Do (Migration)

[2017] AATA 508

Do (Migration) [2017] AATA 508 (27 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Thien Do

CASE NUMBER:  1610023

DIBP REFERENCE(S):  CLF2015/61354

MEMBER:Michelle Grau

DATE:27 March 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 27 March 2017 at 11:05am

CATCHWORDS
Migration – Child (Residence)(Class BT) visa – Subclass 802 – Documentary evidence of study overseas – Requirements of continued study – Not a dependant child

LEGISLATION
Migration Act 1958

, s 65

Migration Regulations 1994

, Schedule 2 - cl.802.212, 802.214, cl.802.214(1)(c), 802.221, cl.802.221(1) or (2)(a), cl.802.221(2)(b).

CASES
Huynh v MIMA [2006] FCAFC 122

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 14 June 2016 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 to the Department of Immigration for the visa on 2 October 2015. 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.802.12, 802.214 and 802.221.

4. The delegate refused to grant the visa on the basis that cl.802.12, 802.214 and 802.221 was not met because she was not satisfied the applicant was dependent or that the applicant met the study requirement.

5. The applicant appeared before the tribunal on 24 March 2017 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s mother.

6. The applicant was represented by a migration agent who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case are whether the applicant is dependent upon the sponsor and whether the applicant meets the study requirements.

   Dependent child criteria

9. 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).

10. The applicant is a USA citizen born in 1995. As he was aged 18 or over at time of application he is required to meet the definition of dependent child and the additional study requirements.

11. According to his application, the applicant worked as a waiter for four months in 2013 at Sakura Japanese steakhouse. He relied on support from his mother in the amount of $100 a week. In his April 2016 statutory declaration the applicant stated he was unemployed, financially and emotionally dependent upon his mother and was studying certificates III and IV in Fitness. A letter from the fitness college dated 19 April 2016 which welcomed the applicant to commencement of the course was provided.  The commencement date for the full time course was 18 April 2016 to be completed on 17 April 2017.

12. At hearing the tribunal was informed that when the applicant’s parents divorced, his mother came to Australia to be with family and the plan was to bring the children to Australia once she was settled. In the meantime the applicant and his siblings lived with his father in the USA. His father was often away so the applicant looked after the younger siblings, while he attended college. The applicant’s mother sent $1000 a month for the children.

13. At hearing the applicant added that he studied at community college in USA from September 2013 until June 2015. He studied four semesters but did not have enough credits to complete the associate degree. The tribunal asked if he had any documentary evidence from the college. He said he did not. He told the tribunal he had finished studying and completed the fitness certificates in December 2016. He commenced working full time as a personal trainer. He signed a contract with Good Life gym on 1 February 2017. The tribunal noted that it appeared he might not meet the requirements of continued study and was not engaged in full time work at the time of decision. The applicant said he was not earning a full wage as he was building up his business. He earned $293 last week and had to pay rent for use of the gym.

    FINDINGS AND REASONS

    Dependent child

14. 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.

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].

    Additional criteria for applicants over 18

16. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214. The applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner; must not be engaged in full-time work. Further, 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 (see cl.802.214):

17. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

18. The study 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).  However, there is no evidence that the applicant was incapacitated for work due to the loss of bodily or mental functions and the tribunal does not accept that the applicant was incapacitated for work.

19. The evidence at hearing from the applicant was that he had been engaged in full time work since 1 February 2017 as a personal trainer, albeit his income was not significant as he was building up his business.

20. While the applicant claimed he had completed year 12 in June 2013 and he continued to study at a community college in the USA for four semesters after that until 2015, no documentary evidence was provided. Without such evidence the tribunal is not satisfied that the applicant continued to study between 2013 and 2015.  The tribunal accepts he studied Certificates III and IV in fitness as he provided documentary evidence of that.

21. In any event, the applicant’s evidence was that he had ceased study in December 2016.The applicant was no longer studying and embarked on a personal trainer career from 1 February 2017.

22. Accordingly, the tribunal finds at time of decision that the applicant is not in a full time course of study. The tribunal finds he ceased his studies in December 2016 and he embarked on a full time work as a personal trainer on 1 February 2017.  As the applicant is not studying at time of decision he does not continue to meet the study requirements.

23. Accordingly, cl.802.214(1)(c) does not continue to be met at the time of decision. As a result, the applicant does not meet cl. 802.221(2)(b).

24. 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

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

    Michelle Grau
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    802.214

    (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.1.03

    802.221

    (1)  In the case of an applicant who had not turned 18 at the time of application, the applicant:

    (a)  continues to satisfy the criterion in clause 802.212; or

    (b)  does not continue to satisfy that criterion only because the applicant has turned 18.

    (2)  In the case of an applicant who had turned 18 at the time of application:

    (a)  the applicant:
    (i)  continues to satisfy the criterion in clause 802.212; or
    (ii)  does not continue to satisfy that criterion only because the applicant has turned 25; and

    (b)  the applicant continues to satisfy the criterion in clause 802.214.

    Definitions

    …

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

    …