Arizza (Migration) - [2019] AATA 2675

Arizza (Migration) [2019] AATA 2675 (27 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Indira Gozwan Arizza
CASE NUMBER:  1728929
HOME AFFAIRS REFERENCE(S):           CLF2017/13892
MEMBER:Jane Marquard
DATE:27 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 27 June 2019 at 9:14am
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18– full-time study requirements not met– decision under review affirmed
LEGISLATION
Acts Interpretation Act, Cth, s 15AA
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 802.214, 802.216, 802.221, 802.226

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Veljanovski v Minister for Home Affairs [2019] FCCA 502
Waensila v MIBP [2016] FCAFC 32
Wake v MIAC [2010] FMCA 272
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) on 31 October 2017 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is from Indonesia. She is aged 19 and the sponsor in Australia is her mother. Her mother and father are Australian permanent residents and have been in Australia since 8 March 2009.
The applicant applied for the visa on 6 February 2017. 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).
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. This clause provides that if the applicant has turned 18, which is the case here, the applicant must be single, not be engaged in full-time work and 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.
Extracts of the relevant provisions are set out in Attachment A.
The delegate refused to grant the visa on the basis that cl.802.214 was not met because the applicant was not participating in full-time education when the application was lodged.
The applicant appeared before the Tribunal on 21 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor by video from Cairns. Following the hearing the applicant was granted time to provide further submissions. The applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has provided a copy of her birth certificate which indicates that she was born on 3 February 1999. Thus, at the date of application, 6 February 2017, she was three days over the age of 18.
The issue in the present case is therefore whether the applicant meets Clause 802.214. Elements of this clause are set out below.
Criteria for applicants over 18
If, at the time of application, the applicant has turned 18, an applicant needs 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). All aspects of the criterion set out below must be satisfied to meet the criterion.
Relationship status and history
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 confirmed that she had never had a partner or been married, and the delegate was satisfied that she met cl.802.214(a).
At the Tribunal hearing it was confirmed that she does not have a partner and is not married, and the Tribunal is so satisfied.
Accordingly, cl.802.214(1)(a) and (802.221(2)(b) are met.
Not engaged in full-time work
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).
In her application, the applicant confirmed that she had never worked, and the delegate of the Department was satisfied that she met cl. 802.214(1)(b). At the Tribunal hearing, it was confirmed that she had never worked, and the Tribunal is satisfied as such.
Accordingly, cl.802.214(1)(b) and cl.802.221(2)(b) are met.
Full-time study (or incapacitated for work)
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 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]. 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).
Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(2)(b).
No evidence was provided indicating that the applicant was and is incapacitated for work. Therefore the Tribunal is satisfied that the applicant was not and is not incapacitated for work because of loss of bodily or mental functions.
The applicant has confirmed that she did not complete the equivalent of year 12 in Indonesia. The Tribunal must therefore consider then whether at the time of application the applicant had been undertaking full-time study since turning 18 and if so whether the applicant continues to meet this requirement, and is still studying, at the time of decision.
Section 15AA of the Acts Interpretation Act, Cth, 1901 states that in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation. As this is a child visa, the section relates to dependency, in other words, the intention is that if an applicant meets the other criteria and is over 18 but undertaking full-time study since then, he or she can still be granted a child visa.
The Tribunal has considered what is meant by ‘since’, and what it meant to ‘undertake” when these phrases are read together in this context.
‘Since’ in the Macquarie Dictionary has meanings of ‘often, from then till now’, ‘between a particular past time and present’, ‘continuously from’, ‘between a past time and the present’, ‘in the period following the time when’ and a number of other similar meanings.[1] In this context, ‘since’ must be read with its accompanying words, ‘since turning 18, been undertaking’.
[1] Macquarie Dictionary, >
In Wake v MIAC [2010] FMCA 272 it was held that ‘since’ in this context means continuously from the event of turning 18, not at any time after turning 18. In that case the applicant applied for the child visa four years after turning 18. He had worked for a printing company and at a car detailer for over three years since turning 18. He began an apprenticeship four years after turning 18. The Court held that the Tribunal was correct in construing ‘since’ as meaning continuously from the time he turned 18. The Federal Circuit Court held (at [28], ‘I therefore consider that the intention of the word ‘since’ should be identified from its ordinary usage and its legislative context, and that it has the meaning implicitly adopted by the Tribunal. Applying that construction, it was plainly open to the Tribunal to find that Mr Wake’s employment at the printing company, which he was pursuing when he turned 18, did not amount to a relevant ‘course’ being undertaken since that time, if only because it did not involve enrolment in an ‘educational institution’.’
In a more recent case which referred to the Wake decision, Veljanovski v Minister for Home Affairs [2019] FCCA 502, the court also referred to ‘since’ as ‘continuously’.
The word ‘continuously’ is defined as ‘having the parts in immediate connection, unbroken’ or ‘uninterrupted in time, without cessation’.[2]
[2] Macquarie Dictionary,
The word ‘undertaking’ is defined as ‘to take on oneself, take in hand, essay, attempt, to take on oneself by formal promise or agreement, lay oneself under obligation to perform or execute’.[3]
[3] Macquarie Dictionary, >
In Sok v Minister for Immigration and Citizenship [2007] FCA, the appellants argued that “undertaking” meant “participating” and not “actively participating” as the Tribunal maintained. At [66], the Court stated the following:
Secondly, it may be doubted whether the word “undertaking” is synonymous with “actively participating” as the Tribunal apparently thought. As the first respondent noted, the word can relevantly be defined as “engaging in” or “entering upon” some enterprise: see The Australian Oxford Dictionary and The Oxford English Dictionary. It may therefore have been enough for the Tribunal to have asked itself whether, on the material before it, the visa applicant had established to its satisfaction that he had been engaging (or participating) in, or entering upon, a full-time course of study.
Taking into account the ordinary meaning of the words, the intention of the provision and these decisions, the question for the Tribunal is whether the applicant has been undertaking (that is engaging in or entering upon) a full-time course since (between a particular time until now, continuously) she turned 18. This case can be distinguished on the facts from Wake, in that the applicant has been studying for part of the time since she turned 18. However she must still have been studying ‘since’, in the sense of continuously, which means ‘uninterrupted in time, without cessation’ having regard presumably to usual breaks for weekends, holidays etc.
At the Tribunal hearing the applicant confirmed that she had only been 18 for a few days at the time of application, 6 February 2017, and she was not, and had not been undertaking full-time study since September 2016. This was because she had experienced difficulty enrolling in Australia. The background of her study is as follows:
·She studied in Australia from Year 6 to Year 9.
·She returned to Indonesia in 2013 and completed Year 9 after two years.
·From August 2015 to September 2016 she decided to be ‘home-schooled’ in Indonesia. A letter dated 1 September 2016, written and signed by Cita Mustika Kusumah, S.S.M. Hum stated that he or she was the applicant’s private tutor since August 2015 and she studied many subjects related to formal school subjects.
·In September 2016 she was granted a visitor visa and visited Australia on multiple occasions to live with her parents.
·In February 2017 after she was granted a bridging visa, she attempted to enrol in high school in Cairns, Queensland but was not eligible for enrolment as she had turned 18.
·She also attempted to enrol in TAFE and was informed that a Year 10 graduate certificate was a requirement and she was therefore ineligible.
·Her mother ‘decided to hold her enrolment’ because her bridging visa was not yet in effect as she was still on her visitor visa which allowed her to stay for only 3 months per visit.
·During her stay in Australia, she actively attended the Qu’ran learning in the mosque every afternoon, and assisted children to read and learn the Qu’ran and with other activities, such as crafts. She also volunteered in the local library.
·She was waiting for her grant of Australian permanent residency so she could enrol.
The delegate found on the basis of this evidence that she was not studying at the time of application, finding that she must be participating as a full time student and that the Department had no discretion but to refuse the application if she was not.
A letter to the Department dated 31 October 2017 stated that the applicant was not studying as she was unable to do so under the conditions of her visitor’s visa. She had to wait until she got her bridging visa which only took effect at the expiration of her visitor visa.
At the Tribunal hearing she confirmed that she did not complete her high school in Indonesia because she wanted to visit her family in Australia where she thought she would study. She was studying high school with the home tutor in Indonesia. She was questioned about her attempts to enrol in school and TAFE between September 2016 and February 2017. She said that she was on a visitor visa so did not think that she could apply for school.
Her mother said that she misunderstood the terms of the bridging visa – thinking that it only took effect when the visitor visa expired, which was after three years. So she kept sending her daughter back to Indonesia after three months. If she had understood the terms of the visa properly she would have enrolled her in school.
In February 2017 the sponsor went to Cairns High School and to Trinity Bay High School to try to enrol the applicant, but she was told the applicant could not attend because she had turned 18. At TAFE she was told the applicant needed a student visa so she thought she better wait until her visitor visa had expired to apply for this visa. She was asked if she had any documentary evidence such as emails or application forms to show the Tribunal. She said that she did not as she visited the student offices to talk to them. The Tribunal accepts her evidence that some attempts were made to study at the time she turned 18.
The applicant was asked what she did between February 2017 and June/July 2018, when she did start studying. She said that she went to a college, as she heard that if you passed a test you could enrol at this college, but she was told that she could not enrol in this course as she had not passed year 10. She said it was her intention to get back into study when she could. She was waiting for her visa situation to be resolved so that she could enrol. The sponsor told the Tribunal that if her daughter returns to Indonesia she would not be able to study as she has not completed sufficient study for her age group. She wanted her daughter to come to Australia to be able to study.
The applicant submitted to the Tribunal that she was studying full time as of 19 June 2018 for a Certificate III in Visual Arts at TAFE, thus within 1 year and 4 months of the date of application, which was 6 February 2017. A Confirmation of Enrolment was provided for TAFE Queensland North dated 19 June 2018. The Confirmation was for an enrolment in Certificate III Visual Arts from 23 July to 26 November 2018 and listed a number of subjects in which she was enrolled. The Confirmation also stated ‘other current study – no enrolment found’. She also provided tax invoices from TAFE Queensland for the period 19 March 2018 until 22 November 2018.
She finished the first term of this course but not the second term as she went on holiday with the family for three weeks and missed a week so could not complete. She provided evidence to indicate that she had passed a number of subjects although she did not complete the course and went on holiday. She said that since then, in October 2018, she has been volunteering at the library, helping young children learn about religion. She has now enrolled in TAFE to do a child care course. She has not studied since November 2018, and will not study until her full-time child care course commences in July 2019. She intends to commit to this course fully, and work in child care as a career.
The Tribunal has considered her evidence carefully. The applicant’s situation is quite unique in that she has not completed a year 12 equivalent, turned 18 only days before the application, and has had difficulties enrolling in courses due to her age and also because her mother was confused about her visa situation.
The applicant turned 18 on 3 February 2017. She was not studying at that time or just prior to that time, and was not studying until the time of application, which was 3 days later on 6 February 2017. The Tribunal is not satisfied that at the time of application, 6 February 2017, the applicant had been undertaking full-time study since turning 18. The Tribunal acknowledges that the word ‘undertaking’ does not mean actively participating, see Sok v MIMIA [2007] FCA 413, it could mean engaging in or entering upon a full time course. The Tribunal notes that at the time of application the applicant had only been 18 for a few days. In order to take a reasonable approach as to what it means to ‘undertake full-time study since turning 18’, the Tribunal also considered whether she was engaged in or entering upon a course of full-time study prior to or within a reasonable time after turning 18. The Tribunal notes her submissions that she and her mother did try and enrol in a number of courses and were also confused about whether her visa status allowed her to study, which may have inhibited their efforts. However, it is clear from her evidence that she had not been engaged in or entering upon full-time study at an educational institution since 2015, and did not engage in or enter upon full-time study until July 2018.
The Tribunal is not satisfied therefore that at the time of application she had since turning 18 been undertaking a full-time course of study. The Tribunal is not satisfied therefore that she met cl.802.214(1)(c).
The applicant’s representative submitted that the applicant meets clause cl.802.221(2)(b) in that she is studying at the time of decision. The representative argued that in Waensila v MIBP [2016] FCAFC 32 the Federal Court found that, in relation to a Section 820 application, circumstances which constitute ‘compelling reasons’ for not applying Schedule 3 criteria, could arise at any time, including after the visa application was made, notwithstanding that the requirement was for compelling reasons ‘ at the time of application’. The representative argued that as the applicant is studying at the time of decision, she did not need to be studying at the time of application. He argued that like the provision in Waensila, the requirement to be studying since turning 18 was found in the Regulations under a heading called ‘criteria to be satisfied at time of application’. The Tribunal has considered these submissions carefully but is not satisfied that the time of application criterion does not apply because the applicant is studying at the time of decision. In Waensila the judge stated that the waiver provision in that case was not a criteria, rather ‘it is properly characterised as a power to waive or dispense with what otherwise is a requirement which forms part of the criterion in cl 820.211(1)(b).’ In this case, however, the requirement that the applicant be undertaking full-time study since turning 18 is expressly stated to be a time of application criterion. The principle in Waensila is not applicable as there is no similar power to waive the criteria. Thus the Tribunal must still consider whether the applicant met the criteria at the time of application.

In any event, the Tribunal is not satisfied that the applicant meets the time of decision criteria in cl 802.221(2)(b). Pursuant to this provision, the Tribunal must determine whether at the time of decision, the applicant had, 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. The applicant provided enrolment documents indicating that she was enrolled in TAFE Queensland from July 2019 to March 2020. A Confirmation of Enrolment processed on 16 May 2019 indicated that she had enrolled that day in Certificate III in Early Childhood Education and Care. In making a finding as to whether the applicant had since turning 18 been undertaking a full-time course, a decision-maker must look at the time period from the commencement of study until the time of decision (June 2019) 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.
As put to the applicant, she had not been undertaking a full time course of study since she turned 18, as she only commenced study in July 2018 (one year and four months since turning 18). It could not be said that she was ‘engaging in’ or ‘entering upon’ study, as although she did make some enquiries and was hoping to study, she did not actually start studying for one year and four months after turning 18. Furthermore, she was not studying from around October 2018 until July 2019 (with an enrolment date of June 2019). She and her mother confirmed that they took the last two weeks off her course and this resulted in an incomplete course in October/November 2018 and she has not studied since. She was asked if they considered or made any enquiries as to studying the first semester of 2019 and she said that she was late for the enrolment in February 2019 although she had wanted to enrol in the course. She was considering other courses and had thought about work which she could not do on her visa conditions. The Tribunal is not satisfied therefore that she has since turning 18 been undertaking a full-time course of study in that she had not engaged in or entered into study from February 2017 to July 2018, and from October 2018 to June 2019.
Considering all the circumstances, and looking at the period as a whole, the Tribunal is not 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.
The Tribunal is not satisfied therefore that the applicant meets cl. 802.221(2)(b).
Accordingly, cl.802.214(1)(c) and cl.802.221(2(b) are not met.
CONCLUDING PARAGRAPHS
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
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Jane Marquard
Member

Attachment A – extracts of relevant provisions
802.21—Criteria to be satisfied at time of application
Various then…
802.214
(1) If the applicant has turned 18:
(a) the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b) the applicant is not engaged in full-time work; and
(c) subject to subclause (2), the applicant has, 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.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of
making the application, is a dependent child within the meaning of
subparagraph (b)(ii) of the definition of dependent child.
802.22 – Criteria to be satisfied at time of decision
802.221
(1) In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a) continues to satisfy the criterion in clause 802.212; or
(b) does not continue to satisfy that criterion only because the applicant has turned 18.
(2) In the case of an applicant who had turned 18 at the time of application:
(a) the applicant:
(i) continues to satisfy the criterion in clause 802.212;