2216372 (Migration)

[2023] AATA 1959

2216372 (Migration) [2023] AATA 1959 (18 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Pamela Williams

CASE NUMBER:  2216372

MEMBER:Mireya Hyland

DATE:18 April 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 visa:

·Public Interest Criterion 4012A for the purposes of cl.500.217(2) of Schedule 2 to the Regulations.

Statement made on 18 April 2023 at 8:41pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – appropriate welfare arrangements for child applicant – mother’s student guardian visa for applicant’s younger sibling refused – sibling under 6 and no compelling or compassionate reasons for grant of visa – family’s visa and residence history – genuine focus on education – mother’s decision remitted after related review – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217(2), Schedule 4, criterion 4012A

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 18 October 2022 to refuse to grant [the applicant] a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. [The applicant] applied for the visa on 4 February 2022. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). [The applicant] applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Migration Regulations1994 (the Regulations). The delegate in this case refused to grant the visa on the basis that [the applicant] did not meet the requirements of cl.500.217(2) because she did not satisfy Public Interest Criterion (PIC) 4012A in Schedule 4 to the Regulations. The delegate did not consider any criterion other than PIC4012A. [The applicant] lodged an application for review on 8 November 2022. The matter was constituted to the Tribunal on 5 April 2023. A copy of the delegate’s decision was given to the Tribunal by [the applicant] with her review application.

3. In reaching its decision, pursuant to s.360(2)(a) of the Act, the Tribunal did not consider a hearing to be necessary as it was able to find in [the applicant]’s favour on the basis of the material before it.

4. The issue in this case is whether [the applicant] satisfies PIC4012A for the purposes of meeting cl.500.217(2) of the Regulations. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. [The applicant] was born on [Date] in Australia. She is a citizen of [Country 1] and [Country 2]. On 4 February 2022, when the visa application was lodged, she was [Age] years of age and the holder of a Student (Temporary) (Class TU) Subclass 590 (Student Guardian) visa. Her father is [Mr A] (born [Date]), a citizen of [Country 2], and her mother is [Mrs A] (born [Date]), a citizen of [Country 1]. She has three siblings: [Sibling 1] born [Date], [Sibling 2] born [Date], and [Sibling 3] born [Date]. [Mrs A] is their primary carer and [Mr A] is the sole financial support for the family. Their usual place of residence is [Country 1] where [Mr A] runs the family’s business, [Company name].

6. On 12 December 2021, [the applicant]’s parents both signed a Consent to Grant an Australian Visa to a Child under the age of 18 years Form 1229. On [the applicant]’s Student Guardianship Arrangements Form 157N it states that her nominated student guardian will be her mother, [Mrs A]. [Mrs A] lodged an application for a Student (Temporary) (Class TU) Subclass 590 (Student Guardian) visa on 1 February 2022. [The applicant]’s brother, [Sibling 3], applied for the visa as a member of [Mrs A]’s family unit who is under the age of six.

7. All the criteria for the grant of a Subclass 500 Student visa must be met at the time of the decision. Clause 500.217 provides:

   500.217

   (1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

   (2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

   (3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

   (4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.

   (5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

   At the time of the delegate’s decision, on 18 October 2022, [the applicant] remained [Age] years of age. To be granted a Student visa, applicants under 18 years of age are required to have appropriate welfare arrangements in place.

8. Because she had not turned 18 at the time of the delegate’s decision, [the applicant] needed to meet the requirements in cl.500.217(2), including the welfare arrangements under PIC4012A in Schedule 4 to the Regulations. Relevantly, it provides:

   4012A

   In the case of an applicant who has not turned 18:

   (a)  the application expresses a genuine intention to reside in Australia with a person who:

   (i)  is a parent of the applicant or a person who has custody of the applicant; or

   (ii)  is:

   (A)a relative of the applicant; and

   (B)nominated by a parent of the applicant or a person who has custody of the applicant; and

   (C)aged at least 21; and

   (D)of good character; or

   (b)  a signed statement is given to the Minister by the education provider for the course in which the applicant is enrolled confirming that appropriate arrangements have been made for the applicant’s accommodation, support and general welfare for at least the minimum period of enrolment stated on the applicant’s:

   (i)  confirmation of enrolment; or

   (ii)  AASES form;

   plus 7 days after the end of that period; or …

   It is important that applicants comply with the obligations under PIC4012A to ensure that adequate arrangements are in place to protect applicants who are minors.

9. The delegate found that [the applicant]’s nominated guardian, [Mrs A], had been refused the Subclass 590 (Student Guardian) visa under s.65 of the Act by a delegate of the Minister on 16 September 2022 because cl.590.213 was not met. That delegate found that [Sibling 3] had not turned six years of age and [Mrs A] had not established compelling and compassionate reasons for the grant of the visas. In [the applicant]’s case, she failed to provide any alternative welfare arrangements. Therefore, PIC4012A was not satisfied in relation to [the applicant] and she did not meet cl.500.217(2).

10. On 6 October 2022, [Mrs A] made an application for review of the decision to refuse to grant her a Subclass 590 (Student Guardian) visa to the Tribunal. On 14 April 2023, the Tribunal remitted [Mrs A]’s application to the Minister for reconsideration with a direction that cl.590.213 for a Subclass 590 visa was met. [The applicant]’s nominated guardian’s visa application is currently with a delegate of the Minister to consider the remaining criteria for a Subclass 590 (Student Guardian) visa.

11. At the date of this decision [the applicant] is [Age] years of age. Her parents have both signed a Consent to Grant an Australian Visa to a Child under the age of 18 years Form 1229 and there is a Student Guardianship Arrangements Form 157N that nominates her mother as her student guardian. There is no evidence before the Tribunal that she does not genuinely intend to live in Australia with her mother who is awaiting a decision on her visa application. In this regard, the family’s history is relevant. On 28 February 2013, [the applicant]’s eldest brother, [Sibling 1], was granted a Student (Temporary) (Class TU) Subclass 571 Schools Sector visa to attend elementary school in Australia. [Mrs A] and [Sibling 2] were granted Subclass 580 Student Guardian visas as [Sibling 1]’s guardian and a member of her family unit who was under the age of six. The family settled in Cains, Queensland, and [Mr A] made extremely regular visits from [Country 1] to be with [Mrs A] and the children.

12. On 10 December 2015, the family made further Student (Temporary) (Class TU) applications and so [the applicant] was granted a Bridging Visa A (Class WA) Subclass 010 visa (BVA) when she was [born], although her mother still held a Subclass 580 visa until 11 January 2016. On 10 March 2016, [Sibling 1] and [Sibling 2] were granted Subclass 571 Schools Sector visas to continue their education in Australia and [Mrs A] was granted a further Subclass 580 visa as their guardian, as was [the applicant] as a member of her family unit under the age of six. The family continued to live in Cains with [Mr A] running the family business in [Country 1] and visiting regularly to be with the family. The business continued to support the family and the children’s education.

13. On [Date], [Sibling 3] was born and granted a Subclass 580 visa in effect until 15 March 2022. Then on 1 February 2022, the family lodged further Student (Temporary) (Class TU) visa applications so that the children could continue their education. [The applicant] started primary school at [School 1] and her brother, [Sibling 2], continued his junior secondary education at [High School 2]. Like [Sibling 2] and [the applicant] previously, [Sibling 3] was included in [Mrs A]’s application to be their student guardian as a member of her family under the age of six. They were all granted BVAs that came into effect when their substantive visas ceased on 15 March 2022 and, on 9 July 2022, they were granted Bridging Visa B (Class WB) Subclass 020 visas (BVB) so they could all travel. [Sibling 1] completed Year 12 at [High School 2] in 2021 and turned [age] years old on [Date]. He was granted a Subclass 500 Student visa to study [Subject] in Australia that is valid until 20 August 2024. He continues to live at home with his mother and siblings.

14. Currently, [Mrs A] holds a BVB and can remain in Australia lawfully to care for [the applicant] until her Subclass 590 visa application is decided. She has been successful in being granted Student Guardian visas on two previous occasions in identical circumstances, so there is no reason for the Tribunal to believe that she does not meet the criteria. The [A] household has a highly traditional composition with [Mr A] the sole breadwinner based in [Country 1] but flying into Cairns from [Country 1] regularly to spend time with his family and [Mrs A] a stay-at-home mother with full responsibility for their children’s wellbeing. This family has functioned remarkably successfully in this way since 2013, expending substantial effort and funds to give their children the best foundational education possible. From the school records provided with the various visa applications associated with [Mrs A]’s application which show that they have all done extremely well in school, it is evident that there has been a genuine focus in the last ten years on the children’s education. The Tribunal has complete confidence that the family has every intention of continuing in this way going forward and that [the applicant] genuinely intends to live in Australia with her mother as she has been and as her brothers have been since they arrived in 2013. At the time of this decision there is no impediment to [the applicant] doing so.

15. As [the applicant] is an applicant who has not turned 18, the Tribunal finds, in these circumstances, that her application expresses a genuine intention to reside in Australia with a person who is her parent, being [Mrs A].

16. The Tribunal finds that PIC4012A is satisfied in relation to [the applicant] for the purposes of cl.500.215(2) of the Regulations.

17. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

18. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·Public Interest Criterion 4012A for the purposes of cl.500.217(2) of Schedule 2 to the Regulations.

    Mireya Hyland
    Member