Del Dosso (Migration)

[2020] AATA 4378

Del Dosso (Migration) [2020] AATA 4378 (20 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Alice Del Dosso

CASE NUMBER:  1824725

HOME AFFAIRS REFERENCE(S):          CLF2017/63683

MEMBER:Steven Griffiths

DATE:20 October 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 20 October 2020 at 4.21pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – full-time student since reasonable time after turning 18 or completing high school – lengthy gaps in studies and failure to complete courses – enrolled at time of visa application, but not at time of visa refusal decision – enrolled in online course at time of review decision, but no documentation provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 802.214(1)(c), 802.221(2)(b)

CASES           

Hussain v MIBP [2017] FCCA 3247

Huynh v MIMA [2006] FCAFC 122

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 6 August 2018 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 14 September 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).

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 is cl.802.214.

4. The delegate refused to grant the visa on the basis that cl.802.214(1)(c) was not met because the applicant had not been a continuous full-time student since turning 18.

5. The applicant appeared before the Tribunal on 20 October 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, Mr. Stefano Del Dosso, who is the father of the applicant.  

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams Video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams Video. No concerns were raised by the parties on holding a Microsoft Teams Video hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa.  

   BACKGROUND OF THE EVIDENCE

9. Ms. Del Dosso was born in Tradate, Italy, in 1996. Her parents, born 1964 & 1966, are separated, with her mother living in Italy and her father in Australia. She has a brother, born 1999, who lives in Australia. She arrived in Australia on 19/9/15 on a Working Holiday 417 Visa, granted 15/9/15 and to cease 19/9/16. She was on a Bridging Visa E from 21/9/16, and then a 651 Visa for non-employment purposes from 8/10/16 to 9/1/17. She was granted a Student 500 Visa on 25/1/17, which ceased 5/11/17 and has been a series of Bridging Visa A & B from 14/9/17.  

10. Mr. Del Dosso was born in Italy and arrived in Australia on 20 April 2005. He has previously sponsored his son on an 802 Visa, which was granted on 9/2/16.   

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:-

    Sponsor statement, 17/7/18

    Australian College of Sport Fitness, confirmation of enrolment January to October 2017

    Applicant Statutory Declaration, 20/7/18

    Applicant submission, 17/7/18

    Applicant submission, undated

    Interior Design Institute, 12/10/20, confirmation of enrolment

    Home Rental Agreement, sponsor, applicant and her brother, from 26/2/20

    Dependent child criteria

12. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

    Dependent child

13. At the time of application, the applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(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.

14. The Tribunal accepts the documented evidence of the sponsor being an Australian permanent resident.

15. In this context, 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].

16. The Tribunal notes the applicant was born 11/1/96 and was over 19 years and 8 months old at the time of arriving in Australia.

17. The Tribunal accepts the documented and oral evidence of the applicant that for the period she has lived in Australia to the refusal decision of the delegate, she worked from August 2017 to May 2018, for a maximum of 20 hours per week.

18. The Tribunal accepts the documented and oral evidence of the parties that the sponsor provided, at all times, a rented home for the applicant to live with him and the brother of the applicant, paid for services provided to and used by the home, provided the funds required for the purchase and operation of the car used by the applicant.

19. The Tribunal accepts the oral evidence of the applicant that she had some savings before arriving in Australia, and was provided with a small amount of cash by grandparents and was provided with approximately $ 1300 by her mother in late 2016 when she was in Australia visiting the family, but the sponsor, her father, has been the ever present provider of the financial support she required and she has been substantially reliant on him for basic needs.

20. Accordingly, cl.802.212(1)(a) is met at the time of application and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

21. At the time of application, the applicant must not have turned 25. 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 total or partial loss of bodily or mental functions: cl.802.212(1)(b), (2).

22. The Tribunal has been provided with no documented or oral evidence on the applicant being incapacitated due to the total or partial loss of bodily or mental functions.

23. Accordingly, cl.802.212(1)(b) does not apply at the time of application and is not required to be met at the time of decision.

    Criteria for applicants over 18

24. 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).

    Full-time study (or incapacitated for work)

25. 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).

26. 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).

27. 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.

28. The Tribunal accepts the documented and oral evidence of the parties that she completed her school studies in Italy in June 2015, being 19 years old at the time.

29. The Tribunal accepts the documented and oral evidence of the parties that the applicant did not study from her arrival in Australia in September 2015 until commencing a Certificate lll in Fitness on 27/1/17.

30. The Tribunal accepts the documented and oral evidence of the parties that the applicant lost interest in the Certificate lll in Fitness, and while she attempted to catch up she did not complete all required areas of the course by the completion date of 5/10/17 and failed.  

31. The Tribunal determines from the evidence that the applicant, at the time of the visa application on 14/9/17, was enrolled in a course of study but was not making the required effort to complete the course successfully.

32. The Tribunal notes the documented evidence of the applicant dated 27/7/18 that she was enrolled in a Certificate lV of Massage Therapy and wished to continue to undertake the Diploma.

33. The Tribunal accepts the oral evidence of the applicant she attended a 2-day component of this course only and did not undertake any further study in the Certificate lV in Massage Therapy as she lost interest in it and determined it was not what she wished to pursue for her future.

34. The Tribunal determines that the applicant was not studying as at 6/8/18 when the Refusal decision to the Visa application was made.

35. The Tribunal notes the documented and oral evidence of the applicant that she commenced studying on 24/2/20 a on-line interior design course with the Interior Design Institute, which is to be completed in 24/2/21.

36. The Tribunal notes that it was not provided with a Confirmation of Enrolment from the Commonwealth Government, details of fees payable, details of Government recognition of the education institute or confirmation on her progress in the course for review.

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

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

39. 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

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

    Steven Griffiths
    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.

    …