1921029 (Migration)

[2020] AATA 5154

1921029 (Migration) [2020] AATA 5154 (16 November 2020)

AppID: 1921029

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1921029

MEMBER:Margie Bourke

DATE:16 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 16 November 2020 at 2:32pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – post-secondary study requirements for applicant aged over 18 – delay in commencing post-secondary study – reasonable time – caring for younger siblings after mother migrated to Australia – withdrawal from course after gaining Australian visitor visa – enrolment in similar course in Australia after study rights granted, and continuing study – decision under review remitted

LEGISLATION
Migration Act 1959 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.214, 802.221

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 12 July 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 27 August 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 which sets out requirements at the time of application for visa applicants aged over 18 years.

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 the post secondary school study requirements of cl.802.214(1)(c).

5. The tribunal had regards to its objectives to provide a mechanism for review in the covid-19 pandemic period, that is fair, just, economical, informal and quick, and had regard to the nature of the review.  The tribunal decided that it was reasonable to conduct the review hearing by way of video conference.

6. The applicant appeared before the tribunal on 16 November 2020 to give evidence and present arguments. The applicant attended on a laptop device with her mother, the sponsor. The tribunal also received oral evidence from the applicant’s stepfather, who attended on a separate device from a different location.  The applicant’s brother was available to give evidence, but the tribunal did not take evidence from him.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

8. 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).

   Relationship status and history

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). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

10. Based on the written and oral evidence of the applicant’s relationship history and status, I am satisfied that the applicant has never been engaged, or in a de facto relationship, or married.  Accordingly, I am satisfied that at the time of application, the applicant meets the requirements of cl.802.214(1)(a) and continues to meet these requirements at the time of decision.

    Not engaged in full-time work

11. At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

12. Based on the written and oral evidence before me, I am satisfied that the applicant has never been in full time employment.  Accordingly, I am satisfied that at the time of application, the applicant meets the requirements of cl.802.214(1)(b) and continues to meet these requirements at the time of decision.

    Full-time study (or incapacitated for work)

13. 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).

14. 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).

15. 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.

16. There is no evidence before me that the applicant is incapacitated for work due to partial or total loss of bodily or mental functions. The applicant and her mother and stepfather stated she was not incapacitated. I am satisfied that the applicant does not meet the requirements of r.1.03(b)(ii).  I am satisfied that cl.820.214(2) does not apply.

17. Based on the written and oral evidence before me I am satisfied that the applicant was born in [date], and turned 18 years in [date].  I am satisfied that the applicant completed the equivalent of year 12 in the Australian school system, in the Philippines in March 2013.

18. I am satisfied that the applicant enrolled in and commenced study in a [Subject] course in October 2017.  She withdrew from this course in April 2018, prior to her departure from the Philippines in May 2018.  The applicant enrolled to study [Subject] in Australia in October 2018, commencing in February 2019, and is continuing her studies at the time of decision.

19. The questions to be answered in this review are (A) whether the applicant’s delay in commencing study after turning 18 was within a reasonable time in the circumstances, and (B) whether the applicant has been undertaking a full time course of study since commencing her study to meet the criteria.

20. I accept based on the evidence before me, that the applicant’s mother had been travelling to Australia since 2005, and had successfully applied for a spouse visa in which she had not included her children as migrating dependents in 2013. I accept that the applicant’s mother was unable to obtain work and support her children in the Philippines. I accept that at the time the partner visa was made, her sponsor had financial difficulties, his father had recently died, his mother was ill, and the applicant’s mother had no work rights and was financially dependent upon her spouse. I accept that the applicant’s mother chose to not include her children in the partner visa application, and not to ask her spouse for the fee to include her children in the application.  I accept that the applicant’s mother instead, in 2013, requested the applicant, her older daughter who had just graduated high school, to care for the two younger children. I accept the eldest child, a son, was not living with the other three children.  I accept the applicant’s stepfather did not turn his mind to the stepchildren’s situation at this time because of the personal situation surrounding his parents and his finances due to his need to be a carer.

21. In the judgement of Sok v MIMIA [2005] FMCA 190 at [25], there is a specific reference to the necessity of considering all the circumstances to determine whether the time is reasonable. The time cannot be considered to be reasonable if it is as a result of capriciousness, neglect or perversity.

22. In the situation of this review, I am satisfied that the applicant acted of necessity and care of her younger siblings.  I accept that her mother had chosen to migrate to Australia.  I accept that for reasons that are difficult to understand, the children were not included in the applicant’s mother’s application for an Australian partner visa. I accept that the applicant was requested to become the family carer for her two younger siblings then aged ten and eleven years. I accept that their father did not live with them.  I accept that their older brother did not live with them.  I accept that when the money sent from the applicant’s mother did not go directly to the paternal grandmother, the paternal grandmother had ceased living with and caring for the children. I accept that the applicant could not study, and undertake the responsibilities which included caring for the children, managing the household, going to the market, cleaning and washing, and preparing the food.

23. I am satisfied that the applicant commenced study in October 2017, three and a half years after turning 18 years, and four and a half years after completing secondary school.  I am satisfied that this period of four and a half years after the applicant completed secondary school before commencing study is a reasonable time, as the applicant had to care for her two younger siblings when there was no-one else who would take on that responsibility.  I accept that in the period of four and a half years after the applicant completed secondary school, she was financially supported by her mother from Australia, and she did not undertake any activities related to her course of study.

24. I have considered the evidence that the applicant commenced the diploma in [Subject] at the [Institution] in the Philippines in October 2017.  I am satisfied that this is a full time course.  I am satisfied that the applicant had become depressed with her longterm role as ‘mother’ to her siblings and felt like a loser. I am satisfied that in 2017 the younger siblings were older, the applicant had decided with them and their mother that the three of them could work together to maintain the house and their school and study commitments. I accept the applicant made flexible arrangements with the education institute to ensure she could still provide the support required for her younger brother and sister.  I accept that the applicant was still undertaking a full time course of study in her chosen field of [Subject] or [Occupation]. I accept that the certificate of grades from the [Institution] records the applicant passed fourteen of her subjects in the diploma, and withdrew from six subjects.

25. I am satisfied that the applicant withdrew from the course because she was granted her three month visitor visa to come to Australia with her siblings to be with their mother and stepfather. The applicant withdrew from the course in April 2018, and travelled to Australia in May 2018.

26. I accept that upon arrival in Australia the applicant made enquiries about resuming her studies in a similar course.  I am satisfied that the applicant was advised that due to the study limitation condition on the visitor visa she was not permitted to enrol in a similar course of study.  In August 2018, the applicant made the application for the onshore dependent child visa which is the subject of this review. I accept that the applicant waited until she received the relevant notification from the Department in relation to her study rights, and then enrolled in the Certificate II [Related subject 1] and Certificate III [Subject].  I accept the applicant was advised she had sufficient qualifications to enter straight into the Certificate III course.  The applicant was enrolled in October 2018, and commenced the course in February 2019. 

27. I am satisfied that since the applicant’s arrival in Australia, she has made enquiries in relation to full time courses of study in her chosen field, and she enrolled when her visa conditions permitted her to do so, and she commenced study in the course as soon as it was practicable, and the course started.  I am satisfied that the applicant has been ‘undertaking’ a full time course of study by engaging in or entering upon a full time course of study since her arrival in Australia, including the period of time up til the commencement of the course in February 2019, when she was making enquiries in relation to suitable courses and enrolling in the course.

28. I am satisfied that the applicant successfully completed the Certificate III course in 2019.  I accept the applicant was enrolled in Certificate IV [Related subject 2] course in 2020.  In  February 2020 classes were suspended due to covid-19, and the applicant transferred to a different TAFE campus in July 2020 to resume the Certificate IV course, which will not now be completed until 2021. I am satisfied the applicant’s full time study will lead to the award of a qualification as [an Occupation].

29. For all the above reasons, I am satisfied that the applicant has, since turning 18 or within six months or a reasonable time after completing year 12, has been undertaking a full time course of study at an educational institution, leading to the award of a professional, trade or vocational qualification.

30. Accordingly, I am satisfied that at the time of application the applicant met the requirements of cl.802.214(1)(c) and continues to meet these requirements at the time of decision.

31. For the reasons above, the applicant satisfies cl.802.214 at the time of application.

32. At the time of decision, the applicant continues to be meet the requirements of cl.802.214. Accordingly, the applicant satisfies cl.802.221(2)(b).

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

    DECISION

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

    Margie Bourke
    Member