Wulandari (Migration) - [2024] AATA 3658

Wulandari (Migration) [2024] AATA 3658 (1 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Avriningtyas Wahyu Wulandari
REPRESENTATIVE:  Ms Angela De Silva
CASE NUMBER:  2016266
HOME AFFAIRS REFERENCE(S):          CLF2020/65601
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 3:47pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – gap in full-time studies – one course enrolment delayed – no study in Indonesia past secondary schooling – reasonable time – specific circumstances for lengthy delay – family carer responsibilities – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.216, 802.221, 802.226
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 16 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 Indonesia, born in May 1998. She applied for the visa on 21 September 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 Tribunal also received oral evidence from the applicant’s mother Ms Harty Ofera Tallo. The Tribunal decided not to take oral evidence from another witness because the factual circumstances on which this witness could have given evidence are not in dispute. 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.
If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).
Criteria for applicants over 18
The applicant was born in May 1998 and the application for…

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: Wulandari (Migration) [2024] AATA 3658
Case: [2024] AATA 3658
Decision Date: 1 October 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Child (Residence) (Class BT) visa, Subclass 802, made by an applicant who was over 24 years of age. The applicant sought to be recognised as a dependent child of an Australian relative. The core of the dispute revolved around whether the applicant met the visa criteria, particularly concerning a gap in full-time studies and the absence of study in Indonesia beyond secondary schooling.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements for the Subclass 802 visa, specifically the criterion relating to being a dependent child. This involved determining whether the applicant had a reasonable period of study and whether the circumstances surrounding any delays or gaps in study, including family carer responsibilities, justified the length of time without continuous full-time education.

The Tribunal affirmed the decision not to grant the visa, finding that the applicant did not meet the necessary criteria. While acknowledging the applicant's circumstances, including family carer responsibilities and a delayed course enrolment, the Tribunal concluded that these factors did not sufficiently bridge the gap in meeting the specific requirements for the visa subclass. No claims were advanced in respect of any other visa subclass within Class BT.

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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