Serrano (Migration) - [2024] ARTA 463

SERRANO (MIGRATION) [2024] ARTA 463 (6 NOVEMBER 2024)

DECISION AND

REASONS FOR DECISION

Applicant:Mr Kevyn Nuqui Serrano
Respondent: Minister for Home Affairs
Tribunal Number: 2016387

Tribunal:Alison Murphy
Place:Melbourne
Date: 6 November 2024
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

I, Senior Member A Murphy certify this is the
Tribunal's statement of decision and reasons.

Statement made on 6 November 2024 at 8:54am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant is over 18 – applicant ceased all studies for almost four years – applicant had not been undertaking a full-time course of study at an educational institution –– 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 REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 October 2020 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the Philippines, born in May 1995. He arrived in Australia in August 2018 as the holder of a visitor visa and applied for the Child (Residence) (Class BT) Subclass 802 visa on 25 June 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 802.214. In particular the delegate was not satisfied that the applicant was not engaged in full time work as required by cl 802.214(1)(b), nor that the applicant met the study requirement contained in cl 802.214(1)(c).
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.
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 meets the criteria for applicants over the age of 18 set out in cl 802.214.

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).
In this case the delegate was not satisfied the applicant met the study and work requirements contained…

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 Serrano (Migration)

Details

AGLC: Serrano (Migration) [2024] ARTA 463
Case: [2024] ARTA 463
Decision Date: 6 November 2024

CaseChat Overview and Summary

In this case, the Federal Circuit and Family Court of Australia was called upon to review a decision made by the Department of Home Affairs regarding the applicant's subclass 802 (Child) visa. The applicant, who was over 18 years of age, sought to affirm the decision which had rejected their visa application. The core of the dispute centred around the applicant's eligibility for the visa, particularly given their age and the cessation of their studies for nearly four years.

The legal issues before the court involved the interpretation and application of the relevant legislative and policy frameworks governing the subclass 802 visa. Specifically, the court had to determine whether the applicant met the criteria of being a child, which included being under the age of 18 and actively engaged in full-time study. Given that the applicant had not been enrolled in any educational institution for almost four years, the court had to assess whether this long period of non-study qualified as an exception or whether it rendered the applicant ineligible for the visa.

The court found that the applicant did not meet the criteria for the subclass 802 visa due to their age and the prolonged absence from full-time study. The court emphasised that the legislative and policy requirements for the visa were strict and could not be met by the applicant's circumstances. The decision of the Department of Home Affairs to reject the visa application was affirmed by the court, upholding the administrative decision. The court's reasoning was grounded in the statutory language and policy guidelines that underscored the necessity for the applicant to be actively engaged in study and to be under 18 years of age at the time of the visa application.

Orders