Angar (Migration)

[2020] AATA 6041

Angar (Migration) [2020] AATA 6041 (1 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Dolgionmurun Angar

CASE NUMBER:  1829122

HOME AFFAIRS REFERENCE(S):          CLF2018/5164

MEMBER:Margie Bourke

DATE:1 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 01 December 2020 at 5:44pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – engaged in full-time work – cl.802.214 does not continue to be met at the time of decision – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 802.214, 802.221

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 17 September 2018 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 23 January 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 relevant to time of application, and cl.802.221 which require the criteria must continue to be met at the time of decision.

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 time of application study requirements in cl.802.214(1)(c).

5. The matter was listed for review hearing during the covid-19 pandemic.  The tribunal had regard to its objectives to provide a mechanism for review that was fair, just, economical, informal and quick.  The tribunal had regard to the nature of the review.  The tribunal decided that it was appropriate to conduct the hearing by way of video.  The applicant advised she had the technology to attend a hearing by way of video.

6. The applicant appeared before the tribunal by video with her mother and stepfather on 22 October 2020, on which date the tribunal agreed to adjourn the hearing the allow the applicant to seek legal advice. The applicant appeared before the tribunal on 23 November 2020 by video with her mother and stepfather to give evidence and present arguments. The tribunal received oral evidence from the applicant’s mother Ms K Tumur and the applicant’s stepfather Mr B Meiklejohn  . The tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

7. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   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). Based on the identity documents required and the evidence before me, the applicant had turned 18 years at the time the application for the visa was lodged.

   Not engaged in full-time work

9. 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).

10. The applicant provided the Department with a letter from her employer dated 26 August 2018, recording the applicant had been working full time since April 2018. The application was lodged in January 2018, and the delegate assessed that at the time of application the applicant met cl.802.214(1)(b), in the Department decision record.

11. The applicant provided the tribunal with references from her employer JC, her manager YI and a salon owner JT, all of whom referred to the applicant’s skill, reliability and quality as an employee. The applicant and her witnesses gave evidence that the applicant was employed on a full time basis and had been employed full time since 2018. The applicant provided evidence of the esteem in which she was held by her employers and customers in her field, and of the award she won in 2018. I accept she was a highly valued and skilled employee.

12. After the adjournment, at the second hearing, the applicant provided evidence of enrolment in studies, and her intention to obtain a qualification in aged care and community support, and to change her career through study.

13. However, I am satisfied that the applicant has been employed on a full time basis from April 2018, until November 2020. I am not satisfied that the applicant continues to meet the requirement of cl.802.214(1)(b) “the applicant is not engaged in full time work” at the time of decision. Therefore the applicant does not satisfy the requirement of cl.802.221 that applies to applicants who had turned 18 at the time of application, as cl.802.221(2)(b) requires “the applicant continues to satisfy the criterion in clause 802.214”.

14. Accordingly, although the applicant met cl.802.214(1)(b) at the time the application for the visa was made on 23 January 2020, the applicant did not meet this requirement from April 2018 when she commenced full time work, and does not continue to meet this requirement at the time of decision.

15. For this reason, the tribunal finds the that at the time of decision, cl.802.214 does not continue to be met. Accordingly, cl.802.221(2)(b) is not met by the applicant.

16. 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).

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

18. [Details deleted]

19. [Details deleted].

    Margie Bourke
    Member