Tuicake (Migration) - [2024] AATA 3646

Tuicake (Migration) [2024] AATA 3646 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Laite Nariu Kamikamica Tuicake
REPRESENTATIVE:  Mr Harry De (MARN: 1791193)
CASE NUMBER:  2016424
HOME AFFAIRS REFERENCE(S):          CLF2020/11566
MEMBER:Kira Raif
DATE:1 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 01 October 2024 at 11:15am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant previously engaged – children of the relationship – previous full-time work – full-time studies ceased – compassionate and compelling reasons – request for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.216, 802.221, 806.226; r 1.03
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
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 20 October 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 is a national of Fiji, born in March 1995. She applied for the visa on 18 March 2020. The delegate refused to grant the visa on the basis that cl 802.214 was not met because the delegate was not satisfied the applicant met the study requirements. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 1 October 2024 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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. That clause provides that if, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).
Criteria for applicants over 18
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 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b).
In oral evidence the applicant told the Tribunal that she was engaged to her partner in 2021 for about…

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: Tuicake (Migration) [2024] AATA 3646
Case: [2024] AATA 3646
Decision Date: 1 October 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal affirmed a decision not to grant the applicant a Child (Residence) (Class BT) visa, specifically Subclass 802. The applicant, who had been previously engaged and had children from that relationship, sought this visa.

The primary legal issue before the Tribunal was whether the applicant met the criteria for the grant of a Subclass 802 visa. This involved assessing whether there were compassionate and compelling reasons for the visa to be granted, particularly in light of the applicant's cessation of full-time studies and previous full-time work. The Tribunal also considered a request for Ministerial Intervention.

The Tribunal's reasoning focused on the applicant's failure to satisfy the visa criteria. No claims were advanced in respect of any other visa subclass within Class BT, such as Subclass 837. Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. 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.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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