Saputra (Migration)

[2021] AATA 4615

Saputra (Migration) [2021] AATA 4615 (25 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I Gede Pratama Saputra

CASE NUMBER:  1935058

HOME AFFAIRS REFERENCE(S):          CLF2018/364993

MEMBER:John Longo

DATE:25 October 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 25 October 2021 at 9:00am      

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – full-time study since turning 18 – valid reasons for delay – completed junior high school in home country then came to Australia on visitor visa – not eligible for TAFE so undertook English classes – now enrolled in secondary education – statutory construction – break during secondary studies, not between secondary and post-secondary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 802.214(1)(c), 802.221(2)(b)

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 3 December 2019 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, Mr I Gede Pratama Saputra, applied for the visa on 7 December 2018. 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 (cls 802.216, 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 15 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Stephen Pickering and Ms I Mede Seri Astuti. 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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

9. 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.

10. 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].

11. The applicant confirmed at hearing that he was residing with his maternal grandparents in Bali. Ms Astuti, the applicant’s mother, stated in her oral evidence to the Tribunal that she has been providing financial support since she came to Australia. Ms Astuti stated that she would travel to Bali annually, with her husband, and would give money for her son’s expenses. If they required further funds, she would ask friends to take them money when they travelled to Bali or she would sometimes send funds through Western Union. She stated that she has provided financial support to the applicant continuously since coming to Australia and this has continued since the applicant has been in Australia.

12. Ms Astuti also provided a written statement to the Department which stated that she provided financial, physical, social and emotional support to the applicant if he is granted a child visa. She stated that she separated from the applicant’s father and he did not provide any support. She stated that that when she moved to Australia, she gave money to her parents (the applicant’s grandparents) to pay for his expenses. Ms Astuti and Mr Pickering gave evidence to the Tribunal that they provide financial and emotional support to the applicant, paying for all his accommodation, food, schooling and clothing expenses here in Australia. The Tribunal finds, as a matter of fact, that the applicant is relying on his mother for support, both financial and emotional.

13. The Tribunal finds the applicant is over 18 years of age, and he 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 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

16. 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).

17. The applicant stated at the hearing that he is not engaged to married and has never had a spouse or de facto partner. The application form lodged with the Department also states that the applicant has never married or been in a de facto relationship. Accordingly, cl 802.214(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

18. 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).

19. The applicant stated at the hearing that he has not engaged in full-time work. The application form lodged with the Department also confirms that he has not engaged in any full‑time work. Accordingly, cl 802.214(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

20. 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).

21. 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).

22. 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.

23. 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.

24. The applicant told the Tribunal that he turned 18 on 24 May 2018 in Bali. At the time, he was studying at high school. The Tribunal notes that a translated certificate of completion from Ngurah Rai Percatu Junior High School for the applicant was provided to the Tribunal which shows that he completed Junior High School in May 2018. The applicant stated that he had 2 more years of high school to finish his secondary schooling but did not continue because he knew he was coming to Australia. The applicant stated that he arrived in Australia on 26 September 2018 on a visitor visa. The application for the current visa was not made until 7 December 2018.

25. The applicant stated that he was not ready to start schooling, due to his poor English language skills, so he was not enrolled in schooling. Mr Pickering told the Tribunal that they tried to enrol him into a course at TAFE but they were told he was not eligible to enrol. Mr Pickering stated that the applicant is very shy and they thought it would be too difficult for him at school without some preparation. Mr Pickering stated that he was undergoing day courses at the local church in English between November 2018 and December 2019 to improve his English language skills. They were also teaching him some reading and writing while at home. The Tribunal notes that a letter from Reverend AR Grant, Senior Minister at St Michael’s Anglican Cathedral in Wollongong, was provided to the Tribunal on 23 December 2020, which confirms that the applicant was participating in English classes at St Michael’s Anglican Cathedral.

26. Ms Astuti submitted in her written submissions to the Tribunal that they were unaware of the request for information about the applicant’s study by the Department. Ms Astuti also stated that the applicant was scared to start school with no English language skills. The Tribunal notes that the applicant has been enrolled in secondary school since 2020. A letter from Five Islands Secondary College confirms that the applicant is enrolled on a full-time basis in 2020.

27. 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.

28. 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 101 (Child) visa under consideration in this application.

29. 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 101.213(1)(c) was used in the sense of ‘continuously from’ the event of turning 18.

30. The Tribunal accepts that the applicant had valid reasons which caused the delay in the continuation of his secondary studies, including his recent arrival to Australia, initially on a visitor visa, his inability to enrol in courses at TAFE at the time of arrival and a need to develop his proficiency in the English language to enable him to start secondary studies, in particular the final two years of these studies. These circumstances led to the applicant delaying his commencement of studies until the start of the academic year of 2020.

31. The Tribunal has determined, based on the principles in Berenguel, that it would be unfair to disqualify the applicant from being eligible for the visa due to having turned 18 but not having completed his secondary studies, where the delay in completing these studies were due to circumstances outside of his control. The Tribunal took the view that the applicant’s break in his studies between May 2018 and December 2019, this break being during secondary studies, rather than between secondary studies and post-secondary studies, was a reasonable period and appropriate in the applicant’s circumstances.

32. When viewed in totality and in the context of the applicant having studied in Bali, Indonesia, until May 2018 and then coming to Australia with limited English language skills, the Tribunal assesses that the applicant was (and still is) 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 his equivalent of Year 12 in the Australian school system has not occurred due to the above accepted reasons, and is still ongoing, does not, in the Tribunal’s view, lead it to conclude that the applicant 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. The applicant has continued with his secondary school studies, which he is due to complete in 2021, and has also indicated that he intends to undertake further studies on completion.

33. Accordingly, cl 802.214(1)(c) is met. It continues to be met at the time of decision. For the reasons above, cl 802.214 is met at the time of application. At the time of decision, cl 802.214 continues to be met. Accordingly, cl 802.221(2)(b) is met.

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

    DECISION

35. 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.

    …