Karnjanapuwadol (Migration)

[2020] AATA 5089

Karnjanapuwadol (Migration) [2020] AATA 5089 (21 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sawapon Karnjanapuwadol

CASE NUMBER:  1820126

HOME AFFAIRS REFERENCE(S):          CLF2017/26463

MEMBER:Moira Brophy

DATE:21 August 2020

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(1)(c) of Schedule 2 to the Regulations; and

·cl.802. 221(2)(b) of Schedule 2 to the Regulations.

Statement made on 21 August 2020 at 1:06pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18– applicant is still undertaking studies at the time of the decision – his studies were ongoing – meet the requirement in cl.101.213(1)(c) at the time of decision –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 101.213, 101.221, 802.214, 802.221

CASES
Moore J in Babicci v MIMIA [2004] FCA 1645
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 22 June 2018 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 3 April 2017. 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, cl.802.226A), the criteria to be met in this case include cl.802.214 and cl.802.221 which requires that an adult child has turned 18, and that he be a full-time student at the time of application and continue to be a full-time student at time of decision.

4. The delegate refused to grant the visa on the basis that cl.802.221 was not met because the applicant was no longer studying, and he was therefore not able to continue to meet the requirements as set out in cl.802.214.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant appeared before the Tribunal by way of telephone on 21 July 2020 to give evidence and present arguments.

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

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

9. The applicant, Sawapon Karnjanapuwadol, was born in Chiang Rai, Thailand on 19 September 1994.  He is the holder of passport issued from Thailand. His parents reside in Thailand and he has one brother residing in Australia.

10. At the time of application, the applicant stated he had completed his secondary schooling at the Samakkhiwitthayakhom School on 20 March 2013. A Basic Education Transcript (Upper Secondary Level) issued on 24 March 2014 was provided at time of application. He was enrolled from 11 January 2016 in an Advanced Diploma of Computer Systems Technology at the Infotech Institute of Business and IT with the estimated date of completion being 5 January 2018.

11. The review applicant, Ashley Johannes De Wit was born in Lismore, Australia. In the application Mr De Wit claimed to be the stepfather of the applicant, having married the mother of the applicant and sponsoring her to Australia on a Partner visa (Subclass 309) on 18 November 2015. When that visa was granted on 29 November 2016 the applicant was deemed to be a non-migrating family member. The brother of the applicant was included in the application and granted a visa as a dependant. The review applicant claims it was an error that led to the present applicant not being included as a dependant on his mother’s visa. At the time of grant he was in Australia studying.

12. In the delegate’s decision dated 22 June 2018 it was found the applicant had last been enrolled in a course of study in January 2018 when he had completed his Advanced Diploma of Computer Systems Technology course. That being the case the delegate found he was not able to meet cl.802.221(2)(b) of Schedule 2 of the Migration Regulations because he was aged over 18 years at time of application and not undertaking a full-time course of study at the time of decision.

13. Prior to hearing the applicant provided to the Tribunal:

    ·Submission dated 14 July 2020

    ·Copy of Advanced Diploma of Computer Systems Technology dated 5 January 2018

    ·Letter dated 13 July 2018 from TAFE NSW confirming enrolment into Diploma of Events management

    ·Copy of receipts for enrolment of Diploma of Events management dated 29 June 2018

    ·Copy of 3 receipts for school fees for the Diploma of Events management dated 4 September 2018, 4 October 2018 and 2 November 2018

    ·Copy of Diploma of Events management from TAFE NSW

    ·Copy of receipt from University of Newcastle dated 8 January 2019 for $11,805

    ·Copy of letter from University of Newcastle dated 26 August 2019 and 3 July 2020 confirming verification of enrolment in the Bachelor of Information Technology

    ·A number of ANZ bank transfers between August 2018 and April 2020 from the mother of the visa applicant, Ms Phongwiwat to the visa applicant confirming continued support for school fees, rent and general living expenses.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in this case is whether the visa applicant was undertaking full-time study since turning 18 years of age and if not, whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions.

15. The criteria for a Subclass 802 visa are set out in Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, 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).

16. The delegate refused to grant the visa on the basis that cl.802.221(2)(b) was not met because there was no evidence that the applicant was at the time of decision, a full-time student or undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification. There was no evidence before the delegate that he continued to be a full-time student beyond 5 January 2018.

    Criteria for applicants over 18

    Relationship status and history

17. 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).

18. Based on the information provided to the Tribunal, I am satisfied that the applicant was not engaged to be married, was not married, and did not have a spouse or de facto partner at the time of application, and this remains the case at the time of decision.

19. Therefore, the applicant meets the requirements of cl.802.214(1)(a) at the time of application and continues to meet this requirement at the time of decision.

    Not engaged in full-time work

20. 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).

21. The applicant told the Tribunal that while he was not doing any work at the time of application, he had since his application done some part time work, but he had been unable to continue that work because of his study. Based on the information provided to the Tribunal, I am satisfied that the applicant was not engaged in full-time work at the time of application, and this remains the case at the time of decision.

22. Therefore, the applicant meets the requirements of cl.802.214(1)(b) and continues to meet this requirement at the time of decision.

    Full-time study (or incapacitated for work)

23. 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).

24. 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).

25. 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.

26. There is no evidence and no claims were made the applicant was incapacitated for work because of loss of bodily or mental functions.

27. At the time of visa application, the applicant was 22 years of age.

28. Therefore, he needs to demonstrate that at the time of application and decision he was validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification.

29. In the material before the delegate, including the application form and Form 80 subsequently provided, no evidence was provided that the applicant was undertaking a course of study at the time of decision (22 June 2018). The information provided was that he had completed an Advanced Diploma of Computer Systems technology course on 5 January 2018.

30. However, before the Tribunal the applicant has provided new evidence that he enrolled in, commenced, and is now undertaking studies at University of Newcastle. Evidence was provided that he commenced this course on 25 February 2019 and he was still undertaking that course at the time of the Tribunal hearing. The applicant told the Tribunal he had not studied in the period from 5 January 2018 to 29 June 2018. When he had completed his Advanced Diploma of Computer Systems Technology, he had found he would not be able to enrol in the Bachelor of Information Technology course until 2019. He then enquired about other courses he could undertake for 2018. He subsequently enrolled in and completed a Diploma of Events management course in the period from 4 July 2018 to December 2018. The applicant submits that because he is now studying, he can meet the requisite criteria.

31. The Tribunal discussed the visa applicant’s study history with the review applicant and visa applicant during the hearing.

32. Case law authorities, binding on the Tribunal, squarely address the continuing to study requirement. In Opoku-Ware v MIBP, the Court held that the provision does not permit an end to the study within the decisional time frame, and considered that the phrase ‘has been undertaking’ in cl.101.213(1)(c) describes an action that has already commenced and remains ongoing. It stated that there are no words present in this provision to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of full-time studies, that has recently stopped. Further, the Court considered that the verb ‘continues’ in cl.101.221(2)(b) is written in the present tense and requires that the applicant is still undertaking studies at the time of the decision in respect of the visa. In Hussain, Judge Barnes observed that the Court in Opoku-Ware was addressing the need for the study to remain ongoing, in the sense of not having ceased, at the time of decision, and held that Opoku-Ware did not stand for the proposition that continuous involvement in study, without a pause, is required.

33. Neither the review applicant nor his representative made any submissions addressing the above authorities or suggesting an alternative construction.

34. The Tribunal was mindful the facts in this case were similar to those in the case of Hussain. In that matter the Tribunal accepted the visa applicants’ claims and found they met cl.101.213(1)(c). However the Tribunal was of the view that cl.101.221(2)(b) required that the visa applicants must have been ‘undertaking study’ from the time of the application to the time of decision and because they were not continuously studying from the time they commenced their courses they did not meet the criterion. The Tribunal took this approach on the basis that the words ‘has been undertaking’ study in cl.101.213(1)(c) ‘implied a continuous requirement’, and because the language of the criteria in cl.101.213(1)(c) and cl.101.221(2)(b) had been held not to permit an end to the study within the decisional time frame in Opoku-Ware v MIBP (2015) 297 FLR 416. The Tribunal concluded the visa applicants did not continue to meet cl.101.213(1)(c) at the time of decision and therefore did not meet cl.101.221(2)(b). The applicant contended the Tribunal had erred in taking the view that the criteria in cl.101.213(1)(c), including when read with cl.101.221(2)(b), could be satisfied only if study were ‘continuous’ from the time study commenced up to the time of decision.

35. The Court held the Tribunal misconstrued and misapplied cl.101.213(1)(c) when read with cl.101.221(2)(b) as requiring the visa applicants to have been ‘continuously involved’ in study from the time of commencement referred to in cl.101.213(1)(c) up to the time of decision. The Tribunal should have looked at that period and asked whether, characterised as a whole, the visa applicants had been undertaking relevant study in that period. This would involve examining what the visa applicants had been doing in that interval, including, the nature and duration of a gap in study and any explanation for such a gap and to the fact that, of its nature, the activity of study is intermittent.

36. Therefore, on the basis of the evidence and these authorities, the Tribunal finds that while the visa applicant was studying at the time of application and although he was not continuously enrolled during the period in between, applying the test as set out in Hussain his studies were ongoing and therefore he does continue to meet the requirement in cl.101.213(1)(c) at the time of decision.

37. For the reasons above, the Tribunal is satisfied cl.802.214(1)(c) of Schedule 2 to the Regulations is met at the time of application, and continues to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

38. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

39. 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(1)(c) of Schedule 2 to the Regulations; and

    ·cl.802. 221(2)(b) of Schedule 2 to the Regulations.

    Moira Brophy
    Member