Quelino (Migration) - [2024] AATA 3647

Quelino (Migration) [2024] AATA 3647 (3 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Changco Jr Quelino
REPRESENTATIVE:  Mr Sanjib Karmacharya (MARN: 1791460)
CASE NUMBER:  2015562
HOME AFFAIRS REFERENCE(S):          CLF2019/65124
MEMBER:Margie Bourke
DATE:3 October 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 03 October 2024 at 6:34am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – limited financial dependence – applicant in full-time work – gap in full-time studies – effect of the COVID19 pandemic – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.216, 802.221, 802.226; 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 October 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 applied for the visa on 4 November 2019. 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 time of application criteria to be met in this case include cl.802.212 and cl.802.214, and time of decision criteria to be met include cl.802.221.
The delegate refused to grant the visa on the basis that cl 802.212 was not met because the delegate was not satisfied that the applicant was a dependant child within the meaning of reg 1.05A, and reg.1.03.
The applicant appeared before the Tribunal on 25 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father, who was also the sponsor in relation to the visa which was the subject of the review.
The applicant was represented in relation to the review, but the representative did not attend the hearing. The applicant and his father indicated they did not expect the representative to attend the hearing, and wished the hearing to proceed as scheduled.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Dependent child criteria
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).
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 reg 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.
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].
The applicant and his father both gave consistent evidence that the applicant had been financially dependent upon his father since his arrival in Australia in July 2018. The Tribunal is satisfied that the applicant’s father paid for the rent and utility bills for the accommodation, and purchased most of the food. The Tribunal is satisfied that the applicant had part-time work (excluding 2020 and the some of 2021 when his employment was closed due to the pandemic). The Tribunal is satisfied that the applicant purchased his own clothes, or protective clothing was provided by his employer. The Tribunal is satisfied that the applicant contributed to some food purchased for the household, or assisted his father on occasion when required to pay bills.
The Tribunal is satisfied based on the evidence of the applicant that he completed his studies in November 2023 and obtained full-time employment in the career of his field of study, namely electrical appliance technician in November 2023. The Tribunal is satisfied that the applicant has not been totally or substantially financially dependent on his father, or on any other person or source of support to meet his basic needs, since he obtained full-time employment. The Tribunal accepts that the applicant is not dependent within the meaning of reg 1.05A at the time of decision. The Tribunal is satisfied that the applicant is not a dependent child within the meaning of reg 1.03 at the time of decision.
Accordingly the Tribunal is satisfied that the applicant, who had turned 18 at the time of application does not continue to satisfy the criterion in cl.802.212 at the time of application. The applicant does not meet the requirements of cl.802.221(2)(a).
Criteria for applicants over 18
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
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).
The Tribunal is satisfied based on the evidence before it that the applicant is not engaged to be married, and does not have a spouse or partner, either at the time of application or at the time of decision
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).
The Tribunal is satisfied that at the time of decision the applicant has been engaged in full-time work since November 2023.
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 Tribunal is satisfied that the applicant completed this four years of high school as required in the Philippine education system at the age of 16. The Tribunal is satisfied that the applicant immediately commenced college, and did a year of IT before transferring to study a bachelor of associated electrical and a bachelor of electronics over five years completing the courses in 2017. The Tribunal is satisfied the applicant travel to Australia is the holder of a student visa and completed certificate III and certificate IV in electronics and communications in 2018 and 2019. The Tribunal is satisfied that the applicant enrolled in an advanced diploma in the same course of study with the same educational institution, in 2020, but when this course was abandoned the applicant transferred to Swinburne institution. The advanced diploma in electronics and communications in 2020 was impacted by the pandemic, and the practical components of the course were unable to be taught. The theoretical components of the course were taught online. The applicant stated he was unable to complete the online subjects, and undertook an alternative short aged care course and placement in 2020. The Tribunal is satisfied that in 2021 the applicant enrolled in an engineering technology electrical course at RMIT which he completed over two years in 2022 and 2023. At the completion of his studies in November 2023 the applicant obtained full-time work as an electrical appliance technician.
The applicant provided documents confirming his studies, and the completion of his studies. The Tribunal accepts the applicant had a break min his study of the full time course leading to the award of a professional, trade or vocational qualification due to the pandemic. The Tribunal is satisfied that this is a reasonable and unavoidable explanation for the break in study. The Tribunal is satisfied the applicant transferred into full time employment at the completion of his full time course of study . The applicant provided a testimonial from his employer. The Tribunal is satisfied that the applicant is not undertaking a full-time course of study at the time of this decision.
Accordingly the Tribunal is not satisfied, that the applicant continues to meet the requirements of cl.802.214 (1)(b) or (c) at the time decision. The applicant therefore does not meet the requirements of cl.802.221(2)(b).
Relevant comments
It is important to note that the Department decision record was made on 7 October 2020, and the applicant lodged the application for review on 20 October 2020. The application for review was constituted to a member on 28 August 2024, over three years and 10 months after the application for review was lodged. Whilst the Tribunal is aware that the global pandemic had an impact on the process of review matters, it is both unfortunate and unfair that a review in relation to a matter where timeframes apply and an applicant is required to continue to meet specific requirements is not constituted for a period of nearly 4 years. In the case of this review, it is clear that the delay in this matter being constituted to a member has significantly disadvantaged the applicant, and has impacted the applicant’s ability to meet the time of decision requirements.
It is relevant that the applicant completed two certificates and a diploma in the study field of his choice, and obtained full-time work in that career. It is relevant that the applicant worked part-time and was financially supported during his periods of full-time study by his father. It is relevant that the applicant provided a reference from his employer which describes the applicant as an invaluable employee who is very reliable, courteous, hardworking, dedicated and a great member of the team.
At the time of decision, the applicant does not continue to meet the requirements of either cl.802.212 or cl.802.214, and therefore the requirements of cl.802.221(2) are not met.
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.
Ministerial Intervention
The Tribunal considers this is an appropriate matter to draw to the attention of the Minister, for the potential exercise of discretion under s.351 of the Act. The Tribunal considers that it is unfair and unreasonable that the applicant does not meet the criteria for the visa because of the lapse of four years since the application for review was made. The applicant was a genuine student, dependent on his father, an Australian citizen since 23 August 2023, and completed his full time course of study that led to a career qualification. Due the passage of time before the review was conducted, the applicant obtained his course of study qualification, and obtained full time employment in field of his study. The applicant is recognised as a quality employee by his employer. Therefore the legislation appears to be structured for dependent children and persons over 18 years of age in the applicant’s position applying for the visa.
Margie Bourke
Senior 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.
…