Jetketkit (Migration) - [2024] ARTA 139

Jetketkit (Migration) [2024] ARTA 139 (12 December 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Janyaporn Jetketkit
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2438999

Tribunal:Senior Member M Ison
Place:Melbourne
Date: 12 December 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 12 December 2024 at 12:14pm
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant is not engaged at the time of this decision – didn’t meet study requirement – rare and degenerative neurological condition – Tribunal has decided to not refer the applicant’s circumstances to the Minister – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 65, 351
Migration Regulations 1994, cls 802.214, 802.221

CASES
Hussain v MIBP [2017] FCCA 3247
Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 463
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 October 2024 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant in this review is Ms Janyaporn Jetketkit who is a 22-year-old Thai national. Ms Jetketkit is referred to as the applicant in these reasons for decision.
The applicant was granted a Visitor (Subclass 600) visa on 2 November 2022 and arrived in Australia on 18 November 2022. That visa allowed the applicant a maximum three month stay in Australia.
On 5 January 2023 the applicant applied for a Child (Residence) (Class BT) (Subclass 802) visa.
On 11 January 2023 the applicant was granted a Bridging A (Subclass 010) visa associated with her Child visa application. The applicant’s Bridging A visa has condition 8101 (must not work in Australia) attached from Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations).
At the time of this decision, the applicant continues to hold the Bridging A visa granted to her on 11 January 2023.
At the time of application for the Child (Residence) (Class BT) visa Class BT contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to 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.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 802.214 of Schedule 2 to the Regulations, which provides:
(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.
Subparagraph (b)(ii) of the definition of dependent child provides:
… is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
The delegate found the applicant did not meet the requirement of cl 802.214 because:
·The applicant did not commence her post-secondary school studies until 14-months after she completed secondary school;
·The applicant had a further gap in her studies from November 2022 to March 2023;
·The applicant was not enrolled in full-time study on 5 January 2023 when she applied for the visa; and
·The applicant had a further gap in study between January 2024 and the date of the primary decision being 9 October 2024.
Tribunal hearing
The applicant appeared before the Tribunal on 11 December 2024 to give evidence and present arguments by video from Western Australia. The Tribunal also received oral evidence by video from:
·Mrs Ponsri Tonglad, the applicant’s mother;
·Mr Mark Birch, the applicant’s step-father; and
·Mrs Beverley Alexander, the sister of the applicant’s step-father.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
Additional information before the Tribunal
The Tribunal received several submissions from Mr Birch on behalf of the applicant, including the following documents:
·A five-page submission from Mr Birch;
·The applicant’s class attendance records for 2023 and 2024;
·The applicant’s Certificate I in English as an Additional Language;
·The applicant’s academic record for 2023;
·The applicant’s enrolment information for 2023 and 2024;
·The applicant’s timetable for her Certificate II in English as an Additional Language studies;
·The registered marriage certificate of Mrs Tonglad and Mr Birch;
·Hospital discharge reports for Mrs Tonglad from September 2020, February 2023 and February 2024.
Mr Birch’s submissions were of considerable assistance to the Tribunal in the conduct of this review and were of higher quality than the Tribunal receives from some registered migration agents. The Tribunal thanked Mr Birch for this assistance during the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for applicants who are over the age of 18 years to be granted a Child (Residence) Subclass 802 visa, as those requirements are set out in cl 802.214 of Schedule 2 to the Regulations.
Criteria for applicants over 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
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).
The applicant’s evidence to the Tribunal is that she is not engaged at the time of this decision, is not and has not been married and is not and has not been in a de facto relationship. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s evidence.
Accordingly, the Tribunal finds that cl 802.214(1)(a) of Schedule 2 to the Regulations is met at the time of application for the visa and continues to be met at the time of this decision.
Not engaged in full-time work
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).
The applicant’s evidence to the Tribunal is that she has not ever worked in full-time paid employment. Mrs Tonglad and Mr Birch gave oral evidence consistent with the applicant’s evidence. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s evidence.
The Tribunal also accepts the consistent oral evidence of the applicant, Mr Birch and Mrs Tonglad, supported by copies of receipts for funds transfers and copies of account statements for Mr Birch’s bank account, that Mr Birch has been the sole source of financial support for the applicant since the applicant completed secondary school.
The Tribunal also accepts the consistent oral evidence of the applicant, Mr Birch and Mrs Tonglad that the applicant has lived with Mr Birch and Mrs Tonglad since arriving in Australia.
Accordingly, the Tribunal finds that cl 802.214(1)(b) of Schedule 2 to the Regulations was met at the time of application for the visa and continues to be met at the time of this decision.
Full-time study (or incapacitated for work)
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).
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).
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.
The applicant’s evidence to the Tribunal is that she is not incapacitated for work due to the loss of bodily or mental functions. This means the applicant is not a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’. This means, in turn, that the applicant is required to meet the requirements of cl 802.214(1)(c) at the time of application for the visa and cl 802.221(2)(b) at the time of the Tribunal’s decision.
The collective evidence of the applicant, Mr Birch who assisted the applicant with her course enrolments in Australia and Mrs Tonglad is summarised by the Tribunal as follows:
·The applicant completed her secondary schooling at the Udonpichairakpittaya Upper secondary school in Thailand on 9 April 2021;
·The emergence of the COVID-19 global pandemic adversely affected the ability of the applicant to enrol in her intended Bachelor studies;
·The applicant did not investigate or inquire about the availability of studying online courses in Thailand;
·The applicant’s grandmother was unwell with diabetes and other ailments and the applicant focused on caring for her grandmother as her older brother and an aunt who lived in Thailand at the time were both too busy to care for the applicant’s grandmother;
·The applicant completed a three-week English language course in Thailand in February to March 2022;
·The applicant next completed a two-month digital graphics course in Thailand in August to October 2022;
·On 18 November 2022 the applicant arrived in Australia as the holder of a Visitor visa;
·On 5 January 2023 the applicant applied for the Child (Subclass 802) visa;
·The applicant could not remember when she enrolled in her first course in Australia, which was a Certificate I in English as Another Language (EAL) course at South Metropolitan TAFE (Technical and Further Education) in Mandurah;
·The Certificate I in EAL is a full-time course of study as defined in reg 6 of the Vocational Education and Training (Colleges) Regulations 1996 (WA);
·Mr Birch assisted the applicant with her enrolment in the Certificate I course and paid the course fees for the applicant;
·The applicant did not undertake or complete any study between the completion of her digital design course on 25 October 2022 and her enrolment in the Certificate I in EAL which, based on the information in the next dot point, was a period of six months;
·The Tribunal received a receipt for payment of the course fees dated 18 April 2023 from the applicant, which Mr Birch told the Tribunal would most accurately reflect when the applicant enrolled in the Certificate I course;
·Based on the applicant’s class attendance records provided to the Tribunal by the applicant, the applicant and Mr Birch agreed the records showing the applicant first attending classes for the Certificate I on 27 April 2023 and last attending classes for the Certificate I on 7 December 2023 accurately reflect when the applicant commenced and concluded studying the Certificate I in EAL;
·Mrs Tonglad, the applicant’s mother, was very unwell with long-term but not fully and also undiagnosed medical conditions when the applicant arrived in Australia causing the applicant to feel compelled to prioritise caring for and supporting her mother over studying, compounded by the fact Mr Birch was working in full-time paid employment at that time;
·Mrs Tonglad in or around February 2023 was diagnosed as having type 1 diabetes and a disease known as Stiff-person Syndrome (SPS), commencing appropriate medication for the former and a treatment regime for the latter, both of which continue at the time of this decision;
·The applicant was granted a Certificate I in EAL by certificate issued on 11 December 2023 and that certificate notes the course was completed on 7 December 2023;
·The applicant enrolled in a Certificate II in EAL with documents provided by the applicant to the Tribunal showing the applicant commenced classes on 1 February 2024;
·The applicant told the Tribunal she had not passed multiple units of her Certificate II course in 2024 and has to repeat those units, such that the applicant now expects to complete her Certificate II course in mid 2025; and
·The applicant plans to complete a Certificate III in EAL after completing the Certificate II and then to proceed to a bachelor’s degree in health care or aged care.
Open-source information indicates that SPS is a rare, progressive neurological disorder that is more prevalent in women than men and is frequently associated with other autoimmune diseases such as type-1 diabetes. The symptoms of SPS include stiff muscles in the torso, arms and legs with greater sensitivity to noise, touch and emotional distress which can set off muscle spasms.
Mrs Tonglad told the Tribunal she receives monthly treatment by intravenous fluid at a local hospital which has improved her symptoms, but she continues to experience significant stiffness in the muscles in her legs. Mrs Tonglad’s mobility was obviously and significantly impacted by SPS to the Tribunal’s observation during the video hearing.
The Tribunal finds that the applicant enrolled in a Certificate I in EAL at South Metro TAFE in Western Australia on 18 April 2023 and commenced undertaking that course on 27 April 2023.
The Tribunal further finds that the applicant did not undertake a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification between 10 April 2021 (when she completed secondary school) and 26 April 2023 (when she commenced her Certificate I study in Australia).
The Tribunal’s view is that the applicant’s failure to explore the option of studying full-time online in Thailand prior to coming to Australia, which resulted in the applicant not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification for just over two years, means that applicant did not undertake the required study for the purpose of cl 802.214(1)(c) within a reasonable time after the applicant completed the equivalent of year 12 in the Australian school system in Thailand.
The Tribunal does not have a similar view of the applicant’s five-month gap in study between the applicant arriving in Australia and commencing her Certificate I study because that gap was in part determined by the availability of the Certificate I in EAL course. According to the Tribunal’s research that course is offered predominantly if not only on campus and there are no summer units or semesters offered in Western Australia.
The Tribunal does not need to make formal findings about the preceding two matters for reasons that will emerge below.
The Tribunal does find that the applicant was enrolled in and did undertake relevant full-time study in 2024 when the applicant studied, but regrettably did not pass all units of, the Certificate II in EAL.
One of the requirements of cl 802.214(1)(c) of Schedule 2 to the Regulations is that an applicant aged over 18 years must be undertaking study at the time they apply for the Child visa. This is evident from the wording of the clause itself:
the applicant has, since turning 18, or within … a reasonable time after completing the equivalent of year 12 … been undertaking a full-time course of study
This wording was considered in the Federal Court of Australia decision of Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 463. That case considered the operation of the identically worded cl 101.213(1)(c) of Schedule 2 to the Regulations for the grant of a Child (Migrant) (Subclass 101) visa.
In Khan, his Honour Justice Beach found (at paragraphs 70, 74 and 83):
[70] And as I have said, as the phrase “has … been undertaking” is used in the present perfect continuous tense, that tense denotes an action that has already commenced and is ongoing. And such an interpretation is consistent with the plain reading of cl 101.213(1)(c). Clause 101.213(1)(c) requires that the visa applicants must have actually commenced a full-time course of study by the time of the visa application is lodged. The clause identifies when the study must have commenced, that is, “since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system”.
[74] In summary, the action of studying must have commenced by the time of application and the visa applicant must be studying at the time of the decision. The decision-maker is required to look at the time period from the visa applicant commencing study within cl 101.213(1)(c) until the time of the decision and ask whether the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. But I should note that it is not necessary for visa applicants to have been continuously involved in study without pause from the time they commenced that study until the time of decision.
[83] … Further, if the applicant has actually enrolled in a course meeting the requirement of cl 101.213(1)(c) but the course start date has not yet arisen, that would still constitute the person as “undertaking” a course of study. So, they would be eligible for the visa.

The Tribunal finds that at the time the applicant applied for the visa, being 5 January 2023, the applicant was not enrolled in or otherwise undertaking a relevant full-time course of study as required by cl 802.214(1)(c).
Accordingly, cl 802.214(1)(c) of Schedule 2 to the Regulations is not met by the applicant at the time of application for the visa. This means the Tribunal does not have to consider whether the applicant meets this criterion, expressed in reg 802.221(2)(b), at the time of this decision.
Conclusion
For the reasons above, cl 802.214 of Schedule 2 to the Regulations is not met by the applicant at the time of the application for the Child visa. This means the criteria for the grant of a Subclass 802 visa are not met by the applicant.
There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).
Other matters
The Tribunal indicated to the applicant and her parents that it would consider referring her visa application to the Minister.
Section 351 of the Act states:
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.
There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not.
In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be brought to the attention of the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.
While the administration of the 2016 Ministerial Instructions by the Department has been ruled as unlawful by the High Court of Australia, the 2016 Ministerial Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The 2016 Ministerial Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.
The Ministerial Instructions are not a statement of law but do make it clear that the Minister exercising the power under s 351 of the Act is not part of the visa process and so the Tribunal as presently constituted does not make such ‘referrals’ lightly. It is important to note again though, that even if the Tribunal does not refer a matter to the Minister to consider the exercise of the Minister’s power under s 351, an applicant can apply to the Minister directly requesting the Minister consider the exercise of the power in s 351 of the Act in the applicant’s circumstances.
The Ministerial Instructions provide non-exhaustive examples of the unique or exceptional circumstance that may lead to the Minister exercising the power under s 351 of the Act, including the following examples:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
The Tribunal has considered the applicant’s circumstances. The Tribunal notes that Mrs Tonglad is an Australian permanent resident who has a progressive and presently incurable neurological disorder that will, over time, expose her to greater risk of falls and injury and a greater need for care. Mr Birch gave evidence that he retired from full-time employment in February 2024 and presently works part time two days a week as a school bus driver.
The Tribunal discussed with Mrs Tonglad, Mr Birch and Mrs Alexander what impact the applicant being required to leave Australia would have on each of them. Their evidence was consistent that the impact would be significant as the applicant provides not only important physical care and support for her mother in many aspects of Mrs Tonglad’s life, but also provides very important emotional support for her mother, support which cannot be replicated by anyone else.
The Tribunal accepts the oral evidence of the applicant, Mrs Tonglad and Mr Birch that the applicant’s departure from Australia would cause each of them great emotional hardship. Mrs Alexander’s described the family unit with her brother, Mr Birch, as a close one and the applicant as a close family member. The Tribunal accepts this evidence and finds that the applicant’s departure from Australia would cause significant hardship to Mrs Alexander and the whole family unit.
It is not clear to the Tribunal from the oral evidence before it and the three hospital discharge reports for Mrs Tonglad dated September 2020, February 2023 and February 2024 that the departure of the applicant from Australia would cause Mrs Tonglad serious, ongoing and irreversible harm and continuing hardship.
This is not a finding by the Tribunal that those outcomes would not occur. There is simply insufficient evidence before the Tribunal for the Tribunal to make any finding in this regard. For these reasons the Tribunal has decided to not refer the applicant’s circumstances to the Minister.
However, Mrs Tonglad’s circumstances as an Australian permanent resident did generate strong compassion for the Tribunal. Mrs Tonglad’s rare and degenerative neurological condition, her need for care and her desire for her daughter, the applicant, to be in Australia to contribute to her care including emotional and not just physical support, those care needs being likely to become more complex over time, are each significant matters in the Tribunal’s view.
The applicant and Mrs Tonglad – assisted by Mr Birch – may be able to obtain relevant specialist medical evidence and psychiatric or psychological or other mental health evidence to positively demonstrate the likely impacts of the applicant’s departure from Australia on Mrs Tonglad’s mental and physical health.
If such relevant specialist medical and mental health evidence had been available to the Tribunal, and that evidence reasonably supported that the departure of the applicant from Australia would cause her mother serious, ongoing and irreversible harm and continuing hardship, then the Tribunal would have referred the applicant’s visa application to the Minister.
There is nothing preventing the applicant and Mrs Tonglad from obtaining this evidence and forwarding it to the Minister with a request the Minister exercises the Minister’s powers under s 351 of the Act to grant the applicant a more favourable outcome.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Date of hearing: 11 December 2024
Representative for the Applicant: Nil.