1501736 (Migration)

[2016] AATA 3707

1501736 (Migration) [2016] AATA 3707 (8 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Wiwit Muji Rahayu

VISA APPLICANT:  Ms Angela Eka Putri

CASE NUMBER:  1501736

DIBP REFERENCE(S):  OSF2014/031277

MEMBER:Jane Bishop

DATE:8 April 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 08 April 2016 at 3:08pm

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 23 December 2014 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the Department of Immigration for the visa on 10 October 2014. 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213 and cl.101.221(2)(b).

4. The delegate refused to grant the visa on the basis that cl.101.213 and cl.101.221(2)(b) were not met because the visa applicant had not remained in full time study.

5. The review applicant appeared before the Tribunal on 8 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Atin Spargo (the applicant’s friend). The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the visa applicant can meet the additional requirements for applicants over the age of 18 at the time of application.

   Dependent child criteria

8. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   Child-parent relationship

9. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c). The evidence before the Tribunal is that the applicant has been a permanent Australian visa holder since 2010 and is the visa applicant’s mother (as evidenced by certified copies of birth certificates and the applicant’s visa in her passport). Accordingly, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

   Additional criteria for applicants over 18

10. The visa applicant was born on 25 February 1994 (as evidenced by a certified copy of her birth certificate) and the visa application was lodged on 10 October 2014. The Tribunal finds that the visa applicant was 20 years old at the time of the visa application.

11. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

12. The applicant told the Tribunal that the visa applicant completed the equivalent of year 12 in June 2013. She then studied a 12 month office administration course at Magistra Utama Banyuwangi and completed that course in July 2014 (as evidenced by a diploma from Magistra Utama Banyuwangi indicating that the visa applicant completed the course on 10 July 2014).

13. The applicant said the visa applicant went to Bali in October 2014 and has completed several courses in English since her arrival. She provided the Tribunal with reports from IALF indicating that the applicant completed a 40 hour course from 12 January 2015 to 9 March 2015 in pre-elementary general English, a 40 hour course from 25 March 2015 to 21 May 2015 in elementary one general English, a course from 28 May 2015 to 30 July 2015 in elementary 2D general English that she needed to repeat and a course from 10 August 2015 to 6 October 2015 in elementary 2B general English that she needed to repeat.

14. The applicant told the Tribunal that the visa applicant is a slow learner and has not studied since October 2015. She said the visa applicant is taking a break and helping her uncle run his store. The visa applicant works in the store from 9 am to 5pm Monday to Friday serving customers. When the Tribunal asked the applicant if the visa applicant is being paid for her work she responded that her uncle gives her some pocket money.

15. Mrs Spargo (the applicant’s friend) said that the visa applicant is a slow learner and needs to be with her mother to get her going in life.

    Not engaged in full-time work

16. At the time of application, the visa applicant must not be engaged in full-time work and that requirement must continue to be met at the time of decision: cl.101.213(1)(b) and cl.101.221(2)(b).

17. The evidence before the Tribunal is that since October 2015 the visa applicant has been working full time in her uncle’s store. During the hearing the Tribunal explained to the applicant that at the time of application and at the time of decision a requirement of the visa is that the visa applicant is not working full-time. The Tribunal put to the applicant that on her own evidence the visa applicant has been working full time since October 2015 and that would mean she could not meet the requirements of the visa and the decision under review would need to be affirmed. The applicant responded that the visa applicant is a slow learner and is taking a break from her studies. She was having to repeat her courses and has been stressed waiting for the visa. The applicant said she wants her daughter to come to Australia and be with her mother.

18. The Tribunal finds that the visa applicant has been engaged in full time work Since October 2015. Accordingly, cl.101.213(1)(b) is met at the time of application, and does not continue to be met at the time of decision. That means cl.101.221(2)(b) is not met.

19. For completeness the Tribunal will consider whether the visa applicant has been undertaking a full time course of study since turning 18.

    Full-time study (or incapacitated for work)

20. At the time of application, the visa applicant must have, 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: cl.101.213(1)(c). However, 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.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

21. This provision 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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

22. The evidence before the Tribunal is that the visa applicant completed her diploma in July 2014 and commenced her studies in English in January 2015. She has not studied since October 2015. Since October 2015 the visa applicant has been working full time. The visa applicant was not engaged in full time studies at the time of application or at the time of decision. The Tribunal finds that the visa applicant has not been undertaking a full time course of study since turning 18.

23. Likewise the visa applicant has worked full time since October 2015 and there is no evidence to indicate that she is incapacitated for work due to the loss of bodily or mental functions. The Tribunal finds that the applicant was not and is not incapacitated for work because of loss of bodily or mental functions.

24. Accordingly, cl.101.213(1)(c) is not met at the time of application and does not continue to be met at the time of decision. That means cl.101.221(2)(b) is not met.

25. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.

26. There is no evidence to indicate that the visa applicant is an adopted child or orphan relative and no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

27. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Jane Bishop
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a 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 bodily or mental functions.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …