Gavoka (Migration)

[2018] AATA 4062

Gavoka (Migration) [2018] AATA 4062 (27 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nemaia Turuva Vakayatu Gavoka

CASE NUMBER:  1711792

HOME AFFAIRS REFERENCE(S):           CLF2016/58465

MEMBER:Moira Brophy

DATE:27 August 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 27 August 2018 at 2:43pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 820 (Child) – full-time course – visa status – difficulty to enrol in education system – attempts to enrol – not undertaking full-time course – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 802.214, 802.221

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 Immigration and Border Protection on 22 May 2017 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 27 September 2016. 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) was not met because the applicant was not a full time student at the time of application.

5. The applicant, Mr Nemaiaa Turuva Vakayatu Gavoka appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Apakuki Gavoka, father of the applicant and from Ms Alison Johnstone, partner of the applicant’s father and from Ms Fay Johnstone, Mr Colin Roy Johnson and Ms Rosey Gen Bathes. 

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

   BACKGROUND

7. The applicant is a 20 year old male from Fiji. He is a citizen of Fiji. He is the only child of Apakuki Gavoka and Bulou Ulamila Nellie Rokomoce. His father resides in Australia and his mother resides in Fiji. He has three half-brothers residing in Fiji. He came to Australia on 31 December 2015 on a Visitor visa valid until 31 March 2016. On 11 April 2016 he was granted a further Visitor visa which was valid until 30 September 2016. On 27 September 2018 he lodged an application for Child (Residence) (Class BT) Child (subclass 802) visa.

8. On 8 March 2017 the Department wrote to the applicant to seek additional information as to the claimed relationship between the visa applicant and his father, Apakuki Gavoka DOB 29 April 1977. It was noted that his birth had been registered on 27 August 2002 and that his father was not included on that certificate until an amendment in 2015. It was further noted that at the time his father had applied for his permanent residency on 12 January 2001 he had not provided details of the applicant as his biological child.

9. A DNA test report dated 27 April 2017 reported that testing had been carried out on the applicant and his father. Based on the testing results the probability of paternity was found to be 99.999996%.

   TRIBUNAL PROCEEDINGS

   Evidence of applicant

10. The applicant told the Tribunal that he currently resides with his parents and brother at a rented house in Griffith. He arrived on New Year’s Eve 2015. He was currently apprenticed to Griffith Bus lines. He had commenced his apprenticeship in December 2017 as a heavy vehicle mechanic. He is in receipt of an income of around $1000 per fortnight. He received approval from the Department for this apprenticeship as he understood that such a placement was a breach of condition 8101 of his bridging visa. Approval for the placement was granted.

11. The applicant told the Tribunal that he completed his schooling in Fiji in 2013. He was not studying in the period from December 2013 until when his application was lodged. He was working in the construction industry for about one year and was living with his mother in Nadi. In mid-2015 he moved to live with his paternal grandparents. They have a farm and he was assisting them on the farm until he came to Australia.

12. The applicant said his paternal grandparents had started contributing to his support from 2012. He was at the time at a boarding school that was paid for by his maternal uncle and his grandparents would give him money for the holidays. He said from 2013 his father had also been sending him money.

13. The applicant said that in 2015 his father had come to Fiji and they had discussed his future and decided it would be best if he were to come to Australia. The plan was that he would continue his education once he arrived in Australia. They explored what visa options would be available.

    Evidence of father

14. The applicant’s father told the Tribunal that he had tried to enrol his son with the Department of Education once they had decided that he would come to Australia but they had advised him that he needed an appropriate visa to be enrolled. He was advised that if he were to apply for a student visa he would have to pay fees but if he were to apply for an 802 visa he would receive a free education as his father was an Australian citizen.

15. His father said that he had lived in Griffith since 2010 with his wife and their two sons. He and his wife each have a son and they have an adopted daughter. They are both in full-time employment. He said that his son had been living with him since New Year’s Eve in December 2015. He said that prior to coming to Australia his son had been through a period of instability and he thought it important that he be with him in a stable family household.

16. He said that he had not known he had a son until 2009 and since that time he has taken responsibility for all his financial and emotional needs. He considers it very important that his son receive a good education and be housed in a loving and secure environment.

17. He said that the period prior to his son being enrolled to complete year 12 was very frustrating. He considered it a priority that his son be educated but he was not in a position to pay the tuition fees required under some visas. He did not think it was right that as an Australian citizen his biological son should have to pay fees to be educated in the public system.

18. He said that he was caught between the Department of Education that said he was unable to enrol his son without a valid visa and the Immigration Department advising that he could not make a valid visa application without being enrolled in a full-time course.

    Evidence of Faye Johnstone

19. Ms Johnstone told the Tribunal that she had taken leave to attend and give evidence.

20. She said that since she had met the applicant in 2015, when she was in Fiji to attend her daughter’s wedding, she had considered him to be part of her extended family. She said that he was an important part of her family and she wanted him to be able to remain with them. She asked the Tribunal to consider the opportunities that were available to him in Australia as opposed to those in Fiji.

    Evidence of Alison Johnstone

21. Ms Johnstone told the Tribunal that she was married to the visa applicant’s father. They were married in 2015 in Fiji and that was when she had met the visa applicant.

22. She said that she had been a teacher for 26 years and appreciated the value of education in a person’s life. She wanted the applicant to have the opportunities that a life in Australia could offer him. She said he was a most important part of their family unit. She said she and the visa applicant’s father had blended their families to be part of one family unit. She considered the visa applicant to have completed that family.

23. Ms Johnstone said that it had been very difficult to circumvent their way around the study requirements. She said it was difficult to satisfy those requirements when the visa applicant could not enrol unless he had a visa.

    Evidence of Ms Rosie Jean Bathes and Mr Colin Johnson.

24. Ms Bathes told the Tribunal that she was the adopted daughter of the applicant’s father and Alison Johnstone. She and Mr Johnson told the Tribunal that they wanted to support their brother who was the applicant in these proceedings. They said he had been an inspiration to both them and their family. He is a Godfather to their child.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. 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.802.221 and cl.802.214.

26. The issue in the present case is whether the applicant was able to satisfy those criteria especially as they relate to whether or not he was in full time study at the time of application.

    Criteria for applicants over 18

27. 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

28. 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).

29. The Tribunal was satisfied the applicant was not engaged to be married and he had not at any time been a spouse or defacto partner. Accordingly, cl.802.214(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Not engaged in full-time work

30. 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).

31. From the evidence as to the earnings of the applicant and his oral evidence at the time of hearing the Tribunal is satisfied the applicant was not engaged in full time work at the time of application. Accordingly, cl.802.214(1)(b) is met at the time of application.

    Full-time study (or incapacitated for work)

32. 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).

33. 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).

34. 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.

35. There was no evidence before the Tribunal that the applicant was incapacitated for work because of loss of bodily or mental function.

36. The critical issue was whether at the time of application the applicant had been undertaking full-time study since turning 18. The applicant was born on 20 September 1997. He turned 18 on 20 September 2015. The application was made on 27 September 2016. The critical period the tribunal needs to look at is from 20 September 2015 until the time of application.

37. The Tribunal accepts from the evidence given at the time of hearing and evidence contained in the applicant’s file the following timeline:

    ·In December 2013 the applicant completed Form 4 in Fiji;

    ·On 20 September 2015 the applicant turned 18;

    ·The applicant arrived in Australia on 31 December 2015 on a Visitor visa which was valid until 31 March 2016. At the time of application for this Visitor visa the applicant stated he intended to visit Australia for the purpose of visiting his aunt and uncle over the end of year school break. The duration of stay requested was 24 December 2015 to 24 March 2015.

    ·On 11 April 2016 the applicant was granted a further Visitor visa which was valid until 30 September 2016.

    ·On 6 September 2016 an Application to enrol in a NSW Government School was completed by the applicant indicating he wished to commence from 12 September 2016.

    ·On 12 September 2016 a Conditions for Enrolment to Wade High School was signed by the applicant, his father and the principal of the school.

    ·On 14 September 2016 a temporary residents Program Application Form for an Authority to Enrol was completed.

    ·On 20 September 2016 the Principal of Wade High School wrote a letter setting out the difficulties in enrolling the applicant given he was on a subclass 600 visa which was due to expire on 30 September 2016.

    ·The application was made on 27 September 2016.

    ·On 31 October 2016 the applicant was enrolled to study at Wade High School.

38. At the time of hearing the Tribunal found both the applicant and his father to be credible witnesses. They corroborated the evidence referred to in the timetable above. It was evident the extended family of the applicant in Australia were making every attempt to give him the opportunity to study and further his education. However the Tribunal cannot make a finding on the evidence referred to above that the applicant was undertaking a full-time course of study at the time of application. An intention or enquiry as to enrolment is not sufficient to ground a finding the applicant was enrolled to study at the time of application. The Tribunal does not have discretion in this regard.

39. Accordingly, cl.802.214(1)(c) is not met at the time of decision.

40. The Tribunal is satisfied a preliminary criteria is not met. That being the case, the Tribunal did not go onto consider the other requirements as at the time of decision.

41. 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

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

    Moira Brophy
    Member