Moodley (Migration) - [2024] AATA 3992

Moodley (Migration) [2024] AATA 3992 (17 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr James Tiger Jean Samuel Moodley
REPRESENTATIVE:  Miss Waranun Ekkasame
CASE NUMBER:  2015220
HOME AFFAIRS REFERENCE(S):          CLF2019/45026
MEMBER:Kira Raif
DATE:17 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 17 September 2024 at 1:06pm
CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18 – is presently engaged in full-time work – applicant had not engaged in any formal study at the time of application – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, cls 802.214, 802.221

CASES
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 September 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the UK, born in September 2000. He applied for the visa on 25 October 2019. The delegate refused to grant the visa on the basis that cl 802.214 was not met because the delegate was not satisfied the applicant met the study requirements. The applicant seeks review of the delegate’s decision.
The Tribunal’s hearing was scheduled to take place on 11 September 2024. On the late afternoon of 10 September 2024 the applicant’s representative requested the hearing to be postponed on the basis that the applicant’s parents were not available to give evidence. The Tribunal has considered the request but decided not to postpone the hearing. The Tribunal notes that the applicant has been given the prescribed period of notice of the hearing and received two hearing reminders, by SMS, prior to the hearing. He was aware of the hearing date and time well before the hearing was due to take place. The Tribunal notes that the key issue on review is the visa applicant’s study, including his study at the time the application was made. This is a finding of fact for the Tribunal and it does not depend, in any way, on the evidence of the applicant’s parents. The Tribunal is also mindful that the applicant’s parents have had the opportunity to provide written submissions to the Tribunal in the four years since the application was made. Having regard to these factors, the Tribunal decided not to postpone the hearing and determined that the hearing should proceed at the scheduled time.
The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his father Mark Moodley (who has not made any claims about his unavailability). The applicant was represented in relation to the review.
At the request of the applicant’s representative, the applicant was granted additional time after the hearing to provide further written submissions. No further submission has been received at the time of this decision. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
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).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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).
Criteria for applicants over 18
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).
There is no evidence, and the applicant does not suggest, that he is incapacitated for work and the Tribunal is not satisfied that he is.
In his application the applicant referred to part-time employment as a barista in a café. The applicant told the Tribunal that he engaged in hospitality work on a part-time basis initially and later started to work full-time. The applicant told the Tribunal that he is presently working on a full-time basis.
The Tribunal finds, having regard to the applicant’s evidence, that he is presently engaged in full-time work. While cl 802.214(1)(b) was met at the time of the application, it does not continue to be met at the time of decision, for the purpose of cl. 802.221(2)(b). The Tribunal finds that this clause is not met.
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 visa applicant was born in September 2000 and turned 18 in September 2018. The Tribunal finds that he was over the age of 18 when the application was made.
There is no evidence before the Tribunal to indicate that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal finds that the requirements of paragraph 802.214(1)(c) apply to the applicant.
The applicant provided to the Tribunal a copy of the primary decision record. It notes that the applicant travelled to Australia in September 2019 holding a Working Holiday visa. When making the visa application, the applicant stated on the form that he completed secondary schooling at a Comprehensive School Vincent Van Gogh in France in July 2018. The visa applicant stated that he was not presently undertaking any study but indicated his intention to enrol in a Certificate II and III course at TAFE commencing in February 2020.
In a submission that accompanied the application the applicant stated that he had been employed as a barista in a café for 10 hours a week and this is only a temporary employment as he is waiting to commence the TAFE course in February 2020.
The delegate subsequently wrote to the applicant seeking further information about his study. The applicant replied in August 2020 by stating that he completed secondary schooling between 2011 and July 2018 and that he was not able to pursue the TAFE course from February 2020. The applicant refers to limitations of working in the hospitality industry due to COVID and states that due to his visa, he could not pursue the TAFE course.
In oral evidence the applicant told the Tribunal that he completed a Diploma of Hospitality at TAFE in 2022-2023 and that was the only formal study he has completed. Prior to that he had completed schooling in 2018 and he had not undertaken any study between 2018 and 2022. The applicant stated that in that period he had been working in hospitality, initially part-time and later on a fulltime basis.
In his written submission the applicant offered a number of reasons why he could not commence study in Australia, referring to Covid and visa restrictions. The Tribunal is not satisfied that Covid would have prevented the applicant from being able to engage in study. Firstly, the Tribunal notes that the Covid restrictions did not come into effect until at least late 2019 while the applicant stopped studying in July 2018. This was well before Covid. Secondly, the Tribunal notes that most institutions continued to operate during Covid, even if the mode of teaching may have changed. The applicant has not satisfied the Tribunal that he would not have been able to enrol in a course due to Covid. As for his visa status, the Tribunal notes that, particularly once the applicant was holding a Bridging visa, he could have sought to remove any condition preventing him from studying, if he was subject to such a condition. Ultimately, as the applicant was not engaged in study at the time of application and the time of decision, the reasons for his non-engagement in study in the intervening period are less relevant.
It is not in dispute that the applicant was not engaged in study in 2019 when the application was made. The Tribunal has had regard to the reasoning in Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463 which confirmed that, regardless of the reasons for not commencing study since completing school, or turning 18, an applicant must have commenced a full-time course of study at the time the visa application is made. While that case considered the requirements of an offshore Child visa, the Tribunal is of the view that the reasons are equally applicable in relation to onshore Child visa applications.
The Tribunal is of the view that the reasoning in Khan does not support the requirement for the decision-maker to assess the applicant’s reasons for not studying in circumstances where no study was commenced or engaged in. It may be that if the visa applicant did commence the relevant course by the time the application for the visa was made, it would have been open to the Tribunal to consider the reasons for any break in studies. However, where the visa applicant had not engaged in any formal study at the time of application (as is the case here), the Tribunal finds that the visa applicant is not capable of meeting cl. 802.214(1)(c).
The Tribunal finds that at the time the application was made, the visa applicant was not undertaking any full-time study and was not enrolled in any full-time study that was yet to commence. That is, when the application was made, the applicant was not engaging in any full-time study leading to a formal qualification since completing secondary schooling. The Tribunal is not satisfied the visa applicant meets cl 802.214(1)(c).
Further the applicant is not engaged in any study at the time of this decision and his evidence to the Tribunal is that he had not undertaken any study since 2023. The visa applicant must be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416. As he is not presently engaged in any study, the applicant does not meet cl. 802.221.
As the visa applicant is sponsored by his father, there is no suggestion of his incapacity, and the visa applicant was over the age of 18 at the time of application, he does not meet the definition of orphan relative and the requirements for the grant of the Subclass 837 visa.
Conclusion
For the reasons 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
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Kira Raif
Senior Member