Putra (Migration)

[2021] AATA 5427

Putra (Migration) [2021] AATA 5427 (8 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gusty Arthanta Putra

CASE NUMBER:  2013830

HOME AFFAIRS REFERENCE(S):          CLF2020/10571

MEMBER:Steven Griffiths

DATE:8 December 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 08 December 2021 at 2:57pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had not been a continuous full-time student since turning 18 – applicant has turned 18 – applicant has not been enrolled or undertaken any formal study – cl.802.214 does not continue to be met at the time of decision – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, cls 802.212, 802.214, 802.221

CASES
Huynh v MIMA [2006] FCAFC 122
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 Home Affairs on 27 August 2020 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 10 March 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 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(1)(c) was not met because the applicant had not been a continuous full-time student since turning 18.

5. The applicant appeared before the Tribunal on 8 December 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, the mother of the applicant, and Rev Dr. Helen Richmond, a friend of the parties. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has considered the information contained in the Department file, the information provided by the applicant to the Tribunal prior to the hearing and the oral evidence from the hearing.

   ISSUE

8. The issue in the present case is whether the visa applicant meets the provisions of the Child 802 Visa. 

   BACKGROUND OF THE EVIDENCE

9. Mr. Putra was born in Indonesia in 1996 and is the son of the sponsor. He has 2 full siblings, born 2001 & 2005 living in Indonesia, and 2 half siblings, born 2012 & 2015 living in Australia. He was granted a Visitor 600 Visa on 13/6/18, to cease 3/5/20, and arrived in Australia 19/6/18. He has travelled 4 times between 26/6/18 and 3/2/20, for approximately 392 days and has been on a WA-010 Bridging Visa from 12/3/20.

10. Ms. Lestari was born in Indonesia in 1976 and arrived in Australia on 21/12/12 and has 5 children, with the applicant being her eldest child. Her younger children, born 2012 & 2015, live with her in Australia and she is separated from the father of the children. She was granted a Partner 820 visa on 20/8/13 and Partner 801 Visa on 28/7/14 and is an Australian permanent resident.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:-

    Review application, 10/9/20

    Applicant Movement Record, 28/10/21

    Hearing invitation, 28/10/21

    Sponsor Movement Record, 28/10/21

    Hearing Response, 5/11/21

    Statement in support by Rev Dr. Helen Richmond, of Uniting Church, Casuarina, 4/11/21

    Tanya Davis, Psychologist at MyPsych NT, report of 24/11/21, on the issues the sponsor and children have been through due to actions of estranged husband

    Northern Territory, Domestic Violence Order, 8/10/21, actioned by the sponsor and covering she and her 2 youngest children, on the father of the children, in place for 12 months

    Acting CEO, Baptist Care NT / Foodbank NT, letter of support for applicant, 10/5/21

    Ms. Rebecca Latu, Darwin Aboriginal and Islander Aboriginal Women’s Shelter, letter outlining the support provided to the sponsor and her 2 youngest children, 29/11/21

    Confirmation from Charles Darwin University dated 1/2/21 that a civil construction course the applicant was interested in has been cancelled.

    Statement by applicant on the issues that have impacted on his life in Australia, 8/12/21

    Section 376 Certificate issued by the Minister

12. The Tribunal notes the provision by a Delegate to the Minister for Home Affairs of a Section 376 Certificate issued on 1/10/21 being in place. 

13. The Tribunal informed the applicant of the Certificate, which was unable to be provided physically to him as the hearing was conducted by video and advised the applicant it had determined the information covered by the Certificate is not adverse information impacting on the decision to be made by the Tribunal.

    Dependent child criteria

14. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or 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

15. 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.

16. 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.

17. 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].

18. The Tribunal accepts the documented evidence of the sponsor being an Australian permanent resident.

19. 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].

20. The Tribunal notes the applicant was born 17/7/96 and was 23 years and 8 months old at the time of the visa application. 

21. The Tribunal accepts the documented and oral evidence of the applicant and his mother that the mother has provided all the financial support the applicant has received since she left Indonesia to live in Australia in 2012.

22. The Tribunal accepts the documented and oral evidence of the applicant and his mother that for the period January 2015 to May 2018 the applicant was engaged in on-the-job training activities with three businesses in the tourism industry, was not paid while undertaking this on-the-job training and used the time with these businesses to develop the skills required to gain employment in the tourism industry.

23. The Tribunal accepts the documented and oral evidence of the applicant and his mother that since arriving in Australia in June 2018 he has lived with his mother, two younger half-siblings and stepfather, apart from several short periods when due to the actions of the stepfather the applicant has stayed with Rev Richmond and her husband.

24. The Tribunal accepts the documented and oral evidence of the parties that the visa conditions in place for the applicant since arriving in Australia in June 2018 include the provision that he is unable to work, noting that he has taken on volunteer roles in the community.

25. The Tribunal accepts the oral evidence of the applicant that the sponsor, his mother, has been the ever present provider of the financial support he required, and he has been totally reliant on her for basic needs.

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

    Applicant under 25 or incapacitated for work

27. 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(1)(b), (2).

28. The Tribunal has been provided with no documented or oral evidence on the applicant being incapacitated due to the total or partial loss of bodily or mental functions.

29. Accordingly, cl.802.212(1)(b) does not apply at the time of application and is not required to be met at the time of decision.

30. For the reasons above, the criteria in cl.802.212 and cl.802.221(2)(a)(i) are met.

    Criteria for applicants over 18

31. 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

32. 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).

33. The Tribunal accepts the documented and oral evidence of the applicant that he has not, and does not, have a de facto partner or spouse.

34. Accordingly, cl.802.214(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

35. 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).

36. The Tribunal accepts the documented and oral evidence of the applicant and his mother that the applicant, while in Indonesia and Australia, has not held full-time work, with his adult year in Indonesia being spent undertaking unpaid on-the-job training while in Australia he does not hold work rights.

37. Accordingly, cl.802.214(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

38. 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).

39. 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].

40. 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).

41. 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.

42. The Tribunal accepts the documented and oral evidence of the parties that the applicant completed his school studies in Indonesia in May 2014 when he was 17 years old.

43. The Tribunal notes the documented and oral evidence of the applicant and his mother that the applicant undertook from January 2015 to May 2018, when he was nearly 20 years old,   on-the-job training roles with 3 tourism based businesses in Indonesia and determines that for each of these roles he did not receive training from an educational institution that lead to the award of a professional, trade or vocational qualification, but instead a certificate from the tourism business that he believed would assist him in gaining paid employment.

44. The Tribunal notes the documented and oral evidence of the applicant, his mother and the witness that the applicant had attempted to enrol in courses of study in Australia, predominantly at Charles Darwin University but also other lower-level education providers, but was unable to due to reasons including costs, his visa status and issues occurring in his family as a result of actions by his stepfather.

45. The Tribunal accepts, and expressed considerable sympathy, to the applicant, his mother and two younger siblings on the challenges to all of them in their lives due to the physical and mental health issues of the stepfather of the applicant, which the sponsor stated have been evident for much of the time she has been in Australia and living with him and having two children.  

46. The Tribunal notes the documented and oral evidence of the applicant, his mother and the witness that the applicant had sought to enrol courses on English language, civil construction and indigenous health and social change, but was unable to enrol due to the issues outlined at point 44.

47. The Tribunal determines from the documented and oral evidence that the applicant has not been enrolled or undertaken any formal study, at an educational institution leading to the award of a professional, trade or vocational qualification since his arrival in Australia in June 2018.

48. Accordingly, cl.802.214(1)(c) is not met and continues to not be met at the time of decision.

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

50. 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

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

    Steven Griffiths
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

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

    …