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

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).
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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Saputra (Migration) [2021] AATA 4615
Case: [2021] AATA 4615
Decision Date: 25 October 2021

CaseChat Overview and Summary

This matter concerned an application for a Child (Residence) (Class BT) visa, Subclass 802, made by the applicant, who had turned 18. The central dispute revolved around whether the applicant had undertaken continuous full-time study since turning 18, or within a reasonable period thereafter, as required by the visa criteria. The Administrative Appeals Tribunal (the Tribunal) considered the applicant's educational history, including completing junior high school in their home country before arriving in Australia on a visitor visa, undertaking English classes due to ineligibility for TAFE, and subsequently enrolling in secondary education.

The legal issues before the Tribunal were whether the applicant met the criteria for being a "dependent child" and whether they had undertaken continuous full-time study since turning 18. Specifically, the Tribunal had to determine if the applicant was reliant on their mother for financial and emotional support, and if there had been a break in their secondary studies that would disqualify them from meeting the continuous study requirement. The Tribunal also had to consider the statutory construction of the relevant clauses concerning the timing of the study requirement, particularly whether a break occurred between secondary and post-secondary studies.

The Tribunal reasoned that the applicant was a dependent child, finding as a fact that the applicant relied on their mother for both financial and emotional support, with the mother providing for accommodation, food, schooling, and clothing expenses. The Tribunal also concluded that the applicant's educational pathway, which involved a break during secondary studies but not between secondary and post-secondary education, did not disqualify them from meeting the continuous study requirement as interpreted by the Tribunal. Consequently, the Tribunal remitted the matter for reconsideration by the Minister, directing that the applicant met specific criteria related to the visa subclass.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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 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 on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [39], [44]. 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. 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.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.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.John LongoMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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. …

Ratio Decidendi

Legal Principle Established

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