2015945 (Migration) - [2024] AATA 4271

2015945 (Migration) [2024] AATA 4271 (26 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)
CASE NUMBER:  2015945
MEMBER:Justine Clarke
DATE:26 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 26 September 2024 at 3:06pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – over 18 at time of application – no evidence of full-time study or incapacity for work provided with application – later successful study – strong compassionate circumstances – all immediate family members in Australia, and citizens or permanent residents – care for younger siblings – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.03(b)(ii), Schedule 2, cl 802.214(1)(c), (2), 802.221(2)(b)
CASES
Khan v MICMA [2023] FCA 463
Sok v MIAC [2007] FCA 413
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

This is an application for review of a decision made on 8 October 2020 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 13 November 2019, the applicant, who is a national of the Philippines, applied for the visa. At the time she applied for the visa, the applicant was 21 years of age. At the time of this decision, she is 26 years of age.
At the time the applied for the visa, 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). 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 criteria to be met in this case include cl 802.214, which is a time of application requirement.
Clause 802.214 provides:
(1) If the applicant has turned 18:
(a)the applicant:
(i)is not engaged to be married; and
(ii)does not have a spouse or de facto partner; and
(iii)has never had a spouse or de facto partner; and
(b)the applicant is not engaged in full-time work; and
(c)subject to subclause (2), the applicant has, 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.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
The expression ‘dependent child’ is defined in reg 1.03. A dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’ is as follows.
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
…
(b) has turned 18 and:
…
(ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate was satisfied that the applicant met the criteria in cl 802.214(1)(a) and (b). However, the delegate was not satisfied that either cl 802.214(1)(c) or cl 802.214(2) was met and refused to grant the visa on this basis. The delegate explained:
The applicant turned 18 years of age on 13 September 2016 and she completed her secondary study on 28 March 2015. At the time the application was lodged the applicant advised she was currently enrolled to study. After a further request for information the applicant was unable to provide evidence that she was enrolled to study at the time of application.
Therefore at the time the application was lodged (13 November 2019), the applicant was over 18 years of age and not enrolled in and participating in full time education. As a result I am not satisfied she meets sub-clause 802.214(1)(c).
As a result, the applicant has not been a continuous full time student since she turned 18. Therefore I am not satisfied she meets sub-clause 802.214(1)(c).
I also considered clause 802.214(2), which states that the study clause will not apply for those applicants over the age of 18 years of age who are dependent due to being incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. As the applicant has not provided any evidence of incapacity I am satisfied the applicant does not meet clause 802.214(2).
On 28 October 2020, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review.
On 26 September 2024, the applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, [Ms A]. The applicant’s two younger sisters and another female adult attended to support the applicant. The representative also attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The interpreter also attended the hearing in person.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issue for determination in this case is whether, at the time of application on 13 November 2019, the applicant met cl 802.214, particularly cl 802.214(1)(c) or (2).
Criteria for applicants over 18
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
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).
The Tribunal notes that the delegate was satisfied that, at the time the applicant applied for the visa, she met cl 802.214(1)(a). The Tribunal has no reason to revisit this finding as there is no information or evidence before the Tribunal to the contrary.
At the hearing, the applicant gave credible evidence that at no time, from the time of application for the visa until the date of the hearing, had she been engaged to be married or have a spouse or de facto partner.
Accordingly, based on the evidence before it, the Tribunal finds that cl 802.214(1)(a) is met. It continues to be met at the time of decision.
Not engaged in full-time work
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).
The Tribunal notes that the delegate was satisfied that, at the time the applicant applied for the visa, she met cl 802.214(1)(b). The Tribunal has no reason to revisit this finding as there is no information or evidence before the Tribunal to the contrary.
At the hearing, the applicant gave credible evidence that at no time, from the time of application for the visa until the date of the hearing, had she been engaged in full-time work. She explained that she was not permitted to work.
Accordingly, based on the evidence before it, the Tribunal finds that cl 802.214(1)(b) is met. It continues to be met at the time of decision.
Full-time study (or incapacitated for work)
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).
At the hearing, the Tribunal asked the applicant whether, at the date she applied for the visa on 13 November 2019, she had been studying. She replied in the negative.
Next, the Tribunal explained to the applicant that, based on her oral evidence, the Tribunal would be unable to make a decision favourable because she did not meet cl 802.214(1)(c) at the time she applied for the visa.
This is because, in accordance with the Federal Court case of Khan v MICMA,[1] the words of cl 101.213(1)(c)—which is the equivalent provision for an offshore Child visa—have been interpreted to require that, at the time the visa application is lodged, an applicant has commenced the required full-time study (emphasis added). The Federal Court confirmed that the phrase ‘has been undertaking’ in cl 101.213(1)(c)—which also appears in cl 802.214(1)(c)—means an action that has already commenced and is ongoing. The Court also indicated, in obiter comments, that an applicant enrolled in a course of full-time study which would otherwise meet the requirements, except it has not yet commenced at the time of application, would still meet the requirement.[2] The Federal Court in Sok v MIAC, also observed that the term ‘undertaking’ may not necessarily be synonymous with the term ‘actively participating’.[3] It considered that the term could be relevantly defined as ‘engaging in’ or ‘entering upon’ some enterprise, and as such the relevant question may be whether, on the evidence before the decision-maker the applicant has been engaging, or participating, or entering upon a full-time course of study’.
[1] [2023] FCA 463.
[2] At [83].
[3] [2007] FCA 413 (Kenny J, 22 March 2007) at [66]. Justice Kenny’s comments were made in obiter.
Based on the evidence before the Tribunal, the Tribunal finds that, at the time the applicant applied for the visa on 13 November 2019, she was not undertaking full-time study. Accordingly, cl 802.214(1)(c) is not met.
The Tribunal also explained to the applicant that, based on the evidence before it, the Tribunal did not consider that it could find that she met the alternate provision—cl 802.214(2). This is because there is no evidence that the applicant is a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’. As the Tribunal explained to the applicant at the hearing, no claims have been made that she meets this provision and, in addition, she did not appear to have experienced the total or partial loss of her bodily functions and her history of successful study in Australia did not suggest that she had experienced the total or partial loss of her mental functions.
Accordingly, cl 802.214(2) is not met.
CONCLUSION
For the reasons above, cl 802.214 is not met at the time of application.
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).
CONSIDERATION OF REQUEST FOR REFERRAL TO THE MINISTER FOR INTERVENTION
At the hearing, the applicant formally requested the Tribunal to refer the matter to the Minister for his consideration.
Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether the Tribunal had the power to make that other decision or not.
In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Direction of the President of the Tribunal titled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).
Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’. The Direction also provides that a Member should set out, in their reasons for decision, the circumstances which the Member considers warrant the case being brought to the Minister’s attention.
The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers.
In this case, the Tribunal considers that the facts as claimed by the review applicant seem to best be described as:
strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
The applicant told the Tribunal that, in July 2024, she had graduated from a Diploma of [Subject] at [Institute]. (Documentary evidence was submitted to the Tribunal in support). She broke down in tears when she told the Tribunal that those present at the hearing are her only family members as her father had died. She said that she had no one in the Philippines. The Tribunal asked the applicant whether she lived with the family members who were present at the hearing, and she said that she did. She told the Tribunal that she was the eldest of the four children and that she has one brother as well as the two younger sisters who attended the hearing. She told the Tribunal that she takes care of her sisters.
The applicant’s mother, [Ms A], gave oral evidence that she is an Australian permanent resident. She told the Tribunal that she had left her children in the Philippines when they were young so that she could work overseas, and she said that she had worked overseas for a long time. When asked, she confirmed that she worked in a [workplace].
She said that she was the only parent that her children have, as their father had died.
She said that she had brought the children to Australia on Tourist visas and had been trying to obtain permanent residence for them. She said that she had not understood the requirement in cl 802.214. She said that her son, who she said is 21 years of age, is an Australian permanent resident and that her next daughter is an Australian permanent resident and that her youngest daughter is an Australian citizen (she explained that her partner is an Australian citizen).
She told the Tribunal that she had tried her hardest to provide a positive future for her children but that it had been very difficult for her financially and she gave details of the family’s financial challenges during the COVID19 pandemic.
She said that she loves the applicant dearly and that, at present, all the family was together. She said that she worked Monday to Friday, from 7am to 3pm and she said that the applicant helped care for the younger children, including taking the youngest one to school. She said that the applicant helped with laundry and with ‘everything’. She said that the applicant also provided her with emotional support.
The Tribunal notes that much of [Ms A]’s oral evidence echoed comments she had made in her signed statement of 18 September 2024 which was filed in this review. The Tribunal restates here the final part of that statement.
[The applicant] is a very good, kind, sweet, loving and supportive daughter and sister. All her siblings love and adore her they look up to her. She’s always there whenever I need her no matter how hard life is. She’s a good role model on her siblings. In our culture family matters the most and I am the only family that she has. She did her course and everyone in her placement loves her. She’s a very smart kid and always there for you. She likes helping everyone in need. Her little sister [Miss B] loves her so much and she treat [Miss B] as her own daughter, she’s the one who took care of [Miss B] since she was a baby and now, she’s [Age] years old. Thank you and we are hoping that you give us a chance and understand our situation.
The Tribunal notes that some letters of support were filed in this review and provide further evidence on the important role the applicant plays in her family unit in Australia. For example, in their statement made on 18 September 2024, [Mr C](who works in the [department] of [Workplace] with [Ms A]) stated, ‘[The applicant] is very loving, devoted and caring to her younger siblings’ and [Ms D] (the mother of [Ms A]’s partner [Mr E]) stated, ‘I support [the applicant] to stay in Australia where all her family live, she needs to be with them. Since her arrival she has helped to look after her young sister [Miss B] while her mother worked and been a great help around the house’.
Having considered all the evidence before it, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Justine Clarke
Member