Gower (Migration)

[2017] AATA 2651

Gower (Migration) [2017] AATA 2651 (7 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oscar Mackenzie Gower

CASE NUMBER:  1618114

DIBP REFERENCE(S):  CLF2016/36595

MEMBER:Adrienne Millbank

DATE:7 December 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 07 December 2017 at 5:53pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Not engaged in full time study at time of application – Reasonable time – Applicant’s family and home circumstances

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cls 802.214, 802.221

CASES
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 on 12 October 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 16 June 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. This clause requires that, at the time of application:

   (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.

4. The delegate refused to grant the visa on the basis that cl.802.214(1)(c) was not met because the applicant had not demonstrated that he was enrolled in and participating in full-time education at the time the application was lodged; and he had not demonstrated that he had been a full-time student since turning 18. The Delegate pointed out that there was almost a four year gap in study.

5. The applicant appeared before the Tribunal on 23 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the applicant’s father.

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

   Background

7. The applicant was born in 1991 in the Solomon Islands, and was 24 years old at the time of application. He is sponsored by his father, who was born in the Solomon Islands of an Australian citizen father, and who resumed Australian citizenship in 1999 and returned to Australia in 2000. The applicant’s father, step-mother, and 6 siblings and half-siblings are living in Australia.

8. The applicant visited his family in Australia in 2003; 2005; 2011; and 2015.  On 17 June 2016 he was granted a Bridging visa, with study rights, in association with this review application.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has been a continuous full-time student since turning 18, and whether he was a full-time student at the time of application and decision.

   Additional criteria for applicants over 18

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

    Full-time study (or incapacitated for work)

11. 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). 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). This requirement must continue to be met at the time of decision: cl.802.221(2)(b).

12. 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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

13. At the time of application, regarding his high school education, the applicant stated that he attended the Woodford International School in Honiara from January–November 2006, and that he studied vocational training in ‘Electrical’ for two years in 2011 and 2012. A copy of his Solomon Islands National Trade Test Certificate, issued in October 2013, was provided, certifying that he had qualified at the Basic level in the Electrician Trade.

14. When asked at hearing what he did in the years after he left school, before commencing electrical studies in 2011, the applicant said he did nothing. He stated that he had struggled at school, and left after year 9. The sponsor described how it was difficult to find work at the village level, where the applicant lived with his mother, and that people spent their time fishing or farming.

15. The Tribunal asked the applicant at hearing why he did not continue his studies in Honiara and qualify to work as an electrician in the Solomons.  He stated that he couldn’t afford to. The sponsor confirmed that he was unable to afford the tuition fees for his son at this time. He stated that it was his intention at the time to sponsor his son to Australia, as he had sponsored his other two children from his first marriage, and that when he did his son would complete his training and qualify as an electrician in this country. He advised that he had accumulated the paperwork for an application, but that the application had got lost in the Solomons.

16. The sponsor described how his first wife had custody of their three children and how he sponsored his daughters on Child (Dependent) visas in 2011, with the assistance of his sister in the Solomons who convinced his wife to allow them to come to Australia, but that his son was on another island at the time. He advised the Tribunal that he blamed himself for not organising his son’s visa application earlier, and explained that his intentions had been frustrated by custody issues and financial pressures.

17. In written submissions provided to the Tribunal by the applicant’s father, the sponsor, and the applicant’s biological mother in the Solomons, the following arguments and explanations  regarding the gaps in the applicant’s full-time post-secondary studies were provided:

    • All six of the applicant’s siblings or step-siblings are resident in Australia.
    • The applicant’s schooling years were difficult for him because of his parents’ separation.
    • The trauma of the loss of the family home in Guadalcanal and family breakup following the conflicts in the Solomons in the early 2000s undermined the applicant’s sense of personal security and confidence in the future. The stress and trauma he experienced manifested in a lack of motivation, depression and anxiety.
    • The applicant has suffered from discrimination on account of his mixed-race.
    • The education and health systems in the Solomon Islands have deteriorated and the employment situation is such that there is no future there for the applicant.
    • The applicant is sensitive, quiet and introverted. He suffers from asthma.
    • The financial situation of the applicant’s parents contributed to the applicant’s not being enrolled in studies from 2013 to October 2016.
    • The applicant has the support he needs in Australia to study and make a future for himself.

18. The applicant’s mother, in a written statement provided to the Tribunal, explained the applicant’s gaps in his involvement in education as due to stress and trauma he suffered from family separation and communal conflict, as follows:

    The stress and trauma my son has endured during his time living in the Solomon’s has taken its toll resulting in my son not being able to fend from himself or go to school.  All these issues have manifested themselves in subtle ways in (the applicant) suffering apathy, inertia, lack of motivation, low self-esteem and apparent inefficiency resulting in him being depressed and suffering anxiety’.

19. Evidence was provided in the form of copy of a letter of referral dated 13 October 2016, that the applicant attended an initial consultation with a medical practitioner in Brisbane regarding his mental health. This letter advised that the applicant was affected by issues of family separation and financial pressures which had limited his ability to continue his studies in the Solomon Islands. It further advised that the applicant reported ‘he wishes to do something to work and live with his family here’, and felt depressed and suicidal because of his circumstances. The medical practitioner referred the applicant for psychological assessment and counselling. No further evidence was provided regarding the applicant’s mental health.

20. The Tribunal accepts that the applicant has suffered depression and anxiety due to his circumstances, but does not accept, on the evidence provided, that he has suffered from mental illness of a severity such as to reasonably explain the gaps in his involvement in education. The Tribunal has considered and is sympathetic to the circumstances of the applicant. The Tribunal notes however that the purpose of the regulation can be summarised as: to allow people who are over 18 and who are thus legally adults, to continue to be eligible for the visa on the basis that they are doing full-time, career-oriented, post-secondary courses and remain dependent on their parents.  Having regard to the policy intention of the regulation, the Tribunal does not find that a four year gap between leaving school and commencing post-secondary studies in the Solomon Islands in the circumstances of the applicant is ‘a reasonable time’, or that a break of four years following completion of his studies in the Solomon Islands in July 2012 before commencing studies in Australia on 4 October 2016 is ‘a reasonable time’. The Tribunal acknowledges that the sponsor has made sacrifices for his family and has sympathy for his efforts to sponsor his son, but finds that his motives and the circumstances of the applicant are not consistent with the purpose of the regulation.

21. The Tribunal accepts that the applicant’s family and home-country circumstances have created obstacles to his schooling and that the sponsor has supported his son and wants him to join his siblings and obtain trade qualifications and a secure future in Australia. The Tribunal however finds that the applicant has not ‘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.

22. The applicant provided a copy of a TAFE Queensland Confirmation of Enrolment for a Certificate ll in Electro-technology, commencing on 4 October 2016 and finishing on 21 February 2017. At hearing the applicant confirmed that he successfully completed all the units for this course. He confirmed that he was no longer studying, and had been unemployed since completing it. He advised that the next stage towards his trade qualification involved practical and paid work, through apprenticeship, but that as he has no work rights on his Bridging visa, he was unable to proceed. The sponsor advised further that the cost of tuition, at international student rates, was prohibitive.

23. Based on the evidence provided, the Tribunal finds that the applicant was not engaged in full-time study at the time of application or decision.

24. Therefore the applicant does not meet cl.802.214(1)(c) or 802.221(2)(b).

25. The Tribunal has considered the claim that the applicant has suffered from mental health issues which contributed to the lack of continuity in his studies. The Tribunal accepts that the applicant was referred to a psychologist for counselling due to depression related to his circumstances. No claims were made by the applicant that he was dependent on the sponsor due to being incapacitated for work due to the total or partial loss of his bodily or mental functions. At hearing the applicant and sponsor confirmed that he was not incapacitated for work because of loss of bodily or mental functions. Therefore the applicant does not meet cl.802.214(2).

26. For the reasons above, cl.802.214 is not met at the time of application. 

27. 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

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

    Adrienne Millbank
    Member