Apted (Migration)

[2022] AATA 4963

Apted (Migration) [2022] AATA 4963 (28 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lucille An-Yong Apted

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  2015467

HOME AFFAIRS REFERENCE(S):          CLF2020/19329

MEMBER:Stephen Conwell

DATE:28 June 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 of Schedule 2 to the Regulations.

Statement made on 28 June 2022 at 7:13pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adopted child – aged 18 years or over – post-secondary studies – not enrolled in full-time study – extraordinary and unforeseeable factors – COVID-19 pandemic – USA’s ratification of the Hague convention – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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

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 8 October 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 4 June 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 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(1)(c) was not met because the delegate found that the applicant had not been a full-time, continuous student since she turned 18 years of age.

5. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review. The applicant was represented in relation to the review by her registered migration agent (representative).

6. Having regard to the decision record dated 8 October 2020 and the other information and evidence before the Tribunal, a hearing was not considered to be necessary. The Tribunal was able to find in favour of the applicant on the basis of such evidence, pursuant to s.360(2) of the Act.

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 under cl.802.214(1)(c) applicable to applicants aged 18 years or over, relating to post-secondary studies.

9. The Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record, the written statements of the sponsor and of the applicant, both dated 16 May 2022 and written submissions of the representative.

   Background

10. The sponsor (an Australian citizen) and his wife (an American citizen) had been living in Australia since their marriage in 1991 until 2003 when they decided to relocate to the United States of America (USA).  In 2007 the sponsor and his wife legally adopted the applicant (who was born in China and who was 6 years old at the time of adoption). The parental rights of the applicant’s adoptive parents are not in dispute.

11. The sponsor and his family (including the applicant) remained in America until 2019 for family and schooling reasons. Once the children (including the applicant) were at the point of completing their secondary schooling, the family decided to return to live in Australia.

12. In anticipation of the family’s return to Australia the sponsor, whilst still in America had made an application on behalf of the applicant for Australian Citizenship by adoption.  The applicant and her family expected that upon being her acquiring Australian citizenship, she would be able to pursue her tertiary studies without hindrance.

13. The applicant most recently arrived in Australia on 11 March 2020 holding a temporary Visitor (subclass 601) visa.

    Criteria for applicants over 18

14. 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).

15. The applicant was 19 years of age at the date of her visa application.

    Relationship status and history

16. 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).

17. Based on the evidence before it, the Tribunal is satisfied that at the time of the application, the applicant was not engaged to be married, did not have a spouse or de facto partner, and had never had a spouse or de facto partner. Accordingly, the applicant met the requirements of cl.802.214(1)(a) at the time of application. The Tribunal is satisfied that the applicant continues to meet this requirement at the time of decision.

    Not engaged in full-time work

18. 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).

19. In her written statement the applicant states is not working and has not worked at all since she turned 18, nor since she finished high school. The Tribunal see no reason not to accept this claim. Therefore, the Tribunal is satisfied that the applicant has never been engaged in full-time work and continues to be financially reliant on her father (the sponsor).  Accordingly, the Tribunal is satisfied that the applicant meets this requirement.

    Full-time study (or incapacitated for work)

20. 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).

21. 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).

22. 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 applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

23. The delegate had found that the applicant had not met cl. 802.214(1)(c) of the Regulations as she has not been a continuous full-time student since turning 18 – in particular she was not a full-time student at the time of her visa application nor at the time of the delegate’s decision.  Furthermore there was no evidence of the applicant’s total or partial loss of mental or bodily functions such that the study requirement would not apply due to such incapacity (cl. 802.214(2)). 

24. The representative’s written submission of 19 May 2022 succinctly explains the applicant’s personal circumstances which led to her not being enrolled in full-time study at the time of her visa application and remaining so until early 2021,

    The Review Applicant finished year 12 in the USA in May 2019 and always intended to pursue further education, however she could not commence studying shortly after finishing year 12 owing to her family circumstances and the exceptional turn of events that occurred due to the pandemic. The Review Applicant’s family wanted to return to Australia permanently and as such it was not a viable option for the Review Applicant to enrol in a course in the USA knowing she would not be able to complete it as her family  had made the decision to return to Australia.

    The Review Applicant’s father, Anthony Apted, before returning to Australia had lodged an application on behalf of the Review Applicant for Australian Citizenship by adoption.

    The Review Applicant reasonably believed she would be eligible for Australian       citizenship and intended to study in Australia with this status.

    On 30 April 2020, the Review Applicant’s application for Australian citizenship was rejected, owing to the date when the USA ratified the relevant Hague convention (annexure 12, which is the notice the Review Applicant received about her application for Australian citizenship).

    The refusal of her citizenship application intervened with her plans to commence studying in Australia. Her study plans were further abruptly stopped by the Covid-19 pandemic in 2020, which delayed her start as well as her visa restrictions given she was not granted citizenship.

    We submit, the Review Applicant and the Sponsor provided reasonable explanations to the Department as to why the Department should be satisfied that the Review Applicant meets criteria 802.214, including 802.214(1)(c).

    In her primary application, the Review Applicant advised the Department that she intended to continue studying within a reasonable period after finishing year 12 and provided evidence of her enrolment to undertake study full-time, including letters the Review Applicant had received regarding the offer of a place to study a Bachelor of Business and the offer of a scholarship, (both of which the Review Applicant stated she  intended to accept) and ended up accepting.

25. This history also appears in the decision record where the delegate quotes in some detail the representative’s written submission in support of the visa application. as well as from other supporting statements.

26. An unofficial transcript from Swinburne University of Technology confirms that the applicant is currently enrolled in the Bachelor of Business as a full-time student. She began the course in early 2021 and is currently in her second year.  The transcript records the applicant achieving excellent grades in 2021, where she was awarded a Distinction or High Distinction for 7 out of 8 subjects. The Tribunal notes that the applicant received a commendation for academic excellence by Swinburne University in recognition of her 2021 grades. The Tribunal is satisfied that at the time of its decision, the applicant is enrolled, and actively participating in, her current full-time studies.

27. The Tribunal notes that the purpose of the regulation is to allow people who are over 18 and who are thus legally adults, to continue to be eligible for the visa on the basis that they are doing full-time, career-oriented, post-secondary courses of the sort usually undertaken by young adults. The Tribunal further notes that the term ‘undertaking’ may not necessarily be synonymous with the term ‘actively participating’: Sok v MIAC [2007] FCE 413 at 66. As such, the relevant question in this case is whether, on the evidence, the applicant has been engaging, or entering upon a full-time course of study, since she turned 18. 

28. It is clear from the visa application and its supporting documents, including written statements by her and the sponsor, that the applicant always intended to continue her education in Australia by embarking upon tertiary studies as soon as possible following her arrival. Neither she nor her sponsor could have foreseen the emergence of the COVID-19 global pandemic and its catastrophic consequences for all, including those people seeking to enrol in Australia’s education sector. Furthermore, it was equally unforeseeable to the parties that the date on which the USA ratified the relevant Hague convention would play such a pivotal role in the applicant’s bid for Australian citizenship.

29. The Tribunal finds the applicant’s intentions as borne out by the steps undertaken by her and her sponsor both before, and following, her arrival in Australia, strongly support her claim that she always wished to continue her education in Australia. Furthermore, the applicant’s studies in Australia would have, in all probability, commenced seamlessly but for the effects of two extraordinary and unforeseeable factors, vis. the COVID-19 global pandemic and the timing of the USA’s ratification of the relevant Hague convention.

30. Having considered all the circumstances of the applicant and given the reasonable explanations for the gap in study, the Tribunal is satisfied that the applicant continued to undertake her studies despite the study gap between the date of visa application and her enrolment in full-time study in early 2021. When viewed in totality, and  applying the test as set out in Hussain, the Tribunal finds that her studies were ongoing and therefore she does continue to meet the requirement in cl.802.214(1)(c) at the time of decision.

31. The Tribunal is satisfied that the applicant has, since turning 18, been undertaking a ‘full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification’. At the time of this decision, as noted, the applicant is enrolled, and has been actively participating, in a full-time course of study since early 2021. The Tribunal therefore finds that the applicant continues to undertake her full-time studies towards a professional qualification at the time of decision.

32. There is no evidence before the Tribunal ,and no claim is made pursuant to cl.802.214(2), that the applicant was incapacitated for work because of loss of bodily or mental functions either at the time of application or at the time of decision.

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

    decision

34. 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 of Schedule 2 to the Regulations.

    Stephen Conwell
    Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    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:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)       is dependent on that person; or

    (ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …