1512905 (Migration)

[2016] AATA 3983

1512905 (Migration) [2016] AATA 3983 (15 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Naomi Anne Henson

CASE NUMBER:  1512905

DIBP REFERENCE(S):  CLF2015/45943

MEMBER:Chantal Bostock

DATE:15 June 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 15 June 2016 at 2:19pm

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 11 September 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 30 July 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). The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.802.214(1)(b) was not met because the delegate was not satisfied that the applicant was undertaking a full-time course of study.

4. The applicant appeared before the Tribunal on 31 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, Neil Henson and step-mother, Michelle Henson.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.

7. The applicant gave evidence at the hearing. She arrived in Australia in the first week of August 2014 on a working holiday visa. She lives with her father and stepmother in the Northern Territory. She is currently undertaking her Diploma of Real Estate (Agency Management) at the Real Institute of the Northern Territory Inc. (“REINT”).

8. The applicant outlined her educational history. She completed two years’ of college in June 2012. She then undertook a two-year foundation degree at Manchester Metropolitan University, during which she studied subjects such as sociology, criminology and psychology. She began the course in June 2012 and completed it in June 2014, whereupon she moved to Australia. She knew she wanted to be a real estate agent.

9. The applicant’s father is a fully licensed real estate agent, who owns a real estate agency called Roost. He employs a number of staff and is opening an additional office in Palmerston. She initially worked full-time at Roost but after 6 months, moved to Zen Quarter, where she worked less than 20 hours in hotel management. She then returned to Roost in about August 2015, where she works part-time.  

10. The applicant stated that she works 20 hours per week in her father’s business, earning $430 per week. She cannot afford to not work. While her father pays for rent, food, electricity, course work and gives her an allowance, she needs to work to pay for her clothes, including her work uniform, and she visited her mother in the UK over Christmas. She also buys food.

11. The applicant explained in detail the study requirements of the REINT to become a registered real estate agent in the Northern Territory. One must first undertake two units to become an agent’s representative. The Certificate IV in Property Services (“the certificate”), a nationally-recognised diploma, required the completion of 24 units. Each unit contains parts A, B and C, which includes a series of questions and a case study, based on the content of the unit. Her understanding was that about 765 hours was required to complete the course. The REINT provided a training schedule, which allowed 2 weeks per module, completed over 44 weeks. The course must be completed within 2 years. She commenced the course immediately after arriving in Australia, namely in August 2014. She completed the initial two units, which allowed her to work as an agent’s representative, in September 2014 and the course itself in August 2015.

12. The applicant completed her certificate on 7 August 2015 and commenced the diploma on 18 August 2015. She was required to complete an additional four units to obtain the diploma. When asked whether there were contact hours, the applicant stated that students could attend in-house classes or undertake the course externally, if employed by a real estate agent. The REINT offered courses externally for those living in remote areas.

13. She has attended the REINT once, from 9 am to 5 pm, in order to obtain assistance in relation to commercial leases. Her teacher was a fully-licensed real estate agent. She emphasised the difficulty of the course, which required a thorough understanding of the complex Australian legal framework.

14. She explained the differences in relation to the certificate and the diploma. Those who hold the certificate are able to deal with people in relation to property matters but cannot deal with financial aspects, such as transferring funds into trust.

15. The Tribunal discussed with the applicant the delegate’s reasons for refusal, namely that the certificate was “a correspondence-style course”, which, if undertaken full-time, could be completed in four weeks and her agent’s submissions made to the Department.[1] Her agent submitted, amongst other things, to the Department that “part of the requirement of enrolling in these courses is that she obtains employment in the Real Estate Industry for partial fulfilment of the course work that includes case studies, assignments, write-ups and exams”.

    [1] Folio 293 of the Department’s file.

16. The applicant stated that the course assumed knowledge of Australian law and real estate experience. The volume of material, at times more than 100 pages per module, was significant. The reference to four weeks was to teaching hours and not the actual hours required to complete the course. While she was not aware that employment in the real estate industry was a requirement to partially fulfil the requirements of the course, as stated by the migration agent, it was much more difficult to complete the course, if not working in real estate. She knew a student, who completed the course while working in hospitality.

17. The applicant stated that she worked part-time and could not, in any event, attend classes. She completed her studies after hours. The course was the only course that could be completed in Darwin. She completed the certificate in one year, although it usually took 2 years. Her step-mother recently completed the certificate, which took 2 years. The diploma generally took 2 years but it was taking her longer as it was “considerably harder”. She was struggling with the first unit as it was the hardest one.

18. The Tribunal further discussed with the applicant the requirement to undertake “a full-time course of study”. In response, she stated that the unit that she had recently completed was the largest unit of the diploma and she had started the second unit. She spent on average 3 to 4 hours per week studying. On her days off, she spent up to 3 hours studying on her laptop. Although there were weeks when she did no study (for example throughout the 3 weeks she was in the UK), during other times, she spent more time studying. She stated that next unit was easier to understand and would not take 8 months to complete.

19. Ms Michelle Henson gave evidence at the hearing. She explained that she completed the certificate in 2015. Because she failed to complete it within 2 years, her agent’s licence was suspended. It was a time-consuming course, consisting of at least 20 modules, each with 2 to 3 assignments per module. The in-depth course consisted of remote learning.  She explained that the regulation of estate agents in the NT was very strict and few had undertaken the diploma course. Roost’s Practice Manager took more than one year to complete the course. Ms Henson completed the certificate as a backup in case her husband, who was sole director of the business, was sick or away, in which case she could step in and assist in the business. The certificate comprised of 24 units, with a reading guide of 30-100 pages and accompanied by statutes and other documents per module. Each module consisted of 2-3 assignments.

20. In terms of the stated four weeks required to complete the course, Ms Henson stated that it was a “marketing ploy” to attract more students as the course took a long time to complete, particularly without prior knowledge of real estate. There were differences in interpretation of the Acts. Knowledge of the Acts was required for daily business, for example if the tenants’ washing machine had broken down.  Roost’s business consisted of about 90% tenancy-related matters.

21. Mr Henson also gave evidence during the hearing. He established Roost in 2012, a practice which consisted mainly of managing tenancies. He has employed 12 people in the past 4 years, all of whom completed the agent’s representative module, which took 2-3 weeks to complete. The certificate required working at home or attending the course at the REINT. Some completed the course during the day while others did their own study at home. In his experience, his staff took 2-6 weeks to complete modules, which were “not easy”. Much knowledge of law was required to appear at the NT Consumer Affairs Tribunal to deal with abandonment of property and rental arrears claims. The applicant would be expected to appear at such hearings, upon completion of her diploma. He has never met anyone who was able to complete the certificate in four weeks as it was not a realistic timeframe. The certificate was a full-time course of study and only a small number of people went on to obtain the diploma, which took a long time. One module took 5-6 months to understand.

22. Following the hearing, the applicant sent the Tribunal a significant amount of additional evidence, including the following:

    ·The REINT course information in relation to the agents’ introductory course, the certificate and the diploma;

    ·“Document Kit” for the certificate, which included documents such as the various Acts and agreements;

    ·Course materials for the individual units, including the following: “lease property”; “market property for lease or sale”; “present at tribunals”; “manage budgets and financial plans”; “establish and manage trust accounts”; “negotiate and manage conflict”; “develop a strategic business plan in the real estate industry” and “recruit, select and induct staff”. The materials include course objectives, course content and learning activity units;

    ·Assignments completed by the applicant;

    ·Receipts for payment of courses in the name of the applicant;

    ·Student enrolment form for the certificate and the diploma from the REINT;

    ·Applicant’s certificate of registration as an agent’s representative dated 7 August 2015;

    ·Applicant’s Certificate IV in Property Services (Real Estate) issued on 7 August 2015;

    ·Client enrolment report starting 18 August 2015 and ending 18 May 2018, showing each of the 28 units required to complete the diploma and indicating that the applicant received a credit transfer for 24 units, has submitted her assessment for marking in relation to two units (“recruit, select and induct staff” and “develop a strategic business plan in the real estate industry”) and has two remaining units (“manage budgets and financial plans” and “establish and manage agency trust accounts”) to complete. The report indicates that the applicant has completed 915 hours thus far during her studies; and

    ·Email from Student Services Manager at the REINT to Ms Henson dated 2 June 2016 indicating that “the average time would be about 12 months” to complete the certificate. 

    Additional criteria for applicants over 18

23. Primary visa applicants applying for the child visa must meet certain, additional requirements relating to, amongst other things, 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).

    Full-time study (or incapacitated for work)

24. 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).

25. 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].

26. The Tribunal finds that there is no evidence that the applicant was and is incapacitated for work because of loss of bodily or mental functions.

27. The Tribunal notes that the evidence given at the hearing by the applicant and the witnesses was clear, forthcoming and consistent with one another and the material on file. Based on the material before it, including the oral evidence and the material from the REINT submitted by the applicant, the Tribunal finds that the applicant is currently undertaking her diploma at the REINT. It finds that the diploma requires the completion of 28 units, 24 of which are undertaken in the course of undertaking registration as an agent’s representative and the certificate. The Tribunal finds that the applicant was conferred her certificate of registration as an agent’s representative and her certificate on 7 August 2015. The applicant commenced the diploma on 18 August 2015. The diploma requires the completion of 4 units. The Tribunal finds that the applicant submitted her work for assessment in relation to two units, namely “recruit, select and induct staff” and “develop a strategic business plan in the real estate industry”. She must complete “manage budgets and financial plans” and “establish and manage agency trust accounts”, in order to complete the diploma. The Tribunal accepts that the applicant is undertaking a course of study at an educational institution. It does not accept, however, that the applicant is undertaking a full-time course of study. On the applicant’s evidence, she spends on average 3-4 hours per week on her studies at home. Furthermore, unless the student requires assistance, as the applicant did in relation to commercial leases, there are no contact hours at the REINT. The Tribunal finds that there is no evidence to support the agent’s submission that “part of the requirement of enrolling in these courses is that she obtains employment in the Real Estate Industry for partial fulfilment of the course work that includes case studies, assignments, write-ups and exams”, although it accepts the applicant’s evidence that experience in the real estate industry helps with the course. The Tribunal finds that at the time of decision, cl.802.221(2)(b) is not met because the applicant does not continue to satisfy the criterion in cl.802.214.

28. 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

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

    Chantal Bostock
    Member