BRANISLAV (Migration)

[2017] AATA 1852

BRANISLAV (Migration) [2017] AATA 1852 (29 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MOMIRSKI BRANISLAV

VISA APPLICANT:  Miss MILICA MOMIRSKI

CASE NUMBER:  1514266

DIBP REFERENCE(S):  OSF2015/037919

MEMBER:Kira Raif

DATE:29 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.211(1)(a) of Schedule 2 to the Regulations; and

·cl.101.213 of Schedule 2 to the Regulations; and

·cl. 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 29 September 2017 at 5:02pm

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Full-time course of study – Studies extended to repeat some subjects – Minimal employment and income – Continued dependence upon the review applicant

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 101.211, cl 101.213, cl 101.221; r 1.03

CASES

Huynh v MIMA [2006] FCAFC 122
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 Immigration on 10 September 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Serbia born in October 1990. The visa applicant applied to the Department of Immigration for the visa on 17 April 2015. She was sponsored in that application by her father. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate was not satisfied the visa applicant was a dependent child of her father. The delegate also found that the visa applicant did not meet cl. 101.213 because she was not engaged in studies at the time the primary decision was made. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 27 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

6. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions. For there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

7. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

   Is the visa applicant a dependent child of the sponsor?

8. The visa applicant was born in October 1990 and was over the age of 18 at the time the application was made. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form that she was registered for employment between 10 February and 16 March 2015 and that she also worked occasionally as a babysitter about 3-4 hours a day. She stated that she received financial support from her father of $250 a month. The delegate was not satisfied that the visa applicant was dependent on her father.

10. In his written submission to the Tribunal the review applicant stated that the money the visa applicant received from her work was pocket money and was not sufficient to meet her needs. The review applicant provided to the Tribunal evidence of several money transfers to the visa applicant and the Tribunal accepts that he has regularly sent money to his daughter for a number of years. The review applicant’s oral evidence to the Tribunal is that he has been sending money to the visa applicant since 2009 when she started studying. Initially the amount was lower and more recently he sends about $250. The money is spent on the visa applicant’s share of rent and living costs, food and other daily expenses. The review applicant said he pays for education expenses but these are minor. 

11. The review applicant’s oral evidence to the Tribunal is that the visa applicant has no support from her mother, who earns very little and has her own expenses. The review applicant claims that his daughter would have told him if she received financial support from her mother and she has not done so. There is no evidence before the Tribunal to indicate that the visa applicant receives any form of income from her mother. The review applicant’s evidence is that the mother lives in a different town while the visa applicant rents a place with a flatmate. The rent is paid from the funds that he sends.

12. With respect to the visa applicant’s employment, the review applicant states that the visa applicant worked as a babysitter and did it as a favour to a friend, but it was never a permanent job and the income from that job was very small, equating to about $10. The Tribunal accepts that the visa applicant’s income from employment would have been far lower than the funds she receives from her father. The Tribunal makes the same finding with respect to the visa applicant’s brief period of employment in 2015. There is no evidence that the visa applicant has been employed otherwise and the review applicant provided to the Tribunal a copy of the visa applicant’s work book confirming she has been employed for a very brief period in 2015. The visa applicant’s work book and bank statement do not reflect income from any other employment.

13. The Tribunal acknowledges that the visa applicant had engaged in some work, and had income from that employment, but the Tribunal finds that the visa applicant’s income from that employment would have been very limited. The Tribunal is satisfied that the funds the visa applicant receives from her father are far greater than the funds she has received from employment. The Tribunal accepts, having regard to evidence of transfers, that the review applicant has been sending money to the visa applicant since 2009 and for a substantial period before the present visa application was made. He continues to do so at present. The Tribunal is satisfied that the funds sent by the review applicant are used for food, shelter and clothing, as well as other expenses. The Tribunal is satisfied that the visa applicant’s reliance on her father for these basic needs is greater than her reliance on any other source. The Tribunal finds that the visa applicant is, and was at the time of the application and for a substantial period before the application was made, dependent on her father for her basic needs for food shelter and clothing. The Tribunal is satisfied that the visa applicant is a dependent child of the sponsor and was at the time of the application.

14. Accordingly, cl.101.211(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Does the applicant meet the study requirement?

    Relationship status

15. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). There is no evidence that the visa applicant is engaged to be married or that she has a spouse or de facto partner. Accordingly, cl.101.213(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Not engaged in full-time work

16. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). There is some evidence of the visa applicant’s sporadic employment but no suggestion that she has ever engaged in full-time work. Accordingly, cl.101.213(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

17. At the time of application, the visa 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.101.213(1)(c). However, 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.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

18. 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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

19. The primary decision record indicates that the visa applicant completed secondary studies in 2009 and enrolled in the Bachelor course at the University of Novi Sad, which she completed in July 2015. The delegate found that the visa applicant was not enrolled in any course at the time of the primary decision. The review applicant provided to the Tribunal evidence of the visa applicant’s enrolment in a Masters course from October 2015. It appears that, having her visa application refused on the basis of not being enrolled, the visa applicant made arrangements to enrol in a course of studies. The review applicant’s evidence to the Tribunal is that the visa applicant always planned to do the Masters course and that decision was not the result of the visa refusal, although the review applicant confirmed that information about the Masters course was not given to the delegate. Ultimately, the visa applicant’s motivations for continuing with her studies are irrelevant. The review applicant provided to the Tribunal evidence of the visa applicant’s enrolment in a Masters course from October 2015 and her ongoing enrolment at the time of this decision. The Tribunal accepts the review applicant’s evidence that the visa applicant needs to complete four or five exams before she can complete the course.

20. The Tribunal finds that the visa applicant completed her secondary studies in 2009, pursued an undergraduate course after completing high school and completed that course in July 2015. The review applicant’s evidence to the Tribunal is that the bachelor course was a four year course, which the visa applicant took six years to complete because she failed some subjects.

21. The Tribunal finds that from October 2015 and until the present, the visa applicant has been studying at the University of Novi Sad doing a full-time Masters course. Although there was a brief period when the visa applicant was not undertaking studies between July and October 2015, the Tribunal finds that period insignificant and consistent with normal academic year standards.

22. The Tribunal is satisfied that the visa applicant has been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12. The Tribunal is satisfied the applicant is studying at the time of this decision. Accordingly, cl.101.213 is met at the time of application. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

    Conclusion

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

    DECISION

24. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.211(1)(a) of Schedule 2 to the Regulations; and

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl. 101.221(2)(b) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member