - Melanor Cabrera Pasuengos·Bank Statements - Melanie Vaska·Court Document – Melanie Vaska·Legal documents – Paul Vaska·Statement – Melanie Vaska·Correspondence from TAFE SA – current studyCriteria for applicants over 18 If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).Relationship status and history At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b). Question 14 of Form 47CH asks about the relationship status of the applicant. The delegate accepted as factual that the applicant had never married or been in a de facto relationship. Under questioning at the hearing, the applicant satisfied the Tribunal that they had never been married or been in a de facto relationship and no evidence has been presented to the Tribunal that establishes a contrary conclusion. Accordingly, cl 802.214(1)(a) is met. It continues to be met at the time of this decision.Not engaged in full-time work At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).DECISION The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa. Peter EmmertonMember

Ratio Decidendi

Legal Principle Established

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