1515422 (Migration)

[2016] AATA 3764

1515422 (Migration) [2016] AATA 3764 (27 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms SUZANA RADENOVIC

VISA APPLICANT:  Mr NEMANJA DOKIC

CASE NUMBER:  1515422

DIBP REFERENCE:  OSF2015/037873

MEMBER:Deborah Morgan

DATE:27 April 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211 of Schedule 2 to the Regulations;

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 27 April 2016 at 10:15am

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 15 October 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Nemanja Dokic (the visa applicant) applied to the Department of Immigration for the visa on 15 January 2015. 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 visa applicant was sponsored for the grant of the visa by his mother, the review applicant, who was granted Australian citizenship on 15 November 2013. The review applicant also sponsored his younger sister, Teodora Dokic, who was subsequently granted a Subclass 101 visa.

4. 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.101.211 and cl.101.213 at time of application that relate to dependency. There are particular criteria for visa applicants who have turned 18 years; and cl.1012.221 requires an applicant to continue to satisfy the criterion in cl.101.211 at time of decision.

5. The delegate refused to grant the visa on the basis that cl.101.213 was not met at time of decision because the information before the delegate was that the visa applicant was not a full-time student.

6. The review applicant appeared before the Tribunal on 20 April 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone and from Ms Miljana Stojkovic-Trajkovic, university lecturer.  The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background claims

9. The visa applicant is currently aged 25 years having been born in Serbia on 22 November 1990.

10. The delegate was satisfied on the material before him that the visa applicant met clauses 101.211 and clause 101.213 at time of application. The delegate was not satisfied that the visa applicant met clause 101.221 at time of decision because the evidence did not support a finding that the visa applicant was in full-time study at time of decision, 15 October 2015.

11. The issues in this case are whether the visa applicant meets the criteria in clauses 101.211, 101.213 and 101.221 as outlined above.

    Dependent child criteria

12. 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).

    Dependent child

13. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

14. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

15. The material on the files shows that the review applicant has supported the visa applicant financially (and his younger sister, Teodora Dokic) by sending (or leaving money with her mother on visits to Serbia, most recently in early 2016) money to her mother with whom the visa applicant has lived for the majority of the time since she came to Australia. Money for the visa applicant’s living expenses has also been transferred by the review applicant to her married brother who lives in the same building as the visa applicant. As found by the delegate, evidence of the review applicant’s financial support (transferred via Western Union) spans from 27 June 2011 to 30 March 2015. The Tribunal is satisfied that since then the review applicant has authorised monthly payments to be made to her brother in lieu of herself in consequence of a judgment debt that is repaid to her on that basis in Serbia.

16. The Tribunal received oral evidence that the visa applicant has never been required to pay board or rent to his maternal grandmother. All his living costs including clothing, food and expenses associated with him attending university, have been and are paid for by the review applicant apart from the small amounts of money the visa applicant receives from his father. His father gives him about 1,000 dinars monthly, on his evidence, only enough to buy a t-shirt.

17. The Tribunal is satisfied on the material before it as summarised above that the review applicant has provided financial support to the visa applicant and that he is and has been her dependent child for the purposes of r.1.05A to the Regulations.

18. Accordingly, cl.101.211(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

19. At the time of application, the visa applicant must not have turned 25. 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 total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2). There is no evidence and it is not claimed that the visa applicant is incapacitated for work.

20. The Tribunal is satisfied that the visa applicant was aged 24 years at time of application and that he is 25 years at time of decision.

21. Accordingly, cl.101.211(1)(b) is met at the time of application. Pursuant to the criterion in subclause 101.211(2), the visa applicant also meets the age criterion in cl.101.211(1)(b) at the time of decision because he was a dependent child at time of application (despite being  25 at time of decision).

    Child-parent relationship

22. 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).

23. The Tribunal is satisfied on the material on the Department’s file (refer his birth certificate at folio 37) that the visa applicant is the child of the review applicant, his mother, an Australian citizen.

24. Accordingly, cl.101.211(1)(c ) is met at the time of application, and continues to be met at the time of decision.

25. The Tribunal is satisfied that the visa applicant has turned 25 years at time of decision.

    Conclusion about dependent child criteria

26. For the reasons above, the criteria in cl.101.211 and cl.101.221(2)(a)(ii) are met.

    Additional criteria for applicants over 18

27. 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).

    Relationship status

28. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a).

29. Noting that the visa applicant told the Tribunal that he currently has a girlfriend who studies some 300 kilometres away, the Tribunal is satisfied on the evidence that the visa applicant has not ever had a defacto partner, has not ever been married and is not engaged to be married.

30. Accordingly, cl.101.213(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Not engaged in full-time work

31. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b).

32. It has consistently been claimed and the Tribunal received oral evidence that the visa applicant has not ever worked for a salary. The Tribunal accepts that the visa applicant is currently having work experience with a local company, as part of his university course.  The Tribunal is satisfied on the evidence that cl.101.213(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

33. 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). As found above the visa applicant in this case is not incapacitated for work.

34. 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].

35. It is not claimed and there is no evidence on the files that the visa applicant is or has been incapacitated for work owing to loss of physical or mental function.

36. Accordingly, the issue is whether the applicant has been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12; when the study commenced; and whether the applicant is still studying.

37. The Tribunal received oral evidence in English from Ms Miljana Stojkovic-Trajkovic who said she is an English language teacher at Higher Business School of Professional Studies (HBSPS) in Leskovac. She has known the visa applicant for 5 years and taught him for 3 years. In relation to the visa applicant she gave the following evidence:  he is currently studying an HBSPS  Business Economics and Management course at second level; HBSPS provides its students with 6 opportunities for students to sit exams annually and he is currently an “apprentice” with a local company as part of his final project.  This witness told the Tribunal she is aware that incorrect information was provided in relation to the visa applicant’s status at HBSPS because the concept of full-time student does not exist in their system.

38. A considerable amount of new documentary evidence in relation to the issue of the visa applicant’s status as a student has been provided to the Tribunal at review.

39. On the basis of the new material,  for the following reasons, the Tribunal is satisfied that the visa applicant was studying Business, Economics and Management full-time at HBSPS in Leskovac at time of application and that he continues to study full-time at the same institution at time of decision. In making this finding the Tribunal gives considerable weight to the letter (with 8 attachments) from Dr Milena Marjanovic, Principal of HBSPS dated 26 January 2016, translated from Serbian to English by an accredited interpreter in which she makes the following relevant points with respect to the visa applicant:

    ·He was enrolled at HBSPS in 2014.

    ·He was a full-time student with HBSPS at the time he applied for his (Australian) visa and he is currently a full-time student at the same institution. 

    ·HBSPS teaches Second Degree Studies which the visa applicant is undertaking.

    ·The HBSPS year has 2 semesters each of 15 weeks duration.

    ·His course requires his personal attendance at lectures, tutorials, preparation for tests and examinations, assignments and submission of a specialist  project

    ·He has passed 5 subjects in the course thus far.

    ·He has failed 4 subjects and is required to repeat and pass them in order to graduate.

    ·An employee of HBSPS made an error when responding to the (Australian Department of Immigration’s) inquiry about the visa applicant’s status as a student. 

40. The Tribunal is satisfied on the evidence before it that the visa applicant has not ever undertaken a Master’s degree to which the delegate referred.

41. Accordingly, cl.101.213(1)(c) is met at the time of application, and continues to be met at the time of decision.

42. For the reasons above, cl.101.213 is met at the time of application and at the time of decision, cl.101.213 continues to be met. Therefore, cl.101.221 (2)(b) (which relates to cl.101.213) is met at time of decision.

43. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

44. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.211 of Schedule 2 to the Regulations;

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    Deborah Morgan
    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.

    …