1421055 (MIGRATION)

[2015] AATA 3483

1421055 (MIGRATION) [2015] AATA 3483 (21 OCTOBER 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jacek Maciej Skatulski

CASE NUMBER:  1421055

DIBP REFERENCE(S):  CLF2014/90723

MEMBER:Kira Raif

DATE:21 October 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 21 October 2015 at 10:26am

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 February 2014 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Poland, born in July 1989. He made several trips to Australia holding visitor visas. He last entered Australia on 22 November 2013. The applicant applied to the Department of Immigration for the Child visa on 26 June 2014. The delegate refused to grant the visa on the basis that cl.802.212 was not met because the delegate was not satisfied the applicant was a dependent child of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 21 October 2015 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

5. Clause 802.214(1)(c) relevantly requires the applicant to undertake a full-time course of study. Clause 802.221(2) requires the applicant to continue to meet that provision.

   Does the applicant meet the study requirement?

6. There is nothing before the Tribunal to indicate that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal finds that cl. 802.214(2) does not apply to him

7. The applicant informed the Tribunal he completed secondary schooling in 2009. He then said he finished high school at the age of 19 in 2008 and had a one year break before commencing university in 2009. He then confirmed that he failed the final exam, which he repeated twice in 2009 before finally passing it. The applicant’s evidence to the Tribunal is that he continued studying in Poland from October 2009 until he last came to Australia in November 2013. He then commenced a Certificate in Travel and Business, which was a full-time course. He undertook that course for one year and stopped studying by the end of 2014. In January 2015 he commenced an Accounting course but because he had to go to Poland to look after his grandmother and collect the documents for his application, he stopped studying in June 2015. The applicant confirmed that he was not presently undertaking any study.

8. The applicant provided to the Tribunal his grandmother’s medical records and the Tribunal accepts that part of the reason he travelled to Poland was to care for his grandmother. He also did so to collect documents and maintain the property in Poland. In the Tribunal’s view, none of these matters justify the break in studies since June 2015. The applicant referred to chaos in his life and his desire to be with his family in Australia. He also referred to the uncertainty about the length of time the review process would take and the need to keep the house. In the Tribunal’s view, these matters played a significant role in the applicant’s decision not to engage in studies. The Tribunal also notes that the applicant has not made any arrangements to enrol in any course since returning to Australia. He is not presently undertaking any study and there is nothing to suggest that he intends to return to study in the foreseeable future.

9. The Tribunal finds that at the time of this decision, the applicant is not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. For that reason, the Tribunal finds that the applicant does not continue to satisfy the criterion in cl. 802.214(1)(c) at the time of this decision, for the purpose of cl. 802.221(2)(b). The Tribunal is not satisfied that the applicant meets cl. 802.221.

10. In light of the findings above, it is not necessary for the Tribunal to consider whether the applicant is, and was at the time of the application, a dependent child of his mother.

11. There is no evidence before the Tribunal that the applicant is an orphan relative or that he has been adopted by a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Further, the Tribunal notes that the applicant was over the age of 18 at the time of the application, he does not meet r. 1.14(a). The Tribunal is not satisfied that the applicant meets cl. 837.213 of the Regulations.

    Conclusion

12. 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

13. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Kira Raif
    Senior Member