Rodger (Migration) - [2024] AATA 692

Rodger (Migration) [2024] AATA 692 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Class AH) Child (Subclass 101) visa under s 65 of the Migration Act 1958 (Cth)
APPLICANT:  Paul Ian Mansit TIGLAO
SPONSOR:Craig Robert RODGER
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2110036
HOME AFFAIRS REFERENCE:               CLD2020/1740
MEMBER:Kate Chapple
DATE:26 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Class AH) Child (Subclass 101) visa.
The Tribunal refers the case to the Department to be brought to the attention of the Minister.

Statement made on 26 February 2024 at 3:16pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – applicant was over 18 years of age and not enrolled in and participating in full time education – break in the applicant’s study occurred after completion of his first full-time, post-secondary university course of study – mother’s terminal cancer diagnosis with limited life expectancy – unique and exceptional circumstance – there are circumstances that warrant the case being brought to the Minister’s attention – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 101.213
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2021 to refuse to grant the applicant a Child (Class AH) Child (Subclass 101) visa (‘child visa’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant applied for the child visa on 10 January 2021. The delegate refused to grant the child visa on the basis that the applicant did not satisfy the requirements of subclause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because, per the delegate’s decision:
The applicant turned 18 years of age on 6 February 2017.
At the time the application was lodged the applicant advised in his application form 47CH that the date of completion of his study at Our Lady of Fatima University was 21 March 2019. He advised he was not currently undertaking a post-secondary course of study.
An Our Lady of Fatima University graduation certificate confirmed completion of studies in a Bachelor of Science in Information Technology on 21 March – the year was not decipherable on the certificate but on information provided elsewhere in the application this supports graduation in March 2019.
A letter from the sponsor of the applicant, signed on 28 November 2019, stated that the applicant graduated from his University Studies in Information Technology in March 2019 and at the time of writing of the letter the applicant was considering enrolling in a Masters Degree in Computer Engineering in the next semester.
Therefore at the time the application was lodged, the applicant was over 18 years of age and not enrolled…

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 Rodger (Migration)

Details

AGLC: Rodger (Migration) [2024] AATA 692
Case: [2024] AATA 692
Decision Date: 26 February 2024

CaseChat Overview and Summary

This matter concerned an application for a Child (Class AH) visa, subclass 101, by an applicant who had turned 18 and was not enrolled in full-time education, having completed a post-secondary university course. A break in study occurred after the completion of this course. The applicant's mother, an Australian citizen, had a terminal cancer diagnosis with a limited life expectancy. The case was before the Administrative Appeals Tribunal (AAT).

The primary legal issue before the Tribunal was whether the applicant met the criteria for the Child (Subclass 101) visa, specifically provision 101.213(1)(c) of Schedule 2 to the Regulations, which requires applicants over 18 to be enrolled and participating in full-time education. A secondary issue was whether the circumstances of the case were sufficiently unique or exceptional to warrant referral for ministerial intervention under sections 351, 417, or 501 of the Migration Act 1958 (Cth).

The Tribunal found that the applicant did not satisfy the specific educational requirement of provision 101.213(1)(c). However, it noted that the applicant was otherwise continuing in full-time university study and met other visa requirements. The Tribunal reasoned that the mother's terminal illness, the close relationship between mother and applicant, and the resulting distress constituted strong compassionate circumstances. Furthermore, the separation placed a considerable burden on the sponsor, who was the primary carer for the applicant's mother and a daughter with high special needs. Considering the applicant's demonstrated commitment to family care and his desire to spend time with his mother and assist in her care, alongside his ability to complete his studies online in Australia and his strong future employability, the Tribunal concluded that these constituted unique or exceptional circumstances warranting referral to the Minister.

The Tribunal affirmed the decision not to grant the visa but referred the case to the Department for consideration of ministerial intervention.

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

The Tribunal considers that the evidence supports the following conclusions:28.1.While the applicant does not satisfy the requirements of provision 101.213(1)(c) of Schedule 2 to the Regulations, he continues in full-time university study and otherwise satisfies the requirements.28.2.The ongoing separation of the applicant and his mother is causing considerable distress to both individuals given their very close relationship and the mother’s terminal cancer diagnosis with limited life expectancy.28.3.The applicant’s separation from his Australian family unit is placing a considerable burden on the sponsor who, while also in full-time employment in a position of managerial responsibility, is the primary carer of the applicant’s mother and their daughter who has high special needs.28.4.As the applicant has shown his commitment to family in the Philippines by caring for his ill grandmother, the applicant not only wishes to have time with his mother before she passes and to build a relationship with his younger stepsister, he also wishes to share in the responsibility for their care.28.5.The applicant is able to complete his current course of study online in Australia.28.6.On completion of his current course of study, the applicant will have been conferred two bachelor’s degrees in information technology and computer science and is likely to be highly employable in those fields.28.7.The unique or exceptional circumstance set out in paragraph 27 of this decision record is satisfied warranting the case being referred to the Department to be brought to the attention of the Minister. 28.8.The particular circumstances of the case warrant priority attention.DECISION The Tribunal affirms the decision not to grant the applicant a Child (Class AH) Child (Subclass 101) visa. The Tribunal refers the case to the Department to be brought to the attention of the Minister.Kate ChappleMember

Ratio Decidendi

Legal Principle Established

The Tribunal therefore finds that the applicant does not satisfy the requirements of provision 101.213(1)(c) of Schedule 2 to the Regulations.REFERRAL FOR CONSIDERATION OF MINISTERIAL INTERVENTION The sponsor provided to the following material to the Tribunal following the hearing:25.1.Covering letter from sponsor.25.2.Screenshots of the current academic results for the primary review applicant Bachelor of Science in Computer Science for the years 2021 to 2024. 25.3.Statement by applicant dated 20 February 2024. 25.4.Letter from Darling Point Special School dated 2 February 2024. 25.5.NDIS activity statements for the period of 16 November 2023 and 15 December 2023, 16 December 2023 and 15 January 2024, 16 January 2024 and 15 February 2024 25.6.NDIS Assessment Report dated 6 October 2023. The Tribunal notes the Minister’s guidelines on ministerial powers (s 351, s 417 and s 501). The Tribunal notes the section in the Guidelines titled, ‘Cases that should be brought to my attention – unique or exceptional circumstances’, and notes in the particular the following circumstances:Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or Australian permanent resident. The Tribunal considers that the evidence supports the following conclusions:28.1.While the applicant does not satisfy the requirements of provision 101.213(1)(c) of Schedule 2 to the Regulations, he continues in full-time university study and otherwise satisfies the requirements.28.2.The ongoing separation of the applicant and his mother is causing considerable distress to both individuals given their very close relationship and the mother’s terminal cancer diagnosis with limited life expectancy.28.3.The applicant’s separation from his Australian family unit is placing a considerable burden on the sponsor who, while also in full-time employment in a position of managerial responsibility, is the primary carer of the applicant’s mother and their daughter who has high special needs.28.4.As the applicant has shown his commitment to family in the Philippines by caring for his ill grandmother, the applicant not only wishes to have time with his mother before she passes and to build a relationship with his younger stepsister, he also wishes to share in the responsibility for their care.28.5.The applicant is able to complete his current course of study online in Australia.28.6.On completion of his current course of study, the applicant will have been conferred two bachelor’s degrees in information technology and computer science and is likely to be highly employable in those fields.28.7.The unique or exceptional circumstance set out in paragraph 27 of this decision record is satisfied warranting the case being referred to the Department to be brought to the attention of the Minister. 28.8.The particular circumstances of the case warrant priority attention.DECISION