Macintosh (Migration)

[2017] AATA 899

Macintosh (Migration) [2017] AATA 899 (18 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aries Mc Macintosh

CASE NUMBER:  1610726

DIBP REFERENCE(S):  CLF2016/23660

MEMBER:Michelle Grau

DATE:18 May 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 18 May 2017 at 2:31pm

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Enrolment in full time study at time of application – Applicant was on a tourist visa – English studies commenced later – Commenced studies easonable period after application – Financial difficulties – Not in full-time study at time of application

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 802.214, cl 802.221(2)(b), r 1.03, r 1.05A

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 28 June 2016 to refuse to grant the applicants Child (Residence) (Class BT) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visas on 13 April 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.

4. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the visa applicant was not enrolled in full time study at the time of application.

5. The applicant appeared before the tribunal on 17 May 2017 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s mother.

6. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing. The hearing was mostly conducted in English, but the tribunal also used an Indonesian interpreter. The tribunal is of the view that the applicant had good English skills and understood the proceedings and was able to present his case competently in English. In any event the issues and evidence was also repeated in Indonesian.

7. For the following reasons, the tribunal has concluded the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant was in full time study at the time of application.

   Additional criteria for applicants over 18

9. If at the time of application the applicant has turned 18, there are additional requirements relating to relationships, work and study that have to be satisfied (cl.802.214). These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

10. The application was lodged on 13 April 2016. Relevantly, the applicant turned 18 on 28 March 2014. Therefore the applicant was 18 at the time of application and is required to satisfy cl. 802.214.

    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. It was acknowledged that the applicant was not in full time study at time of application. The applicant had completed high school in July 2014. His mother could not afford to pay for tuition in Australia and the applicant was on a tourist visa which allowed only 3 months study. The applicant commenced a Certificate II in English in July 2016 and continues to study a Certificate III in English. The tribunal notes that this course is not study leading to an award of a professional, trade or vocational qualification.

14. In any event, the applicant and agent confirmed the applicant was not in full time study when he lodged his application. It was submitted that the applicant met the criteria as he was in full time study within a reasonable period of the application.  However, the criterion requires the applicant to have been in full time study at the time of the application. It also requires the study to be in a certain period, this period is a reasonable period since completing high school.

15. The applicant’s mother noted they could not afford to pay for tuition at the time of application. The applicant also could not study in Australia on a visitor visa. While the tribunal sympathises with their financial position, it does not change the situation, that at the time of application the applicant was not undertaking full time study.

16. There was no evidence the applicant was incapacitated for work and the tribunal finds the applicant was not incapacitated for work due to the loss of bodily or mental functions and therefore cl.802.214(2) does not apply.

17. The tribunal finds the applicant was not in full time study at the time of application and therefore does not meet cl. 802.214 (1)(c).

18. For the reasons stated above, cl.802.214 has not been met at the time of application. 

19. For the reasons stated 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

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

    Michelle Grau
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03   Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)     is dependent on that person; or

    (ii)    is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)     who is the child of the parent’s former spouse or former de facto partner; and

    (ii)    who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)     the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)    the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …