Phan (Migration) - [2019] AATA 1927

Phan (Migration) [2019] AATA 1927 (21 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Thi Hai Phan
VISA APPLICANT:  Miss Thi Hong Nhung Tran
CASE NUMBER:  1700469
HOME AFFAIRS REFERENCE(S):           OSF2016/038689
MEMBER:Kira Raif
DATE:21 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
· cl.101.211(1)(a) of Schedule 2 to the Regulations; and
· cl.101.213 of Schedule 2 to the Regulations; and
· cl. 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 21 February 2019 at 10:35am

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 Part 101, cls 101.211(1)(a), 101.213, 101.221
CASES
Dai v MIAC [2007] FMCA 1345

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 Immigration and Border Protection on 14 December 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of Vietnam, born in November 1994. She applied for the visa on 7 July 2016. The delegate refused to grant the visa on the basis that cl.101.213 and cl. 101.221 were not met because the delegate was not satisfied the visa applicant met the study requirements. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner and the pastor of her church. 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 registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
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 (the Regulations). 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).
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…

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

Case: [2019] AATA 1927
Decision Date: 21 February 2019

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, specifically Subclass 101. The applicant, who had turned 18, was seeking to satisfy the study requirements and be recognised as a dependent child of the sponsor. The decision under review was made by the Minister.

The primary legal issues before the Tribunal were whether the visa applicant had satisfied the study requirements, specifically that the courses undertaken were on a full-time basis, and whether the applicant was a dependent child of the sponsor. The Tribunal was required to interpret the provisions of Schedule 2 to the Regulations concerning these criteria.

The Tribunal found that the provisions appeared to contemplate a single full-time course of study and was satisfied that the courses undertaken by the applicant were indeed on a full-time basis. Furthermore, the Tribunal was satisfied that the funds provided by the sponsor were considerably greater than what would be expected for a non-dependent child, supporting the conclusion that the visa applicant was a dependent child of the sponsor.

Consequently, the Tribunal remitted the application to the Minister for reconsideration, with a direction that the visa applicant met the criteria under cl.101.211(1)(a), cl.101.213, and cl.101.221(2)(b) of Schedule 2 to the Regulations. The Minister was directed to consider the remaining criteria for the 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

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.DECISION The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:·cl.101.211(1)(a) of Schedule 2 to the Regulations; and·cl.101.213 of Schedule 2 to the Regulations; and·cl. 101.221(2)(b) of Schedule 2 to the Regulations.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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