Tran (Migration) - [2022] AATA 2959

Tran (Migration) [2022] AATA 2959 (15 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Le Xuan Tran
VISA APPLICANT:  Mr Anh Loc Nguyen
REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)
CASE NUMBER:  2015714
HOME AFFAIRS REFERENCE(S):          2019007334 OSF2019/007334
MEMBER:Stephen Conwell
DATE:15 July 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 15 July 2022 at 3:57pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – reasonable time – lengthy period studying for English tests – leading to the award of a professional, trade or vocational qualification – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221
CASES
Dai v MIAC [2007] FMCA 1345
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 28 August 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant (applicant) applied for the visa on 2 August 2019. 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, which comprises of criteria that must be satisfied by visa applicants who are 18 or older at the time of application.
The delegate refused to grant the visa on the basis that cl.101.213 was not met because of not being satisfied based on the available information that the applicant had, since turning 18 or within six months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, been undertaking the relevant study as required by cl.101.213(1)(c).
The review applicant (the sponsor) provided a copy of the decision record to the Tribunal for the purpose of the merits review.
The applicant was represented in relation to the review by her registered migration agent (representative).
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 by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing by video. The parties raised no objections as to…

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.

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Details

AGLC: Tran (Migration) [2022] AATA 2959
Case: [2022] AATA 2959
Decision Date: 15 July 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, where the applicant was over 18 years of age. The applicant sought review of a decision not to grant the visa. The Tribunal was required to determine whether the applicant met the criteria for applicants aged 18 years or over, specifically concerning full-time study.

The primary legal issue before the Tribunal was whether the applicant had fulfilled the requirements of clause 101.213(1)(c) of the Migration Regulations 1994. This clause mandates that applicants over 18 must have, since turning 18 or within a reasonable time after completing the equivalent of Year 12, been undertaking a full-time course of study leading to a professional, trade, or vocational qualification. The Tribunal also considered the interpretation of "reasonable time" in this context, referencing the principles established in *Sok v MIMIA* [2005] FMCA 190.

The Tribunal found that while the applicant met the relationship and full-time work criteria, he failed to satisfy the study requirement. The applicant, aged 24 at the time of application, had a significant gap in his studies. The Tribunal noted that the provision contemplates a single full-time course of study, and that determining a "reasonable time" involves considering the surrounding circumstances, including the actual time involved, activities undertaken, their purpose, and reasons for any inactivity. The Tribunal concluded that the applicant's lengthy period studying for English tests, while leading to a qualification, did not satisfy the requirement of undertaking a full-time course of study in the manner contemplated by the regulations.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Child (Migrant) (Class AH) visa, Subclass 101, as the criteria for the visa were not met.

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 this case is whether the applicant has fulfilled the criteria 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 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). The applicant was born on 1 January 1995 and lodged this application on 18 March 2019, when he was 24 years of age.Relationship status and history 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.101.213(1)(a). This must continue to be the case at the time of this decision: cl.101.221(2)(b). According to file notes dated 12 February 2020 of his interview with a Departmental official, (Departmental file fols.86-91), as well as the applicant’s oral testimony at hearing, the applicant has never been engaged, or been the spouse or a de facto partner in a relationship. Based on this 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.101.213(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 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). According to a Departmental file notes mentioned above, the applicant confirmed that he had worked part-time as a waiter in restaurants and also held a two month ‘summer internship’ at an electronics importer, for which he was provided accommodation and transportation, but received no wages stores. The Department accepted that the applicant had not engaged in full-time work. Based on the written and oral evidence, the Tribunal is also satisfied that at the time of the application, the applicant was not engaged in full-time work. The Tribunal is satisfied that the applicant continues to meet this requirement 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 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 101.213(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 101.213(2).

Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Stephen ConwellMember

Ratio Decidendi

Legal Principle Established

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