Arizza (Migration)

[2024] AATA 3831

Arizza (Migration) [2024] AATA 3831 (24 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Indira Gozwan Arizza

CASE NUMBER:  2015246

HOME AFFAIRS REFERENCE(S):          CLF2019/30225

MEMBER:Kira Raif

DATE:24 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 24 September 2024 at 1:06pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant aged over 18 – study requirements – full-time study or incapacity for work – conditions of visitor and bridging visas – later study incomplete but no evidence of mental health provided – voluntary work – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.214(1)(c), 802.221(2)(b)

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416

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 23 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 is a national of Indonesia, born in February 1999. She applied for the visa on 25 July 2019. The delegate refused to grant the visa on the basis that cl 802.214 was not met because the delegate was not satisfied the applicant met the study requirements. The applicant seeks review of the delegate’s decision.

3. On 9 September 2024 the Tribunal wrote to the applicant inviting her to attend the hearing on 24 September 2024. On 17 September 2024 the applicant requested the hearing to be postponed by one to two weeks as she felt she was not ready. The Tribunal has considered the request but decided not to postpone the hearing. In the Tribunal’s view, the applicant has not provided a sufficient reason for the hearing postponement other than to state that she felt she was not ready and she has not indicated what steps she intended to take in the one or two weeks that she wished to gain by postponing the hearing and why such steps were not, or could not have been taken earlier, noting in the particular the lengthy time since the application for review was lodged. Having considered the applicant’s request, the Tribunal decided not to postpone the hearing.

4. The applicant appeared before the Tribunal on 24 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Intan Primayanti. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

5. 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).

6. 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.

7. 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).

   Criteria for applicants over 18 years of age  

   Relationship status and history

8. 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 applicant told the Tribunal that she is not, and has never been, engaged or in a married or de facto relationship. There is nothing to contradict that evidence. Accordingly, cl 802.214(1)(a) is met and continues to be met at the time of decision.

   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). The applicant told the Tribunal that she has never worked. There is no evidence to contradict that. 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)

10. 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). 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).

11. 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.

12. The visa applicant was born in February 1999 and the Tribunal finds that she was over the age of 18 when the application was made.

13. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was born in February 1999.  She last travelled to Australia in December 2018 on a Bridging visa and information before the Tribunal indicates that she had previously applied for another Child visa in 2018 which was refused and affirmed by the Tribunal (differently constituted).

14. In her application the applicant stated that she completed secondary schooling in September 2017 and she also advised that she undertook a Certificate III in Visual Arts at TAFE between July 2018 and December 2019 but withdrew from that course. The applicant stated that from July 2019 she was enrolled in a Certificate III in Early Childhood Education and the course would be completed in early 2020.

15. The delegate wrote to the applicant inviting her to provide evidence of study between 2017 and 2020. The applicant provided a statement from her mother (the sponsor) Ms Primayanti. The sponsor refers the applicant’s first visa application made in February 2017 and states that she planned to enrol her daughter in a course but a letter from the Department informed her daughter that her bridging visa was not in effect while she held the Visitor visa and she was not allowed to study on a Visitor visa for more than 3 months. The sponsor states that she thought about cancelling her daughter’s Visitor visa (which was due to expire in September 2019) but was afraid that her daughter would have to leave Australia. Ms Primayanti states that she approached John Cook University and TAFE and was told that her daughter could not enrol due to her Visitor visa status. She also contacted the Department and thought she had to wait until the expiry of her daughter’s Visitor visa in September 2019 and in the meantime she sent her daughter overseas every three months to ensure her lawful status. Ms Primayanti states that once she obtained advice from a migration agent, she allowed the Visitor visa to expire and her daughter’s bridging visa came into effect and she was able to enrol. The sponsor states that she was confused and misunderstood the visa conditions. She states that it was not her daughter’s intention not to study between February 2017 and May 2018 and they did approach some institutions to enrol her.

16. The applicant told the Tribunal in oral evidence that she was undertaking a Childhood Education course which is “about 80% complete” but she stopped studying around February 2022 because ‘emotionally she is not there’. The applicant told the Tribunal that she intends to return to study ‘as soon as possible’ but has not able to offer any explanation as to why she has no resumed study since February 2022.

17. The applicant’s mother Ms Intan Primayanti told the Tribunal that in the past, the applicant had refused to attend school and her guess is that her daughter was bullied. Ms Primayanti states that her daughter is mentally not ready to study. The Tribunal acknowledges that evidence but in the Tribunal’s view, that is insufficient to establish the applicant’s incapacity for work. There is no medical or otherwise probative evidence to indicate that the applicant is incapacitated due to the total or partial loss of bodily or mental functions. Significantly, the applicant told the Tribunal that since ending her study in 2022, she has been helping out in the community by helping to teach in a religious school about 12 hours a week. The applicant’s ability to engage in that activity which is akin to work (even if unpaid) does not support any finding that the applicant is incapacitated for work.

18. The Tribunal is not satisfied on the evidence before it that the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal finds that the requirements of cl. 802.214 apply to her.

19. The Tribunal finds that the applicant is not engaged in studies at the time of this decision. As noted above, the reasoning in Opoku-Ware v MIBP suggests that the visa applicant must also be studying at the time of decision. This requirement is not met.

20. The Tribunal further finds that the applicant had not engaged in studies since February 2022, for a period exceeding two and a half years. The applicant had not undertaken any activities in that period that could be considered as being relevant to study or her ability to engage in study. She has not identified reasons for not engaging in study other than to state that she is not mentally ready. On the evidence before it, the Tribunal is not satisfied that the applicant had been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12 and the Tribunal is not satisfied the applicant continues to meet this requirement, and that she is still studying, at the time of decision. The Tribunal is not satisfied the applicant was incapacitated for work because of loss of bodily or mental functions. Accordingly, cl 802.214(1)(c) is not met at the time of application and time of decision (for the purpose of cl. 802.221).

21. The Tribunal is not satisfied the applicant meets cl 802.214 and cl. 802.221.

22. The applicant was over the age of 18 when the application was made and she does not meet the requirement for the grant of the Orphan Relative visa. 

23. The applicant provided to the Tribunal a statement from her mother in her written submission of 17 September 2024. The sponsor refers to her close relationship with the applicant and the support the applicant has provided to her, as well as the applicant’s contribution to the local community and religious organisation. The sponsor has outlined her concerns about the applicant not being able to remain in Australia. The applicant also provided to the Tribunal death records. The sponsor repeated these claims in her oral evidence to the Tribunal. The Tribunal acknowledges that evidence but cannot recommend the grant of the visa on humanitarian grounds.

24. 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

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

    Kira Raif
    Senior Member