Taru (Migration)

[2020] AATA 2717

Taru (Migration) [2020] AATA 2717 (11 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Elias Taru

CASE NUMBER:  1814115

HOME AFFAIRS REFERENCE(S):          CLF2017/24057

MEMBER:Justin Owen

DATE:11 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 11 June 2020 at 4:38pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – full-time study since turning 18 and continuing at time of decision – study history in home country and Australia – short period of full-time study and periods of part-time study – financial hardship and dependency on sponsor – applicant in immigration detention – no response to tribunal’s communications or appearance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360, 360A, 362B(1A)(a), 379(5)(b), 379C(5)

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

CASE

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 2 May 2018 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 applied for the visa on 22 March 2017. 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 (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.214.

4. Cl.802.214 is a requirement to be met at the time of application. 

5. Cl.802.214(1)(a) requires that if the applicant has turned 18 years of age, the applicant is not engaged to be married; and does not have a spouse or de facto partner; and has never had a spouse or de facto partner. 

6. Cl.802.214(1)(b) requires that if the applicant has turned 18 years of age that the applicant is not engaged in full-time work. 

7. Cl.802.214(1)(c) states that subject to clause (2), 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. 

8. Cl.802.214(2) states that cl.802.214(1)(c) does not apply to an applicant who, at the time of application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.  

9. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the applicant was not a full-time student at the time the application was lodged and he had not been continuously in full-time study since he had turned 18 (cl.802.214(1)(c)). 

10. The delegate also considered cl.802.214(2) and found, as the applicant had not provided any evidence of dependency due to incapacitation for work due to the total or partial loss of the applicant’s bodily or mental functions, the delegate was satisfied that they did not meet cl.802.214(2). 

11. On 16 May 2018 the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to refuse his application for a Child (Residence) (Class BT) visa. 

12. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

13. On 12 May 2020 the Tribunal invited the applicant to attend a hearing via teleconference to give evidence and present arguments relating to the issues in his case on 27 May 2020.

14. On 14 May 2020 the Tribunal received a response accepting the Tribunal’s invitation to attend the hearing via teleconference.  The response was sent to the Tribunal by the applicant’s representative. 

15. The Tribunal sent a courtesy reminder of the hearing via SMS to the mobile telephone number the applicant provided for the applicant on 20 May 2020 and 26 May 2020.

16. The Tribunal contacted the number the applicant provided at the scheduled time of the hearing on 27 May 2020.

17. The applicant’s mother and sponsor of the application Ms Lenita Taru answered the telephone.

18. Ms Taru informed the Tribunal that she did not know where the applicant was. 

19. Ms Taru stated that the applicant had been on medication for depression since 2017.  She stated that he had been convicted and gaoled in January 2019 for sexual assault.  She thought he had been gaoled for four weeks as a result of his conviction in January 2019, but she believed he was still in gaol today.  Ms Taru said she had no idea where he was or where he had been incarcerated.  She thought he might be in Sydney.

20. The Tribunal considered the sponsor’s statement and the claimed circumstances in relation to the applicant’s failure to attend the scheduled hearing.

21. On 1 June 2020 the Tribunal wrote to the applicant through his representative stating it would proceed to make a decision on the review and inviting any further submissions. 

22. The Tribunal received a response that day from the applicant’s representative stating that the applicant was unable to attend as he is currently being held in Villawood Immigration Detention Centre.  The representative claimed the applicant has had no contact with his mother the sponsor.

23. The applicant’s representative claimed the sponsor had made many attempts to get in contact with the applicant via the Department with no success as he is over the age of 18 and not considered a child.  The applicant’s representative claimed the applicant’s whereabouts had only come to light on 1 June 2020 as the sponsor had received a telephone call from the applicant to advise that he was unwell.

24. The applicant’s representative claims the applicant was unaware of his own hearing and that the sponsor had attended what was scheduled to be the hearing.  There is no information however before the Tribunal that the applicant’s mother/the sponsor was authorised to act on the applicant’s behalf such as a power of attorney.

25. On 5 June 2020 the Tribunal received correspondence from the Department stating the applicant had been held in detention for 211 days and asking for an update on the applicant’s review.  The Tribunal notes this was the first time the Department had informed it of the applicant’s status.      

26. The Tribunal has considered the email statement of the applicant’s representative and the has decided to proceed to decision. 

27. The Tribunal notes that no formal request was made by the applicant or the applicant’s representative to reschedule the hearing prior to the hearing’s scheduled date of 27 May 2020.   The applicant’s representative nor the applicant contacted the Tribunal prior to the hearing to advise a change to his contact details, circumstances or address. 

28. The Tribunal has considered the matters submitted by the sponsor Ms Taru and the applicant’s representative in relation to the non-appearance of the applicant. 

29. The Tribunal considers the claims and information concerning the criminal convictions of the applicant are not relevant to the determinative issues in this matter: which is did the applicant at the time of application in March 2017 meet the relevant criteria for the grant of a Child (Residence) (Class BT) visa and in particular, did the applicant meet cl.802.214. Furthermore, did the applicant meet the criteria at the time of decision.  The Tribunal has therefore decided to exercise its discretion and proceed to a decision on the review.  

30. The Tribunal notes that the invitation to the applicant stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.   The invitation to hearing was sent to the address the applicant provided.  The Tribunal notes that it remains incumbent upon an applicant to update their address and keep the Tribunal informed of any changes to their contact information.      

31. The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The applicant has not provided any further evidence, submissions or information to the Tribunal since applying for review of the refusal over two years ago. Following their non-appearance, the applicant was invited to make any further submissions to the Tribunal up until the time of decision. None have been received. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing under s.360 of the Migration Act to appear before the Tribunal on 27 May 2020. The Tribunal is satisfied that the notice of invitation to appear met the requirements of s.360A, it was properly transmitted to the applicant’s address for service in accordance with s.379A(5)(b) and the applicant is taken to have received it in accordance with s.379C(5) and the invitation has not been returned to sender. The Tribunal notes that two separate SMS reminders were also sent to the applicant about the hearing.

32. No request for an adjournment or to reschedule the hearing was received prior to the hearing.  The Tribunal is not satisfied that the claims that have been made by Ms Taru or the applicant’s representative for the non-appearance of the applicant are grounds to reschedule the hearing. 

33. In these circumstances, and pursuant to s.362B(1A)(a) of the Migration Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for applicants over 18

35. 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

36. 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).

37. The Tribunal has noted from the Form 47CH which is part of the Departmental file that the applicant, at Question 13, has responded that he has never been married or been in a de facto relationship.  There is no other evidence before the Tribunal to the contrary.  There is no evidence that he is married or in a de facto relationship at the time of decision.   Accordingly, cl.802.214(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

38. 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).

39. In Question 40 of the Form 47CH that appears in the Departmental file the applicant advised that he worked part-time.  There is no evidence before the Tribunal to suggest that he has worked full-time either at the time of application or up until the time of decision. 

40. 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)

41. 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).

42. 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).

43. 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.

44. The Tribunal notes that the applicant has not made any further submissions since applying for review of the delegate’s decision on 15 May 2018. 

45. The Tribunal has considered a range of documentation that the applicant previously supplied to the delegate.  These include:

    ·The applicant’s Form 47CH – Application for migration to Australia by a child that was lodged on 22 March 2017 where in Question 38 the applicant stated he completed his secondary study at Salvo Secondary School in Papua New Guinea on 31August 2012; and in Question 39 he stated that he was currently studying an electrical trade at the Morata Vocational Training Centre that commenced on 23 January 2016. 

    ·Correspondence stating that the applicant was a student in computing at the Salvation Army Flexible, Open and Distance (FODE) Centre in August 2014.  The correspondence from the Salvation Army FODE Centre is dated 12 August 2014. 

    ·Further correspondence from the Salvation Army Flexible, Open and Distance (FODE) Centre dated 28 August 2015.  The correspondence states the applicant is a current student with the college and enrolled in August 2014.  The correspondence praises the applicant and states the applicant has given them an assurance that he will complete his studies by the end of 2015. 

    ·A letter from Ms Hillary Damke, Manager of the Morata Vocational Training Centre, stating that the applicant is a current student at the college and taking a one-year electrical trade course for the year 2016.

    ·A receipt from the Cairns Language Centre dated 20 March 2017 in the applicant’s name for enrolment and part tuition fees. 

    ·A statutory declaration made by the sponsor, the applicant’s mother Mrs Lenita Taru (nee Yoke) dated 24 February 2017 where she outlined the migration history of herself and her children including the applicant.  In the declaration the sponsor states the applicant went to Morata State School (Primary) until 2009 and attended DEHAS high school in 2010 only in Bomona, Port Moresby.  The sponsor declares that during this time the applicant was failing school and joined his brother as a wandering soul avoiding their father.  The sponsor states that she sent the money she could to the applicant’s education, but the applicant and his brother could not pursue studies due to financial circumstances.  It was not until 2014, according to the sponsor, that the applicant and his brother were able to pursue studies.  Both undertook vocational computer studies in 2014 followed by their then current electrical trade studies at the Morata Vocational Training Centre.

    ·Correspondence from the Cairns Language Centre dated 20 March 2017 which states the applicant has been accepted as a student with orientation to commence on 27 March 2017.

    ·A statement of attendance from the Cairns Language Centre that advises the applicant commenced a General English (Intensive) course on 27 March 2017 that concludes on 16 June 2017.

    ·An attendance roll as well as receipts for the payment of tuition fees at the Cairns Language Centre in the name of the applicant for the period between 20 March 2017 and 31 May 2017. 

    ·A Certificate 2 in English Language for a course in English – Level 2, from 27 March 2017 to 16 June 2017.

    ·A Letter of Offer from the Cairns Language Centre dated 13 March 2018 to the applicant to complete three intensive English blocks between 19 March 2018 and 26 October 2018.      

    ·A letter from a Dr Farzad Vesei of the Omega Health Medical Centre dated 12 March 2018 that advises ‘on the basis of my examination; the applicant was unfit for studies from June 2017 until the date of writing due to the applicant’s medical conditions. 

    ·A completed Form 80 dated 19 February 2018 where in Question 20 the applicant advised he had studied between April 2014 and December 2015 Computing Studies at the Salvation Army FODE which he completed; between February 2016 and December 2016 an Electrical Trade course at Morata Vocational Training Centre which he withdrew from; between March 2017 and June 2017 an English Language Course at the Cairns Language Centre which he completed; and between March 2018 and currently a further English Language Course which he was currently enrolled in. 

    ·Submissions from the applicant’s representative dated 26 February 2017, 6 March 2018, 5 April 2018 that address the matter of full-time studies.      

46. The Tribunal has considered on the evidence before it whether the applicant has demonstrated that at the time of application he was validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification. The Tribunal has also considered whether the applicant has been undertaking such a course since turning 18 years of age or have commenced the studies within six months or a reasonable period of completing secondary education.

47. The Tribunal notes that the applicant turned 18 years of age on 4 December 2012.  On the evidence before it the Tribunal finds that the applicant was not a full-time student at this time.  The Tribunal notes that the applicant in his application form listed his completed date of secondary school studies was 31 August 2012 but there is no evidence before the Tribunal to support such a claim.  The Tribunal notes that the sponsor in her statutory declaration that the applicant provided the Tribunal as part of his application stated the applicant went to Morata State School (Primary) until 2009 and attended DEHAS high school in 2010 only in Bomona, Port Moresby and he had not studied since 2010.  On the evidence before the Tribunal the applicant did not complete high school in PNG or the equivalent of Year 12 in Australia but rather ceased his secondary school studies in 2010 or 2012.   The applicant did not complete the equivalent of year 12 in the Australian education system.  On the evidence before it the Tribunal finds that the applicant was not a full-time student at the time he turned 18 years of age. The applicant stated he commenced his post-secondary studies in August 2014 in Computing Studies at the Salvation Army FODE Centre: at this stage he would have been over 19 years, 8 months old.   On the evidence before the Tribunal the applicant was not therefore enrolled in a full-time post-secondary course of study as required by the Regulations either at 18 years of age or within six months or a reasonable time after completing the equivalent of year 12 in the Australian education system.  On the evidence before the Tribunal, the applicant did not enrol in a course of study until 12 August 2014.  This is some 1 year and 8 months after he turned 18 years of age.

1. The Tribunal furthermore is not satisfied that the applicant’s studies that commenced on 12 August 2014 were a full-time course of study as claimed by the submissions made through his then representative.  Through his former representative the applicant claimed both his studies at the Salvation Army FODE Centre (between August 2014 and December 2015) and Morata Vocational Training Centre (between February and December 2016) were full-time. 

2. There is no evidence before the Tribunal to suggest that these courses were full-time.  The Tribunal notes in relation to the applicant’s computer studies course at the Salvation Army FODE Centre, that the correspondence he has supplied dated 28 August 2015 fails to state that he is studying full-time.  The Tribunal notes that the correspondence furthermore states that the applicant has provided them an ‘assurance’ he will complete the course by the end of 2015.  The Tribunal considers this suggests the course is a flexible course – as indeed intimated by the very name of the FODE Centre – rather than a full-time course of study.  Additionally, the Tribunal notes that the applicant has failed to provide any evidence that the course at the Salvation Army FODE Centre was either full-time or at least the equivalent of an course of study lead to the award of a professional, trade or vocational qualification.  He has also failed to provide any evidence of the subjects and units he completed.  The Tribunal is not satisfied that the applicant was a full-time student at the Salvation Army FODE Centre during his computer studies between August 2014 and December 2015. 

3. Similarly, the Tribunal is not satisfied that the applicant’s course at the Morata Vocational Training Centre between February and December 2016 was a full-time course of study.  There is no evidence before the Tribunal to suggest it was a full-time course of study and there is no evidence of subjects that have been completed.  The Tribunal furthermore notes that the applicant in Question 20 of their Form 80 stated that they had withdrawn from the course.  The Tribunal notes the statement by the applicant’s then representative in March 2018 that in December 2016 the applicant visited Australia and intended to return to Papua New Guinea to complete his vocational studies but then failed to do so due to fears he held in PNG and instead intended to enrol in an Australian vocational course of studies instead.  The Tribunal acknowledges the submission but notes the fact remains the applicant was not enrolled in a course of study between December 2016 and March 2017.    

4. The Tribunal accepts the applicant’s submission that he needed to enrol in an English language course before he could study a vocational course in Australia and his earliest commencement date was in March 2017. 

5. On the evidence before it the Tribunal does not accept the applicant was a full-time student since he ceased his secondary studies at school in 2010 without completing the equivalent of Year 12 studied until March 2017 when he enrolled in an English Language Course which commenced on 27 March.  The Tribunal notes this was just days after he lodged his application for the visa on 22 March 2017. 

6. The Tribunal notes the evidence provided of an attendance roll, a statement of attendance and receipts in relation to the period March to June 2017.  The Tribunal accepts the applicant was a full-time student who was actively participating in a full-time course of study during this period. 

7. The Tribunal notes that the applicant did not claim in Question 20 of his Form 80 to be studying between July 2017 and March 2018.  Instead he has supplied a letter from a Dr Farzad Vesei of the Omega Health Medical Centre dated 12 March 2018 that advises ‘on the basis of my examination’ the applicant was unfit for studies from June 2017 until the date of writing due to the applicant’s medical conditions.

8. The Tribunal gives the letter no weight. It does not provide any information as to any specific medical conditions or infirmities that precluded the applicant from undertaking an enrolment in a full-time course of study.  The Tribunal reasonably considers any correspondence supporting a 9-month period of absence would include at least some corroborative information concerning the claim or some sort of evidence to support the GP Dr Vesei’s conclusion.  There is no information before the Tribunal as to how Dr Vesei came to his conclusion.  There is no other corroborative evidence before the Tribunal to support the conclusion in Dr Vesei’s letter.  There is no information as to why the applicant has waited 9 months before seeking a letter of support from his GP retrospectively.  The Tribunal does not consider the correspondence a satisfactory explanation of the applicant’s absence from full-time studies between July 2017 and March 2018.

9. Two years have now elapsed since the delegate’s decision.  There is no claim, or evidence before the Tribunal, that the applicant has engaged in any further studies, full-time or other, since that time.  The Tribunal accepts that the applicant received a letter of offer dated 13 March 2018 to undertake further English studies at the Cairns Language Centre between March and October 2018 but there is no evidence before the Tribunal that the applicant proceeded with this course. 

10. The Tribunal finds, based upon the evidence before it, that that the applicant was not a full-time student since he turned 18 years of age until he commenced the English Language Course at the Cairns Language Centre in March 2017.  He then only remained in actively involved in a full-time course of study until July 2017.  The Tribunal finds he has not been a full-time student since this time until the time of decision.  Since turning 18 years of age on 4 December 2012 the applicant has therefore only been a full-time student between March and July 2017. 

11. The Tribunal notes that the applicant through his representative in February 2017 raised cl.101.213(1)(c) and the term ‘a reasonable time’ in relation to the applicant undertaking a full-time course of study.  The Tribunal presumes the applicant’s representative to be referring to cl.802.214(1)(c) given the application before it relates to an onshore 802 visa application.

12. The Tribunal has considered the matter of ‘a reasonable time’ in the context of the applicant and his commencement of full-time studies.  The Tribunal notes that the ‘reasonable time’ alternative is only applicable to the period since completing the equivalent of year 12 in the Australian education system (which the applicant has not).  That is, the provision does not require consideration of a ‘reasonable time since turning 18’.  Nevertheless, the Tribunal has considered the ‘reasonable time’ claims given they have been submitted by the applicant through his then representative. 

13. The applicant submitted in his previous written submissions to the delegate that ‘Its (sic) written in policy that to cater for the situation where the child commenced post-secondary studies after turning 18, a child will also satisfy this regulation if they commenced post-secondary studies within 6 months of (or a reasonable time after) completing secondary school.’  The applicant submitted that the clause is not defined in the Regulations and Departmental officers should consider the policy background, namely the purpose of a Child visa which is to provide for children who are genuinely still dependent on their parents.      

14. The applicant submitted that policy provides for examples of breaks of more than 6 months from studies between high school and post-secondary studies that might be considered reasonable. 

15. The applicant conceded that policy put forward that the term ‘reasonable time’ as it applied to a break in study, is solely intended to cover the period between secondary school and post-secondary studies.  The applicant submitted that ‘reasonable time’ is not intended to take account of breaks once post-secondary studies have commenced or for breaks between post-secondary studies and postgraduate events (D1, Folio. 99). 

16. The applicant therefore submitted that his break between secondary school study and the commencement of full-time, post-secondary studies was due to dire financial necessity.  The applicant submitted that due to dire financial necessity he did not commence his post-secondary studies after high school until 2014 and this was a ‘reasonable time’ between secondary school and his post-secondary studies due to his financial situation. 

17. In support of this the applicant asserted that he had remained genuinely dependent on his mother Mrs Taru (the sponsor) for all his living needs and his dependence had never been terminated.  In support of this the applicant provided a statutory declaration from his mother attesting to this.  The Tribunal has also considered other evidence on the Departmental file including statements of financial transfers the sponsor has made to the applicant and his siblings.  The Tribunal has noted the sponsor’s written declarations as to the financial challenges she has faced and her challenges at supporting her children. 

18. The Tribunal has considered the applicant’s submissions.  With respect, the Tribunal does not agree with the applicant’s submission that his long delay in commencing post-secondary studies after finishing secondary school – caused by ‘dire financial necessity’ and the financial challenges facing the sponsor and the family – meets the definition of a ‘reasonable time’ as stated in cl.802.214(1)(c). 

19. The Tribunal agrees with the applicant’s submissions that on the wording of the relevant provisions, it would appear that the consideration of ‘reasonable time’ is only relevant to the period between completing the equivalent of year 12 and commencing further studies.

20. Determining what is a ‘reasonable time’ within the meaning of this subclause requires consideration of the surrounding circumstances, that is, 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. 

21. The assessment necessarily depends on all the circumstances of the case.  Examples cited by the Court in Sok v MIMA of circumstances that may justify a finding that periods of time beyond six months would be reasonable included:

    ·    a young person undertaking a one-year exchange student program in another country;

    ·    living and working in another country;

    ·    civil unrest interrupting studies;

    ·    illness; and

    ·    military service.

22. Policy provides further examples of circumstances which may be considered reasonable including: if the break between completing studies in the Northern hemisphere and commencing studies in the Southern hemisphere is more than 6 months; a break due to giving birth; illness; or dire financial necessity; or if the applicant has commenced studies but moved between institutions and it has taken time to re-commence studies. 

23. The Tribunal accepts that policy suggests ‘dire financial necessity’ can be a ‘reasonable period’ within the meaning of cl.802.214(1)(c).  The Tribunal has noted the sponsor’s statutory declaration of 24 February 2017.  In her declaration the sponsor, the applicant’s mother, has outlined how she suffered from domestic violence at the hands of the applicant’s father.  She states that she departed for Australia in 2009 whilst the children remained in PNG.   The sponsor claims that the applicant attended Morata State School until 2009 and DEHAS High school in 2010 only.  She claims that during this period the applicant was failing school.  She claims that with his brother he was a ‘wandering soul’ avoiding his father.  It is claimed there was no money to pay for the applicant’s high school education or his vocational education.  The sponsor claims the applicant had no parental supervision, no parenting and had no money.

24. The sponsor claims between 2009 and the grant of her Partner visa in August 2013 she sent money to her children including the applicant from her small earnings as a cleaner.  The sponsor claims after she separated from her sponsor in 2014 and was granted a permanent visa in 2014, she obtained a permanent job.  The Tribunal notes the evidence presented of monies the sponsor has subsequently provided her children in PNG including the applicant.  As a result of her support it is claimed the applicant was able to enrol and undertake his computer studies followed by electrical trade studies in PNG.  The sponsor also paid his education and tuition fees in Australia in 2017.   

25. The Tribunal accepts that the sponsor has played an important role in supporting all her children, including her son the applicant.  The Tribunal does not however on the evidence before it consider that the applicant’s claimed ‘dire financial necessity’ meets the definition of a ‘reasonable time’ as stated in cl.802.214(1)(c). 

26. The Tribunal notes that the period of time the applicant has in fact been enrolled in a full-time course of study since leaving secondary education on the evidence is no more than four months in 2017.  The sponsor however has had a permanent visa since 2014 and has been in gainful employment.  She has sent monies to her children on a regular basis.  The Tribunal accepts her ability to financially support the applicant in enrolling in full-time studies was limited due to her circumstances.  This does not mean that the applicant may not have been able to seek support from other family members or to seek at least part-time employment in order to raise money for his studies. 

27. The Tribunal notes that the applicant completed his studies in 2010 (according to his mother) or 2012 (according to his application form).  In both cases, the period of time the applicant has actually been in full-time study is remarkably brief: just three to four months over what is now a period of between eight and ten years.      

28. The sponsor’s statutory declaration the applicant provided in his application states that the applicant essentially spent some years ‘wandering’ after he left secondary school with his brother before his studies commenced in 2014.  He claims to have never undertaken full-time employment.  The Tribunal finds it unusual that he appears to have not sought full-time employment if he was the eldest child and he and his siblings were in ‘dire financial need’.  Nevertheless, the Tribunal accepts the claim he has not worked full-time.  The Tribunal is not however convinced that he has not received other financial support and assistance from other family members during this period.  The Tribunal notes that the applicant does not on the evidence appear to have engaged in any productive activities between finishing his secondary schooling and commencing his studies in August 2014.

29. The Tribunal notes that cl.802.214(1)(c) states the applicant must have been undertaking ‘a full-time course of study.  The Tribunal notes that whilst the applicant was enrolled in courses between 2014 and 2016 that they were not, in its firm opinion, full-time courses of study.  The applicant had the finances to successfully enrol in two separate courses of study: in the Tribunal’s opinion he was not at that time therefore arguably in ‘dire financial need’ that precluded him from commencing full-time study.  There is no evidence furthermore to suggest that the applicant was unable to seek and enrol in a full-time course of study as required by the Regulations.     

30. On the evidence the applicant ceased his secondary school studies in 2010 or at the very latest in 2012.  He did not complete the equivalent of Year 12 in the Australian education system.  He did not commence full-time studies in the Tribunal’s opinion until March 2017.  He did not enrol until just a few days before lodging his Child visa application and did not commence his full-time studies until after the application was lodged.  The Tribunal considers the lack of full-time studies for such a significant time to be considerable.  Whilst accepting some financial hardship, the Tribunal on the evidence does not accept that ‘dire financial need’ was the cause of the applicant’s non-enrolment in a course as required by the Regulations for such a long period.  The Tribunal furthermore notes that the applicant has not, on the evidence before it, been enrolled and studying in a full-time course of study since July 2017. 

31. The Tribunal does not on the evidence consider the applicant meets cl.802.214(1)(c) on the basis that the applicant has since turning 18, 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 aware of a professional, trade or vocational qualification.

32. Accordingly, cl.802.214(1)(c) is not met.  It does not continue to be met at the time of decision.

33. Cl.802.214(2) states paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.  There is no evidence or claim made that the applicant was dependent on the sponsor due to being incapacitated for work due to the total or partial loss of their bodily or mental functions.  As there is no evidence of incapacity before the Tribunal, the applicant does not meet cl.802.214(2).             

34. For the reasons above, cl.802.214 is not met at the time of application.

35. At the time of decision, cl.802.214 does not continue to be met. The Tribunal notes that there is no claim by the applicant or evidence that he has studied at all since 2017.  There is no satisfactory corroborative evidence before the Tribunal that the applicant has studied on a full-time basis since 2017. On this basis the Tribunal cannot be satisfied that the applicant meets the time of decision criteria that requires the applicant ‘continues’ to be undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification.  Even if the Tribunal accepted that at the time of application in March 2017, the applicant had since a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification, there remains no evidence before the Tribunal that the applicant has studied at all since 2017.  Accordingly, cl.802.221(2)(b) is not met.

36. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

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

    Justin Owen
    Senior Member