Tantowidjojo (Migration) - [2025] ARTA 663

TANTOWIDJOJO (MIGRATION) [2025] ARTA 663 (8 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Nurmawati Dorkas Tantowidjojo
Visa Applicant:  Mr Daniel Kristanto
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2105358

Tribunal Member: Senior Member M Sripathy
Place:Sydney
Date: 8 April 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.213 of Schedule 2 to the Regulations; and
·cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 08 April 2025 at 3:58pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – temporary pauses to study due to financial hardship – reasonable time – essentially intermittent nature of study – English courses – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221
CASES
Alam v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 630
Hussain v MIBP [2017] FCCA 3247
MIAC v Henschel [2013] FCCA 584
Nur Alam v Minister for Immigration [2001] FCA 789
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Valu v MIMA (No.2) [2025]FedCFamC2G 95
Wake v MIAC [2010] FMCA 272
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 3 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 5 November 2018. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.213.
The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met at time of application because the delegate was not satisfied the visa applicant was enrolled and actively participating in a course of full time study for a cumulative period of 27 months after the commencement of his post-secondary studies.
The review applicant (sponsor) applied for review to the Administration Appeals Tribunal on 26 April 2021.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that…

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 Tantowidjojo (Migration)

Details

AGLC: Tantowidjojo (Migration) [2025] ARTA 663
Case: [2025] ARTA 663
Decision Date: 8 April 2025

CaseChat Overview and Summary

In the case of Tantowidjojo (Migration), the applicant, an Indonesian national born in December 1993, sought a Subclass 101 (Child) visa under the Migration Act. The delegate had previously rejected the application on the basis that the applicant had not met the requirement of being engaged in a full-time course of study within a reasonable time after completing the equivalent of year 12 in the Australian school system. The applicant, who was 24 at the time of application, argued that he had been enrolled in a hairdressing course until June 2016 and subsequently took a break due to financial difficulties, resuming his studies in September 2018. The matter was brought before the Administrative Appeals Tribunal (AAT) for review.

The primary legal issue before the AAT was whether the applicant had been engaged in a full-time course of study for a reasonable time after completing year 12 or was incapacitated for work. The Tribunal needed to determine if the 27-month gap in the applicant's studies constituted a reasonable break and if the applicant had remained enrolled in an educational institution leading to a professional, trade, or vocational qualification. The Tribunal also had to consider the nature of the applicant's intermittent study and financial constraints.

The Tribunal found that the delegate had erred in their assessment by not adequately considering the reasonable nature of the applicant's gap in studies. The Tribunal noted that the applicant had been engaged in full-time study until June 2016 and subsequently took a break due to financial hardship. The Tribunal concluded that the 27-month gap, while significant, was reasonable given the applicant's financial circumstances and his resumption of full-time study in September 2018. The Tribunal also highlighted that the applicant's English courses were an integral part of his ongoing education. Consequently, the Tribunal set aside the delegate's decision and remitted the matter for reconsideration, directing that the applicant meets the criteria for a Subclass 101 (Child) visa.

The Tribunal's decision underscores the importance of considering the individual circumstances of applicants when assessing their eligibility for a Subclass 101 (Child) visa. By remitting the matter for reconsideration, the Tribunal provided an opportunity for the delegate to properly evaluate the applicant's situation, including the reasonable nature of the study break and the applicant's resumption of studies. This decision serves as a reminder to decision-makers to carefully consider all relevant factors when determining visa eligibility.

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 is set aside and the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicant, an Indonesian national, born in December 1993, was 24 years old at the time of application. He is now 31 years old. He indicated that he was never married or in a de facto relationship. His mother and sister reside in Australia and his father is deceased. At the time of application, 5 November 2018, he indicated he was undertaking a Bachelor of Theology, commenced in September 2018 and estimated to be completed in September 2022. He stated he was financially supported by his mother in Australia for food and other needs. The application was sponsored by the applicant’s mother, the review applicant, who is an Australian permanent resident and submitted a sponsorship Form 40SP. Documents provided in support of the application included the visa applicant’s passport and birth certificate; a Diploma certificate in hair dressing issued on 3 June 2016, student card in the applicants name, issued by Universitas Kristen Petra, valid until 2017, and a student reference letter acknowledging the applicant is a student at Sekolah Tinggi Teologi Yestoya since 26 September 2018. The delegate’s decision statement refers to a request sent on 16 November 2018 for evidence of the applicant’s study between June 2016 and September 2018 and evidence of past and current employment if any[1] and the following documents provided by the applicant:·A statement from the applicant’s sister Dina Ekastevia dated 16 October 2018 confirming the applicant completed a hairdressing course on 3 June 2016, and then has stop his study and decided to stay home because he was not sure what other type of course that he wanted to do in that time. ·Academic transcript for the study year 2018/2019 from Sekolah Tinggi Teologi Yestoya.·Letter from applicant stating he stopped his study activity between June 2016 and September 2018 because his mother did not have the financial capacity to support his education, and describing his activities in this period. ·A letter from the applicant’s mother Nurmawati Dorkas Tantowidjojo confirming the applicant did not study from June 2016 through to September 2018 due to her financial incapacity to support his study.[1] The Tribunal notes, as indicated also in the representative’s submission to the Tribunal of 14 January 2025, that a copy of this request is not included in the Department file documents provided to the Tribunal, although it is referred to as an attachment in an email sent. The nature of the response documents appear to suggest that the request for information was sent. The delegate considered the evidence provided and the criteria in cl.101.213(1)(c). The delegate accepted the applicant was enrolled and actively participating in a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification from 5 July 2012 to 3 June 2016, but found that he did not resume full time study at Sekolah Tinggi Teologi Yestoya, until 26 September 2018 and therefore there was a 27-month gap in study. Having considered policy on acceptable breaks in study the delegate concluded he did not meet the requirements of paragraph 101.213(1)(c) at the time of lodgement. Evidence before the Tribunal

Decision

Reasons for decision

In these circumstances, the Tribunal considers 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 101.213 of Schedule 2 to the Regulations; and·cl 101.221(2)(b) of Schedule 2 to the Regulations.Date of hearing: 13 February 2025Representative for the Applicant: Mrs Marina Orihova Zhang

Ratio Decidendi

Legal Principle Established

The Tribunal has read the above judgement referred to by the representative, which relates to a Subclass 560 Student visa and an issue about a criteria that required the applicant to have complied substantially with the conditions to which the visa was subject. The judgement clearly does not address the issue under consideration in this matter, nor does the Federal Court make any finding, observation or dicta asserted by the representative. The Tribunal considers the representative’s decision to perpetuate the original error by referring the Tribunal to another authority that bore little relevance to the matter is unfortunate and unsatisfactory. At best it reflects poorly on their competence, and at worst, if seen as intending to mislead the Tribunal, has the potential to raise a concern about the representative’s compliance with professional standards.[2] It was also unnecessary given the reference in the prehearing submissions to the correct and more relevant authority (Hussain v Minister for Immigration & Anor) as will be discussed further below. CONSIDERATION[2] The Tribunal is mindful in this respect of the recent Federal Circuit Court decision in Valu v MIMA (No.2) [2025] FedCFamC2G 95. 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 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).Relationship status and history At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b). On the evidence provided in the application, to the Department and to the Tribunal at hearing the Tribunal is satisfied that applicant is currently and was at time of application, not married or engaged to be married and has never had a spouse or de facto partner. Accordingly, cl 101.213(1)(a) is met and continues to be met at the time of decision.Not engaged in full-time work At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b). On the evidence of the financial transfers provided to the Department and Tribunal and evidence to the Tribunal from the review and visa applicants at hearing confirming the visa applicant’s activities and circumstances and her ongoing financial support, the Tribunal is satisfied the visa applicant has not been engaged in full time work to date. Accordingly, cl 101.213(1)(b) is met and continues to be met at the time of decision.Full-time study (or incapacitated for work) 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 educational institution leading to the award of a professional, trade or vocational qualification: cl 101.213(1)(c). 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 101.213(2).