Sao (Migration)

[2022] AATA 2788

Sao (Migration) [2022] AATA 2788 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Alice Sao

CASE NUMBER:  2104213

HOME AFFAIRS REFERENCE(S):          BCC2020/2609007

MEMBER:Stephen Conwell

DATE:30 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 30 June 2022 at 3:03pm

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 – At the time of visa application the applicant was not engaged in a course of full-time study –  cl.802.214 does not continue to be met at the time of decision – evidence of her 19 month study gap – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, cls 802.214, 802.221

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 Home Affairs on 1 April 2021 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 applied for the visa on 6 November 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 (Cth) (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, which require the applicant to satisfy certain criteria related to work and study, as well as not be in certain categories of relationship.

4. The delegate refused to grant the visa on the basis that cl.802.214(1)(c) was not met because the delegate found that the applicant had not been a full-time, continuous student since she turned 18 years of age.

5. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections as to conducting the hearing in this manner.

7. The applicant  and her parents, Mr Sapati Sao and Mrs Faaleo Sao participated in the hearing by video on 30 June 2022 to give evidence and present arguments. The Tribunal received oral evidence from each of the parties.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant satisfies certain criteria under cl.802.214(1)(c) applicable to applicants aged 18 years or over, relating to post-secondary studies.

   Criteria for applicants over 18

10. 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).

11. The applicant arrived in Australia on 18 January 2006 as the holder of a subclass 444 visa.  She lodged this application on 6 November 2020. Since she was born on 4 September 1997 she was 23 years of age when this application was lodged.

    Relationship status

12. 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).

13. The applicant told the Tribunal that she had never been engaged, or been the spouse or a de facto partner in a relationship.  Based on the written and oral evidence, the Tribunal is satisfied that at the time of the application, the applicant was not engaged to be married, did not have a spouse or de facto partner, and had never had a spouse or de facto partner. Accordingly, the applicant met the requirements of cl.802.214(1)(a) at the time of application. The Tribunal is satisfied that the applicant continues to meet this requirement at the time of decision.

    Not engaged in full-time work

14. 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).

15. The applicant told the Tribunal that she had never been engaged in full time work and has been supported by her parents. However the applicant told the Tribunal that for several months in 2021 she was working approximately 40 hours a week in her casual job and this was the main reason she changed her enrolment from full-time to part-time study.  The Tribunal considers this period of employment to be approaching full-time work, nevertheless, the Tribunal is prepared to accept that the applicant has never been engaged in full-time work and has been financially reliant on her parents, since her arrival in Australia in January 2006.  Accordingly, the Tribunal is satisfied that the applicant meets this requirement.

    Full-time study (or incapacitated for work)

16. 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).

17. 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).

18. 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 applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

19. As noted in the delegate’s decision and confirmed by the applicant at the hearing:

    ·the applicant turned 18 years of age on 4 September 2015. At that time she was enrolled in her secondary studies at Wyndham Central College, Werribee which she completed in October 2015;

    ·she then commenced full-time tertiary study at Deakin University in  March 2016. However she interrupted her studies to undertake missionary work in the Philippines from March 2017 to October 2018. Her enrolment record  at Deakin University confirms that she was not enrolled in a full-time course of study during this period;

    ·upon her return from the Philippines the applicant resumed her studies at Deakin University. The applicant told the Tribunal that initially she resumed her studies as a full-time student, however, sometime during 2020, she decided to change her enrolment to part-time as she was being offered more hours of work at her casual job, to the point where she was working close to 40 hours a week.

    ·Consequently, and as  previously noted, at the time of her visa application (6 November 2020) the applicant was enrolled as a part-time student at Deakin University.

20. At the hearing the applicant agreed that at the time the application was lodged (6 November 2020) she was over 18 years of age and not enrolled, and participating, in full-time education. Her enrolment as a part-time student at the time of her visa application does not satisfy sub-clause 802.214(1)(c).

21. Furthermore, it is not in dispute that the applicant had a study gap since completing her secondary studies, whereby she interrupted her tertiary studies to undertake Christian missionary work in the Philippines from March 2017 to October 2018.  The delegate incorrectly notes this to be an 8 month study gap, when in fact it is a study gap of 19 months. The period is correctly recorded in the Certificate of Good Moral Character, an undated letter of reference issued by the Mission President for the applicant, which appears on the Department file. The applicant also confirmed that her time in the Philippines was for a period of some 19 months.

22. Whilst the reason for the applicant’s study break might be said to be commendable, the study gap cannot be said to have come about through factors outside of her control, nor is the reason similar to any of the Department’s policy examples of study breaks of more than 6 months such as giving birth, illness, dire financial necessity or moving between courses.[1]

    [1] Policy – Migration Regulations Schedules – Sch 2 Visa 802-Child Student Status (if not studying at 18)

23. The Tribunal has considered the matter of ‘a reasonable time’ in the context of the applicant and her 19 month gap in studies.  The Tribunal notes that the ‘reasonable time’ alternative is only applicable to the period following completion of Year 12 in the Australian education system (or its overseas equivalent).  That is, the provision does not require consideration of a ‘reasonable time since turning 18’.  In this case the applicant’s study gap arose after commencement of her university studies and therefore cannot be considered to be ‘reasonable’. 

24. The Tribunal has considered the submissions put forward about the applicant’s dependency on the sponsor and the reasons for the Tribunal to waive the time-of-application criteria. The applicant is required to meet the relevant time-of-application criteria for applicants over the age of 18. The applicant has not provided any evidence that she meets cl.802.214(2) within the meaning of subparagraph (b)(ii) of Schedule 2 to the Regulations; in fact the applicant and her parents confirmed in their testimony that the applicant was not mentally or physically incapacitated for work.

25. On the evidence before it, the Tribunal finds that at the time of visa application, the applicant was not enrolled, and actively participating, in a full-time course of study’.  She was enrolled in parti-time study. The Tribunal finds therefore that the applicant did not meet the study requirement at the time of visa application. Furthermore, the Tribunal does not, on the evidence of her 19 month study gap, consider that the applicant meets cl.802.214(1)(c) on the basis that since turning 18, or ‘a reasonable time’ after completing the equivalent of year 12 in the Australian school system, she has been undertaking a full-time course of study at an educational institution leading to the aware of a professional, trade or vocational qualification.

26. The applicant told the Tribunal that she competed her Bachelor of Commerce degree with distinction at the end of 2021.  A copy of her degree, issued in February 2022, is included in the evidence.  She confirmed at hearing that she is not currently enrolled in study and she is seeking employment.  It follows that the applicant is not enrolled in full-time study at the time of this decision.

27. The Tribunal found the applicant and her parents to be honest and credible witnesses. It is also apparent that despite the break in her studies and the fact that she completed her studies part-time, the applicant excelled in her studies and was awarded her degree with distinction.

28. The applicant told the Tribunal that neither she nor her parents considered the possible implications for her visa status of her taking a study break. Neither did they seek migration advice nor did they contact the Department before the applicant decided to take a break from her studies to travel to the Philippines for missionary work.  It is unfortunate that the applicant did not seek out migration advice before embarking on this course of action.

29. The Tribunal explained to the applicant that, while the reason for her study break was laudable in terms of her family’s religious beliefs, the Tribunal only had the power to consider the legal criteria for this visa.

30. The evidence indicates that the applicant was not a full-time student for the purposes of cl.802.214(1)(c) at the time of visa application. Neither is she a full-time student at the time of this decision.  Accordingly, cl.802.221(2)(b) is not met.

31. For the reasons above the criteria for the grant of a Subclass 802 visa are not met.

32. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

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

    Stephen Conwell
    Member