Rushidovska (Migration) - [2021] AATA 4576

Rushidovska (Migration) [2021] AATA 4576 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Firdes Rushidovska
CASE NUMBER:  2008806
HOME AFFAIRS REFERENCE(S):          CLF2019/26301
MEMBER:John Longo
DATE:17 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl 802.214 of Schedule 2 to the Regulations; and
·cl 802.221(2) of Schedule 2 to the Regulations.

Statement made on 17 November 2021 at 10:37am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – full-time studies – reliant on the sponsor for financial support – not engaged in full-time work – family illness – impact of the COVID-19 pandemic – valid reasons delaying the completion of studies – reasonable time – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221; rr 1.03, 1.05
CASES
Berenguel v MIAC [2010] HCA 8
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Wake v MIAC [2010] FMCA 272
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 8 May 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, Miss Firdes Rushidovska, applied for the visa on 6 June 2019. 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, cl 802.226A), the criteria to be met in this case include cl 802.214(1)(c), which requires the visa applicant, since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, to undertake continuous full-time study at an educational institution leading to the award of a professional, trade or vocational qualification.
The delegate refused to grant the visa on the basis that cl 802.214(1)(c) was not met because the delegate was not satisfied that the applicant had been continuously studying since the age of 18.
The applicant appeared before the Tribunal on 28 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brian Mujedinovski, the applicant’s uncle, and Ms Louise Kamberi, the applicant’s stepmother. Ms Deborah Trott also provided submissions in support. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian…

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 Rushidovska (Migration)

Details

AGLC: Rushidovska (Migration) [2021] AATA 4576
Case: [2021] AATA 4576
Decision Date: 17 November 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the application of Miss Rushidovska for a Child (Residence) (Class BT) visa, Subclass 802. The central dispute concerned whether Miss Rushidovska met the criteria for being a dependent child, particularly after turning 18, and whether she had undertaken continuous full-time study.

The Tribunal was required to determine if Miss Rushidovska qualified as a "dependent child" under the Migration Regulations 1994, specifically whether she was reliant on her sponsor for financial support to meet basic needs, and if she had undertaken continuous full-time study since turning 18 or within a reasonable time after completing the equivalent of Year 12. The Tribunal also needed to consider the impact of family illness and the COVID-19 pandemic on her ability to complete her studies within a reasonable timeframe.

The Tribunal found that Miss Rushidovska, having turned 18, was indeed reliant on her father and stepmother for financial support to meet her basic needs, satisfying the definition of a dependent child under regulation 1.03(b)(i) and regulation 1.05A. The Tribunal noted that the applicant had provided evidence of this reliance and that her father had made a statutory declaration confirming his ongoing financial support.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that Miss Rushidovska met the criteria under cl 802.214 and cl 802.221(2) of Schedule 2 to the Regulations.

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 matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether, since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, the applicant has undertaken continuous full-time study.Dependent child criteria The criterion in cl 802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl 802.221(1) or (2)(a).Dependent child At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl 802.212(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [39], [44]. Miss Rushidovska confirmed that she turned 18 years of age on 14 September 2016. Miss Rushidovska confirmed at hearing that she was residing with her maternal grandmother in Macedonia prior to coming to Australia in February 2016. Since arriving in Australia, Miss Rushidovska stated that she has lived with her father, stepmother, and other siblings. The written submissions provided to the Department also indicate that they have continued to provide financial support to Miss Rushidovska since coming to Australia. Mr Rushidovski also provided a statutory declaration to the Tribunal stating that he has provided financial support to Miss Rushidovska since arriving in Australia in February 2016 and that he will continue to do so. The Tribunal finds that Miss Rushidovska is reliant on her father and stepmother for support, and to meet her basic needs. The Tribunal finds the applicant is over 18 years of age, and she is a dependent child of an eligible person at the time of application and decision (see reg 1.03(b)(i)). Accordingly, cl 802.212(1)(a) is met at the time of application and continues to be met at the time of decision. For the reasons above, the criteria in cl 802.212 are met.Criteria for applicants over 18 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 802.214. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

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 (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:·cl 802.214 of Schedule 2 to the Regulations; and·cl 802.221(2) of Schedule 2 to the Regulations.John LongoMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 Definitions…dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:(a)has not turned 18; or(b)has turned 18 and:(i) is dependent on that person; or(ii) is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.…step-child, in relation to a parent, means:(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or(b)a person who is not the child of the parent but:(i) who is the child of the parent’s former spouse or former de facto partner; and(ii) who has not turned 18; and(iii) in relation to whom the parent has:(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.1.05A Dependent(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:(a)at the time when it is necessary to establish whether the first person is dependent on the other person:(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions. …

Ratio Decidendi

Legal Principle Established

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