Basnayake Appuhamilage (Migration)

[2022] AATA 2572

Basnayake Appuhamilage (Migration) [2022] AATA 2572 (16 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ayesha Dilrukshi Tissera Basnayake Appuhamilage

REPRESENTATIVE:  Mr David Stratton (MARN: 9358007)

CASE NUMBER:  2011706

HOME AFFAIRS REFERENCE(S):          CLF2018/365033

MEMBER:Stephen Conwell

DATE:16 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 16 June 2022 at 1:48pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – misleading information in the visa application – continuous full-time studies – enrolment cancelled – period of casual employment – reasonable time – gap in studies – impact of toxic relationship – decision under review remitted         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.221

CASES

Berenguel v MIAC [2010] HCA 8
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Sok v MIAC [2007] FCE 413
Wake v MIAC [2010] FMCA 272

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 9 July 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 5 December 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 (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.

6. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections as to conducting the hearing in this manner.

7. The applicant participated in the hearing by video on 14 June 2022 to give evidence and present arguments. The Tribunal also received oral testimony from the applicant’s father and sponsor who attended by telephone.  Mr Tyron  and Mrs Maria Buultiens also provided oral testimony by video.

8. The applicant was represented in relation to the review by her registered migration agent (representative). The representative attended the Tribunal hearing by video.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

10. The applicant is a 25 year old female who was born in Sri Lanka. She first entered Australia in December 2016 (not in 2018, as mistakenly stated in the decision record) on a Subclass 500 (Student) visa.

11. The applicant turned 18 years of age on 3 June 2015 and lodged this application on 5 December 2018, when she was 21 years of age.

12. In her completed Form 47CH that applicant claimed at the time of her visa application she was studying towards a Diploma of Community Services According to the decision record, the applicant declared she commenced the course on the 15 October 2018 with an estimated date of completion on 1 October 2020. However Departmental enquiries to corroborate this  information confirmed that her last recorded attendance in class was 5 August 2018. Her education provider (Acknowledge Education) advised the Department that the applicant had attended classes occasionally and not on a full time basis; consequently, her Confirmation of Enrolment (COE) was cancelled on 9 September 2018.

13. Since this visa application on the 5 December 2018 and the applicant’s enrolment was cancelled on 9 September 2018 it is clear that the applicant was not studying at time of the  application .  In light of these facts, the delegate found that at the time the application was lodged the applicant was over 18 years of age and not enrolled in, and participating in, full-time education. The delegate concluded that the applicant was in breach of sub-clause 802.214(1)(c).

    s.376 certificate

14. By letter dated 13 April 2022 the Tribunal informed the applicant of the existence of a s.376 certificate on the Departmental file and explained the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The certificate in this matter applied to folios 140-143 of the Departmental file. The Tribunal informed the applicant that it had found the certificate to be valid because the document and/or information covered by the certificate had been given to the Minister, or to an officer of the Department in confidence. The Tribunal provided a copy of the certificate and the relevant documents (folios 140-143) to the applicant and invited her to comment on the validity of the certificate.

15. The applicant responded by submitting a statutory declaration dated 21 April 2022 and providing a copy of her Sri Lankan driver’s licence. In her statutory declaration, the applicant made no comment on the validity of the certificate. However she responded to the adverse allegations by stating that,

    ·she had been employed at Colombo Restaurant in Dandenong, Victoria, however this was neither full-time nor permanent part-time employment. Rather it was informal training that she had secured because the restaurant owner was a family friend who was pleased to offer her some practical experience to assist with the applicant’s then studies towards a Diploma of Hospitality. She claims this engagement ended due to the unwelcome visits to the restaurant by her then boyfriend who engaged in drunken and anti-social behaviour in and around the restaurant when she was working there.

    ·she denied ever working at Jolly J’s Restaurant in the Melbourne CBD, claiming that this was a lie she had told her then boyfriend as an excuse to spend less time with him, due to the deterioration of their relationship caused by his increasingly possessive and jealous behaviour towards her.

    ·the allegations that she had been working by offering sexual services illegally and without registration were completely untrue and could only be a further example of the degree to which her then boyfriend (and possibly other members of his family) would seek to damage her personal reputation, cause her mental and emotional stress as well as hinder the processing of her visa application

16. In the course of the hearing the Tribunal stated that whilst it found the s.376 certificate to be valid and the information to which it pertained to be potentially adverse to the application since it might inform the Tribunal’s findings on whether the applicant had engaged in full-time work and not in full-time study, which would be in breach cl 802.214(1)(b) and (c), respectively.  However, having had the benefit of having the applicant give her testimony at the hearing and having found her to be an honest and credible witness, and further noting that there is no supporting evidence before the Tribunal for these allegations, it places greater weight on the applicant’s oral testimony, which is supported by her statutory declaration of 21 April 2022. This evidence, together with the Tribunal’s favourable assessment of the applicant’s credibility, leads the Tribunal to conclude that no adverse weight should be placed upon the allegations which are the subject of the s.376 certificate.

17. The issue in the present case is whether the applicant meets the ‘continuous study’ requirement in subclause 802.221(2)(b) at the time of application, and whether she continues to be a full-time student at the time of decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for applicants over 18

18. 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

19. 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).

20. Based on the written and oral evidence, 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

21. 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).

22. The applicant told the Tribunal that she had never been engaged in full-time work and has been supported by her father and at times by Mr Tyron and Mrs Maria Buultiens, who are close friends of her father, but who the applicant describes as her ‘step-parents’, due to the closeness of their relationship. The applicant currently works 20 hours a week in a casual part-time capacity in disability care. She commenced this work last year. This was corroborated by the witnesses, with Mr Buultiens stating they have an understanding with the sponsor that he would reimburse them any major expenses they may incur on the applicant’s behalf. Having considered the evidence before it, the Tribunal is satisfied that the applicant has never been engaged in full-time work and continues to be financially reliant on her father and on occasion upon Mr and Mrs Buultiens.  Accordingly, the Tribunal is satisfied that the applicant meets this requirement.

    Full-time study (or incapacitated for work)

23. 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).

24. 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).

25. 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.

26. In the representative’s written submission, it is admitted 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.  The period of time that the applicant was not actively studying has been calculated to be five months.  However it is submitted that  much of that period “coincided with the duration of the unfortunate relationship with her boyfriend.”

27. The evidence shows that a five month break in study arose between the cancellation of the applicant’s enrolment in a Diploma of Community Services and her subsequent enrolment in a Diploma in  Dental Technology in January 2020. It is submitted that this study gap occurred at the time that the applicant’s relationship with her then boyfriend was becoming increasingly toxic, with his behaviour towards her becoming jealous, overbearing and hostile. The relationship deteriorated to the point where the applicant was physically assaulted by the boyfriend on 1 November 2018. As a result, the applicant attended a police station later that evening and made a written statement, witnessed by a policeman on duty. An intervention order against the boyfriend was issued on 8 November 2018.

28. There was no evidence available to the Tribunal 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. However the Tribunal accepts the applicant’s stress and anxiety arising from her relationship with her then boyfriend led to having a study gap of five months.

29. The Tribunal asked the applicant why she wasn’t continuing her studies in the Diploma in  Dental Technology in which she was enrolled in January 2020. She replied that she hopes to pursue a career in nursing and her current studies in Pathology Collection was a ‘closer fit’ to her career goals for which she would gain credits in her future enrolment in nursing studies. 

30. Evidence was provided in the form of a Confirmation of Enrolment (COE) from the Australian Centre of Further Studies (ACE) that the applicant enrolled in a Certificate III in Pathology Collection course which commenced in November 2021 and will end in August 2022. The applicant told the Tribunal that she is enjoying the course and is actively involved in study. She hopes to enrol in a Diploma of Nursing upon completion of her current course. The Tribunal is satisfied that at the time of decision, the applicant is enrolled, and actively participating in her current studies.

31. In Berenguel v MIAC [2010] HCA 8, it was held that even where a provision was located under the heading ‘Criteria to be satisfied at time of application’, in having regard to the construction of the individual provision and its object, it could still be assessed at the time of decision. The Court held that the heading ‘Criteria to be satisfied at time of application’ may inform the construction of the criteria thereunder, but those criteria do not speak exclusively to satisfaction at the time of application. As was the case in Berenguel, the Tribunal notes that cl 802.214(1)(c) also does not itself refer to it needing to be satisfied at the time of application but that it only falls under the heading.

32. The Tribunal is satisfied that the principle from Berenguel applies to the provision in this matter, as a more beneficial reading is preferable and would be in line with the objective of the visa to benefit those individuals who are legitimately dependent. In Berenguel, the High Court reasoned that the evident purpose of the clause was to ensure that when the visa application is decided, the applicant will have demonstrated recent competency in the English language, and not reading it as a strict time of application requirement did not compromise such purpose, but that the Minister’s construction of requiring it to be satisfied at time of application led to such plain unfairness and absurdity that it was not to be preferred. The Tribunal has determined that the same principle should apply to an interpretation of these provisions for the Subclass 802 (Child) visa under consideration in this application. Such a construction is also consistent with the approach taken in Wake v MIAC [2010] FMCA 272 where the Court held that ‘since’ in the context as used in cl 802.214(1)(c) was used in the sense of ‘continuously from’ the event of turning 18.

33. The Tribunal finds that the applicant had valid reasons which caused the delay in the completion of studies, that being the overbearing, jealous and ultimately toxic relationship with her then boyfriend which culminated a physical assault upon her. These circumstances led to the applicant becoming anxious and apprehensive even before the physical assault.

34. The Tribunal has determined, based on the principles in Berenguel, that it would be unfair to disqualify the applicant from being eligible for the visa due to having breached cl 802.214(1)(c)  for a period of five months, since it is satisfied that  the study gap was due to her fear and anxiety cause by the overbearing and jealous behaviour of her then boyfriend. The Tribunal notes that the applicant did not inform the Department of her fraught relationship with her then boyfriend and the Tribunal will not speculate whether, had she done so, the Department may have come to a different decision.  Suffice it to say, that having been unaware of the applicant’s personal circumstances, the delegate’s decision could not give appropriate consideration of those circumstances.   

35. The Tribunal is satisfied, on the evidence provided, that the applicant has been engaged in full-time study in a course leading to the award of a professional qualification since turning 18. The Tribunal accepts that the break of five months in the applicant’s full-time studies was caused by her fear and anxiety arising from her calamitous relationship with her boyfriend at the time.

36. 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. 

37. Having considered all the circumstances of the applicant and given the reasonable explanations for the gap in study, as well as having a favourable view of the credibility of the applicant and the two witnesses, the Tribunal is satisfied that the applicant continued to undertake her studies despite the five month study gap. 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.

1. 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’.

2. At the time of decision, as noted, the applicant is enrolled, and has been actively participating, in a full-time course of study since August 2021. The Tribunal therefore finds that the applicant continues to undertake her full-time studies towards a professional qualification at the time of decision.

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

   DECISION

4. 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