1510958 (Migration)

[2016] AATA 3453

1510958 (Migration) [2016] AATA 3453 (7 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joao Travassos Moura Neto

CASE NUMBER:  1510958

DIBP REFERENCE(S):  CLF2015/14121 CLF2015/36202

MEMBER:Hugh Sanderson

DATE:7 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 07 March 2016 at 4:12pm

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 July 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 18 June 2015. 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.802.211 and cl802.214.

4. The delegate refused to grant the visa on the basis that cl.802.211 was not met because the applicant had a Remaining Relative visa refused on 12 June, 2015 and did not meet the requirements of s.48 of the Act. Further, the delegate found that at the time of the application of the applicant was not enrolled in and actively participating in a full-time post-secondary course of study and did not meet the criteria in cl.802.214(1)(c).

   Background

5. The applicant is a citizen of Brazil. He was born on 8 October, 1996 and is currently 19 years old. His mother and two siblings continue to live in Brazil. He is sponsored by his father, who entered Australia on 8 January, 2008 and married on Australian citizen on 9 April, 2009. The applicant’s father first entered Australia in 2008 holding a Student visa and was granted a subclass 801 Partner (Residence) visa on 11 January, 2012. He has the right to reside permanently in Australia.

6. The applicant last entered Australia on 2 January, 2015 when he was 18 years old holding a subclass 600 Visitor visa. He had previously entered Australia on a Tourist visa in 2012. On 9 March, 2015 he applied for a subclass 835 Remaining relative visa. This application was assessed by the department who concluded that as the applicant’s mother and two siblings remained living in Brazil the applicant did not meet the definition of a remaining relative.

7. The department wrote to the applicant on 23 April, 2015, noting the adverse information as to the applicant’s relatives who continued to live in Brazil and invited the applicant to withdraw the application. The department gave the applicant 28 days from the date of the first letter (to 21 May, 2015) to respond in writing. He was invited to withdraw the application. He was advised the department may make a decision on the application without waiting for any response after that date.

8. The sponsor wrote to the department by email on 4 May, 2015 claiming that they had been advised by an officer from the department to file the Remaining Relative visa application. Now that they had been told that it was to be rejected the sponsor asked what the best visa application was to file to have the applicant remain in Australia. An officer from the department responded by email on 5 May, 2015 confirming that the applicant did not meet the criteria for the grant of the Remaining Relative visa and that application would be refused if it was not withdrawn before the deadline set in the earlier correspondence. The officer then stated as follows:

   If you wish to find out what other visa subclasses you can apply for in order to stay in Australia to study, to live or otherwise temporarily or permanently, I would suggest you to visit our website at: and search using the _Find visa_ option on the Home menu. Alternatively, you can consult a migration agent or lawyer.

9. The applicant was advised again by an officer of the department on 3 June, 2015 that he should withdraw the Remaining Relative visa application and file any further application if they wished to do so as soon as possible.

10. The department issued a decision refusing the Remaining Relative visa application on 12 June, 2015. At 9:18pm on the day the decision had been made by the department and the applicant had been notified of the decision by email, the department received a request by email from the applicant that the Remaining Relative visa application be withdrawn. As that application to withdraw the application had been received after the decision had been made the application could not be withdrawn and the decision stood. The applicant was advised of this by way of email sent to him on Tuesday 16 June, 2015.

11. On 18 June, 2015 the applicant lodged the current application for a subclass 802 Child visa.

12. In his application, the applicant stated that he finished secondary school on 25 October, 2014. He stated that he was not undertaking any further study at the time of the application. A Military Enlistment Registration Certificate issued on 9 June, 2014 stated that he did not intend to serve. No information was provided as to any courses of study the applicant had applied to enrol in or participated in at any time since he completed secondary school.

13. The delegate who considered the application noted the following issues in respect of whether the applicant met the criteria in cl.802.211:

    ·Section 48 of the Act applied to the applicant as he did not hold a substantive visa at the time of the application and a previous visa application had been refused since the applicant last entered Australia;

    ·The applicant was considered to have been a dependent child of the sponsor at the time he applied for the Remaining Relative visa as:

    ohe had been living with the sponsor since his arrival in Australia;

    othere was no evidence that he had been supported by anyone else since his arrival in Australia; and

    othe applicant claimed to have been dependent upon the sponsor since August 2008.

14. The delegate concluded that as since last applying for a substantive visa the applicant had not become a dependent child of the sponsor he did not meet the criteria in cl.802.211(b).

15. The delegate then noted the following issues in respect of whether the applicant met the criteria in cl.802.214:

    ·In his application the applicant stated that he was not in any full-time study;

    ·No information had been provided which would indicate that he was currently studying or enrolled in any course; and

    ·There was no information that would indicate the applicant was incapacitated for work for any reason.

16. The delegate concluded that the applicant had not, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification and therefore did not meet the criteria in cl.802.214(1)(c). As he was not incapacitated, he did not meet the exception in cl.802.214(2).

17. For these reasons, the delegate found that the applicant did not meet the criteria for the grant of the visa and refused the application.

18. The applicant made submissions to the tribunal where he raised the following issues:

    ·After arriving on a Visitor visa, he decided he wanted to stay and complete his studies in Australia as his family was giving him unconditional support;

    ·The applicant’s sponsor contacted the department who advised them to file the Remaining Relative visa application;

    ·The applicant had spoken to an officer from the department on 23 April, 2015 who advised them to withdraw the Remaining Relative visa application and file a Child visa application which they did on 18 June, 2015;

    ·The applicant had wanted to be able to study in Australia but was not able to do so due to his visa restrictions;

    ·The department had given him bad advice in advising him to apply for a Remaining Relative visa; and

    ·He cannot enrol in any course under his current visa restrictions.

19. The applicant provided copies of emails sent by him or his father to the department and their response. An email sent by his father dated 11 May, 2015 at 7:23am stated the following:

    Since we received your reply, we have been trying to browse the immigration forms and I came across a child visa. Prior for filling up this application I need your opinion about this child visa form. Is it relevant to apply for a child visa.

20. In response to this, an officer from the department sent an email to the applicant on 11 May, 2015 at 9:00am as follows:

    I refer to your father’s email below and wish to advise that it is necessary for you to carry out a self-assessment based upon the information on our website to ascertain if you are able to meet the requirements for the grant of a child visa.

    If you still have queries after having read our website, I would suggest you to contact one of our offices near you or to ring our general enquiries line on 131 881.

    The hearing

21. The applicant appeared before the tribunal on 3 March, 2016 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s father and step-mother. The tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages.

22. The applicant said that he was currently living with his father, stepmother and stepbrother. He said that he was just hanging out at home and not doing anything. He said that once he finished high school in Brazil he did not make any further plans as he was coming for a holiday to Australia. He said that he had hoped to attend university. He said that he sat for the university entrance exams in November 2013 but was not successful. He said that he did not do the exams again in November 2014.

23. The applicant said that when he finished school in October 2014 he wanted to come to Australia for a holiday and then thought that he would sit for the university entrance exams again in September 2015.

24. The applicant said that after he had been told that his Remaining Relative visa application would not be successful in April 2015 he took steps to try to enrol in studies in Australia. He was told that he could not study in Australia as he was on a Bridging visa. He was not sure when these enquiries were made as they were done by his stepmother and believe they were either in April or July 2015.

25. The tribunal explained the provisions in cl.802.211 for the criteria grant of a Child visa. The tribunal explained that as the applicant had been refused the Remaining Relative visa he was required to show that since last applying for that visa he had become a dependent child of his father.

26. The applicant stated that he had been dependent upon his father for his financial support since before he left Brazil and throughout the time he had been in Australia. He said that the department got everything wrong and they had given him bad advice. The tribunal referred to the correspondence set out above which indicated that the department had given written advice to the applicant and his family that the department was not able to say what visa he should apply for and they should rely upon their own self-assessment and advice from a migration agent or lawyer. Further, the department had advised the applicant that the Remaining Relative visa should be withdrawn and had set time periods for this to be done which was not complied with.

27. The applicant said that they had tried to do everything right, but it was very difficult.

28. The applicant’s father said that they had tried to enrol the applicant into TAFE but they were not able to do so as the department did not lift the restriction on his Bridging visa to enable him to study. The applicant’s father said that the applicant plan to go to university when he returned from his holiday in Australia, but then decided to remain in Australia. He said that he had not enrolled in any university studies in Brazil at the time that he left Brazil to come on a holiday in Australia.

29. The applicant’s step-mother said that they had relied upon the advice from the department and it was for this reason that they filed the Remaining Relative visa application. The tribunal noted the written advice from the department to the applicant that he was required to withdraw the Remaining Relative visa application and had to rely upon their own self-assessment and advice from a migration agent or lawyer as to what further application he should make. The applicant’s stepmother said she had spoken to officers from the department personally and she had followed their advice. She said that she had been told that they should withdraw the Remaining Relative visa application and filed the Child visa application at the same time.

30. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The issue in the present case is whether, since last applying for a substantive visa, the applicant has become a dependent child of his father. Further, an issue is whether, at the time of the application and at the time of this decision, the applicant has, since turning 18, or within six 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.

    Refusal of Remaining Relative visa application

32. When the applicant filed the Child visa application, he did not hold a substantive visa. He had applied for a Remaining Relative visa on 9 March, 2015. That application was refused by the department on 12 June, 2015. There is nothing to indicate that the decision of the department to refuse that application was invalid for any reason.

33. As at the time of the application for the Child visa the applicant did not hold a substantive visa and had been refused a visa he is subject to s.48 of the Act which restricts what visas he may apply for after that refusal.

34. The provisions of cl.802.211 state that a person to whom section 48 of the Act applies, the applicant, since last applying for a substantive visa, has become a dependent child of an Australian citizen, a holder of a permanent visa, or an eligible New Zealand citizen.

35. The basis of the applicant’s claim for a Child visa is that he is a dependent of his father who is a holder of a permanent visa. The claim made by the applicant and his father is that the applicant has been dependent upon his father since 2008. The applicant claims that since arriving in Australia he has been living with his father and been dependent upon him.

36. It was argued that the refusal of the Remaining Relative visa application was based on the poor advice the applicant (and his family) received from the department. It was argued that in conversations between the applicant and his family members certain advice was given to them which was then followed and it was for this reason that the Remaining Relative visa application was filed and that it was only withdrawn and the Child visa application was filed at the time it was.

37. The tribunal does not accept this argument provides a reason not to apply the criteria in cl.802.211.

38. The written advice from the department as outlined above clearly states that the applicant was advised that he should withdraw the Remaining Relative visa application and, if he wished to file any further application, he should do so based on his self-assessment of the possible visa classes on the department’s website or based on advice from a migration agent or lawyer. This is the correct advice that should be given by the department to anyone seeking advice on what visa they should file if they wish to remain in Australia. It is not the department’s role to be the advocate for an applicant as well as assessing whether that applicant then meets the criteria for the grant of the visa. It is the applicant’s own responsibility to self-assess what visa they wish to apply for based on information they may obtain from the department’s website, advice from a migration agent or lawyer, or any other source of advice they may wish to take. This is made clear in the written advice given by the department to the applicant.

39. The applicant and his stepmother may claim that they received different information from the department when they were speaking to them over the phone, however, this is inconsistent with the clear written advice the department provided to the applicant. The applicant was at all times advised that he had the option to withdraw the Remaining Relative visa application and was given a specific time in which he would be required to do this. The decision of the department was made some weeks after that time period had expired.

40. The tribunal is not satisfied that any actions of the department or the manner in which they proceeded with the assessment of the Remaining Relative visa application was incorrect or was prejudicial to the applicant in any way.

41. Even if the applicant had received incorrect advice from the department, this would not overcome the fact that the applicant still needs to meet the criteria in cl.802.211. This may affect whether the applicant would be successful if he made an application for Ministerial Intervention, however, it does not mean that the provisions of cl.802.211 are not applied to his application. The tribunal does not have any discretion as to whether those provisions are applied to the application or not.

42. As the applicant has stated that he has been dependent upon his father for all the time that the applicant has been in Australia, the tribunal finds that he was dependent upon his father prior to his filing of the Remaining Relative visa application and has continued to be dependent upon him since then. As such, he has not become dependent upon his father since last applying for a substantive visa and accordingly does not satisfy the criteria in cl.802.211.

43. As the applicant does not meet the criteria in cl.802.211, the decision of the department to refuse the application must be affirmed.

44. The tribunal has also considered whether the applicant would meet the time of application criteria in cl.802.214 and time of decision criteria in cl.802.221.

    Additional criteria for applicants over 18

45. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b). The issue identified by the department in this application was whether the applicant met the criteria in cl.802.214(1)(c).

    Full-time study (or incapacitated for work)

46. At the time of application, the 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.802.214(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.802.214(2). This requirement must continue to be met at the time of decision: cl.802.221(2)(b).

47. 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].

1. There is no information before the tribunal which would indicate that the applicant is incapacitated in any way.

2. The applicant finished the equivalent of year 12 in the Australian school system when he graduated from high school in Brazil on 25 October, 2014. He has not been undertaking any full-time course of study at an educational institution since that date.

3. The applicant claimed that he intended to attend university in Brazil and, after deciding he wished to remain in Australia, intended to attend studies in Australia but was prevented due to restrictions on his visa.

4. The evidence of the applicant was that he sat for the required university entrance exams in Brazil in November 2013. His marks were not sufficient to allow him to enter any university. After completing high school in October 2014 he did not sit for the university entrance exams held in November 2014. The applicant claimed that he did this as he planned to have a holiday in Australia for three months commencing January 2015. He said that he had not enrolled in any further course of study which was to resume when he returned from Australia. He stated that it was his intention to sit for the university entrance exams again which was to be held in September 2015.

5. The applicant’s father claimed that the applicant intended to commence studies immediately upon his return to Brazil from Australia after his holiday. The tribunal does not accept this evidence. It is inconsistent with the evidence provided by the applicant and there is no evidence that the applicant had taken any steps to enrol in any educational institution upon his return to Brazil. Even if, as was claimed by the applicant’s father, that all institutions are closed down until after Mardi Gras, this would not have prevented the applicant enrolling in an educational institution for any courses prior to his departing Australia if he was genuinely intending to continue his studies in Brazil.

6. The applicant stated that he, and his stepmother, only made enquiries as to whether he could undertake any studies in Australia after he had been advised by the department that he would not be successful in his application to be granted a Remaining Relative visa in April 2015. At this time, the applicant had not been undertaking any studies for six months. The applicant now claims that he has not been able to undertake any further studies due to restrictions on his Bridging visa.

7. The tribunal is not satisfied that at the time of the application or at the time of the decision any gap in the application undertaking a full-time course of study at an educational institution can be considered reasonable.

8. The applicant’s evidence is that, if he followed his intentions that he claimed he had in January 2015 when he first came to Australia on a Visitor visa, he would not have enrolled in any educational institution or participated in any further full-time course of study until after he sat the university entrance exams in September 2015, 11 months after he finished high school. Even at that time, whether the applicant would have been allowed to enter university would have been dependent upon his mark obtain in the exam and any enrolment in any university that accepted him would not have commenced until February 2016. The applicant did not sit for the university entrance exams in November 2014 when he was in Brazil which, if he were successful, would have enabled him to attend university commencing February 2015.

9. There is no evidence before the tribunal which would indicate that the applicant attempted or had any intention to attend any educational institution in Australia leading to the award of a professional, trade or vocational qualification. The evidence of the applicant and his step-mother was that it was only after the department advised them that the applicant did not meet the criteria for the grant of a Remaining relative visa that steps were taken to try to enrol the applicant into any educational institution.

10. There is no information before the tribunal of any activities undertaken by the applicant while he has been in Australia were made to prepare himself for any continuing studies. The applicant stated that he has been just “hanging out” at his father’s home. He did not indicate that he had been doing anything to prepare himself for any studies that he might undertake in Australia.

11. As the attempts by the applicant to enrol in an educational institution were only made after he had been advised that he would not meet the criteria for the grant of a Remaining Relative visa, the tribunal is not satisfied that the gap between the applicant completing the equivalent of year 12 in the Australian school system and his continuing not to be undertaking a full-time course of study at an educational institution due to the restrictions on his visa can be considered reasonable.

12. Accordingly, cl.802.214(1)(c) is not met at the time of application, and is not met at the time of decision as required by cl.802.221.

13. 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.

    DECISION

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

    Hugh Sanderson
    Member