1503359 (Migration)

[2015] AATA 3792

1503359 (Migration) [2015] AATA 3792 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Kara Salanieta Yasa

CASE NUMBER:  1503359

DIBP REFERENCE(S):  CLF2014/137311

MEMBER:Wendy Banfield

DATE:3 December 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 03 December 2015 at 4:39pm

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 19 February 2015 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 applied to the Department of Immigration for the visa on 19 November 2014. 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).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (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.

4. The delegate refused to grant the visa on the basis that cl.802.214(1)(c) was not met because the applicant has not demonstrated that she was enrolled in and participating in full-time education at the time the visa application was lodged.

5. The applicant appeared before the Tribunal on 27 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Apisal Tokalautawa. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   Hearing

7. The applicant was represented by her step-father, Mr Apisal Takalautawa who also gave evidence and assistance to the Tribunal. Her mother, Ms Leba Duri is an Australian citizen by grant. The applicant is currently 21 years old and was born in the United States. Her family returned to Fiji when she was very young and she was brought up and went to school there. She does not have family in the United States and it was claimed it would be very difficult for her to live there by herself.

8. The applicant came to Australia in 2013 to join the rest of her family who are now Australian citizens. She had completed high school in Fiji and wanted to study in Australia, however she has not been able to do so. The applicant said that due to her bridging visa conditions and a requirement to pay upfront fees as an international student, she has not been able to enrol in an educational institution as she had planned. The applicant does not work and relies on her family for support.

9. The applicant said she is not incapacitated for work, she currently relies on her family because she was hoping to gain qualifications through a course of study

10. The Tribunal explained that since the applicant is over the age of 18, one of the requirements for the visa is that the applicant must be undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

11. The applicant’s representative, Mr Takalautawa indicated he understood the situation and had thought that might be the case.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the legal requirements in clauses 802.214 in Schedule 2 of the Regulations.

14. The applicant meets the requirement that she not be engaged to be married and does not and never has had a spouse or de facto partner in accordance with cl. 802.214(1)(a). As she is not engaged in full-time work she therefore satisfies cl. 802.214(1)(b). However, she is not engaged in full-time study and for this reason, does not satisfy cl. 802.214(1)(c). Therefore, the applicant does not satisfy cl. 802.214.

15. As the applicant is not incapacitated for work due to the total or partial loss of bodily or mental functions, she does not satisfy cl. 802.214(2).

16. 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

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

    Wendy Banfield
    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.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    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.

    …