Flores (Migration)

[2021] AATA 1779

Flores (Migration) [2021] AATA 1779 (24 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Patricia Joie Flores

CASE NUMBER:  2006842

HOME AFFAIRS REFERENCE(S):          CLF2019/16812

MEMBER:Cathrine Burnett-Wake

DATE:24 May 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.214 of Schedule 2 to the Regulations.

Statement made on 24 May 2021 at 10:44am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – full-time study requirement – study gap between April 2017 and May 2018 – visa issues – lack of IELTS to enrol into an Australian course – engaged in some informal English classes – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 802.214

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 19 March 2020 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 21 March 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.802.214.

4. The delegate refused to grant the visa on the basis that cl. 802.214(1)(c) as they found the applicant has not undertaken continuous, full-time study since turning 18.

5. The applicant appeared before the Tribunal on 24 March 2021 to give evidence and present arguments.

6. The applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether, at the time of application, the applicant had, 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.

   Criteria for applicants over 18

9. 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

10. 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).

11. The applicant has made claims that she is single. That she is not engaged to be married and has never been a spouse or de facto partner. The applicant gave written testimony asserting this and at hearing also provided the same sworn evidence. The Tribunal accepts the applicant’s evidence in this regard as there is no evidence before the Tribunal to suggest otherwise.

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

    Not engaged in full-time work

13. 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).

14. The applicant made claims that she has not been engaged in full-time work. The applicant gave written testimony asserting this and at hearing also provided the same sworn evidence. The Tribunal accepts the applicant’s evidence in this regard as there is no evidence before the Tribunal to suggest otherwise.

15. 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)

16. 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).

17. 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).

18. 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.

19. There is no evidence that the applicant is incapacitated for work due to the total or partial loss of bodily or mental functions.

20. When making the application, the applicant indicated that she had engaged in studies since completing secondary studies in March 2015.

21. In oral evidence to the Tribunal the applicant confirmed that she completed secondary studies in September 2015 and had enrolled in and commenced a University course in the Philippines before commencing her study in Australia in May 2018. The applicant conceded that there was a gap between April 2017 and May 2018. However, this was caused by a mix of visa issues and lack of IELTS to enroll into an Australian course. The applicant stated that she was however, still enrolled in her University course during this time, and attended informal English classes to achieve the necessary IELTS to enroll into an Australian course.

22. The Tribunal accepts the applicant's evidence. The Tribunal finds that the applicant had not engaged in any formal study between April 2017 from her University semester break until May 2018 when her enrollment was accepted to study in Australia.

23. The Tribunal accepts the applicant's evidence that she travelled to Australia on a visitor visa to be with her family and that the visa that she held at the time did not permit her to engage in formal study. The Tribunal accepts that in that period the applicant did try to enroll in formal study but was unable to because of her visa restrictions. The Tribunal also accepts that the applicant engaged in some informal study, having attended English classes. That is, the applicant engaged in activities to support her future study and engaged in formal study as soon as she was once more able to. In such circumstances, and in line with the reasoning in Sok v MIMIA [2005] FMCA 190 at [19], the Tribunal has formed the view that the applicant had, 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 course of study at an educational institution leading to the award of a professional, trade or vocational qualification. She meets cl.802.214(1)(c).

24. For the reasons above, cl.802.214 is met at the time of application and decision.

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

    DECISION

26. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.214 of Schedule 2 to the Regulations.

    Cathrine Burnett-Wake
    Member