Uro (Migration) - [2020] AATA 3944

Uro (Migration) [2020] AATA 3944 (29 July 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jomari Vingona Uro
CASE NUMBER:  1930137
HOME AFFAIRS REFERENCE(S):          CLF2018/356985
MEMBER:Helena Claringbold
DATE:29 July 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 29 July 2020 at 11:37am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18– full-time study requirements not met– applicant was not enrolled in full-time study – financial hardship – no discretion to waive the time of application requirements – decision under review affirmed
LEGISLATION
Migration Act 1958, s 360
Migration Regulations 1994, r 1.03, 1.05, Schedule 2, cl 802.214

CASES
Hussain v MIBP [2017] FCCA 3247
Moore J in Babicci v MIMIA [2004] FCA 1645
Opoku-Ware v MIBP (2015) 297 FLR 416
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Sok v MIMIA [2005] FMCA 190
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 19 October 2018, Mr Jomari Vingona Uro, the applicant, applied for a Child (Residence) (Class BT) visa. The application was made on the basis that he is a dependent child of his father, Mr Jose Ma Belisario Uro, the sponsor.
On 4 October 2019, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant met cl.802.214(1)(c) or cl.802.214(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act), which is attached to this decision. On 24 October 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. On 24 October 2019, the applicant applied to the Tribunal for review of the delegate’s decision and this is a review of the delegate’s decision.
On 20 June 2020, the Tribunal invited the applicant to a Tribunal hearing on 21 July 2020. On 6 July 2020, the applicant’s migration agent (migration agent) wrote to the Tribunal and requested an adjournment of the Tribunal hearing set down for 21 July 2020. She stated the following: that her client could not attend a meeting with her on 6 July 2020 to prepare for the Tribunal hearing set down for 21 July 2020. The applicant was experiencing flu like symptoms. As a precaution for COVID-19, the applicant attended a tele-conference with his medical practitioner on 7 July 2020. He was told to self-isolate for 14 days bringing his last day of self-isolation to 21 July 2020. This means that the migration agent and the applicant could not prepare in person for the Tribunal hearing and that would result in an unsuccessful outcome for the applicant. She has not been available to her client as she was advised by her medical professionals that she needed to self-isolate for 12 weeks because of a high risk to a child.
On 6 July 2020, The Tribunal wrote to the migration…

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 Uro (Migration)

Details

AGLC: Uro (Migration) [2020] AATA 3944
Case: [2020] AATA 3944
Decision Date: 29 July 2020

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, brought by an applicant who had turned 18. The dispute centred on whether the applicant met the full-time study requirements stipulated by the Migration Regulations 1994. The applicant, who was 20 years old at the time of application, was not enrolled in full-time study and argued financial hardship. The decision was made by Member Helena Claringbold.

The primary legal issue before the Tribunal was to determine whether the applicant, having turned 18, had satisfied the requirements of cl.802.214(1)(c) of Schedule 2 to the Regulations. This clause mandates that an applicant, since turning 18 or within a reasonable time after completing the equivalent of Year 12, must have been undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification. The Tribunal also considered whether the exception in cl.802.214(2), relating to incapacitation for work, applied.

The Tribunal reasoned that the applicant had not met the full-time study requirement as stipulated by cl.802.214(1)(c). The evidence indicated that the applicant was not enrolled in such a course at the time of application or decision. Furthermore, the Tribunal found that the applicant did not fall within the exception provided by cl.802.214(2), as there was no evidence to suggest he was incapacitated for work due to bodily or mental functions. The Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in this case is whether, at the relevant time, the visa applicant was a full-time student at an educational institution leading to the award of a professional, trade or vocational qualification at the time of the application and decision.BACKGROUND ON THE EVIDENCE The applicant was born in 1997 in Marikina City, National Capital Region, the Philippines. He was 20 years of age on the date he lodged the application. His father, the sponsor, lives in Australia with his mother and one sibling. He entered Australia on 15 August 2018 as the holder of a Subclass 600 Visitor visa. He departed Australia on 13 February 2019 and returned to Australia on 19 March 2019. He is currently the holder of a Bridging visa Subclass 020. The sponsor was born in 1968 in Zamboanga City, Mindanao, the Philippines. He entered Australia in November 2011 and in July 2016, he was granted permanent residency in Australia. Criteria for applicants over 18 At the time of application, the applicant was over 18 years old, therefore additional requirements relating to relationships, work and study must be satisfied as required by cl.802.214 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.Full-time study (or incapacitated for work) Clause 802.214(1)(c) requires that, subject to subclause (2), the applicant has, 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. Under cl.802.214(2), cl.802.214(1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child: r.1.03 of the Regulations. Subparagraph (b)(ii) of the definition of dependent child in r.1.03 refers to an applicant who has turned 18 but is incapacitated for work due to the total or partial loss of his or her bodily or mental functions. Clause 802.214(1)(c) 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.802.214(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.802.214(2).

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 Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. ISSUE The issue in this case is whether, at the relevant time, the visa applicant was a full-time student at an educational institution leading to the award of a professional, trade or vocational qualification at the time of the application and decision.BACKGROUND ON THE EVIDENCE The applicant was born in 1997 in Marikina City, National Capital Region, the Philippines. He was 20 years of age on the date he lodged the application. His father, the sponsor, lives in Australia with his mother and one sibling. He entered Australia on 15 August 2018 as the holder of a Subclass 600 Visitor visa. He departed Australia on 13 February 2019 and returned to Australia on 19 March 2019. He is currently the holder of a Bridging visa Subclass 020. The sponsor was born in 1968 in Zamboanga City, Mindanao, the Philippines. He entered Australia in November 2011 and in July 2016, he was granted permanent residency in Australia. Criteria for applicants over 18 At the time of application, the applicant was over 18 years old, therefore additional requirements relating to relationships, work and study must be satisfied as required by cl.802.214 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.Full-time study (or incapacitated for work) Clause 802.214(1)(c) requires that, subject to subclause (2), the applicant has, 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. Under cl.802.214(2), cl.802.214(1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child: r.1.03 of the Regulations. Subparagraph (b)(ii) of the definition of dependent child in r.1.03 refers to an applicant who has turned 18 but is incapacitated for work due to the total or partial loss of his or her bodily or mental functions. Clause 802.214(1)(c) 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.802.214(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.802.214(2).

Decision

Reasons for decision

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.Helena ClaringboldMemberATTACHMENT – Migration Regulations 1994 – Schedule 2Clause 802.214(1) If the applicant has turned 18: (a) the applicant:(i) is not engaged to be married; and(ii) does not have a spouse or de facto partner; and(iii) has never had a spouse or de facto partner; and(b) the applicant is not engaged in full-time work; and(c) subject to subclause (2), the applicant has, 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.(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:(a) has not turned 18; or (b) has turned 18 and:(i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child’s or step-child's bodily or mental functions.

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.Helena ClaringboldMemberATTACHMENT – Migration Regulations 1994 – Schedule 2Clause 802.214(1) If the applicant has turned 18: (a) the applicant:(i) is not engaged to be married; and(ii) does not have a spouse or de facto partner; and(iii) has never had a spouse or de facto partner; and(b) the applicant is not engaged in full-time work; and(c) subject to subclause (2), the applicant has, 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.(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:(a) has not turned 18; or (b) has turned 18 and:(i) is dependent on that person; or (ii) is incapacitated for work due to the total or partial loss of the child’s or step-child's bodily or mental functions.