Rushidovska (Migration)

[2021] AATA 4576

Rushidovska (Migration) [2021] AATA 4576 (17 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Firdes Rushidovska

CASE NUMBER:  2008806

HOME AFFAIRS REFERENCE(S):          CLF2019/26301

MEMBER:John Longo

DATE:17 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl 802.214 of Schedule 2 to the Regulations; and

·cl 802.221(2) of Schedule 2 to the Regulations.

Statement made on 17 November 2021 at 10:37am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – dependent child – full-time studies – reliant on the sponsor for financial support – not engaged in full-time work – family illness – impact of the COVID-19 pandemic – valid reasons delaying the completion of studies – reasonable time – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221; rr 1.03, 1.05

CASES

Berenguel v MIAC [2010] HCA 8
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
Wake v MIAC [2010] FMCA 272

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 8 May 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Miss Firdes Rushidovska, applied for the visa on 6 June 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).

3. 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, cl 802.226A), the criteria to be met in this case include cl 802.214(1)(c), which requires the visa applicant, since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, to undertake continuous full-time study at an educational institution leading to the award of a professional, trade or vocational qualification.

4. The delegate refused to grant the visa on the basis that cl 802.214(1)(c) was not met because the delegate was not satisfied that the applicant had been continuously studying since the age of 18.

5. The applicant appeared before the Tribunal on 28 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Brian Mujedinovski, the applicant’s uncle, and Ms Louise Kamberi, the applicant’s stepmother. Ms Deborah Trott also provided submissions in support. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.

6. The applicant’s registered migration agent did not attend the hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether, since turning 18, or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, the applicant has undertaken continuous full-time study.

   Dependent child criteria

9. 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

10. 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.

11. 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 on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

12. Miss Rushidovska confirmed that she turned 18 years of age on 14 September 2016. Miss Rushidovska confirmed at hearing that she was residing with her maternal grandmother in Macedonia prior to coming to Australia in February 2016. Since arriving in Australia, Miss Rushidovska stated that she has lived with her father, stepmother, and other siblings. The written submissions provided to the Department also indicate that they have continued to provide financial support to Miss Rushidovska since coming to Australia. Mr Rushidovski also provided a statutory declaration to the Tribunal stating that he has provided financial support to Miss Rushidovska since arriving in Australia in February 2016 and that he will continue to do so.

13. The Tribunal finds that Miss Rushidovska is reliant on her father and stepmother for support, and to meet her basic needs. The Tribunal finds the applicant is over 18 years of age, and she is a dependent child of an eligible person at the time of application and decision (see reg 1.03(b)(i)).

14. Accordingly, cl 802.212(1)(a) is met at the time of application and continues to be met at the time of decision. For the reasons above, the criteria in cl 802.212 are met.

    Criteria for applicants over 18

15. If, at the time of application, the visa 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 101.221(2)(b).

16. The applicant was born on 14 September 1998. At the time of application, 6 June 2019, she was 20 years of age but had not turned 25 years of age.

    Relationship status and history

17. At the time of application, the visa 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).

18. The application form provided to the Department states that Miss Rushidovska was never married or engaged, nor had she been in a de facto relationship. The Tribunal is satisfied that Miss Rushidovska has never been engaged to be married or married or been in a de facto relationship. Accordingly, cl 802.214(1)(a) is met. The Tribunal is satisfied that it continues to be met at the time of decision.

    Not engaged in full-time work

19. At the time of application, the visa 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).

20. Miss Rushidovska indicated in the application to the Department that she was not working full-time at the time the application was made. Miss Rushidovska indicated to the Tribunal that she had not worked full-time since the application was made. The oral and documentary evidence provided to the Tribunal indicates that Miss Rushidovska was not engaged in full-time work at the time of application to the Department. 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)

21. At the time of application, the visa 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).

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-Ware v MIBP (2015) 297 FLR 416.

24. On a narrow reading of these provisions, applicants who have turned 18 when they make their visa application, must be undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification (emphasis added). This must have been undertaken since turning 18, or within a certain time of completing the equivalent of Year 12. This interpretation would appear to exclude circumstances in which an applicant, as at the time they made the application for the visa, had turned 18 and was still in the process of completing their secondary school studies. This interpretation would have the effect of omitting applicants who are otherwise dependent on their parent from satisfying the criteria for the grant of the visa. 

25. The Tribunal accepts the oral and written submissions and statements made by Miss Rushidovska in this application.  She stated that on 14 September 2016, she turned 18 while on holiday in Bali.  Prior to coming to Australia in February 2016, she had commenced Year 11 in Macedonia at Zemsodelsko Secondary in Bitola, Macedonia but did not resume her studies in Australia.

26. Miss Rushidovska stated that she did not commence her studies in Australia because shortly after arriving here, her stepmother became ill with breast cancer. She stated that she was then required to help her stepmother, including with housework and with her stepmother’s personal care. She was also helping her younger brother, who was at school at the time but was having some difficulties. Miss Rushidovska’s stepmother, Ms Kamberi, confirmed that she was diagnosed with breast cancer in February 2017 and commenced her treatment with chemotherapy and then radiotherapy. She stated that she then underwent a double mastectomy in August 2019. She stated that she required further surgery on another 2 occasions in 2019 and then again in 2020.

27. Ms Kamberi stated that due to the chemotherapy and radiotherapy treatment she felt nauseous and was unable to complete her normal household tasks, and also required help with her activities of daily living such as showering, washing, and brushing her hair and sometimes with dressing. When she had surgery in 2019, she needed assistance to get in and out of bed as well as showering and other personal tasks. She was in hospital 3 times in 2019 for a week at a time and was then recovering at home during this period. She was also hospitalised for surgery in August 2020 for another week. She stated that due to her breast cancer diagnosis, she was suffering from depression and post-traumatic stress disorder but was only formally diagnosed and treated for this condition in 2021. Ms Kamberi stated that throughout this time, Miss Rushidovska was also shopping, cooking, and cleaning for the entire family, including helping Ms Kamberi.

28. The Tribunal notes Miss Rushidovska’s statements that she intended to study here in Australia and intended to commence these studies in 2020, but due to the COVID-19 pandemic was unable to attend in person classes and she did not have the requisite technology available to undertake studies online. She stated that she was also required to complete English classes before enrolling in her course of choice. She stated that she has subsequently completed her English classes and is now enrolled in a Certificate III in Beauty Services on a full-time basis.

29. In Berenguel v MIAC [2010] HCA 8, it was held that even where a provision was located under the heading ‘Criteria to be satisfied at time of application’, in having regard to the construction of the individual provision and its object, it could still be assessed at the time of decision. The Court held that the heading ‘Criteria to be satisfied at time of application’ may inform the construction of the criteria thereunder, but those criteria do not speak exclusively to satisfaction at the time of application. As was the case in Berenguel,the Tribunal notes that cl 802.214(1)(c) also does not itself refer to it needing to be satisfied at the time of application but that it only falls under the heading.

30. The Tribunal is satisfied that the principle from Berenguel applies to the provision in this matter, as a more beneficial reading is preferable and would be in line with the objective of the visa to benefit those individuals who are legitimately dependent. In Berenguel, the High Court reasoned that the evident purpose of the clause was to ensure that when the visa application is decided, the applicant will have demonstrated recent competency in the English language, and not reading it as a strict time of application requirement did not compromise such purpose, but that the Minister’s construction of requiring it to be satisfied at time of application led to such plain unfairness and absurdity that it was not to be preferred. The Tribunal has determined that the same principle should apply to an interpretation of these provisions for the Subclass 802 (Child) visa under consideration in this application.

31. Such a construction is also consistent with the approach taken in Wake v MIAC [2010] FMCA 272 where the Court held that ‘since’ in the context as used in cl 802.214(1)(c) was used in the sense of ‘continuously from’ the event of turning 18.

32. The Tribunal finds that Miss Rushidovska had valid reasons which caused the delay in the completion of studies, including the ongoing medical issues related to her stepmother, Ms Kamberi, which required her to provide daily care during this period and also assume responsibilities towards the other family members that Ms Kamberi was unable to undertake due to her medical conditions and the effect of her treatment. These circumstances led to Miss Rushidovska being unable to continue her studies, which was further delayed due to the onset of the COVID-19 pandemic in 2020.

33. The Tribunal has determined, based on the principles in Berenguel, that it would be unfair to disqualify Miss Rushidovska from being eligible for the visa due to having turned 18 but not having completed her secondary studies, and any other studies, where the delay in completing these studies was due to circumstances outside of her control. In this case, although the delegate took the view that Miss Rushidovska was not currently nor had she undertaken any studies since the completion of the equivalent of Year 12 in the Australian school system, that conclusion would not appear to be an appropriate reflection of Miss Rushidovska’s circumstances, nor is it in keeping with the language of the provision, which specifies: ‘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’ (emphasis added).   

34. When viewed in totality, the Tribunal assesses that Miss Rushidovska was undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification within a reasonable time after completing the equivalent of Year 12 in the Australian school system. That the completion of her equivalent of Year 12 did not occur, due to her stepmother’s medical issues and the assistance she was required to provide, does not, in the Tribunal’s view, lead it to conclude that Miss Rushidovska has not continuously, 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. Miss Rushidovska has continued with her studies when able to and when her stepmother’s condition allowed and is now undertaking a Certificate III in Beauty Services on a full-time basis at Chisholm Institute with the intention of qualifying as a hairdresser.

35. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

36. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl 802.214 of Schedule 2 to the Regulations; and

    ·cl 802.221(2) of Schedule 2 to the Regulations.

    John Longo
    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.

    …