Bajora (Migration)

[2024] AATA 3193

Bajora (Migration) [2024] AATA 3193 (7 August 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Wellane Bato Bajora

CASE NUMBER:  2110289

HOME AFFAIRS REFERENCE(S):           BCC2021/529740

MEMBER:  Peter Emmerton

DATE:  7 August 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 07 August 2024 at 1:01pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – ‘dependent child’ – applicants over 18 – relationship status and history – not engaged in full-time work – full-time study (or incapacitated for work) – study gaps – reasonableness of break in study – financial challenges – caring responsibilities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 802.214

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 22 July 2021 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 9 April 2021. 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(1)(c).

4. The requirements of cl.802.214 (requirement to be met at time of application) are as follows.

   (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.

5. The delegate refused to grant the visa on the basis that cl 802.214(1)(c), subsequently therefore cl 802.214 was not met because the applicant had not been a full-time student since turning 18. In addition, cl 802.214(2) was not met because it was not demonstrated the applicant was incapacitated for work due to the partial or total loss of the child’s bodily or mental functions.

6. The Tribunal has checked the age of the applicant against their Passport and Departmental information and determines they are 28 years of age at the time of this decision and 25 years of age at application. This was in addition confirmed by the applicant at the hearing.

7. The applicant appeared before the Tribunal on 7 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s mother, Ms Nesilita Greenwood and Mr Justin Toby Greenwood, the applicant’s mother’s husband, (stepfather to the applicant). The Tribunal found all those giving evidence appeared to do so in an open and honest manner without obfuscation.

8. The applicant was not represented in relation to the review.

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant meets the requirements of cl 802.214(1)(c) and cl.802.214(2).

2. The Tribunal has reviewed and carefully considered all the evidence presented to the delegate and the Department.

3. The Tribunal has read and carefully considered all the evidence presented to it prior to the hearing as outlined below.

·Statutory Declaration by Wellane Bato Bajora declared 29 July 2024

·Hospital expenses, St. Elizabeth Hospital, inc., official receipt 30 April 2017

·Letter by Nesilita Bato Bajora authorising her daughter Wellane Bato Bajora to transact her annual interest in P.O., 10 April 2018

·Filipino Passport, Nesilita Bato Bajora, valid until 04 June 2020

·P.O. Card Bond Report, Guarantor Nesilita Bato Bajora, bond dates 12 December 2012 to 03 December 2015

·Letter certifying Nesilita Bato Bajora as member of Schuhfit, Incorporated since 16 June 2015, Randy A. Buraquit, Branch Manager, 16 December 2015

·Membership (Natasha) and Direct Sales (Splash) identification cards for Nesilita Bato Bajora

·Ria money transfers made by Justin Toby Greenwood and Nesilita Bato Bajora to Wellane B Bajora between 10 November 2017 and 21 July 2018

·Evidentiary photographs

·Card SME Bank, Inc. client certification and financial records for Neselita B. Bajora, certification letter 17 July 2017

·Fee Reduction Application letters regarding review of the decision to refuse to grant child residence visa application, 13, 15 and 18 August 2021

·Letter confirming Wellane Bajora volunteering as a shop volunteer at the Red Cross North Haven Store since 15 September 2021, 16 Septembers 2024

·People’s Choice Credit Union statements for Justin T Greenwood

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), to 30 April 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), to 31 August 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), to 31 January 2017

·Bank statement Justin T Greenwood and Nesilita B Bajora, to 31 December 2017

·Bank statement Justin T Greenwood, period ending 30 November 2017

·Bank statement Justin T Greenwood, period ending 31 December 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), to 31 March 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), to 31 July 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), to 28 February 2017

·Bank statement Justin T Greenwood, period ending 31 October 2017

·Bank statement Justin T Greenwood and Nesilita B Bajora, to 30 November 2017

·Bank statement Justin T Greenwood, period ending 30 September 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), ending 31 May 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), ending 30 June 2017

·Bank statement Justin T Greenwood (C/ Rebecca Greenwood), 2016/17 Tax

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 30 April 2018

·Bank statement Justin T Greenwood, period ending 30 April 2018

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 28 February 2018

·Bank statement Justin T Greenwood, period ending 28 February 2018

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 31 January 2018

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 31 March 2018

·Bank statement Justin T Greenwood, period ending 31 May 2018

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 31 May 2018

·Bank statement Justin T Greenwood, period ending 31 January 2018

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 30 June 2018

·Bank statement Justin T Greenwood and Nesilita B Bajora, 2017/18 Tax Summary

·Bank statement Justin T Greenwood, period ending 30 June 2018

·Bank statement Justin T Greenwood, 2017/18 Interest / Tax Summary

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 31 August 2019

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 31 July 2019

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 31 May 2019

·Bank statement Justin T Greenwood and Nesilita Bajora, ending 31 December 2019

·Bank statement Justin T Greenwood, period ending 30 June 2019

·Bank statement Justin T Greenwood, 2018/19 Interest / Tax Summary

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 30 April 2019

·Bank statement Justin T Greenwood, period ending 30 April 2019

·Bank statement Justin T Greenwood and Nesilita Bajora, ending 30 November 2019

·Bank statement Justin T Greenwood, period ending 31 May 2019

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 30 June 2019

·Bank statement Justin T Greenwood and Nesilita B Bajora, 2018/19 Tax Summary

·Bank statement Justin T Greenwood, period ending 31 July 2019

·Bank statement Justin T Greenwood and Nesilita B Bajora, ending 31 October 2019

·Bank statement Justin T Greenwood, period ending 30 November 2019

·Bank statement Justin T Greenwood, period ending 31 October 2019

·Bank statement Justin T Greenwood, period ending 30 September 2019

·Bank statement Justin T Greenwood and Nesilita Bajora, ending 30 September 2019

·Bank statement Justin T Greenwood, period ending 31 December 2019

Criteria for applicants over 18

1. 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).

Relationship status and history

1. 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).

2. Question 14 of Form 47CH asks about the relationship status of the applicant. The delegate accepted as factual that the applicant had never married or been in a de facto relationship. The Tribunal is likewise satisfied that they had never been married or been in a de facto relationship and no evidence has been presented to the Tribunal that establishes a contrary conclusion. This was again confirmed by the applicant at the hearing.

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

Not engaged in full-time work

1. 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).

2. The applicant was required to complete question 40 of the Form 47CH, which requested current employment details of the applicant. The applicant advised the Department they were not employed fulltime at any time prior to their arrival in Australia on 11 April 2019. There is no evidence before the Tribunal that the applicant has at any time since their arrival in Australia undertaken fulltime work. It notes the evidence presented which clearly indicates their enrolment in a course of study from February 2020 until April 2021 in TAFE South Australia, Certificate lV in Accounting and Bookkeeping. These claims were corroborated during the hearing.

3. The Tribunal is satisfied that the applicant was not working fulltime at the time of application and therefore can satisfy cl 802.214(1)(b). No evidence has been submitted to demonstrate the circumstances have changed.

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

Full-time study (or incapacitated for work)

1. 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).

2. 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).

3. 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.

4. The delegate accepted the applicant had turned 18 years of age at time of application. The Tribunal has likewise accepted the same assessment of age by viewing a copy of the applicant’s, visa application and correlating Passport identification pages. At the time the applicant turned 18 they were not studying full-time. This is a fact accepted by the delegate and the Tribunal and confirmed by the applicant’s written and oral evidence.

Consideration of clause 802.214

1. The delegate determined that at the time of application, the visa applicant was a full-time student. At the time the application, which was lodged on 9 April 2021, the applicant advised they were currently enrolled in or undertaking a post-secondary course of study leading to a trade, vocational or professional qualification. They commenced in February 2020 and completed the Certificate lV in Accounting and Bookkeeping at TAFE SA in April 2021. The applicant had intended to commence a Diploma of Accounting commencing the 2nd Semester in 2021 but chose to withdraw due to financial challenges. In written submissions to the Tribunal in the form of a Statutory Declaration, the applicant has acknowledged this as correct. The Tribunal concurs and finds that this fact is not in dispute.

2. The applicant commenced a Certificate lV in Individual Support, Disability in January 2022 and completed the course and placement by May 2022. The applicant states in her Statutory Declaration that she has not studied from this time onwards and assists with running the household and does some volunteer work.

3. The Tribunal notes the following in relation to study from the time the applicant turned 18. The applicant stated in her Form 80 in her application that she had not studied from March 2016 until June 2018 and again a break in study occurred between March 2019 and January 2020. It is further noted that this is corroborated in the applicant’s Statutory Declaration dated 29 July 2024. The Tribunal notes the principal explanation for the study gaps referred to her mother needing assistance post operatively in 2017, assisting with her younger

siblings and the family’s financial challenges. This was confirmed at the hearing. The Tribunal accepts this explanation as reasonable to understand. The applicant’s approval for a visitor visa, (600) to come to Australia, occurred and she arrived on 11 April 2019.

1. Clearly substantial breaks in post-secondary study have occurred totalling approximately 3 years in total, across 2 time periods. It is noted this was not a break between secondary schooling finishing and tertiary study commencing. These breaks occurred during post- secondary tertiary study periods. The study history and associated breaks were acknowledged by the applicant when giving evidence to the Tribunal at the hearing.

Is a break in study reasonable?

1. In considering whether a break in study is a reasonable period, the Tribunal must first consider if the break in study occurred between completing secondary studies and commencing post-secondary studies. This is clearly not the case as indicated by the visa applicant’s written evidence and statements. The applicant completed Secondary School and commenced their Tertiary course within a reasonable time. There is no provision in the legislation for the break to occur once the applicant has commenced tertiary education. The time of up to 6 months between commencing tertiary/vocational education, post completion of secondary education is accepted as reasonable. The Tribunal believes there is a cogent argument extending to a ‘Gap Year’ as is common in Australia.

2. These substantial hiatus periods outlined in paragraph 27 of this decision are not considered reasonable breaks within the requirements set out in the legislation nor the Tribunal’s interpretation of the spirit of that legislation. It also observes the applicant was in Australia prior to the Covid-19 pandemic, therefore no impact on study commencements occurred in relation to the pandemic. The Tribunal acknowledges the breaks in study were in all probability in part because of the financial challenges facing her family as well as the caring role she undertook with her younger siblings and post operatively with her mother. These issues could be reasonably were beyond the applicant’s immediate control and the Tribunal is sympathetic to the applicant’s circumstances.

3. The Tribunal further notes the sporadic nature of the study since arriving in Australia. It is reiterated for clarity the applicant has not studied since June 2022, more than additional 2 years which when combined with the other 3 non study years totals 5 years of non-study post commencement of the applicant’s tertiary/vocational study.

4. The Tribunal is satisfied the applicant has not been a continuous full-time student since turning 18. The Tribunal is not satisfied the applicant meets sub-clause 802.214(1)(c).

5. The applicant must be a continuous full-time student since turning 18 years of age. The applicant has not provided either the delegate at the time of their decision nor the Tribunal at the time of this decision with evidence that demonstrates this fact to be true. The Tribunal is satisfied that the substantial breaks between study courses is not what was envisaged as appropriate when considering the meeting of the criteria set out in cl 802.214(1)(c).

6. The Tribunal has turned its mind to clause 802.214(2), which states that the study clause will not apply for those applicants over the age of 18 years of age who are dependent due to being incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. As the applicant has not provided any evidence of incapacity to either the delegate or the Tribunal, it has determined the applicant does not meet the requirements specified in clause 802.214(2). This was confirmed verbally by the applicant.

7. Accordingly, cl 802.214(1)(c) is not met. It continues to not be met at the time of decision.

1. For the reasons above, cl 802.214 is not met at the time of application.

1. At the time of decision, cl 802.214 continues to not be met.

2. 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

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

Peter Emmerton Member