Fung (Migration)

[2024] AATA 3641

Fung (Migration) [2024] AATA 3641 (3 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tak Wai Fung

REPRESENTATIVE:  Mr Anand Naidu

CASE NUMBER:  2015184

HOME AFFAIRS REFERENCE(S):          CLF2019/25539

MEMBER:Kira Raif

DATE:3 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2024 at 8:23am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – money transfers – gap in full-time studies – applicant withdrew from a course – financial hardship – current part-time study – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.216, 802.221, 802.226; r 1.03

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 23 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of China, born in July 1997. He applied for the visa on 30 May 2019. The delegate refused to grant the visa on the basis that cl 802.212 was not met because the delegate was not satisfied the applicant was a dependent child of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 18 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Kayin Cheung. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review.

4. At the conclusion of the hearing the applicant’s representative requested, and was granted, additional time to provide post-hearing written submissions. Further submissions were provided on 2 October 2024 and the Tribunal has had regard to these. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

5. 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).

6. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

7. 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).

   Is the applicant a dependent child of the sponsor?

8. 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 reg 1.03 of the Regulations. 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.

9. 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].

10. The applicant was born in 1997 and the Tribunal finds that he was over the age of 18 at the time the application was made. There is no evidence before the Tribunal to indicate that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions.

11. The applicant told the Tribunal that since young age he was living with his paternal grandparents. By the time he turned 18, he was living with other relatives. Once his paternal grandmother passed away, his mother came back from Australia to help him find a place to live and he started to live with his maternal grandmother. The applicant states that his mother would send money to her sister (his aunt) and his aunt would give him the funds. The applicant states that when living with his grandmother, he did not have pay rent or contribute towards the living costs. The money that his mother sent was used to pay the tuition fees and to ‘hang out’ with his friends, buy food and pay for transport. These arrangements started from 2015 and until his first travel to Australia in December 2018. (He had to return to Hong Kong to get some papers to support this visa application).

12. The applicant states that since coming to Australia, he lived with his mother for a short period but he predominantly lives with his aunt as his mother has to travel due to work commitments.

13. The applicant’s mother Ms Cheung told the Tribunal that when the applicant was in Hong Kong, she sent money through her sister for his life expenses and she also sent money to her mother to cover her son’s living expenses. The funds were used for clothing, food and tuition fees. Ms Cheung said that when she came to Australia with her son in 2018, they stayed with her sister. Ms Cheung states that in 2019 she purchased a home in Australia and since the settlement in 2021 the applicant has been living in that home. Prior to 2021 he always lived at an aunt’s home. Ms Cheung states that she returns to Australia three or four times a year and each time she gives $5000 cash to her sister to support her son.  

14. The Tribunal accepts the evidence of the visa applicant and the sponsor, which is generally supported by the documentary evidence. That is, the Tribunal accepts that while the visa applicant remained in Hong Kong, the sponsor had been providing financial support, through transferring funds to other family members, which were used to support the applicant in his daily needs, including food, shelter and clothing. There is no suggestion that by the time the application was made, and before then, the applicant had any other source of income. The Tribunal also accepts that the sponsor continues to provide financial support to the applicant since his arrival in Australia, including covering his expenses for food, shelter and clothing as he has no other income. The Tribunal is satisfied the applicant’s reliance on his mother was, and continues to be, greater than his reliance on any other source. The Tribunal is satisfied the applicant was a dependent child of the sponsor when the application was made and continues to be a dependent child at the time of this decision. 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

15. 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).

16. The applicant was born in 1997 and the application was made in May 2019. The applicant was under the age of 25 when the application was made. Accordingly, cl 802.212(1)(b) is met at the time of application.

17. The Tribunal finds that the applicant meets cl. 802.212.

    Criteria for applicants over 18

18. 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

19. 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).

20. There is no evidence that the applicant has ever been engaged to be married or that he has a spouse or de facto partner or has ever had one. Accordingly, cl 802.214(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

21. 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).

22. The applicant’s evidence to the Tribunal is that he has never been employed. There is no evidence to suggest otherwise. Accordingly, cl 802.214(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

23. 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).

24. 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).

25. 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.

26. There is no evidence that the applicant is, and he does not claim to be, incapacitated for work due to the total or partial loss of bodily or mental functions. The Tribunal finds that the requirements of cl. 802.214(1)(c) apply to the applicant.

27. The applicant turned 18 in 2015. When making the application, the applicant stated that he undertook secondary schooling between July 2009 and July 2015 and commenced study at Melbourne Advanced Commerce Institute (MACI) in March 2019.

28. The applicant told the Tribunal that after coming to Australia, he undertook a one year Foundation course and after completing the Foundation course, he started the Associate Degree in Tourism in Hong Kong. That was meant to be a two year course but he withdrew in mid-2018 as he was planning to come to Australia. The applicant states that he quit the Associate degree in 2018 because he realised he was not interested in Tourism and decided that he wanted to have a break before moving to Australia.

29. The applicant told the Tribunal that he came to Australia around December 2018 but had to travel to Hong Kong again to get his birth certificate and prepare paperwork for the application and that delayed his study in Australia. The applicant states that he commenced his course in Australia in February 2019. The applicant told the Tribunal that he is presently undertaking a Diploma of Marketing at MACI and he is studying 18 hours per week. He started the Foundation course in 2019 and from 2020 he started the Marketing course but did different subjects. In his submission of 2 October 2024 the applicant provided evidence of his past study and qualifications obtained.

30. The applicant’s evidence is that he quit his Tourism course around May 2018. He did not resume study until he enrolled in the Australian course around March 2019. That is, there was a period of approximately ten months between May 2018 and March 2019 when the applicant was not engaged in any study. In addressing the reasons for not engaging in study in that period, the applicant told the Tribunal that he did that because he was losing interest in the subject area and wanted to save the excessive tuition fees. That is, the applicant does not claim that anything prevented him from engaging in studies in that period except that he did not wish to continue with the course that was of no interest to him and was too expensive, and he preferred to wait for his Australian visa. The applicant’s mother also told the Tribunal that the applicant stopped studying in 2018 because he ‘wanted to play’ and she decided to let him “play” and have a break before coming to Australia.

31. In his submission to the Tribunal of 2 October 2024 the applicant states that from May 2018 he was on an ‘academic break’, making arrangement to relocate to Australia. The applicant states that he did not complete that course as he had difficulties following the curriculum and was preparing to relocate to Australia and commence a less complicated regime. The applicant states that he was not able to do well enough in the course to complete it. The applicant’s written evidence differs somewhat from his oral evidence when the applicant claimed he had lost interest in the subject area. The Tribunal accepts there may have been a combination of reasons why the applicant stopped studying around May 2018 but none of these reasons indicate that the applicant was prevented from studying or unable to engage in study.

32. It is not in dispute that the applicant did not undertake study between about May 2018 and his enrolment in Australia in March 2019. There is no suggestion that in that period of approximately ten months, the applicant engaged in any activities that were relevant to study.  There was no reason for him not engaging in study other than a desire to have a break from studies and his dislike of the course or lack of academic progress. While the representative suggested there were also financial constraints, that is not the evidence of the applicant or his mother as both indicated that the break in study was because the applicant wanted to have a break.

33. The Tribunal also notes that the applicant’s evidence is that at present, he is undertaking 18 hours of study a week (his hours having decreased from previous years). He claims in his written submission to the Tribunal that it is a full-time course, however, this is not apparent from the evidence before the Tribunal. There does not appear to be a written confirmation from the course provider confirming that the applicant’s current engagement in the course is on a full-time basis and that 18 hours of study a week comprises (consistently with the objective educational requirements for course providers) full-time study. On the evidence before it, the Tribunal does not accept that at the time of this decision, the applicant is engaged in full-time study.

34. In these circumstances, the Tribunal is not satisfied that 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. The Tribunal is not satisfied the applicant continues to meet cl 802.214(1)(c) at the time of decision, for the purpose of cl 802.221(2)(b). The Tribunal is not satisfied the applicant meets cl. 802.221.  

35. The applicant was over the age of 18 when the application was made and was sponsored by his mother. The Tribunal finds that he does not meet the definition of an ‘orphan relative’ and is not entitled to the grant of an Orphan Relative visa.

    Conclusion

36. 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

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

    Kira Raif
    Senior Member