Chheom (Migration)

[2022] AATA 129

Chheom (Migration) [2022] AATA 129 (17 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sokly Chheom

REPRESENTATIVE:  Mr Pradeep Pun (MARN: 0854819)

CASE NUMBER:  1936319

HOME AFFAIRS REFERENCE(S):          CLF2019/26789

MEMBER:M. Edgoose

DATE:17 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 January 2022 at 11:21am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – not engaged in full-time work – currently working part-time – full-time study since turning 18 or completing high school – completed year 10 in home country and did one VET course in Australia –currently not studying – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.212, 802.214(1)(a), (c), 802.221(2)(b)

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 17 December 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 June 2019. 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 (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 802.212 and cl 802.214.

4. The delegate refused to grant the visa on the basis that cl 802.212 and cl 802.214 was not met.

5. The applicant appeared before the Tribunal on 17 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Somaly Hon the applicant’s stepmother and Mr Somakara Prak the applicant’s stepbrother.  The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

6. The applicant was represented in relation to the review by his representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

8. 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

9. 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).

10. The applicant confirmed at hearing that he is not engaged to be married and does not have and never has had a spouse or de facto partner.

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

    Not engaged in full-time work

12. 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).

13. The applicant submitted to the Tribunal on 9 January 2022 a letter from his employer, Tamarix Eggs. The letter mentioned that the applicant has been employed by Tamarix Eggs since 20 August 2020 and is currently working approximately 20 hours per week. The Tribunal notes that this letter from his employer is not signed. The Tribunal further notes that the applicant has not provided the Tribunal with any evidence such as copies of his payslips to confirm that he is only working in a part time capacity. At hearing the applicant confirmed that he is not engaged in full-time work.

14. 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)      

15. 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).

16. 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).

17. 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.

18. Given that the applicant has supplied the Tribunal with a letter from his employer dated 9 January 2022. The Tribunal finds that the that applicant is not incapacitated for work because of loss of bodily or mental functions.

19. According to the delegate’s decision the highest level of secondary schooling the applicant completed was year 10 in the Cambodian school system on 30 September 2016. The applicant confirmed this at hearing. The delegates decision further mentioned that the applicant had not provided any further documentation that he had completed any further studies beyond 30 September 2016. The Tribunal notes that the applicant turned 18 years of age on 6 March 2018. At time of the visa application, that being 19 June 2019, the applicant answered ‘NO’ on the form 47CH to the question ‘Is the child currently undertaking a postsecondary course of study leading to a trade, vocational or professional qualification?’ At hearing the applicant confirmed that at the time of the visa application he had not been undertaking full-time study and had actually not studied since 30 September 2016. Given that the applicant confirmed at hearing that at the time of the visa application he had not studied since 30 September 2016 the Tribunal is therefore not satisfied the applicant commenced any form of study in a reasonable time since turning 18 years of age.  

20. However, at hearing the applicant informed the Tribunal that after arriving in Australia he had completed a Certificate III in Hospitality between 11 September 2019 and 17 December 2020 through Chisholm. Prior to the hearing the applicant submitted a copy of his results and a certificate of completion for this course to the Tribunal. The applicant further added that he now intended to study for a Diploma of Nursing and that he had sent in evidence of emails between himself and the course provider. The Tribunal informed the applicant that at time of this hearing he had not provided any evidence of being enrolled in any course of study. The applicant confirmed at hearing that he is not enrolled in any course of study. Although the applicant may have undertaken a VET level course during his time in Australia the Tribunal finds the applicant was not undertaking full-time study within a reasonable time since turning 18 and continues not to meet this requirement at time of this decision.

21. Ms Somaly Hon the applicant’s stepmother provided limited oral evidence at the hearing. She informed the Tribunal that she wished for the applicant to remain in Australia so that he could continue living with her and completing his studies. She further added that the applicant looks after her and that she enjoys having him around as he makes her feel warm and more confident. The Tribunal gives little weight to Ms Hon’s oral evidence given that the applicant is not currently studying fulltime which is a requirement for the visa.

22. Mr Somakara Prak the applicant’s stepbrother provided limited oral evidence at the hearing. He acknowledged that his mother had sponsored the applicant and the applicant’s father to come to Australia however at that time he was living in Sydney until recently. Mr Prak has now moved back to Melbourne with his own family and mentioned that the applicant looks after his mother. He requested that the Tribunal grant the applicant a visa as he is a good person and should be allowed to stay to look after his mother. The Tribunal gives little weight to the oral evidence provided as it was not relevant and demonstrated that he had a limited understanding of what this matter was about. 

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

24. At the time of decision, cl.802.214 does not continue to be met. Accordingly, cl.802.221(2)(b) is not met.

25. 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

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

    M. Edgoose
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)       is dependent on that person; or

    (ii)      is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …