Jara-Salgado (Migration)

[2021] AATA 4421

Jara-Salgado (Migration) [2021] AATA 4421 (2 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Master Matias Francisco Jara-Salgado

CASE NUMBER:  2015182

HOME AFFAIRS REFERENCE(S):          CLF2020/14325

MEMBER:Michael Cooke

DATE:2 November 2021

PLACE OF DECISION:  Sydney

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

·cl.802.221(2)(b) of Schedule 2 to the Regulations

Statement made on 02 November 2021 at 10:01am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 18 years – full-time studies – studies disrupted by transfer from Chile – impact of the COVID-19 pandemic – current enrolment – clarification from college – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.216, 802.221, 802.226

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 1 October 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 7 April 2020. 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 was not met because the applicant was over 18 years of age and not enrolled in and participating in full time education.

5. The applicant’s representative has tendered additional information pursuant to the requirements of cl.802.214 as follows:

   6/10/2020

   ENGLISH LANGUAGE SECTION, CPALES ESOL TAFENSW Wollongong Campus Foley’s Lane North Wollongong 2500

   Dear Sir/Madam,

   In April 2020, Craig Chapman contacted TAFE NSW Wollongong campus to inquire into English Language courses for Matias Francisco Jara Salgado. The months of April, May and June, TAFE NSW were unable to complete face-to-face new student assessments due to Covid 19. (Tribunal italic emphasis)

   English Language assessments of new students must be completed face to face in order to assess the 4-macro skills, Listening, Speaking, Reading and Writing. As Covid 19, restrictions were eased and the public were permitted back onto campus, Matias attended the Wollongong campus on the 30th June 2020 to complete his initial assessment.

   Matias Jara Salgado, student number 808672367, commenced full time study on the 21st July 2020. He is enrolled in course 10588NAT Certificate in Fundamental English for Speakers of Other Languages.

   Matias has well defined goals for his future and the skills he is acquiring during his English language study will benefit him in his future study and will assist him in achieving acceptance into his desired course of architecture.

   Yours sincerely

   Roslyn Williams M.Ed., B. Ed, Dip T.

   Head Teacher Career Pathways, ENGLISH (ESOL) ELICOS, AUSLAN.

   Wollongong Campus

   27 October 2021

   English Language Section

   Career Pathways Aboriginal Language and Employability Skills TAFE NSW

   Wollongong Campus Foley's Lane

   North Wollongong NSW 2500

   TO WHOM IT MAY CONCERN

   Matias Jara Salgado, student number 808672367, commenced full time study with TAFE NSW on the 21st July 2020. He has successfully completed 10588NAT Certificate in Fundamental English for Speakers of Other Languages course and is currently enrolled in Certificate II in Spoken and Written English. Matias is a conscientious student and has attended and participated in every class. This year due to COVID 19 pandemic classes were delivered online and Matias showed his determination to proceed with his English tuition by attending every online class and consistently participating and completing all assigned work.

   Matias has well defined career path and goals for his future and the skills he is acquiring during his English language study will benefit him in his future study. He will enrol in Certificate Ill in English for Further Study in 2022 and will proceed to complete a drafting course that will assist him in achieving acceptance into his desired course of architecture.

   Rosmari Occelli Grad. Dip Adult Ed (TESOL)

   Head Teacher Career Pathways, ENGLISH (ESOL) ELICOS, AUSLAN. Wollongong Campus

6. The representative also tendered (officially translated) information from the applicant’s high school in Chile as follows in short:

   CERTIFIED ACADEMIC TRANSCRIPT

   Matías Francisco Jara Salgado, National ID Roll Number 20254572-6

   Summary of Final Grades Achieved by Year

   FINAL STATUS: Based on the above, the student MEETS THE REQUIREMENTS OF THE SENIOR SECONDARY SCHOOL CERTIFICATE.

   [stamped and signed]

   Jessica Padilla U.

   Coordinator

   National Curriculum Registration Unit

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 the applicant was over 18 years of age and was enrolled in and participating in full time education at time of application and decision.

   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. Accordingly, cl.802.214(1)(a) is met.

12. The Tribunal finds that 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 Tribunal finds that the applicant was not engaged in full-time work at the time of application and decision.

15. Accordingly, cl.802.214(1)(b) is met at time of application and 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.

    Findings and reasons about:

    ·whether the applicant was/is incapacitated for work because of loss of bodily or mental functions; and if not

19. The Tribunal finds no evidence that the applicant was/is incapacitated for work because of loss of bodily or mental functions.

    ·whether at the time of application the applicant had been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12; and if so

20. The Tribunal finds evidence that the applicant had been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12. The applicant’s studies were initially disrupted by his transfer to Australia from Chile (his homeland) and, subsequently, by the impact of the COVID-19 pandemic on his enrolment and study in Australia.

    ·whether the applicant continues to meet this requirement, and is still studying, at the time of decision.

21. The Tribunal is satisfied (from additional information from his education provider) that the applicant continues to meet this requirement, and is still studying, at the time of decision.

22. Accordingly, cl.802.214(1)(c) is met.

23. Furthermore, the subclause continues to be met at the time of decision.

24. Accordingly, cl.802.221(2)(b) is also met.

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

    · cl.802.221(2)(b) of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member