Kanaenabogi (Migration)

[2018] AATA 1180

Kanaenabogi (Migration) [2018] AATA 1180 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maraia Adikula Kanaenabogi

CASE NUMBER:  1700275

DIBP REFERENCE(S):  CLF2016/39234

MEMBER:Moira Brophy

DATE:5 April 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 05 April 2018 at 2:24pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Applicant over 18 – Full time study requirements – Break in study – Affordability of course fee –Could consider other affordable study opportunities –Possible return to Fiji – Error in permanent residency application

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

CASES
Sok v MIMIA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the break in the applicant's full time study after completing the equivalent of year 12 high school has been reasonable.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 December 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied to the Department of Immigration for the visa on 28 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).]

4. 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.

5. The delegate refused to grant the visa on the basis that cl.802.221 and cl.802.214 was not met because the delegate was not satisfied that the applicant had, since turning 18, or within six 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.

6. The applicant, Ms Maraia Adikula Kanaenabogi appeared before the Tribunal on 14 December 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the father of the applicant Mr Josefa Kanaenabogi. 

7. The applicant was represented in relation to the review by her registered migration agent.

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

   TRIBUNAL PROCEEDINGS

   Evidence of Applicant

9. The applicant told the Tribunal that she currently resides with her family in a granny flat that they rent at Carlingford. She said they have lived there for the past 2 to 3 years and pay $535 per week in rent. She contributes to the rent by giving her parents between $100 and $150 each week.

10. The applicant said that she is employed for 20 hours per week as a manager at Hungry Jacks. She works variable hours and generally works seven days in a 14 day roster. She is paid between $400 and $500 per week.

11. The applicant told the Tribunal that she was not studying at the moment and she had not studied since she attended the Sydney Business Travel Academy.

12. The applicant said that her father was employed full time as the finance controller at a hobby shop in West Ryde. Her older sister also works with her father at the hobby shop. Her mother is a part-time tutor at Macquarie University and she is presently lecturing to students in a summer class at a training facility in the city.

13. When asked about her family support in Fiji the applicant said that her father had six siblings in Fiji and that her grandmother lives with one of her aunt’s. She has many cousins who are still in Fiji. Her mother has three siblings in Fiji and her maternal grandmother lives with one of her uncles. While the families keep in touch with their extended family in Fiji she has not been home to visit them since the family went for a trip for her 21^st birthday in September 2012.

14. When asked by the Tribunal about the break in her studies the applicant said that it was never intended to have a break for so long but the reality was that it was too expensive for her to commence studying before she did. She said her parents were also not 100% certain that they were going to stay in Australia. She said at the time that they lodged their first application for residency in October 2013 there had been an error with the application and they had been asked by the Department to withdraw that application and make a fresh application. The result of that was that they lost the fees they had initially paid and they had to come up with the monies for their new application. She said the family did not know if they could in fact find the money to reapply but her father’s employer helped them to find both the money and the information they needed. She said the harsh reality was that there was not enough money to apply for them all.

15. The applicant said that when her mother’s application for permanent residency was granted that decision enabled her mother to withdraw from her superannuation in Fiji. She said being able to withdraw those monies resolved the financial problems. She said they were all so excited because it meant that they could then enrol her to study and to lodge an application for her visa. She said at no time did they realise that the gap in her studies would be an issue in her application for a visa.

16. The applicant said that originally it had been her intention to go back to Fiji after she had finished her high school. She said around this time her mother became ill. She was diagnosed with anxiety and high blood pressure. The applicant said she was needed to stay in Australia and to assist her mother. She said her father was not able to care for her mother on his own. She said she would find it very difficult to be separated from her parents as she had not been separated from them while she was growing up. She said she had not spent any time away from her parents and even when growing up she did not stay overnight with any other family members.

17. The applicant said that her mother was currently medicated for both her anxiety and her high blood pressure. The applicant said her mother blames the pressure of studying for her PhD for her medical conditions. She has to attend for check-ups when she requires new prescriptions.

18. The applicant said that her food and shelter was provided by her parents and that she made a contribution to meeting those needs. Her mother pays if she requires medical attention but the applicant pays for her own travel and clothing.

19. When the applicant was asked when she had finished her studies as the documentary evidence indicated that the course was complete prior to her lodging her application. The applicant indicated that the course finished in November 2016 but that she still had assignments from that course outstanding. She had arranged to complete those units and in November 2016 she had paid additional monies to allow her to do so. She was advised to do that she needed to have access to E learning. She said the college had sessions that ran either in the morning, the afternoon or the evening. The units she needed to complete were not readily available and she needed to arrange access with the Head of School. When they enrolled her in the classes an error was made in that she was enrolled in courses that were running at the same time slots making it impossible for her to attend. She is still in the process of trying to remedy this situation. She talked to the college again in July 2017 and because it was the error that had led to her not being able to complete, they discounted the fees payable and in January 2018 she will attend the college again in the hopes that she can complete the program. She said that she had been assured that they had now placed her in the right classes. The Tribunal was provided with an email setting out which classes had to be completed.

    Evidence of Applicant’s father

20. The father of the applicant told the Tribunal that his daughter was a victim of the family’s indecisiveness. He said that they did not have a plan to remain in Australia when they first came. He said the applicant had come with her mother to Australia when her mother had been granted a scholarship to do her PhD. He said he had come to Australia later and their other daughter had come to Australia when she had completed her tertiary studies in Fiji. He said it was an unsettled period for his family and they kept changing their minds as to whether they would apply to remain in Australia or to return to Fiji. He said the situation was complicated by the fact that they were financially strapped and they required time to save money for their application fees. The situation was exacerbated by the fact that when they first lodged an expression of interest for his wife they had made an error and had to withdraw the application. As well as losing time that error meant they had to come up with another application fee.

21. Mr Kanaenabongi said that when his wife was granted her PR it allowed her to access her superannuation in Fiji and with that money they were able to pay course fees for the applicant to resume her studies. He felt it was unfair to his daughter that she now be penalised because the family was financially constrained in the relevant period.

22. Mr Kanaenabongi said that he could not allow his daughter to return to Fiji alone. She was still a young woman who required her parents to be with her, both to nurture her and to keep her safe.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. 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.

    Additional criteria for applicants over 18

24. 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).

    Relationship status

25. 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).

26. The Tribunal was satisfied the applicant was not engaged to be married and she 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

27. At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b).

28. From the evidence as to the earnings of the applicant and her oral evidence at the time of hearing the Tribunal is satisfied the applicant is not engaged in full time work either at the time of application or at the time of decision. Accordingly, cl.802.214(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

29. 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).

30. 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].

31. There is no evidence to support a finding the applicant was or currently is incapacitated for work because of loss of bodily or mental functions.

32. The critical issue is whether the applicant has been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12; when the study commenced; and whether the applicant is still studying.

33. The Tribunal is satisfied the applicant completed her secondary education at Cheltenham Girls High by completing her Higher School Certificate (copy of Higher School Certificate dated 15 January 2013 at folio 45 departmental file). The Tribunal is further satisfied the applicant enrolled at Sydney Business &Travel Academy (SBTA) in the Diploma of Hospitality which commenced on 21 July 2014 and was scheduled to finish on 24 June 2016 (folio 77 departmental file). An email dated 28 October 2016 sent from her migration agent to the department referred to the course having been completed with one assignment to be submitted for the Diploma to be awarded (folio 78 departmental file). The date of visa application was 28 June 2016.

34. At the time of hearing the applicant told the Tribunal that in November 2016 she was required to pay additional funds to SBTA to complete her studies. From her evidence it was apparent that on the scheduled finishing date of 24 June 2016 there was more than one assignment needed for her to complete the course. An email from [email protected] dated 7 June 2017 refers to six subjects still requiring completion.

35. While the evidence is equivocal as to whether the applicant was enrolled as at the date of application or whether she was no longer enrolled in a course she had not completed, given the relevant dates the Tribunal accepts the applicant was enrolled as at the date of application.

36. The Tribunal was satisfied on the evidence the applicant had a break in study from 15 January 2013 to 21 July 2014. The Tribunal then considered the evidence as to reasons for the break in study from 15 January 2013 to 21 July 2014, and whether in the circumstances the break for a period in excess of six months was reasonable.

37. The applicant told the Tribunal that she had not intended to break her study for a period of eighteen months. The break had been necessitated largely because of financial considerations. Her family simply did not have access to the amount of money needed to enrol her in a course of study. She said her family were considering whether they would stay in Australia or return to Fiji. She said the first application they had made for permanent residency had been withdrawn because of an error they made in the application. The consequence of that was the loss of their application fees. They did not know if they could come up with the money required to lodge again. Her father’s employer offered to assist them but there were not sufficient funds to apply for them all.

38. The applicant said that once her mother’s application for permanent residency was accepted she was able to access superannuation funds she had in Fiji. The release of those funds enabled them to pay the tuition fees in a course of study for the applicant and to lodge her application for a visa.

39. The Tribunal is not satisfied by the argument that the applicant's parents couldn't finance her study. While the Tribunal appreciates the mental and financial stresses visa applications can impose on a family, it is not satisfied that other affordable study opportunities were unavailable to the applicant or indeed that she investigated any other study opportunities.

40. Accordingly, the Tribunal is not satisfied that the applicant since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

41. Accordingly, cl.801.214(1)(c) of Schedule 2 to the Regulations is not met at the time of application, and does not continue to be met at the time of decision cl.802.221(2)(b) of Schedule 2 to the Regulations.

    DECISION

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

    Moira Brophy
    Member