Nguyen v Minister for Immigration
[2016] FCCA 2373
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NGUYEN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2373 |
| Catchwords: MIGRATION – Visa – child (migrant) – extension of time – whether visa applicant commenced relevant course of study within reasonable time – whether Tribunal asked wrong question – dependent child – no error demonstrated. |
| Legislation: Migration Act 1958 (Cth), ss.65, 477(1) & (2) Migration Regulations 1994 (Cth), cls.101.211, 101.221, 101.213, pt.101 of Schedule 2 |
| Cases cited: SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 SZTES v Minister for Immigration and Border Protection [2015] FCAFC 158 |
| Applicant: | THI BICH THUY NGUYEN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 34 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 25 July 2016 |
| Date of Last Submission: | 25 July 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Roberts |
| Solicitors for the Applicant: | CARES Lawyers Pty Ltd |
| Counsel for the Respondents: | Ms J Lucas |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The application filed 4 February 2016 is dismissed.
The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, FOUR HUNDRED AND SIXTY FOUR DOLLARS ($6,464.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 34 of 2016
| THI BICH THUY NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for an extension of time in which to make an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 30 December 2015 which affirmed an earlier decision of a delegate of the Minister for Immigration, dated 27 February 2015, refusing to grant the applicant a Child (Migrant) (Class AH) visa pursuant to s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The decision of the Tribunal was dated 30 December 2015. The applicant lodged her application with this Court on 4 February 2016, one day out of time. Neither of the affidavits filed on behalf of the applicant explain the reasons for the delay. The extension of time is opposed by the first respondent.
Pursuant to s.477(1) of the Act, this Court has jurisdiction to review decisions of the Tribunal if the application is made within 35 days of the date of the decision. This Court may make an order extending that period if, firstly, a written application is made to the Court specifying why it is necessary in the interests of the administration of justice to make the order, and secondly, the Court is satisfied that it is necessary in the interests of the administration of justice to make the orders. The grounds for application for the extension of time identified by the applicant are as follows:
“1. We didn’t receive the decision until 6/01/2016.”
This does not specifically address why it is in the interests of the administration of justice to make an order extending time, but I am prepared to infer that the applicant has identified that she lost a week over the Christmas break and did not have the benefit of the 35 day time frame envisaged by the Act in which to consider and make her application. Both the grounds of application for the substantive application and the outline of argument filed on behalf of the applicant purport to identify jurisdictional error on the part of the Tribunal, and it is implicit on the documents filed by the applicant that she asserts that it is in the interests of the administration of justice that those errors be identified by this Court and the relevant writs be issued. For that reason, I am satisfied that the applicant has complied with s.477(2)(a) of the Act.
The real question on the application for an extension of time is whether or not the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The Act is silent on exactly what the Court must be satisfied of when considering “the interests of the administration of justice”. There are no definitive criteria. A number of cases have identified criteria that are frequently relevant to determining this question. Those factors have included:
a)The length of the delay;
b)Any explanation given for the delay;
c)Whether the respondent has been prejudiced by the delay; and
d)The merits of the proposed judicial review application.
In considering s.477 of the Act, Foster J made the observation, that whilst the relevant factors are not defined by the Act, they must logically and sensibly relate to the interests of the administration of justice.[1]
The length of the delay
[1] SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252 at [46].
This is a factor which requires only brief consideration. The delay could hardly have been more brief. It is not a significant factor when considering the question of an extension of time in this matter.
The explanation for the delay
The first respondent is correct to submit that there is no adequate explanation for the delay. Ordinarily, one would expect an affidavit from either the applicant or the solicitor that set out briefly the reasons for non-compliance with the time limit. I infer, given the ground identified in the application, that either the applicant, her representative, or both, found themselves ‘caught short’ by the Decision Record only being received on 6 January 2016. This was productive of a short delay. Whilst this may be regarded as a somewhat generous inference to draw given it is for the applicant to adequately explain the delay, it seems nonetheless to be logical. In the context of this matter, the adequacy or otherwise of any explanation does not in my view assume much significance. It is in the interests of the orderly administration of Court business that applications be filed within the time specified by statutes. It is more broadly, in the interests of the administration of justice, that time limits for seeking review be complied with. But in circumstances where the delay is extremely short, and where an applicant clearly identifies a basis on which he or she seeks judicial review, considerations relevant to any reasons for the delay should logically assume a distant third place to the questions of prejudice and the merits of the proposed review.
Impact on the applicant if extension of time is not granted
The applicant is now 21 years of age. If the refusal of the visa is allowed to stand, it inevitably means that she will suffer separation from her mother. She will also be denied the opportunity to undertake further courses of study in Australia and will not be able to avail herself of the opportunity her mother proposes to provide by setting her up in her own small business.[2] The visa applicant appears to be close to her mother, who has supported her financially since she turned 18 years of age.[3] Clearly the impact of the refusal of a visa will have a profound effect on both the applicant for judicial review and the visa applicant herself.
Any prejudice
[2] Affidavit of Thi bich Thuy Nguyen filed 4 February 2016 at [10].
[3] Ibid at [16]-[17].
The first respondent properly concedes that it suffers no prejudice by reason of the delay. It would be difficult for it to argue otherwise.
The merits
I turn to the grounds of application. The applicant has identified five grounds as follows:
“1.That the Migration and Refugee division of the Administrative Appeals Tribunal (AAT) misinterpreted clause 101.213(1)(c) of the second schedule of the Migration Regulations;
2.The member of the AAT erred in law in failing to consider clause 101.213(1)(c) according to its purpose in that she failed to consider the substance of that paragraph in that she did not consider what constitute “reasonable time” and did not identify the relevant considerations that applied to a determination of what is “reasonable” within the meaning of that clause;
3.The member of the AAT has not taken into account any purpose for which the “courses” that the applicant has undertaken;
4.The member of the AAT has erred in law in failing to address the correct question when considering this application;
5.The member of the AAT has not taken into account that the mother has solely supported the daughter financially since she turned 18 up to and until the date of the decision.”
I stress that in considering the merits for the purposes of an application to extend time, I am not required to reach a final conclusion on the merits. The relevant consideration is whether there is sufficient merit in the grounds identified to satisfy me that “it is necessary in the interests of the administration of justice to make the order”. In SZTES v Minister for Immigration and Border Protection[4], Robertson J, with whom Logan and Kerr JJ agreed, identified that the relevant consideration with respect to merit, was whether the substantive application had a reasonable prospect of success. His Honour noted, however, that it was important not to conflate that test with the overarching test of whether or not it was necessary in the interests of the administration of justice to extend time. The merits of the application is one factor to be considered with others in determining whether I have the requisite satisfaction under s.477(2)(b) of the Act.
[4] [2015] FCAFC 158 at [30].
The applicant’s written outline commences by restating the proposed grounds of review. The applicant accepts that the Tribunal correctly summarised the claims of the applicant. The submission is developed to argue the simple proposition that the Tribunal failed to give proper consideration to whether the time taken by the applicant to enrol in a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification, was reasonable. It is submitted that in approaching this issue, the Tribunal asked itself the wrong question and fell into jurisdictional error because it did not engage in a proper consideration of the context and purpose of cl.101.213(1)(c) of the Migration Regulations 1994 (Cth) (‘the Regulations’) of the kind identified in Sok v Minister for Immigration & Multicultural & Indigenous Affairs.[5]
[5] [2005] FMCA 190; Opoku-Ware v Minister for Immigration and Border Protection [2015] FCCA 1638.
In his oral submissions, Mr Roberts for the applicant expanded on the above submission and further submitted that there was no evidence on which the Tribunal could have made the following finding:
“The Tribunal finds that the visa applicant commenced study at Tomiluc because the review applicant understood that for the grant of a Subclass 101 visa, the visa applicant needed to undertake a hairdressing course in Vietnam with a recognised qualification.
The Tribunal considers that but for the requirements of this visa class for applicants over 18, the visa applicant would not have commenced study at Tomiluc on 24 October 2015.”[6]
[6] Court Book (‘CB’) p 175 at [38] – [39].
For that reason, Mr Roberts submitted that the finding was irrational or not based on logical grounds.
In Mr Robert’s submission, a crucial matter that was overlooked by the Tribunal was that all of the courses undertaken by the visa applicant prior to enrolment in a relevant course were designed to augment and prepare her for the ultimate chosen profession as a hairdresser.
I have considered the reasons of the Tribunal. I am of the view that the application has some merit, the delay is very slight, and the effects of the refusal of a visa on the applicant would be significant. In all of the circumstances, I am satisfied that it is necessary in the interests of the administration of justice to grant the extension of time.
In the course of argument, I invited counsel for the applicant to treat his submission on the merits of the application for an extension of time as if he were making substantive submissions on the application for judicial review itself. Mr Roberts acknowledged this and presented his full argument.
I will turn now to a consideration of the application for judicial review.
Judicial review
The applicant relies on her affidavit filed 4 February 2016; the affidavit of Thai Phung Ho filed 9 May 2016; the affidavit of Ly Huong Nguyen filed 9 May 2016; as well as the materials contained in the Court Book.
The first respondent relies on the materials in the Court Book.
The applicant accepts the summary of claim contained in the Decision Record. That summary is as follows:
“8.The visa applicant was born in Vietnam on 9 March 1995 – refer birth certificate, Department file, folios 82 & 83. She therefore was 19 years at time of application.
9.The visa applicant completed her secondary education at Lac Long Quan High School in July 2013.
10.The visa applicant undertook an apprenticeship in hairdressing with Hung Hair Salon from 1 October 2013 to 1 April 2015 – Department file, folios 73 & 74.
11.The Tribunal received documentary evidence that the visa applicant enrolled with An Au Hair Design and Aesthetic Training Company (hereafter referred to as ‘A Au Hair Design’) from 10 March 2015.
12.Documentary provided at review indicates that the visa applicant enrolled in a four months Vocational Graduate certificate/ Vocational Diploma course with Tomiluc Vocational Training Company Limited (hereafter referred to as ‘Tomiluc’). Ho Chi Minh City that commenced on 24 October 2015.
13.The review applicant, who sponsored the visa applicant for the grant of the visa, is the visa applicant’s mother.
14.The review applicant became an Australian permanent resident on 16 May 2014.”[7]
[7] CB p 173 at [8] – p 174 at [14].
The Tribunal correctly identified the class of visa to which the review related.[8] It noted the relevant criteria for a subclass 101 visa as set out in Part 101 of Schedule 2 to the Regulations.[9] It identified the relevant criterion as that being contained in cl.101.213 relating to applicants such as the visa applicant, who had turned 18 at the time of the application. It noted that the primary issue was whether the visa applicant met the criteria in cl.101.213 (1) (c). It identified that the nature of a Child (Migrant) (Class AH) (Subclass 101) visa is to provide a mechanism enabling the migration of children offshore who are still dependent upon their parents.
[8] CB p 173 at [2].
[9] CB p 173 at [3].
The primary criteria for the grant of a visa of this type are set out in cl.101.211. Clause 101.211 provides as follows:
“(1)The applicant:
(a)is a dependent child of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) an eligible New Zealand citizen; and
(b)subject to subclause (2), has not turned 25; and
(c)either:
(i) is:
(A)the child (other than an adopted child); or
(B)the step‑child within the meaning of paragraph (b) of the definition of step‑child;
of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a); or
(ii) was adopted overseas by a person who, at the time of adoption, was not an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen, but later became an Australian citizen, a holder of a permanent visa or an eligible New Zealand citizen.
(2)Paragraph (1)(b) does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.”
Relevantly to this matter, where the visa applicant has turned 18 years of age, cl.101.213(1) provides:
“(1) If the applicant has turned 18:
(a)the applicant:
(i) is not engaged to be married; and
(ii) does not have a spouse or de facto partner; and
(iii) has never had a spouse or de facto partner; and
(b)the applicant is not engaged in full‑time work; and
(c)subject to subclause (2), the applicant has, 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.
…”
The criteria that need to be satisfied at the time of the decision are set out in cl.101.22 and relevantly cl.101.221 provides:
“(1)In the case of an applicant who had not turned 18 at the time of application, the applicant:
(a)continues to satisfy the criterion in clause 101.211; or
(b)does not continue to satisfy that criterion only because the applicant has turned 18.
(2)In the case of an applicant who had turned 18 at the time of application:
(a)the applicant:
(i) continues to satisfy the criterion in clause 101.211; or
(ii) does not continue to satisfy that criterion only because the applicant has turned 25; and
(b)the applicant continues to satisfy the criterion in clause 101.213.”
I accept the submission of the first respondent that the combined effect of cl.101.213(1)(c) and cl.101.221(2)(b) means that at the time the applicant applies for the visa, the applicant must have commenced a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification, and that they continue to undertake that full time course of study at the time when the decision is made.[10]
[10] Opoku-Ware op cite at [78].
I accept the submission of the first respondent that the purpose of cl.101.213 is to acknowledge and provide for the fact that certain children over the age of 18 may be regarded as dependent children for the purpose of this subclass of visa application. It allows for a child to be recognised as a dependent child in circumstances where there has been a delay in the commencement of tertiary study as long as that delay is a reasonable delay.
Whilst the Tribunal did not in the statement of decision and reasons set out in full the relevant criteria, it identified and correctly summarised the criteria relevant to this matter.[11]
[11] CB p 174 at [15]-[17].
In considering the claims of the review applicant, the Tribunal found that a period of approximately two years and two months had elapsed since the visa applicant had completed secondary studies, which were the equivalent of year 12, prior to starting her vocational qualification course at Tomiluc Vocational Training Company Ltd.[12] The Tribunal correctly identified that the six month requirement stipulated in subcl.101.213(1)(c) had been exceeded. It was necessary to consider whether or not the applicant had commenced further studies within a reasonable time.
[12] CB p 175.
The Tribunal had regard to the decision in Sok and had this to say:
“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]
[13] CB p 174 at [19].
In considering that question, the Tribunal found as follows:
“Relevantly, the review applicant’s statutory declaration stated that the visa applicant undertook an apprenticeship in hairdressing “to decide whether she would like to continue with her career path”.
The Tribunal notes that the visa applicant’s apprenticeship with Hung Hair Salon was for 18 months from 1 October 2013 to 1 April 2015 (refer Department file, folio 73) and, according to her mother, during that period she was making up her mind about her career path.
The visa applicant told the Tribunal that until recently she did not appreciate that Australian migration law required her to attend a recognised educational institution to study hairdressing. With that knowledge she moved to Ho Chi Minh City to attend Tomiluc for the purpose of obtaining a diploma in hairdressing.
As stated above, subclause 101.213(1)(c) requires an applicant to have been undertaking study at “an educational institution”.
The Tribunal finds that the visa applicant commenced full-time study in hairdressing at Tomiluc only on 24 October 2015.
The Tribunal finds that the visa applicant commenced study at Tomiluc because the review applicant understood that for the grant of a Subclass 101 visa, the visa applicant needed to undertake a hairdressing course in Vietnam with a recognised qualification.
The Tribunal considers that but for the requirements of this visa class for applicants over 18, the visa applicant would not have commenced study at Tomiluc on 24 October 2015.
The Tribunal acknowledges that the review applicant and the visa applicant wish to be reunited in Australia where the visa applicant could undertake further study.
As outlined above, the Tribunal has weighed the visa applicant’s circumstances since she attained 18.
For the reasons given above, the Tribunal is not satisfied that the visa applicant has been undertaking full-time study at an educational institution since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.
Accordingly, cl.101.213(1)(c) is not met at the time of application and the visa applicant is not eligible for the grant of the visa.”
I have already summarised the submissions made on behalf of the applicant.
The first respondent submitted that given the findings of the Tribunal that the Tomiluc course was the only relevant course she had undertaken, it was faced with a visa applicant who had delayed, by approximately 18 months, the commencement of her study. The visa applicant had not undertaken a fulltime course of study at the time of her visa application and it submitted that the Tribunal was correct to find that the course was not started within a reasonable time after completing her secondary schooling. It submitted that the Tribunal did engage in a reasoning process that involved asking the correct questions and points to the Tribunal’s consideration of the decision in Sok. It submits that the relevant evidence as to the cause of the delay was given proper consideration by the Tribunal. It further submits that the finding of the Tribunal that the visa applicant would not have commenced the course of studies with Tomiluc but for the requirements for this class of visa, was a finding which was open to it on the basis of the evidence before it.
The first respondent submitted that the visa applicant’s reasons for commencing the course with Tomiluc underpinned the Tribunal’s finding that the period of time between the completion of her secondary schooling and the commencement of a fulltime course of study was not a reasonable time.
Consideration
Grounds one and two
I will consider grounds one and two together. Properly understood, ground two appears to be a particularisation of ground one. That certainly appears to be the case in light of the submissions that were made.
In his oral submissions, Mr Roberts contended that the Tribunal had given ‘lip service’ only to the type of considerations identified in the decision in Sok. With respect to the contention in ground two that the Tribunal did not consider what constituted a ‘reasonable time’, he said the Tribunal was not required to come to a definition of that term in the abstract. What amounted to a ‘reasonable time’ in which to commence a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification, could only be answered by considering the circumstances of the applicant.
Clause 101.213(1)(c) assumes that the commencement of a fulltime course of study within six months would be a reasonable time. Any period longer than that required a consideration of the applicant’s circumstances. In Sok, Riethmuller FM (as he then was), identified a series of factors that would be relevant to consider when asking this question:
“In determining what period of time would be reasonable one must necessarily consider the following factors:
(a)the actual period of time involved;
(b)what activities if any were undertaken during that period of time;
(c)the purpose for which those activities were undertaken; and
(d)if no activities connected with the ultimate course of study were undertaken the reason for not undertaking activities related to the course of study.”[14]
[14] Sok op cite at [19].
A fair reading of the reasons of the Tribunal indicates that the Tribunal did consider the type of matters identified by Riethmuller FM.[15]
[15] CB p 174 at [25] – p 175 at [37].
It did consider the period of time involved in the delay, the activities undertaken during that period of time, and the purpose for which those activities were undertaken. It was the purpose for which those activities were undertaken, and the finding as to the reasons of the visa applicant enrolling in the course with Tomiluc on 24 October 2015, that underpinned the Tribunal’s conclusion that the applicant had not commenced a relevant course of study within a reasonable time.
The applicant relied on a portion of the transcript which had been transcribed by her solicitors.[16] This transcript is only an extract from the proceedings and covers that portion of proceedings in which the Tribunal asked questions of the visa applicant. No objection was taken by the first respondent to the accuracy of that transcript or the fact that it did not comprise an entire record of the proceedings.
[16] Affidavit of Ly Huong Nguyen filed 9 May 2015 at Annexure A.
At one point in her evidence, the following exchange occurred:
“Visa Applicant (VA): it will take around 1 and half years to finish the course at To My Luc
Presiding Member (PM): So you have an apprenticeship contract with them – is that right?
VA:yes, that’s right
PM:okay. And at the end you will get a diploma from To My Luc, the vocational training company – is that right?
VA:at the moment, I have to finish the diploma in order to get the qualification
PM:are you paid in any sort of wage from To My Luc if you do any work there?
VA:it’s only when I finish the course, if I want to stay and upgrade my skill and practice, I won’t get any payment from their shop
PM:okay. Is there anything else you would like to say to me Miss Tran before we say goodbye?
VA: my last course was because I don’t have any relatives who lives next to me, especially my mum, so I understand that according to the law in Australia after finishing year 12 – I should attend another course to keep going with my studying, but because I have no one to orientate me at that time, that’s why I went to salon near my house to get some skills, and later on my mum advised me what happened in Australia, so that’s why now I have to study a proper course, and I know that in Australia, there are many opportunities to study to upgrade my skills, to get better education so that’s why I would like to have the chance to go to Australia to unite with my mum and get better skills.”
Whilst it was not specifically referred to, it seems clear that it was this passage of evidence that led to the Tribunal concluding that the reason for the visa applicant commencing study at Tomiluc was because she understood that it was necessary for the grant of a subclass 101 visa that she undertake a hairdressing course with a recognised qualification.[17] That led the Tribunal to find that but for the requirements of this particular class of visa for applicants over the age of 18, the visa applicant would not have commenced a course of full time study at Tomiluc on 24 October 2015.[18] That finding had obvious implications for the question of whether the applicant had enrolled within a reasonable time.
[17] CB p 175 at [38].
[18] CB p 175 at [39].
Reasonable minds may differ as to whether or not the hairdressing activities of the visa applicant after school and before enrolling with Tomiluc were designed to augment the visa applicant’s ultimate transition to a relevant course of study, and if so, the significance of that matter in assessing whether she had enrolled within a reasonable time. However, I am of the view that the finding was open to the Tribunal that the course of study would not have been commenced but for the applicant learning that it was necessary to satisfy certain visa requirements in order to reunite with her mother and that in any event, the applicant did not enrol within a reasonable time.
I am satisfied that the Tribunal did give appropriate consideration to what amounted to a reasonable time for the applicant to commence her studies, and that it did identify the relevant considerations applied to a determination in that regard. For this reason, I dismiss grounds one and two of the application.
Ground three
With respect to ground three, that the Tribunal did not take into account the purpose for which the applicant had undertaken her earlier hairdressing courses, I am satisfied that this matter was considered by the Tribunal. That consideration was at the forefront of the mind of the Tribunal when it addressed the mother’s statutory declaration in which she stated that the visa applicant took an apprenticeship in hairdressing “to decide whether she would like to continue with her career path”.[19]
[19] CB p 175 at [33].
It was also on the basis of a consideration of that question that the Tribunal reached the conclusion as to the visa applicant having commenced fulltime study in hairdressing at Tomiluc only on 24 October 2015. I dismiss this ground.
Ground four
Ground four complains that the Tribunal erred in law because it failed to address the correct question when considering the application. This ground is closely connected to grounds one and two. The exact questions the Tribunal failed to ask itself were not identified by the applicant, but the ground is based on an alleged failure by the Tribunal to follow or apply the approach in Sok. I am satisfied that the Tribunal did ask itself the correct questions and it did not focus solely on the length of time that elapsed before enrolment in a relevant full time course of study.
Ground five
The final ground of application is that the Tribunal did not take into account the fact that the mother had solely supported the visa applicant since she turned 18 up until the date of the decision. There was evidence of this before the Tribunal.[20] The Tribunal also made reference to this in the Decision Record.[21] The first respondent submits that it was not necessary for the Tribunal to consider this aspect because it found that the applicant had commenced fulltime studies only in order to attempt to meet the requirements of the visa and that the delay was not in the context “a reasonable time”.
[20] See transcript p 1 – 2.
[21] CB p 175 at [30].
The fact of the visa applicant’s dependency on her mother was one of two matters that needed to be satisfied given that she was over 18 years of age. The second was the reasonable time requirement. The adverse finding as to the delay in enrolment meant that the visa applicant’s dependency on her mother could not of itself have enabled her to satisfy cl.101.213(1)(c). I am satisfied the Tribunal did consider that matter, but correctly found that it did not subsume the question of “reasonable time”. I dismiss this ground.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 22 September 2016
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