Uren (Migration) - [2024] AATA 2891

Uren (Migration) [2024] AATA 2891 (31 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Maria Bella Villarta Uren
VISA APPLICANT:  Ms Jasmin Villarta Candelario
REPRESENTATIVE:  Ms Cyril Gabito (MARN: 1383988)
CASE NUMBER:  2105603
HOME AFFAIRS REFERENCE(S):          CLF2020/19324
MEMBER:Peter Emmerton
DATE:31 July 2024
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 31 July 2024 at 12:59pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – relationship status and history – not engaged in full-time work – full-time study (or incapacitated for work) – substantial break in study – ‘force majeure’ – reasonable period – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213, 101.221
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 23 February 2021 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 applied for the visa on 3 June 2020. 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(1)(c) and 101.213(2).
The delegate refused to grant the visa on the basis that cl 101.213(c) was not met because they were not satisfied the applicant had been in full-time study since turning 18. Nor were they satisfied that the requirements of 101.213(2) were met as no evidence was tendered to demonstrate that the over 18 applicant was dependent due to being incapacitated for work due to the partial loss of the child’s bodily or mental functions. This was also agreed during the hearing by the review applicant.
The review applicant appeared before the Tribunal on 31 July 2024 to give evidence and present arguments. The Tribunal found the review applicant to be credible and honest with no evidence of obfuscation.
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 to satisfy clause 101.213(1)(c) the applicant needs to demonstrate that at the time the application was lodged they were validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification. The applicant must produce evidence of both enrolment and their active participation, in the course of study. In…

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 Uren (Migration)

Details

AGLC: Uren (Migration) [2024] AATA 2891
Case: [2024] AATA 2891
Decision Date: 31 July 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for a Child (Migrant) (Class AH) visa (subclass 101). The applicant, born in January 1997, lodged their application on 3 June 2020, making them 23 years old at the time. The core dispute revolved around whether the applicant met the criteria stipulated in clause 101.213(1)(c) of the Migration Regulations 1994, which requires an applicant over 18 to be validly enrolled in and actively participating in a full-time post-secondary course of study leading to a professional, trade, or vocational qualification. This requirement must have been met since turning 18 or commenced within six months, or a reasonable period, after completing secondary education, and must continue to be met at the time of the decision.

The Tribunal was required to determine if the applicant satisfied the study requirements under clause 101.213(1)(c). Specifically, it needed to assess whether the applicant was actively participating in a full-time course of study and whether there had been a substantial break in their studies that was not excused by a force majeure event or a reasonable period. The Tribunal also considered the applicant's relationship status under clause 101.213(1)(a), which requires the applicant not to be engaged and not to have had a spouse or de facto partner, a criterion that must also continue to be met at the time of the decision.

The Tribunal affirmed the delegate's decision to refuse the visa. While the applicant met the relationship status requirements, the Tribunal found that the applicant had not demonstrated they were actively participating in a full-time course of study at the time of application. The evidence presented, including academic transcripts and information regarding a typhoon, indicated a substantial break in the applicant's studies. The Tribunal concluded that this break was not adequately explained by a force majeure event or a reasonable period, and therefore, the criteria for the grant of a Subclass 101 visa were not met. The Tribunal affirmed the decision not to grant 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

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 to satisfy clause 101.213(1)(c) the applicant needs to demonstrate that at the time the application was lodged they were validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification. The applicant must produce evidence of both enrolment and their active participation, in the course of study. In addition, the applicant must have been undertaking that course since turning 18 years of age or have commenced the studies within six months or a reasonable period after completing secondary education. The Tribunal has read and carefully considered the evidence presented to the delegate and the Department. The Tribunal has read and carefully considered the following additional evidence provided to the AAT prior to hearing.·Submission by the Representative, Ms Gabito - 24 July 2024·Passport bio page of Jasmin Villarta Candelario- expiry date- 31/05/2032·Birth certificate of Jasmin Villarta Candelario·Partner Visa Grant for Maria Bella Villarta- 09/03/2020·Statement by Maria Bella Villarta ·Statement by Jasmin Villarta Candelario·Department notice of refusal of application for a Child (Migrant) (class AH) (subclass 101) visa - 23/02/2021·Department Decision Record- 23/02/2021·Academic transcript of Jasmin Villarta Candelario from St. Catherine’s College·Typhoon info/news·Further submission of dated 29 July 2024 – money transfer receipts·Additional money transfer receipts dated 29 July 2024Criteria 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’s Date of Birth is in January 1997 as verified by a copy of their passport. The applicant lodged the application on 3 June 2020. The Tribunal accepts the applicant was 23 at the time of application. The Tribunal questioned the review applicant during the hearing in relation to the visa applicant and when she turned 18 years of age and is satisfied DOB is correct. 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). The Tribunal accepts that the statement made in the application in Question 13 of Form 47 CH indicates to the Tribunal that the applicant satisfies cl 101.213(1)(a) as they are not engaged and never been in a spousal or de facto relationship. This was also accepted by the delegate. This was confirmed by the review applicant at the hearing. Accordingly, cl 101.213(1)(a) is met and it continues to be met at the time of decision. Not engaged in full-time work

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.Peter EmmertonMember

Ratio Decidendi

Legal Principle Established

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