Tantowidjojo (Migration)
[2025] ARTA 663
•8 April 2025
TANTOWIDJOJO (MIGRATION) [2025] ARTA 663 (8 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Nurmawati Dorkas Tantowidjojo
Visa Applicant: Mr Daniel Kristanto
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2105358
Tribunal Member: Senior Member M Sripathy
Place:Sydney
Date: 8 April 2025
Decision:The Tribunal sets aside the decision under review and remits the application for a Child (Migrant) (Class AH) visa for reconsideration, in accordance with the order that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.213 of Schedule 2 to the Regulations; and
·cl 101.221(2)(b) of Schedule 2 to the Regulations.
Statement made on 08 April 2025 at 3:58pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – temporary pauses to study due to financial hardship – reasonable time – essentially intermittent nature of study – English courses – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221CASES
Alam v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 630
Hussain v MIBP [2017] FCCA 3247
MIAC v Henschel [2013] FCCA 584Nur Alam v Minister for Immigration [2001] FCA 789
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Valu v MIMA (No.2) [2025]FedCFamC2G 95
Wake v MIAC [2010] FMCA 272STATEMENT OF 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 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 5 November 2018. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.213.
The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met at time of application because the delegate was not satisfied the visa applicant was enrolled and actively participating in a course of full time study for a cumulative period of 27 months after the commencement of his post-secondary studies.
The review applicant (sponsor) applied for review to the Administration Appeals Tribunal on 26 April 2021.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The review applicant appeared before the Tribunal by video hearing on 13 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The review applicant was represented in relation to the review.
The issue in this case is whether the visa 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: cl. 103.213(1)(c). The visa applicant must continue to meet this requirement at time of decision: clause 101.221(2)(b).
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicant, an Indonesian national, born in December 1993, was 24 years old at the time of application. He is now 31 years old. He indicated that he was never married or in a de facto relationship. His mother and sister reside in Australia and his father is deceased. At the time of application, 5 November 2018, he indicated he was undertaking a Bachelor of Theology, commenced in September 2018 and estimated to be completed in September 2022. He stated he was financially supported by his mother in Australia for food and other needs. The application was sponsored by the applicant’s mother, the review applicant, who is an Australian permanent resident and submitted a sponsorship Form 40SP.
Documents provided in support of the application included the visa applicant’s passport and birth certificate; a Diploma certificate in hair dressing issued on 3 June 2016, student card in the applicants name, issued by Universitas Kristen Petra, valid until 2017, and a student reference letter acknowledging the applicant is a student at Sekolah Tinggi Teologi Yestoya since 26 September 2018.
The delegate’s decision statement refers to a request sent on 16 November 2018 for evidence of the applicant’s study between June 2016 and September 2018 and evidence of past and current employment if any[1] and the following documents provided by the applicant:
·A statement from the applicant’s sister Dina Ekastevia dated 16 October 2018 confirming the applicant completed a hairdressing course on 3 June 2016, and then has stop his study and decided to stay home because he was not sure what other type of course that he wanted to do in that time.
·Academic transcript for the study year 2018/2019 from Sekolah Tinggi Teologi Yestoya.
·Letter from applicant stating he stopped his study activity between June 2016 and September 2018 because his mother did not have the financial capacity to support his education, and describing his activities in this period.
·A letter from the applicant’s mother Nurmawati Dorkas Tantowidjojo confirming the applicant did not study from June 2016 through to September 2018 due to her financial incapacity to support his study.
[1] The Tribunal notes, as indicated also in the representative’s submission to the Tribunal of 14 January 2025, that a copy of this request is not included in the Department file documents provided to the Tribunal, although it is referred to as an attachment in an email sent. The nature of the response documents appear to suggest that the request for information was sent.
The delegate considered the evidence provided and the criteria in cl.101.213(1)(c). The delegate accepted the applicant was enrolled and actively participating in a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification from 5 July 2012 to 3 June 2016, but found that he did not resume full time study at Sekolah Tinggi Teologi Yestoya, until 26 September 2018 and therefore there was a 27-month gap in study. Having considered policy on acceptable breaks in study the delegate concluded he did not meet the requirements of paragraph 101.213(1)(c) at the time of lodgement.
Evidence before the Tribunal
On 3 December 2024, following allocation of the matter to the presiding Tribunal, the applicant was invited to provide submissions and supporting evidence addressing the criteria at issue, specifically cl.101.213(1)(c) at time of application and also, given the passage of time since the review was lodged, the requirement to continue to meet this criterion at time of decision: cl. 101.221.
On 15 January 2025 the Tribunal received in response a submission from the applicant’s legal representative and supporting documentation, including:
·Statement by the visa applicant dated 13 December 2024.
·Statement by the review applicant (sponsor) dated 13 December 2024.
·Copies of documents provided to the Department previously including statements of the applicant, applicant’s mother (review applicant) and applicant’s sister dated 2018, academic transcript, evidence of English studies 2016-2018
·Letter dated October 2018 from Pastor of Gereja Bethel Indonesia confirming applicant’s volunteer activities between July 2016 – September 2018
·STT Yestoya Bachelor of Theology Graduation Certificate – completed 2022 and Transcript for this course
·3 X Receipts for payment of English language course
·Transcript for current English course at Universitas Merdeka Malangm December 2024
·Letter dated 13 December 2024 confirming applicant is a student at Diploma 3 English Program at Universitas Merdeka Malang Indonesia and currently in the 5th semester and evidence of fees paid for the program
·Evidence of ongoing financial support - bank statements of review applicant January -December 2024
The submissions address the evidence and relevant caselaw relevant to the construction of the criteria in question, cl.101.213(1)(c). Specifically, the submissions cite the decision of Hussain v Minister for Immigration & Anor [2017] FCCA 3247 as authority for the position that the clause does not necessitate a requirement of continuity in study, and that this word is specifically not included in the provision. It submits the decision in Hussain guides that consideration must also be given to the time period from when the visa applicant commenced study and up to the time of the decision “… and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period.” Therefore, the submission argues, the Tribunal must take into consideration the statement of the visa applicant that he was not working, was undertaking English language classes and financially supported by his family in this period. It is submitted that the visa applicant is currently undertaking an English language course and has provided evidence of ongoing financial support from the review applicant.
On 11 February 2025 the Tribunal received witness statements from Dina Ekastevia, the review applicant’s daughter and sister of the visa applicant, and Peter Wongso, pastor of visa applicant’s church in Indonesia, setting out the evidence that they would like to give in support of the application. Ms Ekastevia confirms her relationship to the visa applicant, being his biological sister and explaining the information she previously gave the Department about the applicant’s activities between June 2016 and September 2018. She states that he was not undertaking university education in that period due to financial constraints their mother was experiencing in this period, but was undertaking English studies through an online program. He was also travelling back and forth between Australia and Indonesia in this period. He was not, and continues to not be, engaged in any employment. Mr Wongso states that he has known the visa applicant sine he was 7 years of age and attended Sunday school. He also participated in youth and teen workshops. After graduating high school Mr Wongso did not meet the visa applicant regularly but he did continue to worship and serve the Lord. He states that he was not working and participated in Bible study activities and midweek services.
Tribunal hearing 13 February 2025
At hearing the review applicant provided the following relevant evidence. She lives with her daughter and her daughter’s family, comprising her husband and their four children. She works full time at her daughter’s hair salon business. The visa applicant is her only other child. Her parents are deceased and she has two siblings in Indonesia.
The visa applicant lives in Malang, East Java. He stays in a house that belonged to her daughter’s in laws. Her daughter’s father-in-law passed away and the house was sold but the new owner allows the visa applicant to stay without any payment.
The review applicant confirmed her migration history. She has been here since 2014 and was granted a permanent parent visa in 2018. She travelled in and out of Australia regularly and confirmed that during 2014 she travelled with the visa applicant and she and he both spent over 8 months of that year here.
The Tribunal asked the review applicant about the visa applicant’s study history. She said he completed high school in 2012. After that she did not have sufficient money to pay for university and he enrolled in various courses but she was not sure of the details. He was also looking after her late father. Earlier in the hearing she referred to her father passing away in 2001.
The Tribunal asked the review applicant when he commenced the hairdresser course he completed in June 2016. She said she was not certain but it may have been 2015. After that he returned to Bangkalang and did English courses. He studied English classes after he completed the Hairdresser course. The Tribunal noted the evidence that he travelled to Australia twice in this period also.
After his Theology course he wanted to advance his English language skills and he enrolled in a university course in English in Malang and he is still doing that course. She was not sure when the course ends and what qualification he will get.
The review applicant stated that she and her daughter provide financial support to him for his studies and living expenses. He does not have to pay rent at present but pays for the electricity and water. He is not working because he is continuing to advance his studies. He is single.
Evidence from visa applicant
The visa applicant lives at the home of his brother in law’s parents since 2018. After his brother in law’s father died in February 2019, he has continued to stay there in a room, but he is not required to pay rent. The visa applicant stated that he does not work because he has been studying since finishing school until now.
The Tribunal asked him about his study history. He finished high school in July 2012. After that he enrolled in Petra Christian University in a Business Information course, but he did not complete it. He said he did one year and three terms of the second year.
The Tribunal asked him when the hairdressing course started, noting he finished it in 2016. He said he stared it in 2014. Then he said he enrolled in the hairdressing course after he stopped the university course. The Tribunal put to him that records before it indicate he spent more than 8 months of 2014 in Australia and this is not consistent with him studying in this period as claimed. The visa applicant did not make any further comment. The Tribunal said it will need evidence of the duration of the hairdresser course and evidence of his activities prior to that.
The Tribunal asked about his study since the Theology course was completed in 2022. He said he is undertaking study at Merdeka University in an English language course. When asked what the duration is of this course he said it is three and a half years. The Tribunal asked what qualification he will get at the end. He said he is not sure what level but it is less that bachelor level. The Tribunal noted there is no evidence of this and the Tribunal may not be satisfied constitutes study of the relevant kind.
The Tribunal explained the issues arising, relating to the period between finishing secondary study and undertaking a full-time course of study leading to a qualification. The Tribunal must be satisfied that he was engaged in continuous study or the study was undertaken within 6 months or a reasonable period since completing high school. The Tribunal also must be satisfied that he is undertaking relevant study at time of decision.
Post hearing invitation and submissions
Following the hearing the Tribunal wrote to the applicant to invite his comment on the movement records information before the Tribunal regarding the period 2014 -2015 and his evidence at hearing. He was also invited to comment on the omission to explain his activities or gap in study in the period July 2012 to March 2014. He was invited to provide evidence to support relevant study undertaken since completing secondary school, evidence of when he commenced the hairdressing course and explanation for any gaps in study between completing secondary school and commencing full time study in the hairdressing course.
On 17 March 2025 the Tribunal received a submission and the following supporting documents:
·Statement of Applicant dated 14 March 2025
·Letter certifying the applicant was a student of Business Information System at Petra Christian University since August 2012 and resigned in 27 January 2015
·Student Card Petra University issued 1 July 2012, valid until 2017
·Translation of a 2012-2013 Petra Christian School Registration Form dated 24 March 2012
·Translation of 2012 Definitive proof of registration - Student University enrolment in Petra Christian University
·2012 Certificate of completion of Orientation program 10-17 July 2012
·Business Information Systems Program – Transcripts 2012 and 2013
·2013 Certificate of completion - Informatics Study Program Camp 14-16 July 2013
·Letter dated 4 March 2025 from Academic Advisor, Petra Christian University relating to visa applicant’s experience of financial hardship from 4th semester 2014.
·Financial Administration Petra 2012-2015
·2015 Rever Hair Design Centre & Academy official payment Receipt
·2016 Certificate of Competence - Indonesian Professional Certificate
·Letter from Head of Program Universitas Merdeka Malang regarding qualification applicant will receive at end of his program,
The representative’s submissions clarify the applicant’s study history by reference to the above further evidence. It is submitted that he completed secondary high school on 5 July 2012, and was enrolled in a Business Information Systems program at Petra Christian University from 1 August 2012 until it was paused in or around August 2014 due to financial hardship. It is submitted he remained formally enrolled in that course until January 2015. He commenced the Hairdressing course in March 2015 and completed it in June 2016, following which he was enrolled in English classes. He enrolled in a Bachelor of Theology program on 26 September 2018 which he completed and since 2022 has been enrolled and undertaking a Diploma 3 English program at Universitas Merdeka Malang which will lead to an Associate of Linguistics Diploma. It is submitted that the above should clarify the credibility of the applicant’s claimed study activities and demonstrate he has genuinely been participating in full-time study, with interruptions solely resulting from circumstances beyond his control, being significant financial hardship faced by his family. With regard to the Tribunal’s concerns about the inconsistency between the evidence of his travel to Australia in 2014-2015 and claimed study it is submitted that the applicant had ceased participation in the course at Petra University but was still enrolled in this period. There is no inconsistency between the Petra University course and his subsequent hairdressing course, as he had withdrawn from the university prior to commencing the hairdressing course.
The submission argues that the applicant has therefore established on the evidence that he commenced full time study within 6 months or a reasonable period after completing the equivalent of year 12 by enrolment in the Business Information course at Petra University and that subsequent interruptions to his study does not disqualify him from complying with cl.101.213(1)(c), referring to the decision in Nur Alam v Minister for Immigration [2001] FCA 789, which states that clause 101.213(1)(c) does not impose a requirement of uninterrupted continuity of study. It is submitted that the temporary pauses in his study were entirely due to financial hardship of his family and beyond his control and he resumed study as soon as possible when then financial barriers were overcome.
It is submitted that the visa applicant remained fully dependent on the review applicant at all relevant times in Indonesia and during his visits to Australia and she provides full financial support to meet all of his basic needs, including accommodation, food and educational expenses, and this dependency has been continuous and genuine as established by evidence previously provided to the Tribunal.
In considering the representative’s submissions, the Tribunal was unable to locate the authority cited by the representative in the submissions: Nur Alam v Minister for Immigration [2001] FCA 789.
On 1 April 2025, an officer of the Tribunal requested the representative to provide a copy of the decision cited in the submissions, and/or provide an explanation for how and why this authority was included in the submissions and the basis for reliance on it.
On 3 April 2025 the representative responded, apologising for the error in the citation, and referred to, and provided a link for, the decision in Alam v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 630. It was submitted
Based on our understanding of the matter - The Federal Court of Australia considered that students might experience gaps or interruptions in their studies without necessarily affecting their visa eligibility
The Tribunal has read the above judgement referred to by the representative, which relates to a Subclass 560 Student visa and an issue about a criteria that required the applicant to have complied substantially with the conditions to which the visa was subject. The judgement clearly does not address the issue under consideration in this matter, nor does the Federal Court make any finding, observation or dicta asserted by the representative. The Tribunal considers the representative’s decision to perpetuate the original error by referring the Tribunal to another authority that bore little relevance to the matter is unfortunate and unsatisfactory. At best it reflects poorly on their competence, and at worst, if seen as intending to mislead the Tribunal, has the potential to raise a concern about the representative’s compliance with professional standards.[2] It was also unnecessary given the reference in the prehearing submissions to the correct and more relevant authority (Hussain v Minister for Immigration & Anor) as will be discussed further below.
CONSIDERATION
[2] The Tribunal is mindful in this respect of the recent Federal Circuit Court decision in Valu v MIMA (No.2) [2025] FedCFamC2G 95.
Criteria for applicants over 18
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 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).
Relationship status and history
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 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b).
On the evidence provided in the application, to the Department and to the Tribunal at hearing the Tribunal is satisfied that applicant is currently and was at time of application, not married or engaged to be married and has never had a spouse or de facto partner.
Accordingly, cl 101.213(1)(a) is met and continues to be met at the time of decision.
Not engaged in full-time work
At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b).
On the evidence of the financial transfers provided to the Department and Tribunal and evidence to the Tribunal from the review and visa applicants at hearing confirming the visa applicant’s activities and circumstances and her ongoing financial support, the Tribunal is satisfied the visa applicant has not been engaged in full time work to date.
Accordingly, cl 101.213(1)(b) is met and continues to be met at the time of decision.
Full-time study (or incapacitated for work)
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 101.213(1)(c). 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 101.213(2).
Various cases have considered the proper construction of this provision, and the Tribunal is bound by these judicial authorities. Relevantly to the present matter, in MIAC v Henschel [2013] FCCA 584, the Court found that there was nothing ambiguous about the requirements of the legislation, considering that ‘…[e]ither the applicant [had], since turning 18, been undertaking a full-time course of study…or he [had], within six 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 [7]. This judgment makes clear that the provision first requires that the applicant be undertaking, at time of application, relevant full-time study, and then a subsidiary requirement is that the study be undertaken within the appropriate temporal limit: either since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system.[3]
[3] The Court found in that case the Tribunal had overlooked the requirements of cl 802.214 of whether the applicant was at the relevant time undertaking a fulltime course of study as described in the Regulations, at [10] and that the subsidiary enquiry was whether the study had been undertaken within the appropriate temporal limits at [11].
The judgement in Sok v MIMIA[4] held that in determining what is a ‘reasonable time’ for cl 101.213(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.
[4] [2005] FMCA 190 at [19]
The meaning of ‘since’ in the first of the two alternatives temporal limits (which would apply if the applicant has not completed the equivalent of Year 12) was considered in the judgement of Wake v MIAC[5]where the Court held that ‘since’ in this context was used in the sense of ‘continuously from’ the event of turning 18 and rejected the submission that it meant ‘at any time after’ turning 18.[6]
[5] Wake v MIAC [2010] FMCA 272.
[6] Wake v MIAC [2010] FMCA 272 at [25]–[26]. The Court held that this interpretation was from the ordinary meaning of the word having regard to the language and immediate legislative context.
In the Tribunal’s view, the judgement in Wake relates to the interpretation of ‘since’ only in the context of the first wing (where the applicant did not complete the equivalent of year 12) and does not apply to the second of the two temporal limits in cl. 101.213(1)(c): ‘within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system’. As discussed above, the representative’s post hearing submissions referred the Tribunal to authorities that were, either non-existent or not on point.
Current Department policy reflects that judicial authority relating to ‘reasonable time’ provision in the criteria is limited to the period between completing the equivalent of year 12 and commencing further studies and does not apply to subsequent gaps in study, stating at paragraph 3.9.3.7: The term 'reasonable time' is solely intended to cover the period between completing secondary school and commencing post-secondary studies. It is not intended that 'reasonable time' takes account of breaks once post-secondary studies have commenced or breaks between post-secondary studies and postgraduate studies. However, the policy goes on to suggest that, following commencement of full-time study, decision makers may take into account exceptional circumstances arising outside of the applicant’s control that may have led to a temporary gap in undertaking the full time course.[7] The Tribunal, respectfully, disagrees with this further statement in the policy, and is not bound by policy where it has no basis in law. The Tribunal does not accept that the criterion as drafted includes any such additional gloss.
[7] Procedures Advice Manual [Sch2Visa101] Sch2 Visa 101 - Child, available on legend.online.immi.gov.au
In Hussain v MIB P[2017] FCCA 3247, considering the time of decision requirement, the Court held that there was no requirement of “continuity” necessitated by a consideration of cl.101.213(1)(c), either in itself or as adopted by cl.101.221 and that [T]here is no textual reason to restrict “has … been undertaking” full-time study to continuous involvement, having regard to the nature of “study”. The words “continuous” or “continuously” do not appear in either clause. These criteria, in relation to a visa for an adult dependent child, are susceptible of a construction that allows for gaps or pauses in the “study” required by cl.101.213(1)(c).
The Court goes on to state It would have been simple to draft cl.101.213(1)(c) (and/or cl.101.221(2)(b)) in a manner that imported a “continuous” or “continuously” requirement if such an interpretation had been intended (see Shahi at [35]-[36]). The failure to take such an approach suggests that the requirements of “has … been undertaking” and “continues to satisfy” do not necessarily import a requirement of “continuous involvement” in study. Further, such an interpretation is capable of operating in a capricious and unjust way, as in the example suggested by the Applicant (and see Shahi at [38]) and fails to have regard to the essentially intermittent nature of study. [8]
[8] Hussain v MIBP [2017] FCCA 3247 at [100]- [101]
The Court in Hussain held that the phrase ‘has, since turning 18… been undertaking’ in cl 101.213(1)(c), both in itself and read with the requirement in cl 101.221(2)(b) that a visa applicant ‘continues to satisfy’, requires the decision-maker, when considering the criteria at the time of decision, to look at the time period from the visa applicant commencing study within cl 101.213(1)(c) until the time of the decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period.[9]
[9] Hussain v MIBP [2017] FCCA 3247 at [111].
In the present case, the Tribunal finds, as did the delegate, that the visa applicant turned 18 in December 2011 when he was still in secondary school. He completed the equivalent of year 12 in July 2012 and therefore the second of the two temporal limits in cl 101.213(1)(c) apply.
The evidence before the Department indicated he completed a hairdressing course in June 2016. Before the Tribunal, the applicant has provided further evidence that he enrolled in and started a course in Business Information Systems at Petra Christian University in August 2012. He claimed he undertook subjects in this course for 3 to 4 terms before ceasing due to his mother’s financial hardship and inability to pay course fees. In support of these claims he provided evidence of his enrolment, and a transcript of subjects completed in 2012-2013 in the Business Information System course at Universitas Kristen Petra. Movement records of the applicant indicate that between April 2014 and March 2015 he visited Australia on multiple occasions and spent substantial periods here. In his response to the invitation to comment letter the applicant confirmed his visits to Australia in these periods, and that his active study at Petra University was paused, although he remained officially enrolled until January 2015.
On the basis of this evidence, the Tribunal finds that the applicant enrolled in, and was undertaking relevant study at Petra Christian University from August 2012, and this is a period within 6 months of completing the equivalent of year 12. It finds that had a break in study from around April 2014 until March 2015, when he commenced the hairdressing course, which was completed in June 2016. It accepts that he undertook English classes in the period from August 2016 to June 2018, and commenced the Bachelor of Theology course at Sekolah Tinggi Teologi Yestoya from 26 September 2018. There is no evidence before the Tribunal to indicate the English classes undertaken in the period August 2016 to June 2018 was a course that led to the award of a professional, trade or vocational qualification, but this is of no significance given the Tribunal’s construction of the criteria, that there is no requirement for continuous relevant full time study in this period.
At time of application, 5 November 2018, the Tribunal finds he was enrolled in and undertaking, the Bachelor of Theology course, and finds this is relevant study for the purposes of the criteria in question. He commenced relevant post-secondary study within 6 months of completing the equivalent of year 12 in the Australian school system (the Business Information System course at Petra Christian University). Therefore cl 101.213(1)(c) is met at time of application.
Following Hussain, the Tribunal is of the view the criteria in cl. 101.213(1)(c) and cl.101.221(2)(b) do not require an applicant to have been ‘continuously involved’ in study from the time of commencement of relevant study, which in this case was the Bachelor of Information course the applicant was undertaking from August 2012, up until the time of decision,[10] and in considering the criteria at time of decision, the decision maker must look at the applicant’s conduct in the time period from which the applicant commenced relevant study until the time of decision ‘characterised as a whole’ and ask whether it warrants a conclusion that the applicant has been undertaking relevant study in that period.
[10] The Tribunal erred by adopting this construction: Hussain v MIBP [2017] FCCA 3247 at [114]. See also Khan v MICMA [2023] at [74].
The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416. The Tribunal accepts, at time of decision, he is studying an English course at Universitas Merdeka Malang which leads to a qualification of Associate Diploma.
The Tribunal has considered the applicant’s conduct in the period between commencing relevant post-secondary study in the Business Information System course and the current time, holistically and makes the following findings. It accepts, based on his oral evidence and the transcript provided, that he completed 3 semesters before withdrawing for financial reasons because his mother was unable to continue to pay the fees. It accepts around this period he made numerous trips to Australia and was not studying during this time. He subsequently resumed study in March 2015 and completed a hairdressing qualification in June 2016, before taking a further break in study during which he undertook English classes online. He commenced the Bachelor of Theology course in September 2018 which he was undertaking at time of application. He completed this qualification in 2022 and has since then been undertaking the English course which he continues to date. Having regard to the applicant’s conduct, characterised as a whole the Tribunal is satisfied it warrants a conclusion that the visa applicant has been undertaking relevant study in the period up to the time of decision and therefore the visa applicant continues to meet cl.101.213(1)(c) at the time of decision: cl 101.221(2)(b).
For the reasons above, cl 101.213 is met at the time of application. At the time of decision, cl 101.213 continues to be met. Accordingly, cl 101.221(2)(b) is met.
Dependency
Clause 101.211(1) requires the applicant to be a dependent child of an Australian citizen or permanent resident at time of application and cl.101.221(2)(a) requires the visa applicant to continue to satisfy that criterion at time of decision. The Tribunal considers there is insufficient material before it to make determinative findings on this issue and observes that no finding regarding dependency was made by the delegate in the primary decision.
In these circumstances, the Tribunal considers 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 (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:
·cl 101.213 of Schedule 2 to the Regulations; and
·cl 101.221(2)(b) of Schedule 2 to the Regulations.
Date of hearing: 13 February 2025
Representative for the Applicant: Mrs Marina Orihova Zhang
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