Wulandari (Migration)

[2024] AATA 3658

Wulandari (Migration) [2024] AATA 3658 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Avriningtyas Wahyu Wulandari

REPRESENTATIVE:  Ms Angela De Silva

CASE NUMBER:  2016266

HOME AFFAIRS REFERENCE(S):          CLF2020/65601

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 3:47pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 24 years – dependent child of an Australian relative – gap in full-time studies – one course enrolment delayed – no study in Indonesia past secondary schooling – reasonable time – specific circumstances for lengthy delay – family carer responsibilities – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.214, 802.216, 802.221, 802.226

CASES

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 16 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 Indonesia, born in May 1998. She applied for the visa on 21 September 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 Tribunal also received oral evidence from the applicant’s mother Ms Harty Ofera Tallo. The Tribunal decided not to take oral evidence from another witness because the factual circumstances on which this witness could have given evidence are not in dispute. 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.

6. 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).

   Criteria for applicants over 18

7. The applicant was born in May 1998 and the application for the visa was made in October 2019. The Tribunal finds that the applicant was over the age of 18 when the application was made.

   Relationship status and history

8. 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).

9. There is no evidence to indicate that the applicant is, or has ever been, engaged or married or that she has, or has ever had, a spouse or de facto partner. The requirements of cl. 801.214(1)(a) are met and continue to be met.

   Not engaged in full-time work

10. 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).

11. In her submission to the Tribunal the applicant stated that she was engaged in part-time work and had also completed an internship which was a mandatory part of her Bachelor course. The applicant confirmed in oral evidence that she has been working at Woolworths since 2021 and has been working 24 hours weekly since her commencement there.

12. The applicant claims she has never engaged in full-time employment. There is nothing to contract that evidence. Accordingly, cl 802.214(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

13. 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).

14. 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).

15. 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.

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

17. The applicant first arrived in Australia in October 2019 and applied for the visa in September 2020. In her application and in her written submission to the Tribunal the applicant provided the following information about her study.

18. The applicant completed her secondary schooling at KMB Ganesha, Indonesia in May 2016. The applicant’s oral evidence to the Tribunal is that after completing her schooling, she travelled to Australia for three months and in January 2017 she registered in an English Education study program at Atma Jaya Catholic University of Indonesia. A letter from Atma Jaya Catholic University that was provided with the application indicates that the applicant enrolled in a course in October 2016 but the applicant and her mother told the Tribunal that the registration or enrolment did not take place until January 2017 and the semester was due to commence in August 2017. The applicant stated that they paid for one semester only, which would have run between August 2017 and February 2018, and there was no enrolment after that time.

19. The applicant in her own evidence, as well as her mother and the statement from Atma Jaya university, all confirm that the applicant did not commence that course and did not undertake any study in Indonesia since completing secondary schooling.

20. The applicant travelled to Australia in October 2019 holding a Student visa and she enrolled in a Diploma of Hotel Management at Southern Cross University. In her submissions to the Tribunal dated 27 December 2023 and 24 September 2024 the applicant provided the following summary and evidence of her past study

    May 16              completion of secondary schooling

    02/17enrolment in an English Language Education and Psychology course at Atma Jaya University (withdrawn)

    10/19- 10/20     Diploma of Hotel management, Southern Cross University (SCU)

    03/21 – 4/24     Bachelor of Business in Hotel Management, SCU

21. In September 2024 the applicant provided evidence of having graduated with the Bachelor of Business in Hotel Management from the Southern Cross University in July 2024 and an offer of enrolment for an MBA at King’s Own Institute, dated August 2024 with evidence of her acceptance of enrolment. The applicant states that the MBA will commence in October 2024 and she has paid the enrolment fees and part of the tuition fees.

22. In her written submission to the Tribunal the applicant noted that she enrolled at Atma Jaya University only nine months after graduating from secondary school but the University confirmed that she had not taken part in the lectures. The applicant confirms that this information is not in dispute and poses the question that needs to be resolved as whether the three years and five months delay from her turning 18 and commencing study at SCU is a ‘reasonable time’.

23. The applicant cites a number of other decisions that have dealt with the issue of what constitutes ‘reasonable time’. The Tribunal is mindful that the Tribunal decisions have no precedential value. The Tribunal also acknowledges that in other cases it may have been determined that lengthy periods were nevertheless ‘reasonable periods’, but such determinations are based on the specific circumstances of an applicant and consideration of activities that a person may have engaged in during the relevant period. As such, the Tribunal considers reference to other decisions unhelpful.

24. The applicant states that her father suffered a stroke in April 2012 (in September 2024 the applicant provided to the Tribunal a number of medical reports relating to her father) and she was required to halt her studies to care for him. The applicant refers to the effects of her father’s stroke and states she was required to provide almost 24/7 care to her father as he was unable to complete the ADLs by himself and there was minimal care available from others. The applicant states that due to her carer obligations, she was unable to engage in study even on a part-time basis and the university did not offer online study options. The applicant submits that it was reasonable for her to delay study to care for her father.

25. The applicant submits that between 2012 and 2016 her father was cared for by his mother (who was in her late 60’s at the time but as she aged, she was no longer able to provide the care required). The applicant states that from 2013 she was being home-schooled to better care for her father. The applicant states that she visited Australia in June – August 2016 while her father travelled to his hometown and was cared for by his extended family. Between February and July 2017 the father was sent to a health treatment facility and the applicant travelled to Australia to visit her mother. In late 2019 her parents agreed for the applicant to travel to Australia to continue with her study. Her father sold his house and moved to live near one of his siblings. The applicant’s father passed away in May 2020.

26. The applicant submits that her decision to abandon her studies was not her preference but done out of familial obligation and love. She refers to cultural norms and expectations that family members will care for the elderly. The applicant provided a number of documents to support her claims.  

27. The applicant’s mother provided a statement at the commencement of the hearing outlining the reasons for the applicant not studying. Her evidence, including her oral evidence, is consistent with the applicant’s own evidence and explanations offered by the applicant.

28. The applicant told the Tribunal in oral evidence that between finishing school in May 2016 and early 2017 she was trying to find a suitable school, taking account of her circumstances, and the representative submits that in that period the applicant was exploring the possibility of balancing her study and carer arrangements. The applicant states that she was a full-time caregiver for her father and they were also trying to manage the family’s fees as they were relying on the father’s pension which changed from time to time. The applicant states that when she enrolled in early 2017, she thought she could manage the study and her carer commitments but because of the circumstances, she realised she could not manage carer responsibilities and study at the same time. The applicant states that the only help that was available was from her elderly grandmother and her brother who was too young to be a carer. When asked what changed from the time of her enrolment in early 2017 to her decision not to commence the course, the applicant states that her father had multiple strokes, including one in late 2017.

29. The applicant described in her oral evidence her responsibilities in looking after her father, and transporting him, etc. The applicant states that there were no options for online study and there were not many small courses available in Indonesia. The applicant submits that while there were home schooling options for secondary schooling, these options were not available for post-secondary study.

30. The applicant states that when she travelled twice Australia, it was for short trips only and another relative looked after her father but he was not available to do it on a full-time basis. In her written evidence to the Tribunal the applicant confirmed that she had spent approximately three 5 months in Australia in 2016 and nearly six months in 2017. The applicant told the Tribunal that when she travelled to Australia, she was visiting her mother but also checking options for her study and to ‘have a picture’. She had approached TAFE and other institutions. The applicant states that at the time she was speaking to her mother to see who could replace her as a caregiver for her father but they thought there was no person to replace her so she could not study. When asked why she was looking at courses in Australia if she believed she could not study, the applicant told the Tribunal that her father still needed her and wanted her and he felt more comfortable with her than with others. 

31. The applicant states that by 2019 she was tired of living in such circumstances and she told her father that she had to study. She states that until 2019 an uncle was working as a driver and could not act as a carer. When she decided to return to study, that relative agreed to act as a carer and moved into her father’s house.

32. When asked if other arrangements could have been made before 2019, the applicant states that they tried to make arrangements for her father to move to his home village but he did not want to move and to be cared for by the family. The applicant states that in 2019 they had a family discussion and the family agreed to take care of her father and her father also agreed. The applicant told the Tribunal that she wanted to study but could not prior to 2019.

33. The applicant’s representative submits that the Tribunal should focus on the purpose and reasons for the applicant not studying for 3.5 years. The reasonableness is based on the applicant’s personal circumstances. She did not take a break for personal reasons but was facing difficult personal circumstances and had to provide full-time carer arrangements for her father which was a heavy responsibility for her but she was the only one who could act as a carer. The representative submits that the father was reliant on her, and it was his preference for the applicant to act as a caregiver while there were no other family members available. The representative submits that different arrangements with other family members allowed for ‘respite’ care for shorter periods but not for longer periods and the care provided by the applicant to her father is consistent with her cultural norms. The representative notes that since she was able to engage in study, the applicant has been a dedicated student and has been consistently engaged in studies, showing commitment and dedication to her study. The representative submits that the period is a reasonable period having regard to these circumstances.

34. The factual circumstances here are not in dispute. The applicant completed secondary schooling in May 2016 and, on her own evidence, enrolled in a university course in February 2017 but had not commenced that course. She did not engage in any study until October 2019.  It is not in dispute that the applicant had not engaged in any full-time study leading to a formal qualification between May 2016 and October 2019, although she was enrolled in a course for about six months during that period.

35. It is also not in dispute that in that lengthy period when the applicant was not undertaking study, she did not undertake any other activity that was relevant to study.

36. The Tribunal accepts that the applicant acted as a carer for her father. However, the Tribunal is not convinced that such responsibilities precluded the applicant from being able to engage in study. In reaching this conclusion, the Tribunal places weight on the following factors.

37. Firstly, the applicant’s evidence is that she did consider enrolling in a course, and made inquiries after completing secondary schooling in 2016. That is, the applicant believed it would be possible to combine her study and carer responsibilities. Importantly, she did enrol in a course in February 2017, suggesting that the applicant believed she could engage in study despite her carer responsibilities. The applicant told the Tribunal that she realised it would not be possible but she could not offer a meaningful explanation as to what had changed in early 2017 when she decided not to engage in the course, despite enrolment. It is not the case that the applicant commenced the course and realised that it would be too difficult for her to continue acting as a carer while undertaking study. The applicant’s evidence is that she had not commenced the course at all after her enrolment in early 2017 and that she had not engaged in any study at Atma Jaya University. It is thus unclear to the Tribunal why the applicant – who was very aware of her carer responsibilities – felt able to study and to engage in a course, arranged enrolment, and then determined that she could not study without making any attempt to combine these responsibilities.

38. Secondly, the Tribunal notes that the applicant had spent approximately nine months in Australia in 2016 and 2017. During that time alternative arrangements were made for the care of the applicant’s father. It is notable that the applicant told the Tribunal that part of the reason she travelled to Australia was to explore study options and she states she has approached some educational institutions before deciding that she could not study. The fact that the applicant did explore study options in Australia suggests that she considered it possible that other carer arrangements could be made for her father and that she could commence her study.

39. The Tribunal notes that ultimately, when the applicant decided in 2019 that she wanted to return to study, the family was able to have a conversation about the applicant’s study, convince the father that the applicant should study, make other arrangements for the care of her father and enable the applicant to travel to Australia and engage in full-time study.

40. The Tribunal accepts the applicant’s evidence about the cultural norms and the expectations that she would care for her father. The Tribunal also accepts the evidence about the close relationship between the applicant and her father. The Tribunal has formed the view that the applicant’s decision to care for her father was, to a considerable degree, a matter of her choice and preference, rather than necessity and lack of other options. This is consistent with the applicant’s own evidence as she explained she believed that study could wait while her father needed her.

1. The Tribunal also notes that the applicant had not engaged in any activities between May 2016 and 2019 that may have been relevant to study. She does not claim to have engaged in self-study, nor has she attended any other courses. The applicant told the Tribunal that home study or online study options were not available but she presented no evidence as to what may have been available, such as for example, short courses, part-time study, online study, etc. The Tribunal does not accept on the limited evidence before it, that there would have been no opportunities for the applicant to engage in some form of study before 2019, even if such opportunities were limited.

2. The applicant also suggested that there were financial considerations after she completed schooling but she also told the Tribunal the family had the funds to support her study. The Tribunal is not satisfied on the evidence before it that any financial limitations prevented the applicant from being able to engage in studies.

3. The applicant refers to her study since 2019, stating that she has completed all her courses and had applied herself to study. The Tribunal accepts that evidence and accepts that the applicant had successfully completed a number of courses since coming to Australia. However, the concern here is the period when the applicant was not engaging in study prior to 2019 rather than the applicant’s study since that time. 

4. Having regard to all the circumstances, the Tribunal is not satisfied that at the time of application 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 cl 802.214(1)(c) is met.  

5. The Tribunal is not satisfied that the applicant meets the requirements of cl. 802.214. As she was over 18 when the application was made, and was sponsored by her mother, she does not meet the definition of the term ‘orphan relative’ and is not entitled to the grant of the Orphan Relative visa.

   Conclusion

6. 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

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

   Kira Raif

   
   

   Senior Member