Tuicake (Migration)

[2024] AATA 3646

Tuicake (Migration) [2024] AATA 3646 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Laite Nariu Kamikamica Tuicake

REPRESENTATIVE:  Mr Harry De (MARN: 1791193)

CASE NUMBER:  2016424

HOME AFFAIRS REFERENCE(S):          CLF2020/11566

MEMBER:Kira Raif

DATE:1 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 01 October 2024 at 11:15am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant previously engaged – children of the relationship – previous full-time work – full-time studies ceased – compassionate and compelling reasons – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.216, 802.221, 806.226; r 1.03

CASES

Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416

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 20 October 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Fiji, born in March 1995. She applied for the visa on 18 March 2020. The delegate refused to grant the visa on the basis that cl 802.214 was not met because the delegate was not satisfied the applicant met the study requirements. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 1 October 2024 to give evidence and present arguments. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

4. 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).

5. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.214. That clause provides that if, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).

   Criteria for applicants over 18

   Relationship status and history

6. 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).

7. In oral evidence the applicant told the Tribunal that she was engaged to her partner in 2021 for about three to four months but the marriage did not go through. Their first child was born in 2021 and the second child was born in early 2024. The applicant states that they had never lived together and she does not believe they were in a de facto relationship.  The applicant describes their relationship as ‘boyfriend and girlfriend’.

8. The Tribunal finds that the applicant had been engaged to be married. The Tribunal is not satisfied that cl. 802.214(1)(a) continues to be met at the time of the decision, for the purpose of cl. 802.221.

   Not engaged in full-time work

9. 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).

10. In her application the applicant referred to employment as a support worker from July 2019. She told the Tribunal that she started working as a support worker in 2018 and would work at different sites only a few hours a week. During Covid her hours increased to about 8 hours a day, 6 days a week. The applicant states that in 2020-21 and until the birth of her first child in 2021, she was working full time. Since that time she has not worked and has been supported by her partner and her family.

11. The Tribunal finds that the applicant had been engaged in full-time work. The Tribunal is not satisfied that the applicant continues to meet cl. 802.214(2)(b) at the time of this decision, for the purpose of cl. 802.221.

    Full-time study (or incapacitated for work)

12. 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).

13. 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.

14. The visa applicant was born in March 1995 and turned 18 in March 2013. The Tribunal finds that she was over the age of 18 when the application was made in 2020.

15. There is no evidence before the Tribunal to indicate, and the applicant does not claim, that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal finds that the requirements of paragraph 802.214(1)(c) apply to the applicant.

16. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated on the application form that she completed secondary schooling in Fiji in November 2013 and that in January 2019 she commenced another course. The applicant also indicated that from July 2019 she has been working as a support worker at Home Care nursing agency. 

17. When making the application, the applicant claims to have undertaken the following study

    2014              Bachelor of Laws, University of Fiji
    2015-16          Bachelor of Education, Fiji National University

    2018-19          Diploma of Leadership and Management, Australian College of Professions

18. The applicant told the Tribunal that she completed the Diploma of Leadership and Management in 2019 and that she last engaged in full-time study in 2019. Since that time, she had completed some short courses relating to her work but these were not on a full-time basis and did not lead to any qualifications. The applicant confirms that she is not engaged in any study at present.

19. In oral evidence the applicant explained that she could not study between 2016 and 2018 because of her family’s circumstances. The Tribunal acknowledges the evidence but given the other concerns noted elsewhere, the Tribunal considers the circumstances leading to the applicant not studying between 2016 and 2018 to be less relevant.

20. The Tribunal finds that the applicant has not been engaged in full-time study since 2019, for a period exceeding four years. She has not engaged in any activities relevant to study in that  period, having only done short courses relevant to her work. The Tribunal finds that the applicant is not engaging in any study at the time of this decision. On the basis of that evidence, the Tribunal is not satisfied that the applicant had been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12. The Tribunal is not satisfied the applicant continues to meet this requirement. The applicant does not meet cl. 802.214(1)(c) and cl. 802.221.

21. For the reasons above, cl 802.214 is not met at the time of application. At the time of decision, cl 802.214 does not continue to be met. Accordingly, cl 802.221 is not met.

22. As the applicant was over the age of 18 when the application was made, and was sponsored by a parent, the Tribunal is not satisfied she meets the definition of the term ‘Orphan Relative’ and she is not entitled to the grant of the Orphan Relative visa.

23. In her submission to the Tribunal of 30 September 2024 the applicant requests that her visa be granted on compassionate and compelling grounds, referring to her experience of domestic violence, which was beyond her control, and her settlement in Australia. The applicant refers to her two young children. The applicant refers to the definition of ‘compelling reasons’ and cites a number of authorities. The applicant refers to the hardship that would be caused to the children if they were removed from Australia. The applicant provided a statement and evidence relating to her children. The applicant’s representative also made an oral submission requesting the grant of the visa on compassionate and compelling grounds, stating that there were circumstances beyond the applicant’s control.

24. The Tribunal acknowledges these submissions but finds these odd (particularly as these are made by a registered migration agent who is also a legal practitioner). This is because there is nothing in the legislation that allows the grant of the visa on compassionate or compelling grounds. There is no waiver provision and no opportunity to recommend the grant of the visa where the prescribed criteria are not met.

25. The applicant has also requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The applicant refers to domestic violence, the family circumstances that prevented her from studying in 2016-2018 and the circumstances of her children. The applicant claims that ‘but for’ these circumstances, she could have left Australia earlier. She states that these are beyond her control.

26. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    Conclusion

27. 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

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

    Kira Raif
    Senior Member