Xu (Migration)

[2020] AATA 4111

Xu (Migration) [2020] AATA 4111 (22 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yingte Xu

CASE NUMBER:  1835856

HOME AFFAIRS REFERENCE(S):          CLF2018/13136

MEMBER:Roger Maguire

DATE:22 July 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

·cl.802.214 of Schedule 2 to the Regulations; and

·cl.802.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 22 July 2020 at 10:36am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over age of 18 enrolled and actively participating in full-time education – study history in home country and Australia – unavoidable hiatus due to course commencement dates – training courses and self-learning – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

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

CASES

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 22 November 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 15 February 2018. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

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, cl.802.226A), the criteria to be met in this case include cl.802.221 and cl.802.214 which required the applicant to demonstrate that she continued to be enrolled in, and actively participating in full-time education on the day the decision was made.

4. The delegate refused to grant the visa on the basis that cl.802.221(2)(b) and cl.802.214 were not met because it was not sufficiently demonstrated that the applicant continued to be enrolled in and actively participating in full-time education on the day the decision was made.

5. The applicant appeared before the Tribunal on 13 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Yun Jiang. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by her registered migration agent, Fang Liu MARN 1463212.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfied cl.802.214(1)(c) at the time of application, and the time of this decision.

   Criteria for applicants over 18

9. 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

10. 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).

11. The applicant gave evidence before the Tribunal she is not engaged to be married, and has never had a spouse or de facto partner. The Tribunal accepts this evidence.

12. Accordingly, cl.802.214(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

13. 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).

14. The applicant gave evidence before the Tribunal that she was not engaged in full-time work at the time of the present visa application and has continued not to be engaged in full-time work up to the date of this decision. The Tribunal accepts this evidence.

15. 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)

16. At the time of application, the applicant must have, since turning 18, or 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 an educational institution leading to the award of a professional, trade or vocational qualification: cl.802.214(1)(c).

17. 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).

18. 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-Warev MIBP (2015) 297 FLR 416.

19. The applicant told the Tribunal that her mother left Australia in October 2018. She said she thinks she came to Australia in 2019, but could not remember the date. She stayed for more than two weeks, but she forgot. She is planning to return to Australia on 7 August and has already bought the ticket. The applicant said that her mother is planning to stay for more than one month, and has not yet applied for an extension of her visa.

20. The applicant gave evidence before the Tribunal that she is not incapacitated for work because of loss of bodily or mental functions.

21. The Tribunal has had regard to a letter of offer from Sydney Institute of Interpreting and Translating in an Advanced Diploma of Translating in a course commencing on 7 January 2019 and concluding on 4 August 2019.

22. The Tribunal has also had regard to a submission dated 1 July 2020 by the applicant’s migration agent, together with the 14 documents enclosed with it.

23. The applicant’s migration agent has submitted that the applicant has never married or been in a de facto relationship, and therefore meets cl.802.214(1)(a).

24. The migration agent also submits that the applicant is not working, and has never been working full-time and therefore meets cl.802.214(1)(b).

25. The migration agent further submits that the applicant has completed her secondary studies in June 2012, and commenced post-secondary study from September 2012 to June 2016 at Beijing Normal University where she pursued a Bachelor of English and Literature.

26. The migration agent further submitted that from November 2016 to February 2017 the applicant undertook English studies at the University of Sydney, and from March 2017 to June 2018 studied a Master of English Studies, again at the University of Sydney.

27. The migration agent also submitted that from September 2018 until October 2018 the applicant undertook an PTE Course full-time with Yingde Education, and from 24 October 2018 to 12 November 2018 undertook three PTE tests.

28. The migration agent also submitted that in December 2018 the applicant completed PTE Predication Class with Deng Deng Education, and from January 2019 until August 2019 the applicant studied and completed an Advanced Diploma of Translating with Sydney Institute of Interpreting and Translating.

29. The migration agent further submitted that from February 2019 to November 2019 the applicant completed two semesters of a Graduate Certificate in Education as part of a Master of Education in order to meet the course requirement of Master of Teaching at University of Sydney.

30. The migration agent further submitted that from February 2020 until the present, the applicant has been studying a Master of Teaching (Secondary) at the University of Sydney.

31. The migration agent further submits that the main reason for the refusal of the applicant’s application on 22 November 2018, was that at that time she was in an unavoidable hiatus due to the course commencement dates set by universities.

32. The migration agent further submits that the applicant constantly kept learning by taking up training courses and self-learning modules at home, during the time prior to the course commencement in February 2019.

33. The migration agent also submitted that the applicant has been taking every proper action to continue studying and enrolling in full-time education programs, and that after receiving her PTE test result, she immediately applied for the Master of Education course in November 2018 and received the Overseas Student Confirmation of Enrolment (COE) on 18 December 2018. Upon completion of two semesters of the Master of Education the applicant reapplied for the Master of Teaching (secondary) with the University of Sydney for the 2020 intake, and that after successfully meeting the language requirement she enrolled in her course and started studying the curriculum in February 2020.

34. The migration agent specifically points out that the applicant did not keep herself enrolled in full-time courses of study just for the purpose of retaining a visa. The fact that she did not pick a TAFE or general institution to study of low-cost is proof of the same. All of the courses she applied for were conducted at well-known universities.

35. The migration agent also submits that the applicant has now spent a total of $283,949 keeping herself enrolled in full-time education in Australia since she came to Australia in November 2016, and that her mother continues to give her financial support for this purpose.

36. The applicant said that her mother has been spending a lot of time in China in recent years. The agent informed the Tribunal that the applicant’s mother operates a business in international education services.

37. Having regard to the totality of evidence in this case, the Tribunal is satisfied that the applicant is not incapacitated for work because of loss of bodily or mental functions.

38. The Tribunal is further satisfied that at the time of application the applicant had been undertaking full-time study since turning 18, or within six months (or a reasonable time) after completing year 12, and continues to meet this requirement, and is still studying a full-time course of study at an educational institution leading to the award of a professional, trade, or vocational qualification, at the time of this decision.

39. Accordingly, cl.802.214(1)(c) is met. It continues to be met at the time of decision.

40. For the reasons above, cl.802.214 is met at the time of application.

41. At the time of decision, cl.802.214 continues to be met. Accordingly, cl.802.221(2)(b) is met.

42. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

43. The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:

    ·cl.802.214 of Schedule 2 to the Regulations; and

    ·cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Roger Maguire
    Member