2013158 (Migration)

[2022] AATA 700

2013158 (Migration) [2022] AATA 700 (8 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013158

MEMBER:Margie Bourke

DATE:8 March 2022

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 08 March 2022 at 12:23pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Student) – study requirements for child aged over 18 – full-time study since completing high school – college and university study in home country and Australia –18-month break in study – rare medical condition and genetic predisposition – surgery and ongoing monitoring for recurrence – physical and mental stress – study break spent regaining health and positivity, developing family relationships and inquiring about study and career options – entire period of study characterised as a whole – decision under review remitted

LEGISLATION
Migration Act 1958 (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 11 August 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 February 2020. 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 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the time of application 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 the requirements of cl.802.214(1)(c) at the time of application because the applicant had not been a continuous full-time student since she turned 18.

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 and the nature of the review. The Tribunal considered that the conduct of the hearing by video would allow the applicant an opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and allow the Tribunal to assess the evidence before it. The Tribunal further considered that the review in this matter did not require a large quantity of documents to be put to the applicant during the hearing by the Tribunal. The Tribunal was cognisant of the restrictions of in-person hearings due to the pandemic. This review involved an application for a dependent child visa, and the Tribunal had considered requests for priority processing in the matter were made from the applicant’s representative dated 19 October 2020 and 13 January 2022. The Tribunal considered any further delay in scheduling the matter for hearing should be avoided, and for all the above reasons the Tribunal considered this matter was an appropriate review to be conducted by way of video hearing.

6. The applicant appeared before the Tribunal by video on 7 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence the applicant’s father and stepmother who attended the hearing by video.

7. The applicant was represented in relation to the review. Two representatives attended the Tribunal hearing, one attended by video and the other representative attended by telephone. Both representatives made submissions or contributions to the hearing.

8. 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

9. 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).

10. Based on the written and oral evidence provided to the Tribunal, the Tribunal is satisfied of the following. The applicant was born in England in [year], and was aged [age] years at the time of application, which was made on 11 February 2020. The applicant’s biological parents are separated and her mother resides in England and her father, the sponsor in this application, resides in Australia.

11. The applicant completed her secondary school in England in June 2012 and completed her senior secondary school in June 2014. The Tribunal considered the Australian government UK Country Education Profiles a copy of which was provided by the applicant’s representative. The Tribunal is satisfied that the applicant’s senior secondary school, and the equivalent of year 12 in the Australian school system, was completed in 2014 when she undertook and completed year 12 and year 13 at [School] from June 2012 to June 2014. The applicant then undertook a one-year full-time course at the [Institution 1] which was completed in June 2015, and the applicant then studied a three-year full-time bachelor of arts degree, honours program, majoring in [Specialisation 1] at [University 1], England which was completed in June 2018. After a break of 18 months the applicant enrolled in a certificate IV [Disciple 1] course in TAFE in Australia in February 2020. Within two weeks the applicant transferred to the [Institution 2], to study a two-year full-time bachelor of [Disciple 1] course which was completed in December 2021, and the applicant is currently enrolled in an 18 month master of [Specialisation 2] course at [University 2], Victoria. The applicant provided to the Tribunal, documents in support of all her academic achievements and current enrolment.

12. The applicant was diagnosed with a rare [medical condition] in 2005 when she was aged [age] years old. The diagnosis of the [medical condition], based on the medical reports provided to the Tribunal, involved lifelong surveillance for recurrent disease and the risk of further [incidents]. The applicant had [surgery] in 2017 when she was completing the last year of her bachelor of arts at [University 1]. In 2018, the applicant underwent tests which disclosed that she carried the gene which indicated her condition could be transferred to any children. The applicant provided several detailed medical reports in relation to all the operations and ongoing monitoring and testing of her condition to the Tribunal.

    Relationship status and history

13. 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).

14. Based on the written and oral evidence before me, I am satisfied that the applicant is not engaged to be married, and does not, and has never had a spouse or de facto partner. Therefore, the Tribunal is satisfied that the applicant meets the requirements of cl.802.214(1)(a) at the time of application and continues to meet these requirements at the time of decision.

    Not engaged in full-time work

15. 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).

16. Based on the written and oral evidence before the Tribunal I am satisfied that at the time of application and at the time of this decision the applicant is not engaged in full-time work. I am satisfied that the applicant has had part-time work during the years that she has been studying. I am also satisfied that the applicant has had short periods of full-time work, while she was the holder of the working holiday visa in 2019. However, at the time of application and at the time of decision the Tribunal is satisfied that the applicant was not engaged in full-time work and therefore the Tribunal is satisfied that the applicant meets the requirements of cl.802.214(1)(b) at the time of application and at the time of decision.

    Full-time study (or incapacitated for work)

17. 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).

18. 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).

19. 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.

20. The Tribunal is satisfied based on the oral and written evidence before it that the applicant turned 18 in October 2013, and completed the equivalent of year 12 in the Australian school system in June 2014. The Tribunal is satisfied based on the oral and written evidence before it that the applicant commenced undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification within three months of completing the equivalent of year 12 in the Australian school system, when she commenced her 12 month [course] in September 2014.

21. The Tribunal is satisfied that the applicant has chosen a career specialising in [Disciple 1], and has studied [Specialisations 1 and 2] as part of her senior secondary school subjects, completed [a] course of one year after completing her secondary school, and then completed a three-year bachelor degree honours program, at [University 1] majoring in [Specialisation 1]. The Tribunal is satisfied that the applicant studied the bachelor degree for three years on a full-time basis, and completed the bachelor degree in June 2018.

22. The Tribunal accepts the evidence of the applicant that she was advised to continue her study towards a career as [an Occupation 1], although she had completed a bachelor degree. The Tribunal accepts that the career in [Occupation 1] follows on from her bachelor degree in [Discipline 1] at [University 1].

23. The Tribunal has considered that the applicant then had an 18 month break from study, before pursuing further undertaking of full-time study. The Tribunal has considered the medical reports, and the oral evidence in relation to the applicant’s mental and physical health. The Tribunal accepts that the applicant had had two serious [medical condition] diagnoses in 2005 and 2017 which resulted in surgery, in addition to ongoing monitoring and health checks through her childhood and adolescence. The Tribunal further accepts that in 2018 the applicant was tested and reported she carried the gene which carried the disposition for the health condition which could be passed to any children. The Tribunal acknowledges that these are significant psychological burdens for a young person to deal with. The Tribunal accepts that the applicant was overwhelmed and worn out by the physical and mental stress of the illness and ongoing condition she had experienced by the time she completed her bachelor degree in 2018.

24. The Tribunal accepts the evidence of the applicant’s father, that the applicant was suffering mental anguish and was drawn physically and needed time, support and a break from study in 2018 to recover her mental and physical health. The Tribunal accepts that the applicant came to join her father and his family in Australia to recover and rebuild her physical and emotional well-being.

25. The Tribunal has considered and accepts the evidence that during the 18 month period during which the applicant was not undertaking full-time study, the applicant was making enquiries about study she could undertake in Australia. The Tribunal accepts that the applicant had discussions with her [relative] who was a lecturer at TAFE, which is why the applicant initially enrolled at TAFE. The Tribunal accepts the applicant had discussions with [Occupation 1]s who worked with or were known to her father and stepmother in relation to career and study options. The Tribunal accepts the applicant found the [Discipline 1] course at [Institution 2] during this time. The Tribunal accepts that the applicant regained her positivity, overcame her anxiety, developed strong relationship with her siblings, stepmother and father, and rekindled her desire to excel in the field of [Discipline 1] during the 18 month break from study.

26. The Tribunal has espoused the principles applied in Hussain v MIBP [2017] FCCA 3247, and has looked at the entire period of the applicant’s study, characterised as a whole, and considered the period of 18 months when the applicant was not studying. The Tribunal has considered that the gap in study was for physical and mental health reasons, and further that while the applicant recovered her health she was involved in looking to the future to assess further education leading to the qualification of a further professional award in her chosen field of [Disciple 1]. The Tribunal is satisfied that in February 2020, the applicant returned to study and completed a bachelor of [Disciple 1] with distinction in December 2021. Further the Tribunal is satisfied that the applicant has continued to study in this field and is now undertaking a Masters degree in [Specialisation 2]. For this reason the Tribunal is satisfied that although the break in study was relatively long, being 18 months, the reason for the break in study was because of a serious health condition, and the Tribunal is satisfied that the applicant continued to make enquiries about further study during this time.

27. Therefore, the Tribunal is satisfied that when considering the period of time since the visa applicant completed the equivalent of year 12 in the Australian school system, the Tribunal has considered the period characterised as a whole, and the Tribunal is satisfied that the applicant has been undertaking relevant study during that period. Therefore, the Tribunal Is satisfied that since completing the equivalent of year 12 in the Australian school system, the applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

28. Therefore the Tribunal is satisfied that the applicant meets the requirements of cl.820.214(1)(c) at the time of application, and continues to meet these requirements at the time of decision.

29. For completeness the Tribunal finds that the applicant was not incapacitated for work due to the partial or total loss of bodily or mental functions, and therefore does not meet the definition of dependent child in r.103(b)(ii). Therefore the requirements of cl.802.214(1)(c) do apply.

30. For the reasons above, the applicant meets the requirements of cl.802.214 at the time of application.

31. For the reasons above, the requirements of cl.802.214 continue to be met at the time of decision. Therefore, the applicant meets the requirements of cl.802.221(2)(b).

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

    DECISION

33. 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