1600724 (Migration)

[2016] AATA 4683

1600724 (Migration) [2016] AATA 4683 (21 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Charmaine Gonzales

CASE NUMBER:  1600724

DIBP REFERENCE(S):  CLF2015/67643

MEMBER:Wendy Banfield

DATE:21 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.212 of Schedule 2 to the Regulations; and

·cl.802.214 of Schedule 2 to the Regulations.

Statement made on 21 November 2016 at 10:36pm

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 6 January 2016 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 2 November 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 includes cl.802.212 and 802.214.

4. The delegate refused to grant the visa on the basis that cl. 802.212 and cl.802.214(2)(c) were not met. It was found the applicant had not demonstrated that she was a dependent child of her mother for a substantial period prior to the date of application or that she has been continuously in full-time study since she turned 18.

5. The applicant appeared before the Tribunal on 17 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Rosario Gonzales and step-father Mr Keith Barrett. 

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies the criteria for full-time study since turning 18 in accordance with cl.802.214 and whether she meets the dependent child criteria pursuant to cl.802.212.

   Dependent child criteria

9. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

   Dependent child

10. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(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.

11. 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].

12. Regarding the dependency of students, the Tribunal notes Ms Gonzales’ submission in relation to Departmental policy which states postgraduate students, or students who have resumed study after a period of independence (such as her) should be carefully assessed against the provisions of r.1.05A.

13. On the basis of the evidence provided, at the relevant time, which in this case is the time of application, Ms Gonzales was dependent on an eligible person, her mother. A copy of Mrs Rosario Gonzales’ Australian Citizenship Certificate was provided in evidence. Ms Gonzales gave evidence that she was reliant upon her mother for financial support to meet her basic needs for food, clothing and shelter as she is a full-time student. The Tribunal must also be satisfied that Ms Gonzales’ reliance on her mother was greater than her reliance on any other person, or source of support, for financial support. Although Ms Gonzales has a part-time job, bank statements of Mrs Rosario Gonzales and Mr Keith Barrett were submitted that demonstrate they have been providing her with substantial support for her basic needs. Evidence also available to the Tribunal shows that Ms Gonzales pays her own tuition fees from her fortnightly part-time salary as well as her travel costs to study and work. Mrs Rosario Gonzales and Mr Barrett are responsible for her accommodation costs, utilities and food. Ms Gonzales’ mother and step-father gave evidence at the hearing confirming their ongoing financial support as evidenced. Ms Gonzales is currently enrolled full-time at TAFE NSW studying hospitality management and living at home with her parents.

14. According to r.1.05A, the applicant must demonstrate that they have been dependent upon the other person for financial support for a substantial period immediately before the relevant time. Ms Gonzales came to Australia on 7 July 2015 and submitted this application on 2 November 2015. The meaning of ‘substantial period’ is not defined but according to Departmental policy, it is usually a period of 12 months. The Tribunal notes Ms Gonzales made submissions that this requirement is not easily accessible from the Department’s website that sets out the requirements for the 802 Child visa and that it is only contained on page 16 of a separate booklet entitled ‘Child Migration’. It was argued that the current visa application would have been submitted at a later date if this policy had been clearer. Ms Gonzales states that she requested the Department to hold her application until such time as the 12 month policy requirement had been met but this did not occur.

15. The Tribunal agrees that criteria that must be met should be readily available to applicants, including policy requirements. As it is, the Tribunal has a discretion about what should be considered a substantial period of dependency on the other person. Ms Gonzales submitted that case law also supports a finding that it is possible to resume dependency after a period of being independent.[1] As she was dependent upon her mother from May 2008 until she graduated from university in 2012, Ms Gonzales submits that her current dependency is ‘resumed dependency’. The Tribunal has not considered this avenue of argument but has based its findings on the discretion in relation to ‘substantial period’.

    [1] Minister for Immigration & Multicultural Affairs v Pires (1998) 160 ALR 97

16. In this case, the Tribunal finds that although Ms Gonzales had only been in Australia for four months and dependent upon her mother for that period of time, she was going to be, and has been, dependent upon her for the whole of her 18 month post-graduate TAFE course which is scheduled to be completed in December 2016. Clearly if Ms Gonzales had been fully apprised of the policy requirements, she would have delayed her application until she met the 12 month period. The Tribunal is satisfied in this case, that Ms Gonzales’ period of dependency prior to the date of application satisfies the definition of ‘substantial period’. The Tribunal has come to this conclusion considering all the surrounding circumstances of the case and Ms Gonzales’ submissions in which she cites a number of relevant cases that support her claims.

17. Accordingly, cl.802.212(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Additional criteria for applicants over 18

18. 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).

    Relationship status

19. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a).

20. The Tribunal accepts Ms Gonzales is not engaged nor has a spouse or de facto partner.

21. Accordingly, cl.802.214(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

22. At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b).

23. Ms Gonzales gave evidence that she has a part-time job at the Hilton Hotel along with her full-time TAFE studies. There is no evidence Ms Gonzales was engaged in full time employment either at the date of the visa application on 2 November 2015 or at the time of this decision. Accordingly, cl.802.214(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)

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. On the evidence submitted, in April 2008 Ms Gonzales finished the equivalent of Year 12 in the Philippines at Isabella National High School and began a tertiary course at the University of Santo Tomas in June 2008. An academic transcript from the University’s College of Tourism and Hospitality Management covering the period 2008 to 2012 was submitted.

27. After Ms Gonzales graduated with a degree in Tourism, she gave evidence that she decided to focus on hospitality management as a career path. To this end, she arranged work experience in hotels in Macau and was employed by Star World Hotel and Galaxy Entertainment Group from September 2012 until June 2015.

28. Ms Gonzales’ declared that she had intended to return to the Philippines after two years of work experience to undertake further studies in hospitality management. The Tribunal accepts her evidence that those plans changed because she was advised by her employer that she should pursue further studies at a Western institution and that she was able to pursue that option since her mother was in the process of applying for Australian citizenship due to her marriage to Ms Gonzales’ step-father, Mr Keith Barrett

29. Ms Gonzales referred to the Department’s Policy Advice Manual (PAM 3) as referred to in a previous Tribunal case[2]:

    This states that, under policy, the term ‘reasonable time’ as it applies to a break in study, is solely intended to cover the period between secondary school and post-secondary studies. It is not intended that ‘reasonable time’ take account of breaks once post-secondary studies have commenced, or for breaks between post-secondary studies and postgraduate studies.

    [2] 1211630 [2013] MRTA 1600 (24 July 2013) para 21.

30. It was submitted that this means the Tribunal need only consider whether the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, commenced undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. On this reading, Ms Gonzales would satisfy the criteria. However, this interpretation would lead to the situation where an applicant could take a break from study and do something else entirely then recommence studies at any time prior to application, so long as they commenced a course of full time study within the required period of leaving school.

31. In fact, the wording of the provision is that the applicant has, 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.

32. Clause 802.214(1)(c) requires adult children to have been studying full-time since turning 18. They must be full-time students as described in this provision (unless incapacitated for work because of total or partial loss of bodily or mental functions). The Tribunal’s understanding is that in the case of students who have commenced full-time tertiary studies then taken a break before recommencing, the period in which to consider ‘reasonable time’, is the complete period between competing the equivalent of Year 12, and the commencement of their current course of study. In Ms Gonzales’ case, this would be from 2008 when she completed high school, to 2015 when she began her post-graduate TAFE course.

33. It is then necessary to consider whether Ms Gonzales’ activities amounted to full time study for the relevant period. The evidence shows Ms Gonzales completed the equivalent of Year 12 in April 2008 and began her university degree in June 2008. She then sought and undertook work experience in her chosen field of hospitality management between March 2012 and June 2015 before re-commencing post-graduate studies in Australia at TAFE which is ongoing. Ms Gonzales explained that she had only planned on a two year period of work experience but was delayed a further 18 months because she was waiting for her mother to be in a position to sponsor her. Ms Gonzales’ work experience was directly related to her original field of study in the Philippines, and her subsequent TAFE studies in Australia. Ms Gonzales undertook her Tourism studies within her university’s College of Tourism and Hospitality Management and according to her academic transcript; she undertook courses related to the hospitality field as well as tourism. Her work experience in Macau was then directly related to hospitality as she was employed in food and beverage services in two large hotels. She gave evidence that despite initially being offered a front office position, she sought out hospitality related roles. Ms Gonzales is now undertaking an Advanced Diploma in Hospitality Management at TAFE NSW in furtherance of her management qualifications.

34. In her written submission of 24 March 2016 Ms Gonzales states:

    The purpose of all of my activities since graduating have been to further my chosen career. I see my work experience and current studies as part of a reinforcing continuum of study, work experience and further study, all in pursuit of a specific vocational outcome.

35. Ms Gonzales referred to a previous Tribunal decision where an interval of three years between tertiary studies was accepted as reasonable due to the particular set of facts[3]. In that case, and according to case law, in determining what period of time would be reasonable, it is necessary to consider the actual period of time involved, what activities if any were undertaken during that period of time; the purpose which those activities were undertaken; and if no activities connected with the ultimate course of study were undertaken and the reason for not undertaking activities related to the course of study (Sok v MIMIA [2005] FMCA).

    [3] 1210447 [2013] MRTA 1997 (9 August 2013).

36. The Tribunal finds that there are a similarly particular set of facts in this case. It is accepted that it was always Ms Gonzales’ intention to continue her post-graduate studies after a period of work experience and that this did in fact occur, albeit after a longer period than originally intended. The circumstances of this case are that the purpose of the applicant’s activities have been related and undertaken in order to gain qualifications in her chosen field through study and work experience. The Tribunal accepts that she commenced her studies since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 as all her activities since that time have been part of a continuum of study and the attainment of experience and qualifications related to her course of study.

37. Accordingly, cl.802.214(1)(c) is met at the time of application, and continues to be met at the time of decision.

38. For the reasons above, cl.802.214 is met at the time of application. At the time of decision, cl.802.214 continues to be met. Accordingly, cl.802.221(2)(b) is met.

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

    DECISION

40. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.212 of Schedule 2 to the Regulations; and

    ·cl.802.214 of Schedule 2 to the Regulations.

    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.

    …