Marqueses (Migration)

[2021] AATA 4428

Marqueses (Migration) [2021] AATA 4428 (28 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Angelica Faye Mariano Marqueses

CASE NUMBER:  2015087

HOME AFFAIRS REFERENCE(S):          CLF2020/9321

MEMBER:Andrew McLean Williams

DATE:28 October 2021

PLACE OF DECISION:  Brisbane

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.802.212 of Schedule 2 to the Regulations; and

·cl.802.214 of Schedule 2 to the Regulations.

Statement made on 28 October 2021 at 1:27pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent on the sponsor for a substantial period – period of full-time work – gap in full-time studies – money transfers exceeded temporary salary – delay in enrolment – reasonable time – greater reliance on the sponsor than other sources of financial support – decision under review remitted   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221; rr 1.03, 1.05

CASES

Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
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 23 September 2020 thereby refusing 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 26 February 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 advanced by the Applicant 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.802.212, and cl.802.214. These require that as at the date of the visa application the Applicant be a “dependent child” of an Australian citizen or permanent visa holder or eligible New Zealand citizen, and in the case of an Applicant aged 18 years or older, that the Applicant has within 6 months after completing the equivalent of year 12 or a reasonable time after completing the equivalent of year 12 been undertaking a continuous course of study.

4. The Delegate refused to grant the visa on the basis of the Delegate having taken the view that cl.802.212 and cl.812.214 were not met, because the Applicant completed a course of undergraduate studies in the Philippines on 11 June 2019, and then worked full-time as a marketing assistant from 1 August 2019 until 15 December 2019, before resuming her full-time studies in Australia, in February 2020. In light of this, the Delegate took the view that the Applicant did not satisfy the meaning of ‘dependent child’ in regulation 1.05A for purposes of clause 802.212, because she had not been dependent for a substantial period before the visa application on another person for financial support for her basic necessities of living. Moreover, because of the gap in her studies between 11 June 2019 and the resumption of studies in Australia in February 2020, the Delegate also concluded that the Applicant did not meet the six month requirement in cl. 802.214(1)(c).

5. The Applicant appeared before the Tribunal on 28 October 2021 to give evidence and make submissions. The Tribunal also received oral evidence from the Applicant’s mother and sponsor, Ms Beverly Mant, and from Ms Mant’s partner, a Mr Antony Morris.  

6. The Applicant was represented in relation to the review by her solicitor, Ms Cindy Zhao (MARN 1575764) from the ‘No Borders’ Law Group.  Ms Zhao also attended the Tribunal hearing, and had arranged for the lodgement of detailed written submissions and supporting evidence under cover of her letter dated 25 October 2021.

7. For the following reasons, the Tribunal has concluded that the matter should now be remitted to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Applicant meets the requirements of clauses 802.12, and 802.14 in Schedule 2 of the Regulations.

   Dependent child criteria

9. The criteria within cl.802.212 essentially require that, as at the time of application, the Applicant must be a ‘dependent child’ of an eligible person, and be under 25 years of age or otherwise incapacitated for work. These requirements must continue to be met at the time of decision, or, if they are not met, it is only because the Applicant has turned 18 (or if already 18, only because the Applicant has turned 25): cl.802.221(1) or (2)(a).

   Dependent child

10. At the time of application, the Applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.802.212(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

11. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

12. The Applicant was born on 12 February 1997 and is presently aged 24.  The Applicant remains unpartnered, and is not engaged to be married.  The Applicant completed her secondary schooling in the Philippines in April 2015 and immediately thereafter commenced undergraduate studies at the University of Santo Thomas, in Manila.  The Applicant completed a Bachelor of Science (Business Administration majoring in Marketing Management) at that institution on 3 June 2019.

13. Throughout her undergraduate studies the Applicant was entirely financially dependent on support from her Mother in Australia, who met all of the Applicant’s essential living expenses in the Philippines, by means of sending her daughter the equivalent of approximately $AUD 200, per week.  There is now sufficient evidence before the Tribunal of financial remittances from Ms Munt to her daughter in the Philippines, to confirm this to have been the case. 

14. Originally, upon graduation from the University of Santo Thomas, the Applicant had planned to immediately commence in a full-time Master’s program, also in the Philippines.  In order to be able to do that the Applicant required her academic transcript and Bachelor of Science certificate from the University of Santo Thomas as supporting documents to underpin her application for enrolment in the Master’s program.  For reasons that were beyond her control the Applicant did not however receive these documents from the University of Santo Thomas until about mid-August 2019, which was after the cut-off date for enrolment in the planned Master’s program, thus meaning that the Applicant was then required to wait to commence that program in the following semester in calendar year 2020.  Thus facing an unexpected delay to her studies the Applicant resolved to at least make worthwhile use of enforced sojourn from her studies and took a job as a graduate trainee marketing assistant, working for Masterpiece Asia Properties Inc.  This role entailed the Applicant working on promotional campaigns for Disney movies in shopping centres.   The Applicant worked in that role from 1 August 2019 until 15 December 2019 (22 weeks).  During this time the Applicant earned the equivalent of only $2,543.95 AUD.  Meanwhile, Ms Munt continued to send her daughter an allowance of $200 per week which was obviously an amount that is in excess of what her daughter managed to earn during this period.

15. The Applicant experienced rising anxiety in the Philippines in consequence of a hostile work environment, and her being required to live alone and away from the emotional support of her mother and two younger sisters, in Australia.  Eventually this became intolerable, such that the Applicant resolved to come to Australia in order to be with her family.  The Applicant arrived in Australia shortly before Christmas, on 21 December 2019, and enrolled in a new course of study (an Advanced Diploma of Leadership and Management) commencing on 3 February 2020.  The Applicant completed those studies on 13 December 2020 and is now enrolled in a Diploma of Early Childhood Education and Care which she expects to complete in June 2022.  Since her arrival in Australia the Applicant has been wholly reliant on her mother Beverly for her financial support, and has not worked for remuneration in Australia any context whatsoever. 

16. Financial and living expenses information produced before the Tribunal by the Applicant is sufficient for the Tribunal to conclude that the Applicant was a ‘dependent child’ within the meaning of that term as used in regulation 1.03 and in clause 802.212 of the Regulations for a substantial period prior to the date of her visa application. In the 12 month period from January 2019 until December 2019, the Applicant’s basic living expenses in the Philippines amounted to the equivalent of $AUD 8,092. During this same period, her mother Ms Munt provided her daughter with $AUD 9,994.89 in financial support in the form of remittances to from Australia. Although the Applicant did earn the equivalent of $AUD 2,543.95 during a 22 week period between 1 August and 15 December 2019, this comprises only 31% of her 2019 annual living expenses and that earnings amount was still easily eclipsed by the financial support over that same period from Ms Munt. Indeed, the evidence from both the Applicant and Ms Munt was that notwithstanding the Applicant earning some money in the later half of 2019, all of the Applicant’s essential expenses of living in the Philippines were still being met from the allowance provided by Ms Munt and the extra money earned by the Applicant at this time was instead used for non-essentials, such as for (non-essential) clothing, outings with friends, and other similar recreational activities.

17. The Tribunal is satisfied that during the twelve months prior to the visa application the Applicant qualified as a “dependent child” by reason of her very substantial reliance on her mother for financial support for the necessities of living. That need was greater than on any other means of support available to the Applicant. Accordingly, cl.802.212(1)(a) was met at the time of application, and now continues to be met at the time of decision.

    Applicant under 25

18. At the time of application, the applicant must not have turned 25. 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 total or partial loss of bodily or mental functions: cl.802.212 (2). There is no suggestion here that incapacity is an issue.

19. In this case the Applicant had not yet turned 25 as at the date of her visa application, and is still not yet 25 years of age.

20. Accordingly, cl.802.212(1)(b) is met at the time of application, and continues to be met at the time of this decision.

    Criteria for applicants over 18

21. 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

22. 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).

23. As indicated at the outset of these reasons the Applicant is single and is not engaged to be married. Accordingly, cl.802.214(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

24. 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).

25. The Applicant is a full-time student and is currently wholly financially dependent on her mother for all of her financial support. When the visa application was made on 26 February 2020 the Applicant was not working and had already commenced her new course of Australian studies. Accordingly, cl.802.214(1)(b) is met and now continues to be met at the time of this decision.

    Full-time study

26. 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).

27. 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).

28. 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.

29. As indicated in foregoing paragraphs in these reasons for decision, the Applicant undertook an unplanned 22 week sojourn from her full-time studies in the latter half of 2019, during which period she instead worked full-time, in the Philippines.  This came about only because the Applicant did not receive the necessary paperwork from her undergraduate university studies in sufficient time to enable her to immediately enrol in - and seamlessly transition into - a Master’s program, in the same filed of studies.  The Applicant then had a change in life plan and came to Australia on 21 December 2019, whereupon she re-enrolled in full-time studies commencing in early February 2020. 

30. The Tribunal is satisfied that the Applicant has been enrolled continuously as a full-time student since 2015, but for the 22 week period in the latter half of 2019 and for the brief period between her arrival in Australia in very late December 2019 and recommencement of full-time studies on 3 February 2020.  The Tribunal is satisfied that these ‘non-study’ periods are entirely explicable, and arose only in consequence of her movement between educational institutions in the Philippines, and then relocating to Australia at a time when educational institutions do not ordinarily conduct classes.  Although the total break in studies is slightly more than six months, the Tribunal is completely satisfied with the explanations for same now given by the Applicant, and considers this to be a ‘reasonable period’ for purposes of cl. 802.214(1)(c).

31. Accordingly, cl.802.214(1)(c) is met, and continues to be met as at the time of this decision.

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

    DECISION

33. 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.802.212 of Schedule 2 to the Regulations; and

    ·cl.802.214 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    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 or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.

    …