1902206 (Migration)

[2021] AATA 4085

1902206 (Migration) [2021] AATA 4085 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1902206

MEMBER:Margie Bourke

DATE:20 September 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 September 2021 at 1:38pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – visa applicant over 18 years – full-time study – dependent child – applicant withdrew from studies – family bereavement – employment – referral for Ministerial Intervention – compassionate circumstances – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 802.214, 802.223; r 1.03

CASES

Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
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 29 January 2019 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 3 January 2018. 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 found the applicant was over 18 years of age and not enrolled in and participating in full-time education and therefore did not satisfy cl.802.214(1)(c), and further the delegate was not satisfied that the applicant met the definition of dependent child in subparagraph (b)(ii), and therefore did not satisfy the alternative cl.802.214(2).

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicant, the nature of the review, and the restrictions on in-person hearings caused by the pandemic. The Tribunal considered that this review did not involve large amounts of paperwork being put to the applicant. The Tribunal considered that the conduct of the hearing by video would give the applicant the opportunity to give evidence and present arguments, and the conduct of the hearing by video would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to assess the credibility of the applicant. The Tribunal considered that the visa subclass in the review was a dependent child visa, and further delay in the matter should be avoided. For all the above reasons the applicant was invited to attend the hearing by video.

6. The applicant requested a postponement of the hearing until after the lockdown when she could attend the hearing with her representative, because the applicant did not consider she could master the technology required. The Tribunal advised that the request for postponement would not be granted until after the applicant had attempted to access the appropriate technology, and that the Tribunal provided advice, assistance and a test dial for applicants prior to video hearings. The applicant successfully attended the test dial, and the video hearing.

7. The applicant appeared before the Tribunal on 20 September 2021 to give evidence and present arguments. The applicant attended by video accompanied by her parents, one of whom is her sponsor in the visa application. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended the hearing by telephone. b

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

10. 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. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

    Full-time study (or incapacitated for work)

11. 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).

12. 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).

13. Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

14. The applicant had not provided any documents or submissions to the Tribunal. The Tribunal did have available the documents and submissions that had been provided to the Department.

15. The applicant gave evidence that she turned 18 in March 2011, and that she had completed year 12 in the Australian school system in December 2011, and provided her graduation certificate to the Department. The applicant gave evidence that she had enrolled in a [tertiary] course the following year but had withdrawn from the course in September 2012. The applicant gave evidence that she did not study in 2013 due to the ill-health of her brother. The applicant gave evidence that she completed a Certificate IV in [subject 1] in 2014, and commenced a diploma in [subject 1] in 2015 but withdrew from the course in early 2015.

16. The applicant gave evidence that she has not studied, enrolled to study, made enquiries or attempted to engage in study since early 2015.

17. The requirements of cl.802.214(1)(c) are time of application requirements. The application for the visa was made on 3 January 2018, based on the date stamp on the application and sponsorship forms and on the evidence of the applicant and submissions of the representative in the hearing. I am satisfied that in considering time of application criteria the Tribunal needs to look at evidence appropriate to January 2018.

18. I am satisfied based on an assessment of the evidence before me, that on no interpretation of the evidence was the applicant engaged in study, participating in study, or having a break from study at the time of application. I am satisfied based on the written and oral evidence provided to the Tribunal that the applicant was not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification at the time of application.

19. Cl.802.214(2) states that the requirements of cl.802.214(1)(c) do not apply to an applicant who meets the definition of dependent child in subparagraph (b)(ii). The definition of dependent child in subparagraph (b)(ii) in r.1.03 states that a dependent child (b) has turned 18 and (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. The Tribunal has considered whether the applicant meets the requirements of this subclause.

20. The applicant had provided information and evidence to the Department that she had worked for [Employer 1] from November 2014 to January 2017. The applicant provided oral evidence in the hearing of the average hours worked per day and days worked per week during this period. The applicant provided tax returns to the Department in relation to the employment she had in the financial years ending June 2015, June 2016 and June 2017, relevant to her employment at [Employer 1].

21. The applicant provided information evidence to the Department that she worked for [Employer 2] from August 2016 until June 2018. The applicant initially told the Tribunal that she ceased work at [Employer 2] after the death of her brother, who died in June 2017. The applicant agreed she had provided tax assessments and payslips up to June 2018 confirming she had continued to work at [Employer 2] until June 2018. The applicant stated she must have been mistaken in her memory and agreed she had continued to work at [Employer 2] until June 2018. The applicant provided oral evidence in the hearing of the average hours worked per day and days worked per week during this period at [Employer 2]. The applicant provided tax returns to the Department in relation to the employment she had in the financial years ending June 2017 and June 2018, relevant to her employment at [Employer 2], and also the applicant provided payslips for weeks worked in June 2018 at [Employer 2].

22. The applicant told the Tribunal that in 2019 she obtained part-time work at a [business 1] in [Suburb 1]. The applicant stated that after six months work she had a break for about 18 months, and recently recommenced work at the [business 1]. The applicant stated she worked part-time at the [business 1].

23. The Tribunal is satisfied that the applicant has been employed since 2014, and was employed at the time of application in January 2018 on a part-time basis at [Employer 2]. The Tribunal is satisfied that the applicant, based on the evidence she has provided that she was employed, was not incapacitated for work due to total or partial loss of her bodily or mental functions, at the time of application.

24. As the applicant does not meet the definition of dependent child in subparagraph (b)(ii) for the definition of dependent child, the applicant does not meet the requirements of cl.802.214(2). Therefore, the requirements of cl.802.214(1)(c) do apply to the applicant.

25. The applicant’s representative submitted that on his instructions the applicant was not undertaking a full-time course of study at the time of application. The applicant’s representative further submitted that on his instructions the applicant was employed, and therefore was not incapacitated for work, at the time of application. The applicant’s representative submitted that the applicant did not meet the requirements of either cl.802.214(1)(c) or cl.802.214(2), and submitted that a request for ministerial intervention was appropriate in the circumstances.

26. The representative submitted there was no need to take evidence from the applicant’s parents. The Tribunal did not take evidence from the applicant’s parents, as I was cognisant  the distress which may be caused by talking about the death of their son in the Tribunal setting. I accept the basis for the request for ministerial intervention.

27. In discussion with the Tribunal the applicant stated she understood her representative’s submission and the questions from the Tribunal. The applicant stated she understood the Tribunal was considering affirming the decision of the Department, based on the evidence she had provided. In response to a question from the Tribunal, the applicant stated she understood her representative was requesting the Tribunal recommend the affirmed decision be considered for ministerial intervention.

28. I am satisfied that the applicant has understood that her evidence has meant she did not meet the requirements for the particular subclause, and that she understood the process throughout the review hearing.

29. I am not satisfied, based on the evidence provided to the Tribunal, both in writing and in the hearing, that the applicant has since turning 18, or within six months a reasonable time after completing the equivalent of year 12 and 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. I am not satisfied that the applicant meets the requirements of cl.802.214(1)(c).

30. As stated above the Tribunal has concluded that the applicant does not meet the requirements of cl.802.214(1)(c), and that pursuant to cl.802.214(2), the requirements of cl.802.214(1)(c) do apply to the applicant.

31. Accordingly, cl.802.214(1)(c) is not met by the applicant at the time of application.

32. 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

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

    Ministerial intervention

34. The Tribunal considers that strong compassionate circumstances exist that are suitable for this matter to be recommended to the Minister for his consideration under s.351 of the Act. The Tribunal considers that serious and continuing harm would be caused to an Australian family unit, namely the parents of the applicant, who lost their only other child to cancer in 2017.

    Margie Bourke
    Member