Ofa (Migration)

[2019] AATA 1667

Ofa (Migration) [2019] AATA 1667 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tania Ehuti Ofa

CASE NUMBER:  1718903

HOME AFFAIRS REFERENCE(S):           CLF2016/52933

MEMBER:Hugh Sanderson

DATE:31 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 31 January 2019 at 10:03am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – not satisfied that since turning 18 the applicant had been undertaking a full-time course of study – not satisfied that the applicant was incapacitated for work – mother has rights to reside permanently – applicant not dependent on sponsor – not found to be incapacitated following temporary admission to hospital with good recovery – not undertaking full-time study within a reasonable time – was in full-time employment – commenced study following visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.216, 802.221(2)(b), 802.226A

CASES
Hussain v MIBP [2017] FCCA 3247
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 Immigration and Border Protection on 2 August 2017 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 1 September 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). 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.

3. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate was not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The delegate was also not satisfied that the applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions.

   Background

4. The applicant is a citizen of the Solomon Islands and is currently 27 years old. She is sponsored in her application by her mother, Mary Boyd. Her mother was granted a Subclass 100 Partner (Residence) visa in 2013 and now has the right to reside permanently in Australia.

5. The applicant was granted a Subclass 600 Visitor visa and first entered Australia on 4 April 2016. The current application was filed on 1 September 2016. The applicant stated that she completed her schooling at King George VI School on 23 June 2009. She did not undertake any further study after that date. She stated that since June 2012 she had been working at Rumours Fine Food, 72 hours per week, earning Solomon Island $225 per week. At the time of the application the applicant did not make any claim that she suffered from any incapacity for any reason.

6. The applicant provided information that in October 2016, after she had filed the current application, she started making enquiries to undertake study in the hospitality industry in Australia. She was enrolled in a course commencing 31 January 2017 for Individual Support: Ageing and Home and Community at TAFE.

7. The sponsor provided a statement where she made the following claims:

   ·The applicant was currently studying in Australia;

   ·Late in 2009 the applicant developed depression and refused to go to school or work and was supported by the sponsor;

   ·In January 2010 the applicant was admitted to hospital for bipolar disorder and, despite being discharged in May 2010, she refused to return to school;

   ·The sponsor was granted a Partner visa and started living in Australia in November 2011;

   ·The applicant was then living with her maternal grandparents;

   ·The applicant commenced working at Rumours Fine Foods in Honiara in June 2012, which was owned by her cousin, and was working there until she entered Australia;

   ·The applicant was also the main carer for her paternal grandfather when he became frail in March 2014 until he died in February 2016; and

   ·The applicant came to Australia to have a break after caring for her grandfather for so many years.

8. Documents were provided showing the applicant was discharged on 22 May 2010 after being diagnosed with bipolar disorder.

9. A report was provided from Dr Janet Bayley, consultant psychiatrist from the Trinity Clinic. This report noted the following issues:

   ·The applicant suffered from one episode of psychiatric ill-health which began in January 2010;

   ·After the applicant was discharged in May 2010 she saw a psychiatrist on one or two occasions and stopped all medication;

   ·Since mid-2010 she has not taken any psychotropic medications and has not had any contact with any psychiatric services and her mother believed that she had been completely well and had no problems with her mental health;

   ·The applicant has been well since her treatment in 2010 and appeared to be functioning at a high level and is fully functioning and not impaired by her previous episode of psychiatric ill-health in any way; and

   ·The applicant has no impairments or disabilities in regards to her activities of daily living and social, academic or occupational functioning and has no ongoing incapacity caused by her bipolar disorder.

10. The delegate who considered the application noted the following issues:

    ·There was no information which would indicate the applicant was financially dependent upon the sponsor for the eight months prior to her arrival in Australia;

    ·Evidence of money being sent by the sponsor to the Solomon Islands continued even after the applicant arrived in Australia indicating those monies were not being sent for the financial support of the applicant;

    ·The report from Dr Bayley did not support the claim that the applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions;

    ·At the time of the application, the applicant had not studied since she finished school in 2009 and was employed on a full-time basis from 2012 until she arrived in Australia;

    ·The applicant only commenced further studies in Australia after she had filed the current visa application; and

    ·The applicant had not been engaged in any study for a period of over eight years.

11. Taking all these matters into account, the delegate was not satisfied that the applicant was a dependent of the sponsor or that she was incapacitated for any reason or that she had been undertaking a full-time course of study at an educational institution since completing the equivalent of year 12 in the Australian school system. Accordingly, the delegate found that the applicant did not meet the criteria in cl.802.212 and cl.802.214 and refused the application.

    Information to the Tribunal

12. The applicant provided statutory declarations from the sponsor’s niece and brother saying that they received money from the sponsor on the basis that it would be used to support the visa applicant when she was living in the Solomon Islands. A statutory declaration of Dr Orotaloa was provided stating that he was a consultant psychiatrist at the National Referral Hospital where the applicant presented with mild to moderate depression which may have been caused by her parents’ separation and that she refused to continue her studies to complete fifth form at Bishop Epale High School.

13. The applicant appeared before the Tribunal on 29 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

14. The applicant said that she was currently planning to enrol in a barista course which would start in February 2019. She said that she was not sure if it was a three-month or a six-month course. She said that she had wanted to study nursing, but as this course would last one and a half years she had not enrolled in it, but instead enrolled in short courses until she knew if she was granted a visa to remain in Australia.

15. The applicant provided details of her activities after arriving in Australia on a Visitor visa. She confirmed details of her activities in the Solomon Islands, including that she had worked with her cousin at Rumours Fine Food from June 2012 and the hours of work. She said that her three sisters continue to live in the Solomon Islands. None of them had finished high school. She said that her youngest sister currently works at Rumours Fine Food. She gave details of her hospital treatment and confirmed that she had not suffered any relapse or required any medical treatment for mental health or any other issues since June 2010.

16. The applicant said that when she was living in the Solomon Islands she did not know what to do with her life. She said that she felt stuck there and so did not think big and just wanted to work as a waitress till she got to Australia. She said that she saw more opportunities for her in Australia.

17. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issues identified in the Department’s decision were whether the applicant is a dependent on the sponsor, whether the applicant is or was incapacitated for work due to the total or partial loss of her bodily or mental functions and whether the applicant has, since turning 18, or within six 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.

    Criteria for applicants over 18

19. 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).

20. The Tribunal has first considered the study requirements for the grant of the visa.

    Full-time study (or incapacitated for work)

21. At the time of application, the applicant must have, since turning 18, or within six 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).

22. 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).

23. 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-Warev MIBP (2015) 297 FLR 416.

24. The applicant provided evidence that in January 2010 she was admitted to the National Referral Hospital at Honiara suffering from depression. She was diagnosed at that time with bipolar disorder. She was treated with medication and discharged on 22 May 2010. The evidence given by the applicant was that she was required to take medication for about two or three weeks and then when she went for a check-up after she was discharged from hospital she was told she was not required to take any further medication. She has not suffered any relapse of any mental health issues and has not been required to take any medication for any mental health issues since then.

25. The report provided from Dr Bayley noted that apart from this one episode of psychiatric ill-health in 2010 from which she has fully recovered, “she has no impairments or disabilities (temporary or permanent) with regards her activities of daily living and social, academic or occupational functioning”. Dr Bayley reports that she responded well to psychotropic medication treatment and since her treatment in 2010 “appears to be functioning at a high level”.

26. The applicant had ceased her secondary education in June 2009, six months prior to the admission to hospital. After her discharge from hospital, she did not recommence any study or commence study at an educational institution leading to the award of a professional, trade or vocational qualification.

27. After the applicant was discharged from hospital, she did not commence any work until June 2012 when she commenced working as a waitress at her cousin’s cafe, Rumours Fine Food. The reference provided by the applicant to the Department from her employer states that “she is a much valued employee”.

28. The Tribunal finds that for a limited period between January 2010 and June 2010 the applicant suffered a short-term and temporary incapacity due to mental health issues. These mental health issues were successfully treated at the time and the applicant has not suffered any incapacity due to mental health issues since then. She was able to maintain employment as a waitress for several years and was described as “a much valued employee”. She was given the responsibility to care for her grandfather who was suffering from dementia and other age-related conditions. There is nothing to indicate that she was not able to successfully care for herself and her grandparents or that she was incapacitated for any reason. She did not require any further medical treatment and the report from Dr Bayley notes that after she was appropriately treated in 2010 she has been functioning at a high level. The applicant has, since filing the application, applied for and been admitted into various educational courses in Australia. This again indicates that at the time of the application the applicant was not incapacitated for work due to the total or partial loss of her bodily or mental functions.

29. The Tribunal is not satisfied that at the time of the application and at the time of this decision the applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal finds that the applicant suffered a temporary condition in 2010 for which she was adequately and properly treated and from which the applicant made a full recovery. She has not suffered any incapacity since May 2010, six years prior to the application being filed.

30. As the Tribunal has concluded that the applicant was not incapacitated for work because of the loss of bodily or mental functions the Tribunal has now considered whether at the time of the application the applicant had been undertaking a full-time course of study since turning 18, or within six months or a reasonable time after completing year 12.

31. The applicant finished her secondary education in June 2009. She was, at that time, 17 years old. She did not complete high school. None of her sisters have completed high school. She did not enrol, at that time, in any further studies. She claimed that she just stayed at home. After she was discharged from hospital in May 2010, she did not seek to continue her education or enrol in any educational institution seeking an award of a professional, trade or vocational qualification. It appears that she did not seek any employment at that time. She did not seek to enrol in any course of study for the six years that she remained in the Solomon Islands.

32. In June 2012 she commenced work as a waitress at her cousin’s cafe, Rumours Fine Food. In her application, she stated that she was working there 72 hours per week. In her evidence given to the Tribunal, she stated that she was working from 6:00am to 5:00pm Monday to Friday and from 6:00am to noon on Saturdays. She said that the days she worked were flexible depending upon the requirements of the cafe and any obligations she had to do anything else.

33. The applicant claimed that she was required to care for her grandfather from March 2014. This is almost four years after she was discharged from hospital and almost five years after she ceased studying at secondary school. She continued to work at Rumours Fine Food.

34. After arriving in Australia on 4 April 2016 the applicant claimed that she started thinking about enrolling in further study in Australia a couple of weeks after she arrived. She did not, however, take any step to attempt to study in Australia until October 2016, six months after first arriving in Australia and after the current application was filed. It appears that her first course of study commenced on 31 January 2017. This is more than 10 years after the applicant was last engaged in any full-time study and she was, at that time, 25 years old.

35. The Tribunal does not accept that the break in the applicant’s study since turning 18 years of age can be considered as a reasonable time.

36. As indicated above, the applicant was incapacitated for a short period of time in 2010 suffering from depression. She was successfully treated and has not, since that time, had a relapse or required any mental health treatment. The Tribunal does not accept that any medical treatment that the applicant received as a result of this episode would provide a reason why she did not continue her studies if she wished to do so. At the hearing, she claimed that she did not know what to do with her life and did not think big. She thought that being a waitress would be sufficient for her.

37. Although the applicant may have underestimated her capacity to study and advance her career prospects, this does mean that the gap in her study can be considered as reasonable. She was able to participate in other activities, including working at her cousin’s cafe, and was given the responsibility to care for her grandparents. The fact that the applicant may have not had the drive or ambition at that time to continue her studies for the period where she was not engaged in any study does not mean the gap in her studies can be considered a reasonable time.

38. The applicant claimed that she had the responsibility of caring for her grandfather from March 2014. This was four years after she turned 18 years of age. She had been living with her maternal grandparents since before she was admitted to hospital and continued to live there after she was discharged. She was working at Rumours Fine Food prior to March 2014 and continued to work there full time after that date. Although she may have been providing assistance to her grandfather, this did not prevent her from continuing to be employed at Rumours Fine Food. The applicant has several other family members who were at the time and continue to live in the Solomon Islands. This includes her three sisters as well as other extended family members. There is nothing to indicate that any care the applicant provided to her grandfather could not have been provided by other family members living in the Solomon Islands. It appears that it was decided that the applicant would provide the additional care because she did not have any obligations, such as study, which would have prevented her from providing this care. She had the additional benefit of working at Rumours Fine Food which provided some flexibility in work.

1. The Tribunal is not satisfied that any responsibility the applicant had to care for her grandfather after March 2014 makes the gap in her study a reasonable time.

2. The applicant did not commence any study until after she arrived in Australia and that was after the current application was filed. At the time of the application, the applicant was 24 years and 11 months old. She had not been engaged in any study for more than six years. She did not commence any study until 31 January 2017, more than four months after filing the application.

3. The Tribunal has considered all the circumstances of the applicant both individually and cumulatively. The Tribunal finds that at the time of the application the applicant was not engaged in any full-time course of study. The applicant only commenced study four months after the filing of the application. The Tribunal is not satisfied that the period from when the applicant turned 18 years of age to the time when the applicant recommenced study can be considered reasonable. The applicant’s admission to hospital in 2010 was only temporary and she made a full recovery from any medical condition she was suffering at that time by June 2010. There is no information which would indicate the period from June 2010 to June 2012, which was when the applicant commenced full-time employment in her cousin’s cafe, Rumours Fine Food, that she would not have been able to commence study if she had any desire to do so. She worked full-time at Rumours Fine Food as a waitress from June 2014 until she entered Australia in April 2016. The applicant, at that time, made the decision to work full-time rather than pursue any further education. The care she provided to her grandfather commenced in March 2014 and did not stop her from continuing her full-time employment at Rumours Fine Food. The requirement to care for her grandfather did not mean that she was required to stop any previous study and did not prevent her from continuing to work full-time at Rumours Fine Food.

4. In all the circumstances, the Tribunal is not satisfied that, at the time of the application and at the time of this decision, the applicant has, since turning 18, or within 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.

5. Accordingly, cl.802.214(1)(c) is not met. As the applicant does not meet this criterion for the grant of the visa it is not necessary to consider whether she meets the other criteria addressed in the delegate’s decision.

6. For the reasons above, cl.802.214 is not met at the time of application.

7. 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

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

   Hugh Sanderson
   Member