1607809 (Migration)

[2016] AATA 4438

1607809 (Migration) [2016] AATA 4438 (13 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Priscila Athena Power

CASE NUMBER:  1607809

DIBP REFERENCE(S):  CLF2016/16137

MEMBER:Michael Cooke

DATE:13 September 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.802.214 of Schedule 2 to the Regulations

·cl.802.221(2)(b) of Schedule 2 to the Regulations

Statement made on 13 September 2016 at 2:55pm

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 17 May 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 17 May 2016. 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 was not met because the delegate was not satisfied that the applicant met cl.802.214(1)(c).

5. The applicant appeared before the Tribunal on 13 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s aunt. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether 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.

   Additional criteria for applicants over 18

8. 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

9. 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).

10. The applicant gave evidence that she is not engaged to be married and does not have or ever have had a spouse or de facto partner.

11. 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

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

13. At the time of application, the applicant was not engaged in full-time work as she is a full time TAFE student dependent for her basic needs on her family.  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)

14. 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).

15. 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].

16. Findings and reasons relating to:

    ·whether the applicant was/is incapacitated for work because of loss of bodily or mental functions; and if not

17. There is no evidence that the applicant was/is incapacitated for work because of loss of bodily or mental functions.

    ·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.

18. The applicant has since turning 18 (26 June 2014) been undertaking full-time study at an educational institution leading to the award of a professional, trade or vocational qualification. She undertook a full-time course of vocational study at Kirwan State High School in 2015 in combination with her year 12 QCE studies and graduated in November 2015 with a Certificate 1 and 2 in Information, Digital Media and Technology within the Australian Qualifications Framework (AQF) (D1, ff.105-106). The applicant is currently enrolled as a full time student at TAFE Queensland North where she is studying Certificate 3 in Early Childhood Education and Care (T1, f.2).

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

20. For the reasons above, cl.802.214 is met at the time of application. 

21. At the time of decision, cl.802.214 continues to be met. Accordingly, cl.802.221(2)(b) is met.

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

    DECISION

23. 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.802.214 of Schedule 2 to the Regulations

    · cl.802.221(2)(b) of Schedule 2 to the Regulations

    Michael Cooke
    Member