Abenoja (Migration)

[2022] AATA 2278

Abenoja (Migration) [2022] AATA 2278 (19 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jabel Balbarona Abenoja

REPRESENTATIVE:  Mr Ayush Rayamajhi (MARN: 1462368)

CASE NUMBER:  2015424

HOME AFFAIRS REFERENCE(S):          CLF2019/36811

MEMBER:David Crawshay

DATE:19 May 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 of Schedule 2 to the Regulations; and

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

Statement made on 19 May 2022 at 11:36am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had turned 18 at the time of application – applicant commenced undertaking the requisite study within a reasonable time after completing the equivalent of year 12 in the Australian school system – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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

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 September 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 25 September 2019. 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 criteria to be met in this case include cl.802.214, which require the applicant to satisfy certain criteria related to work and study, as well as not be in certain categories of relationship.

4. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate found that the applicant was over 18 years of age and was not a full-time student at the time the application was lodged. A copy of the decision record was provided to the Tribunal by the applicant.

5. The applicant appeared before the Tribunal on 9 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from the applicant’s aunt, Ms Generosa Abuyan.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies certain criteria for applicants aged 18 years or over relating to post-secondary studies under cl.802.214(1)(c).

   Criteria for applicants over 18

9. The evidence in front of the Tribunal, which it accepts, is that the applicant had turned 18 at the time of application. This being the case, she needs to meet certain requirements relating to relationships, work and study: cl.802.214, and these requirements must continue to be met at the time of decision: cl.802.221(2)(b).

   Relationship status and history

10. 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). There is no evidence to demonstrate that the applicant has ever been married or engaged to be married, or has been in a de facto relationship.

11. Accordingly, cl.802.214(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

12. 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). There is no evidence in front of the Tribunal that she has been engaged in full-time work at any material time.

13. Accordingly, cl.802.214(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

14. At the time of application, the applicant must have, since turning 18, or within six 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).

15. 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). There is no evidence that the applicant suffered from such incapacity, and cl.802.214(2) is not applicable.

16. 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.

17. Based on the evidence in front of it, the Tribunal finds that the applicant completed her schooling in June 2019 and that this schooling was the equivalent of year 12 in the Australian school system. It finds that she turned 18 on 4 August 2018, which it notes was before she completed her schooling.

18. In terms of study undertaken by the applicant post-school, the Tribunal has been in receipt of a detailed submissions letter dated 4 March 2022 that attached a number of documents. These documents include several Confirmations of Enrolment (CoE), offer letters, and student application forms from Australian educational institutions, as well as some documents in relation to a course in the Philippines.

19. The Tribunal finds that these documents substantiate the following:

    ·The applicant enrolled in but did not commence a course in Hotel and Restaurant Tourism Services in January 2020.

    ·The applicant enrolled in a Certificate III in Individual Support in November 2020 and completed the course in February 2022 and this course is a full-time course that leads to the award of a professional, trade or vocational qualification.

    ·The applicant is currently enrolled in and commenced a Certificate IV in Ageing Support in February 2022 and this course is also a full-time course that leads to the award of a professional, trade or vocational qualification.

20. Having made the findings above, the Tribunal finds that the applicant commenced post-school study in November 2020, or around 17 months after completing her schooling. This means that she is not able to satisfy it that she commenced such study within six months after completing the equivalent of year 12 in the Australian school system, and will instead need to convince it that she commenced such study within a reasonable time after completing the equivalent of year 12.

21. The Tribunal finds that the applicant travelled to Australia on a visitor visa, arriving on 29 June 2019. This visa carried, among other things, a condition that the applicant must not engage in study or training for more than three months. It ceased on 29 September 2019. A day earlier, on 28 September 2019, the applicant was granted a Bridging A visa which did not have any conditions limiting her ability to undertake study or training.

22. When asked why the applicant had not enrolled in a course of study, she said that when she came to Australia on her visitor visa in 2019, she enquired into a Bachelor of Nursing via her aunt. She said that she needed to take an English test in order to enrol – an IELTS test or a PTE test. She said that her English was not very good and there were also financial difficulties.

23. The Tribunal asked whether the applicant made plans to sit those English tests, and she replied that when she was planning to take the test, the COVID-19 lockdown occurred. It asked what English lessons she took in anticipation of sitting those tests, and she replied that she did not study anything but was reading books and communicating with other people. The Tribunal asked the applicant why she had not taken the test earlier, and she told it that the reason she came to Australia was to take a break from school and to spend time with the sponsor. The Tribunal asked her why she had not taken the test in January or February 2020 (before the COVID-19 lockdowns) and she said that by that stage she was struggling with acne and was embarrassed to go outside. She said that her facial condition started in February/March 2020.

24. The Tribunal discussed with the applicant her trip to the Philippines in late-2019/early-202. She told the Tribunal that she went to the Philippines to undertake a nursing course but found out that they were in second semester. She also said that she did not know if the sponsor could afford the course. She said that the sponsor encouraged her to take a course and she enrolled in a hotel course (a Hotel and Restaurant Tourism Services course, or hereafter the “hotel and restaurant course”). She said that she chose it because it would enhance her English skills for her “dream” course. She said that she discontinued the course because she was able to convince her father that she could come back to Australia and undertake the nursing degree, and because she wanted to be with her father because he had been providing for her and her siblings since their mother left.

25. Later in the hearing, the Tribunal asked the applicant why she could not enrol in the Certificate III or other courses before November 2020. She replied that she was struggling with her facial condition and could not go out and was embarrassed. It asked her whether she had thought about study after she was granted her bridging visa that had no study conditions attached, and she replied that she was taking a break from school.

26. The Tribunal finds that the applicant travelled to Australia on a visitor visa almost immediately after completing her schooling in June 2019. It finds that this visa carried a condition that she not engage in study or training for a period of more than three months. It finds that, on 29 September 2019, she was then granted a bridging visa that had no study conditions placed on it. It finds that, for the purposes of the first period, she was not limited in her ability to study from 29 September 2019 until early-February 2020.

27. In December 2019, which was six months after the applicant had completed her schooling, she was in Australia and not enrolled in the requisite study. Given the time of year, the Tribunal considers that it would not have been reasonable for her to have embarked upon study. However, this was not to say that she would have been unable to do so in early-2020 (say, January or February 2020). Although university courses have more-or-less set semesters or trimesters that typically (but not always) begin in February or March, certificate and other courses have multiple start dates. In this respect, they tend to be more flexible.

28. The evidence shows that the applicant travelled to the Philippines in December 2019 and remained there until early-February 2020. During this time, she enrolled in but did not commence the hotel and restaurant course, instead preferring to return to Australia to undertake her preferred course of nursing. The Tribunal accepts that this attempt to study in the Philippines, though ill-fated, was genuine and evinced a desire to study.

29. As above, the applicant told the Tribunal that she suffered from a debilitating skin condition that rendered her unable to appear in public. To substantiate these claims, she provided evidence including photographs of it at its peak, product information for Oratane (an anti-acne medication) and Isotretinoin (the active ingredient), a document titled “Your Skin Schedule” with handwritten annotations, attendance certificates for June and September 2020 at a skincare clinic, and an email showing that the applicant had an appointment with the same skincare clinic in March 2020. Based on this evidence, the Tribunal accepts that the applicant suffered from a skincare condition and that this condition hampered her ability to be able to go out in public. It accepts that the condition was such that she attended an appointment at a skincare clinic in March 2020. Based on the applicant’s evidence at hearing, the Tribunal accepts that she likely began treatment on Oratane in or around mid-2020.

30. A last issue centres on the applicant’s inability to commence study in September 2020, having instead commenced in November 2020. In this regard, a CoE stated that she was due to commence the Certificate III in late-September 2020. At hearing, the applicant told the Tribunal that the reason she was unable to commence the course was because she failed an online English test ordered by the educational institution. The sponsor and the applicant’s aunt spoke to the same evidence. The applicant said that she subsequently passed the test and was able to commence study in November 2020. As above, she has been in full-time study since this date.

31. Following the hearing, the Tribunal received an undated letter that purported to be from the educational institution. The letter stated that the applicant did not meet the English language entry requirement for the September 2020 intake but met the requirement in time to commence study in the November 2020 intake. The Tribunal accepts that the document is genuine based on an assessment of its properties. It accepts that the applicant failed an English requirement in September 2020 but passed it in November 2020.

32. The Tribunal has considered the evidence in front of it and the findings made. It has had regard to the relevant Department policy which, although not binding on it, should be followed unless there are cogent reasons not to. It has specifically considered the policy background to cl.802.214(1)(c) and cl.802.221(2)(b), which relevantly states as follows:

    A child who turns 18 years old is considered, prima facie, to be independent. If, however, a child progresses to further studies after secondary schooling, it is generally accepted that the child is still dependent on the parent/s and dependence has not been terminated.

33. In this case, where there is no evidence that the applicant has worked and where she appears to have been dependent on the sponsor, it is willing to look favourably upon her at-times clumsy attempts to enrol in study. This includes her aborted enrolment in the hotel and restaurant course in the Philippines in January 2020, and her later attempt at enrolling in the Certificate III course in September 2020. Moreover, it accepts that her skin condition meant that she was hampered in her ability to be able to study for a considerable period from when the condition began in or around February or March 2020 until around mid-2020 when she likely began medication.

34. The Tribunal accepts that the applicant commenced undertaking the requisite study within a reasonable time after completing the equivalent of year 12 in the Australian school system.

35. In this way, the Tribunal finds that the applicant meets cl.802.214(1)(c) at the time of application and continues to meet that subclause at the time of this decision.

36. The applicant therefore meets the requirements of cl.802.214(1) at the time of application.

37. Because the requirements of cl.801.214(1) are met at the time of decision, cl,802.221(2)(b) is met at the time of this decision.

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

    DECISION

39. 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 of Schedule 2 to the Regulations; and

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

    David Crawshay
    Member