Sao (Migration) - [2022] AATA 2788

Sao (Migration) [2022] AATA 2788 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Alice Sao
CASE NUMBER:  2104213
HOME AFFAIRS REFERENCE(S):          BCC2020/2609007
MEMBER:Stephen Conwell
DATE:30 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 30 June 2022 at 3:03pm
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 – At the time of visa application the applicant was not engaged in a course of full-time study – cl.802.214 does not continue to be met at the time of decision – evidence of her 19 month study gap – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cls 802.214, 802.221

CASES
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 Home Affairs on 1 April 2021 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 6 November 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, which require the applicant to satisfy certain criteria related to work and study, as well as not be in certain categories of relationship.
The delegate refused to grant the visa on the basis that cl.802.214(1)(c) was not met because the delegate found that the applicant had not been a full-time, continuous student since she turned 18 years of age.
The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.
The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections as to conducting the hearing in this manner.
The applicant and her parents, Mr Sapati Sao and Mrs Faaleo Sao participated in the hearing by video on 30 June 2022 to give…

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 Sao (Migration)

Details

AGLC: Sao (Migration) [2022] AATA 2788
Case: [2022] AATA 2788
Decision Date: 30 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, subclass 802, made by an applicant who had turned 18. The applicant arrived in Australia in January 2006 and lodged her application in November 2020, at which time she was 23 years old. The Tribunal, presided over by Stephen Conwell, was required to determine whether the applicant met the criteria for the visa, specifically those relating to post-secondary studies for applicants aged 18 and over.

The central legal issue was whether the applicant satisfied clause 802.214(1)(c) of the Migration Regulations 1994, which requires that an applicant aged 18 or over, at the time of application, must have been undertaking a full-time course of study since turning 18 or within a reasonable time thereafter. Crucially, this criterion, along with others, must continue to be met at the time of the decision, as per clause 802.221(2)(b). The Tribunal also considered whether the applicant met the requirements of clauses 802.214(1)(a) (relationship status) and 802.214(1)(b) (not engaged in full-time work).

The Tribunal found that the applicant met the criteria regarding her relationship status and was not engaged in full-time work. However, the applicant had a significant study gap of 19 months and had not been engaged in a course of full-time study since turning 18. The Tribunal noted that the applicant had worked approximately 40 hours a week in a casual job for several months in 2021, which was the primary reason for changing her enrolment from full-time to part-time study. Applying the principles from *Sok v MIMIA* [2005] FMCA 190 regarding the interpretation of "reasonable time" and the need for continuous full-time study, the Tribunal concluded that the applicant had not met the requirements of clause 802.214(1)(c) at the time of the application, nor had she continued to meet it at the time of the decision.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Child (Residence) (Class BT) visa.

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 the applicant satisfies certain criteria under cl.802.214(1)(c) applicable to applicants aged 18 years or over, relating to post-secondary studies.Criteria 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). The applicant arrived in Australia on 18 January 2006 as the holder of a subclass 444 visa. She lodged this application on 6 November 2020. Since she was born on 4 September 1997 she was 23 years of age when this application was lodged.Relationship status 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). The applicant told the Tribunal that she had never been engaged, or been the spouse or a de facto partner in a relationship. Based on the written and oral evidence, the Tribunal is satisfied that at the time of the application, the applicant was not engaged to be married, did not have a spouse or de facto partner, and had never had a spouse or de facto partner. Accordingly, the applicant met the requirements of cl.802.214(1)(a) at the time of application. The Tribunal is satisfied that the applicant continues to meet this requirement at the time of 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). The applicant told the Tribunal that she had never been engaged in full time work and has been supported by her parents. However the applicant told the Tribunal that for several months in 2021 she was working approximately 40 hours a week in her casual job and this was the main reason she changed her enrolment from full-time to part-time study. The Tribunal considers this period of employment to be approaching full-time work, nevertheless, the Tribunal is prepared to accept that the applicant has never been engaged in full-time work and has been financially reliant on her parents, since her arrival in Australia in January 2006. Accordingly, the Tribunal is satisfied that the applicant meets this requirement.Full-time study (or incapacitated for work) At the time of application, the 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 educational institution leading to the award of a professional, trade or vocational qualification: cl.802.214(1)(c). This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl.802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. This requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.802.214(2).

Decision

Reasons for decision

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.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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