1804444 (Migration)

[2020] AATA 5151

1804444 (Migration) [2020] AATA 5151 (29 October 2020)

AppID: 1804444

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804444

MEMBER:Margie Bourke

DATE:29 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 29 October 2020 at 1:48pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – full-time study requirement – whether commenced full-time study in ‘reasonable time’ – activities undertaken by applicant after the completion of secondary education – self-study in library – part-time employment – English language course – financial capacity to afford full-time study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 802.214

CASES
Sok v MIMIA [2005] FMCA 190

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs on 1 February 2018 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 for the visa on 1 March 2017. 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(1)(c) was not met because the delegate was not satisfied that the applicant had been undertaking a full time course of study at an educational institution since turning 18, or within six months or a reasonable time of completing secondary school.

5. I have considered the objectives of the tribunal to provide a mechanism of review that is fair, just, economical, informal and quick.  I have considered that at the time of this review, due to the covid-19 pandemic in-person hearings were not available. I concluded after considering the nature of this review and the individual circumstances of the applicant that it was reasonable to conduct this review by way of video hearing.

6. The applicant appeared before the tribunal on 26 October 2020 by video to give evidence and present arguments. The tribunal also received oral evidence the applicant’s mother [Ms A] who attended the hearing by video from the same location but on separate devices. The tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The interpreter also attended the hearing by video.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Scope of the review

9. The issue in the Department’s decision record dated 1 February 2018 was that the applicant did not meet cl.802.214(1)(c).  The delegate recorded on page 5 that she was satisfied that the applicant met the requirements of subclauses 802.214(1)(a) and (b).  The delegate gave reasons for these conclusions.

10. On page six of the Department decision, the delegate records that the applicant does not satisfy cl.802.214(1)(b), cl.802.214(1)(c) or cl.802.214(2).  This is not consistent with the reasons for the conclusions recorded on page 5 that the applicant satisfies cl.802.214(1)(b). I conclude that the statement on page six that the applicant does not meet the requirements of cl.802.214(1)(b) is an error.

11. Cl.802.214(2) provides that if the applicant meets the requirements of r.1.03(b)(ii) then cl.802.214(1)(c) does not apply.  There is no evidence that the applicant is incapacitated or suffers partial or total loss of bodily or mental functions, or that the applicant meets the definitive requirements of r.1.03(b)(ii), and therefore cl.802.214(1)(c) does apply in this case. The statement on page six of the Department decision record that the applicant does not satisfy cl.802.214(2) is not a correct assessment of the criteria. The subclause 802.214(2) does not apply in this review.

12. Accordingly, I have interpreted the Department decision record as limited to finding that the applicant does not meet cl.802.214(1)(c), and that is the issue to be determined in this review.

    Criteria for applicants over 18

13. If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.802.214.

    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).

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]-[16]. In determining what is a ‘reasonable time’ for cl.802.214(1)(c), 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 [19]. 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). As stated above, there is no evidence that the applicant is incapacitated and meets the requirements of r.1.03(b)(ii), and therefore cl.802.214(2) does not apply.

16. Based on the oral and written evidence before me I am satisfied that the applicant turned 18 in January 2012, and completed the equivalent of year 12 in the Australian school system, being year 12 in secondary school in South Korea, in March 2012.

17. The applicant states that she works part time in a [store] in South Korea, to attempt to save tuition fees for college from May 2012 to November 2013  At the same time the applicant states that she also undertook self training in the public library, to attempt to improve her secondary school year 12 marks to be able to pass university entrance examination.   The applicant gave evidence that she retained her student status, by continuing to try to improve her marks to obtain entrance examination standard for college. There is no documentary evidence of the improvement in the applicant’s secondary school marks, or attempts at entrance examinations, which is probably to be expected if the applicant was self teaching and doing practice exams online.  The applicant was not studying at an educational institution during this period, although claims to have been preparing, or training for full time study in the future.

18. The applicant came to Australia on a working holiday visa from November 2013 to November 2014. The applicant enrolled, and gave evidence of her enrolment in a six week English language course from February to March 2014.  The applicant stated she completed the course.  The applicant provided written evidence that she worked part time in a [business] in 2014 after completing the six week English course. The applicant stated she was permitted to study while the holder of the working holiday visa, but it was limited to three or six months, (she was not sure but was aware there was a limitation).

19. The applicant stated she undertook fulltime study in [Qualification 1] from January 2015 to January 2016.  The applicant provided a letter from the educational institute that she completed 60% of the course in the twelve month course time. The applicant stated that this meant she passed 60% of the course, and did not have the aptitude for [Discipline 1].  The applicant stated if required she could obtain an academic record of the units studied as part of the course.

20. The applicant provided a completed Form 80 to the Department dated January 2018, signed by the applicant.  The form did not record the six week English course in February – March 2014 or the twelve month [Discipline 1] course in 2015. The applicant stated that she gave the agent all the information, and signed the form when she was told to.  The applicant stated that she had not read the document as she had very limited English.  I accept that English is not the applicant’s first language; however, I also accept the applicant’s evidence that at the time the Form 80 form was submitted, the applicant had completed a full time six month English course and was studying at college full time in English.  I would expect the applicant who was studying full time in English would have the English language skills to read a document that contains records and details of her own circumstances. I have some concern as to why the applicant did not provide the Department with the information about the six week English course in 2014 and the uncompleted [Discipline 1] course in 2015.  However, on balance I accept the applicant’s oral evidence as to what activities, and what study activities she undertook after completing secondary school.

21. The applicant provided evidence that she enrolled in and completed Certificate IV in spoken and written English from February 2016 to August 2016, which was a prerequisite to her undertaking other courses. The applicant provided a letter that she partially completed a six month [Qualification 2] from September 2016 to March 2017.  The Department decision record states that the applicant then studied a six month [Qualification 3] course from April 2017 to October 2017. The applicant provided the tribunal with documents stating that she undertook and completed [Qualification 4] from November 2017 to October 2018, and continued to study a twelve month [Qualification 5] course from April 2019 to April 2020. The applicant provided the tribunal with a letter of enrolment in a course commencing February 2021. At the time of application, March 2017, I accept the applicant was enrolled in a full time course of study, one of a series of courses in aimed at a career and qualification working in [Industry 1], either in sales, business or service delivery.

22. In the applicant’s statutory declaration dated 19 October 2020 the applicant provides a graph and records she commenced [Discipline 1] in January 2015, and then records from January 2016 she has been a full time student. The applicant states she could not enrol in [Discipline 2] because of her English skill level in 2015, so she started the [Discipline 1] course, but decided to drop out and changed courses in January.

23. In discussing the evidence I have referred to the applicant’s future courses of study, rather than a singular course of study. This is in recognition of the evidence that the applicant undertook several courses of study, and changed the direction and content of her courses of study. It is not a finding in relation to whether the applicant was undertaking a full time course of study. At this point in the decision record I am determining whether the applicant commenced full time study within a reasonable time of turning 18 or completing year 12 of secondary school.  In assessing the reasonable period of time before commencing the full time course of study, I have chosen to refer to the applicant’s courses of study.

24. I have considered the actual period of time after the applicant completed year 12 in her secondary school in March 2012, before she undertook full time study at an educational institution.  Although the applicant did not complete the [Discipline 1] course, and completed only 60% of the course, I accept that she commenced undertaking a full time course of study at an educational institution leading to an award of a professional, trade or vocational qualification, when she commenced the [Discipline 1] course in January 2015. Therefore the actual time after completing secondary school in March 2010 before commencing the full time course of study in January 2015 is 33 months, three months less than three years.

25. The activities that the applicant undertook during that time included travelling to Australia to see her mother in April 2012; working part time in [a store] in South Korea from May 2012 to November 2013 and practicing online exams and studying at the public library to try to improve her high school score, and entrance examination ability with a view to entering [University 1] in South Korea and studying [Discipline 2].  The purpose of her employment was to save for her tuition fees, and the purpose of the study and practice was to obtain a place at the university studying [Discipline 2].  I accept the written and oral evidence in relation to this.

26. The applicant’s representative submitted the Australian and South Korean education systems are markedly different.  There was no country information provided to the tribunal by the applicant.  The tribunal made limited research endeavours, and based on the information recorded at I accept that South Korea has publicly funded primary and secondary school education, and additional tutoring is privately sourced.  I accept that places at university and college entrance exams are highly competitive and require careful preparation.  I accept that private education and tutoring can be prohibitively expensive. I do not accept that the applicant was a full time student when practicing online exams or teaching herself in the public library.  I do not accept that by practising in the public library and self teaching the applicant retained her student status as she claimed.  I do accept that the purpose of these activities from May 2012 to November 2013 was to achieve the applicant’s goal of future tertiary study. I accept that in circumstances of financial necessity the time from May 2012 to November 2013 working to save a tuition fees and studying in the public library to improve to be able to achieve an acceptable entrance examination result for college, may be a assessed as a reasonable time for the purpose of the cl.802.214(1)(c) criteria.

27. The applicant came to Australia in November 2013 as the holder of a working holiday visa. The purpose of this visa is not to study, or to study full time to achieve the award of a professional, trade or vocational qualification.  I accept the applicant undertook a six week English course in February and March 2014.  I do not find this was for the purpose of future study, or to achieve the award of a professional, trade or vocational qualification.  I accept the applicant’s submission that the purpose was to improve her English, strengthen her confidence and make friends. The applicant was the holder of a working holiday visa, and the activities she undertook as the holder of that visa, are not activities that I am satisfied are activities that were undertaken by the applicant related to the course of her study.

28. I accept that at the time the applicant came to Australia as the holder of a working holiday visa, her mother could not afford financially to sponsor the applicant on a student visa; at that time in November 2013 the applicant’s mother had some financial difficulties that resolved in 2015 or 2016 when she and her husband changed their employment. However, the applicant came to Australia as the holder of a working holiday visa in November 2013, and after a six week English language course completed in March 2014, commenced a part time job in a [business]. For the twelve month period from November 2013 to November 2014 I am not satisfied that the applicant undertook any activities the purpose of which was related to her future courses of study,.  I have considered the applicant completed the six week English language course in February and March 2014.  I do not assess that the six week course was a precursor to the six month English language course the applicant completed in 2016. I find the six week language course was undertaken to assist the applicant obtain employment. The applicant’s evidence is that after completing the six week English course she commenced part time work in a [business].

29. Aside from the English language course, the applicant arrived and remained in Australia for twelve months from November 2013 as the holder of a visa, the main purpose of which is to work, not study. The applicant’s objective to study to obtain a qualification for a career was not evident in her activities from November 2013 and until November 2014.  The applicant chose to work part time at the [business] as the holder of the working holiday visa.

30. There evidence before me does not indicate that the applicant’s part time employment in the [business] was connected to her future study in the [Discipline 1] course. The applicant provided written evidence that the part time employment allowed her to improve her English and to meet people.  I accept that in 2012 and 2013 the applicant was attempting to achieve marks to study [Discipline 2] in South Korea. I accept that the applicant made enquiries in relation to studying [Discipline 2] in Australia but was advised she did not have the English skills for this course, and at this point she enrolled in the [Discipline 1] course. I am satisfied the part time employment in 2014 was not connected to future courses of study.

31. I have considered the evidence that the applicant returned to study and obtained a student visa.  I have considered the evidence provided by the applicant that she has partially completed a [Qualification 1] and a [Qualification 2] course, and has completed [Qualification 4 and 5] courses. Records on the Department file record the applicant completed the [Qualification 3] course.

32. I have considered the claims that the applicant and her mother could not afford the financial costs of full time study before 2015. I accept that the applicant’s mother and her husband were both in employment during the period of time that the applicant had completed secondary school.  I accept that their changed financial position came about because they changed their employment.  I accept that the applicant’s mother’s financial position improved, but I am satisfied that at all relevant times she was not unemployed and has not provided evidence that she was in dire financial hardship.

33. I have to be satisfied that within a reasonable time of completing year 12 or of turning 18, the applicant has been undertaking a fulltime course of study.   To determine what period of time is reasonable for the purposes of cl.802.214(1)(c) I have assessed the activities undertaken by the applicant, and the purpose of those activities, from November 2013 to November 2014 while the holder of a working holiday visa.  I am not satisfied that the applicant’s activities or the purpose of those activities can be construed as connected to her future courses of study.

34. I have considered the submission that the applicant applied for a working holiday visa, and not a student visa because her mother could not afford the educational costs attached to the student visa. I have considered that the applicant was not engaged in activities connected to her future courses of study whilst she was the holder of the working holiday visa because her mother could not afford that the student visa. I am not satisfied that the applicant’s mother’s and stepfather’s different employment positions prior to 2015 are sufficient explanation for the applicant’s activities being not connected to her future courses of study, as the applicant chose to apply for a working holiday visa, and to take up part time employment.

1. I have considered that the applicant spent eighteen months working part time and practicing and self teaching in the public library from May 2012 to November 2013, and I accept that if she had then undertook a full time course of study, that time before commencement of the full time course of study would be reasonable time. However, the applicant then came to Australia on a working holiday visa for a further twelve months, and completed a six week language course, and then worked part time.  After the working holiday visa the applicant enrolled and then undertook study in the [Discipline 1] course in January 2015. 

2. I am not satisfied that spending a year as the holder of a working holiday visa, during which time the applicant completed a six week English course and worked part time in a [business], is connected to the applicant’s future courses of study.  I am not satisfied that the explanation of financial restrictions prior to her mother and stepfather’s change in employment is sufficient explanation for the applicant undertaking activities not connected to her future courses of study.

3. I am not satisfied that for the period of twelve months from November 2013 to November 2014, an assessment of the applicant’s activities or the purposes of the activities or the reason for undertaking activities not related to the future courses of study can be found to be a reasonable time after the applicant turned 18 or completed the equivalent of year 12 secondary school in the Australian school system, before undertaking a fulltime course of study.  Therefore, I am not satisfied that the applicant undertook full time study within a reasonable time since turning 18 or of completing the equivalent of Year 12 secondary school in the Australian school system.

4. Accordingly, the applicant does not meet the requirements of cl.802.214(1)(c) at the time of application.

5. For the reasons above, cl.802.214 is not met at the time of application.

6. 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

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

   Margie Bourke
   Member