Febrianto Eka Putra (Migration)

[2018] AATA 1024

Febrianto Eka Putra (Migration) [2018] AATA 1024 (20 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kevin Febrianto Eka Putra

CASE NUMBER:  1708356

DIBP REFERENCE(S):  CLF2016/57528

MEMBER:Helena Claringbold

DATE:20 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2018 at 7:24am

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Does not meet cl 802.221 (2)(b) – Was not undertaking full time study – Parents were unable to finance study – No evidence that the applicant is incapacitated for work

LEGISLATION
Migration Regulations 1994 r Schedule 2 cl 802.214, 802.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 22 September 2016, Mr Kevin Febrianto Eka Putra , the applicant applied a Child (Residence) (Class BT) visa.  The application was made on the basis of him being the dependent child of his father, Mr Rudy Liajanto, the sponsor.

2. On 28 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The applicant did not satisfy the delegate that he was a full-time student since turning 18 years of age. As a result the applicant did not satisfy cl.802.214(1)(c) and cl.802.214(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. 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).

4. On 5 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Liajanto.  The Tribunal hearing was conducted with the assistance of an interpreter. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department’s file and the Tribunal’s file and the evidence provided at the Tribunal hearing.

   ISSUE

7. The issue in this case is whether the visa applicant was undertaking full-time study since turning 18 years of age and if not whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions.

   BACKGROUND ON THE EVIDENCE

8. On 23 February 1993, the applicant was born in Jakarta, Indonesia. His father lives in Australia.  His mother and sister live in Indonesia.  On 24 July 2015, he entered Australia.

9. In 1960 the sponsor was born in Jakarta, Indonesia. On 11 December 2009, he entered Australia.   He was sponsored for a partner visa.

   CLAIMS AND FINDINGS

   Additional criteria for applicants over 18

10. At the time of application the applicant was 23 years old. Therefore, there are additional requirements relating to relationships, work and study to be satisfied because, at the time of application, the applicant has turned 18: cl.802.214 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Full-time study (or incapacitated for work)?

11. At the time of application, the applicant must have, since turning 18, or within six 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) of Schedule 2 to the Regulations.. 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.802.214(2) of Schedule 2 to the Regulations. This requirement must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Is the visa applicant incapacitated for work?

12. There is no evidence before the Tribunal that the at the time of application or this decision, the applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant undertaking full-time study?

13. The Tribunal considered the evidence individually and as a whole.  It is satisfied that the applicant was a full-time student until May 2011. The Tribunal accepts that at the time of application on 22 September 2016, the applicant was undertaking a full-time course of study for a Certificate ll in Business, leading to the award of a professional, trade or vocational qualification, which began on 7 December 2015 and finished on 4 December 2016 with a Certificate issued in December 2016.  It also accepts that a Certificate IV in New small Business was issued to the applicant on 18 December 2017 and there is ongoing confirmation of enrolments through to 2019.

14. Consideration is now given to the time period between May 2011, when the applicant completed high school and 7 December 2015, when he began a full-time course of study for a Certificate II in Business.

15. After completing high school in May 2011, the applicant failed the entry exam for pilot studies at Sekolah Tinggi Penerbangan Indonesia, Curug Indonesia.  Approximately 15 months later in August/September 2012, the applicant was undertaking study at the London School of Public Relations.  He studied for one semester which ended in March 2013.  The applicant told the Tribunal that he withdrew from this study because of his mother’s financial difficulties. He told the Tribunal that his parents other family financial responsibilities prevented them from financing his studies.  Other information is that his mother was working full-time and his father was working between a seven and nine days a fortnight.  In a post-hearing submission the applicant’s migration agent stated that the applicant’s mother income was unstable.  The applicant told the Tribunal that he and his mother had not considered the cost of study at the London School of Public Relations nor had he made any enquiries about other, less expensive study.

16. The applicant’s evidence is that from March to September 2012, he worked for Mindblowing in Jakarta.  From April 2013 to 30 June 2015, he worked at Forum Inovasi Optima.  He told the Tribunal that his salary provided him with pocket money.  On 24 July 2015, the applicant entered Australia as the holder of a student visa. From 27 July 2015 to 18 October 2015, the applicant undertook a 12 week, CRICOS, general intensive English course of study, at the Australian Academy of Commerce with a Certificate issued 30 October 2015.

    Other considerations

17. At the Tribunal hearing the sponsor gave evidence about his divorce from his ex-wife, the applicant’s mother and of his desire to have his son live with him.  He stated that the applicant does not get on well with his mother, possibly he said because she has other children with another partner. He said that it was only in 2012 that he had the courage to see if his son could live with him.  While the Tribunal is sympathetic to these circumstances, they are not relevant to the applicant’s full-time study.  In a post-hearing submission the sponsor stated that he didn’t have regular income in 2012 and when he did find employment his current spouse didn’t want him supporting his previous family.  He stated that in 2012-2014, he provided the applicant some pocket money but was unable to finance his study.

18. Other evidence surrounded the financial aspects of the applicant’s parents.  The Tribunal was told that the applicant’s mother worked in finance and in 2012, his father worked as an assistant in catering, working a seven to nine day fortnight.  In a post hearing submission the applicant’s migration agent put forward that the applicant’s parents could not finance the applicant’s study. He stated that it was not until 2015,that the applicant’s father could finance the applicant’s study.  In a post hearing submission the applicant’s migration agent stated that in 2015, the sponsor’s financial position improved and he raised the issue of his son’s study with his current spouse and she agreed.  He concludes that in these circumstances, it is reasonable for the applicant to defer his study until his father could provide the necessary financial support. Even if the Tribunal accepted that the applicant’s parents could not afford to finance the applicant’s chosen study, it is not satisfied that other opportunities for the applicant’s study were unavailable to him. The applicant, on his own evidence, did not investigate other options that may have satisfied his educational requirements.

19. Other matters include a statement from the sponsor that he has been supporting the applicant financially since birth and that the applicant currently lives with him ‘free of charge’.  However, at the Tribunal hearing the sponsor stated that he has been supporting the applicant financially since he was seven years old. In March 2017, the applicant’s mother stated that the applicant lived with her from birth and was financially supported by herself and the sponsor.  She stated that the applicant quit study ‘with consideration to save expenses’ but he eventually went to Australia and his living costs are covered by his father. 

20. The applicant told the Tribunal that his holiday in Korea in July 2014 was paid for by his employer, while holidays in Singapore in March 2014 and Hong Kong in 2016 were financed by his parents.  He said that each time he returned to Indonesia, he lived with his mother and spent time with his girlfriend and other friends.  In a post-hearing submission the applicant stated that his holiday in Singapore was on promotional and cheap.

21. The applicant provided generic information about the cost of living in Jakarta.  In a post hearing submission the applicant’s migration agent stated that the information in the article can lead to the conclusion that the applicant’s salary was below the minimum level. The information is of a general nature and not specific to the applicant.

    Not engaged in full-time work

22. Clause 802.214(1)(b) of Schedule 2 to the Regulations provides that at the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b) of Schedule 2 to the Regulations.

23. At the time of application the applicant gave evidence that he was employed in part time work. He provided a record of superannuation dated September 2016. The Tribunal finds that at the time of application the applicant was engaged in part-time work. Accordingly, cl.802.214(1)(b) of Schedule 2 to the Regulations is met at the time of application, and continues to be met at the time of decision cl.802.221(2)(b) of of Schedule 2 to the Regulations.

24. Even if the Tribunal accepted that the applicant studied for one semester from August/September 2012 to March 2013, the Tribunal is satisfied that since turning 18 the applicant did not undertake full-time study from May 2011 until August/September 2012, which is approximately 15 -16 months.  Neither, did he undertake full-time study from April 2013 –July 2015, which is over two years.  During these breaks in study the applicant worked full-time from March – September 2012, which is approximately six months and from April 2013 to June 2015, which is approximately two years and two months. The Tribunal is not satisfied by the argument that the applicant’s parents couldn’t finance his study. As detailed above even if the Tribunal accepted that the applicant’s father and mother could not finance the applicant’s chosen study, it is not satisfied that other affordable study opportunities were unavailable to the applicant or indeed that he investigated any other study opportunities, because on his evidence to the Tribunal, he did not.

25. The Tribunal is not satisfied that the applicant since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. 

26. Accordingly, cl.802.214(1)(c) of Schedule 2 to the Regulations is not met at the time of application, and does not continue to be met at the time of decision cl.802.221(2)(b) of Schedule 2 to the Regulations.

27. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.

    DECISION

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

    Helena Claringbold

    Member