Zacharaki (Migration)

[2020] AATA 5318

Zacharaki (Migration) [2020] AATA 5318 (14 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Stavroula Zacharaki

CASE NUMBER:  1818048

HOME AFFAIRS REFERENCE(S):          CLF2017/60909

MEMBER:Kira Raif

DATE:14 October 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 14 October 2020 at 12:10pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – visa applicant over 18 years – full-time study – dependent child of an Australian relative – lengthy gaps in studies – applicant maintained employment to support family – economic recession in Greece – delay in processing application – greater reliance on review applicant than on any other support – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, r 1.05; Schedule 2, cls 802.212, 802.214, 802.221

CASES

Hussain v MIBP [2017] FCCA 3247

Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190
Yu v MICMSMA [2020] FCA 209

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 7 June 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 29 August 2017. 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 engaged in studies since turning 18 or within a reasonable period. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 October 2020 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. 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 (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 and cl. 802.212.

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. The applicant must also be a dependent child of an Australian relative: cl. 802.212. These requirements must continue to be met at the time of decision: cl.802.221.

   Study requirement

7. 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). 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).

8. 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.

9. 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).

10. There is no evidence that the applicant was, when making the application, a dependent child within the meaning of subparagraph (b)(ii) of definition of dependent child. The Tribunal finds that the applicant does not meet cl. 802.214(2)

11. There is no evidence that the applicant has a spouse or de facto partner, that she ever had a spouse or de facto partner or that she is engaged to be married. The applicant meets cl. 802.213(1)(a). The applicant provided evidence of her employment but such employment was not on a full-time basis. The Tribunal accepts, as did the delegate, that the applicant has not engaged in full-time work. The applicant meets cl. 802.214(1)(b). The issue before the Tribunal is whether the applicant meets cl. 802.214(1)(c).

12. The applicant provided to the Tribunal a copy of the primary decision record which contains the following information. The applicant previously travelled to Australia on an ETA between October and December 2015. She again travelled to Australia on an ETA in October 2016 and in December 2016 the applicant was granted a Student visa.

13. The applicant stated on the application form that she completed high school in Greece on 22 June 2012. At the time of the application, the applicant was undertaking a Certificates III and IV in Business and a Diploma of Leadership, which she commenced in November 2016 and was due to complete in September 2018. The applicant provided with her application evidence of her study in Greece and Australia.

14. With respect to her employment, the applicant stated that between January 2013 and January 2016 she worked at cafes and restaurants in Greece and between February 2016 and September 2016 she was working as a waitress in a Greek restaurant in Germany.

15. The applicant provided with her application a declaration in which she stated that he studied hairdressing and in order to be able to establish her own business, she decided to pursue business studies. The applicant states that while she was in high school, her parents had conflicts which led to their separation, which she found stressful and emotionally devastating and her family suggested that she should postpone her studies until she was in a better frame of mind. In 2013 her father migrated to Australia and subsequently her brother also migrated and she found it difficult being away from her family, which further affected her state of mind. The applicant states that her father supported her financially as the situation in Greece was not good. After her mother became financially stable, the applicant states that her condition improved and she was able to return to studies and she decided to study in Australia. She has been enrolled in a full-time course of study since December 2016.

16. The delegate noted that the applicant completed her secondary education in June 2012 and did not recommence study until November 2016 in Australia. The delegate notes that despite the applicant’s claimed poor frame of mind, she was able to engage in work between January 2013 and September 2016 and the delegate was not satisfied the applicant’s state of mind would have prevented her from undertaking study. With respect to the applicant’s claim that the financial situation in Greece was poor, the delegate noted the applicant’s evidence that she was fully financially supported by her father, so the applicant’s period of employment could not be considered a ‘dire financial necessity’. The delegate was not satisfied the applicant met cl. 802.214(1)(c).

17. Clause 802.214(1)(c) requires the applicant to engage in studies. The applicant turned 18 on 9 October 2011 and completed her secondary studies in June 2012. The Tribunal finds that the applicant completed the equivalent of year 12 in the Australian school system in June 2012. The Tribunal must consider whether the applicant has, since October 2011, or within 6 months or a reasonable time from June 2012, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification and whether she continues to meet that requirement at the time of this decision.

18. The applicant provided to the Tribunal a written submission and a number of documents on 13 October 2020.

19. The applicant confirms that she had not married, nor engaged in full-time employment. With respect to her study, the applicant submits that after finishing school in June 2012 she started to work as she needed to support her mother and grandmother. She worked between 2013 and 2016 as a waitress on a part-time basis. In January 2016 the applicant moved to Germany with her mother and there she also worked as a waitress. She returned to Greece in August 2016 and then travelled to Australia and was granted a Student visa. In that application the applicant provided evidence of financial support from her father, noting that it was minimal and that she had to work to support herself and her mother. The money transfers between December 2013 and 2015 totalled AUD3700. After coming to Australia, the applicant states she lived with her father and step-mother who provided her with financial support and paid her school fees.

20. The applicant states that she completed the following study in Australia

    11/16 – 04/18               Cert III in Business

    05/17 – 09/17               Cert IV in Business

    09/17 – incomplete       Diploma of Leadership and Management (in oral evidence the applicant told the Tribunal that she did not commence that course)

21. The applicant states that she completed secondary schooling in June 2012 and resumed study in November 2016 and that was within a reasonable period, having regard to her circumstances. The applicant states that after completing high school she was unbale to continue with her studies for a number of reasons, such as her parents’ separation, not being able to afford the cost of further education, the need to support her mother and grandmother, the Greek economic downfall leading to unemployment, poverty, income loss, etc. The applicant states that she was affected by dire financial necessity and unable to resume tertiary studies, which were paid for by her step-mother.

22. In oral evidence the applicant told the Tribunal she was not currently studying. She last studied when she completed the Certificates III and IV in Business Management in 2017 and she did not commence the Diploma course. She had not engaged in studies since 2017. The applicant said that after her visa application was refused, she spoke to her lawyer who advised her that she could work and did not need to continue with her studies.

23. The applicant told the Tribunal that for the past year and a half, her father and step-mother had been living in a different area. Since the time they moved, she has been living with her brother and has to pay for her expenses and that is the reason she has not studied. She also wanted to get a job in aged care and to do a course in that field. The applicant states that the course in aged care is close to $10,000 and she cannot afford it. The applicant agreed, however, that her father and step-mother could provide her with financial support to pay for the course.

24. The Tribunal is not satisfied that the applicant has been unable to engage in studies since 2017, either for financial reasons or for any other reason. The applicant’s evidence to the Tribunal is that her father had agreed to support her financially and could have contributed to the cost of the course. The applicant was also able to work part-time to support herself financially and contribute to the cost of her studies, if there was a need to do that, and the Tribunal is not satisfied that the applicant was unable to engage in studies and part-time work at the same time to support her studies.

25. The applicant has not satisfied the Tribunal that she was unable to engage in studies in a course of her choosing since completing the courses in 2017. The applicant told the Tribunal that she wanted to work and wait for the outcome of her visa application and she relied on the advice of her previous migration agent who told her she did not have to study. It appears that the reason the applicant had not engaged in studies since 2017 is because she prioritised employment and earning income over her studies. As the applicant has not been engaged in study since 2017, the Tribunal is not satisfied the applicant had been undertaking a full-time course of study leading to an award of a qualification since turning 18 or within 6 months or a reasonable time after completing the equivalent of Year 12.

26. The applicant’s representative submits that the matter took more than two years to come to a hearing and it would be perverse and unfair to expect an applicant to continue with her studies, given the delays. The representative submits it would be almost impossible for any applicant to meet the study requirement given the delays and that could not be the intention of the legislation. The Tribunal acknowledges the delay in the processing of this case. However, contrary to the representative’s submission, the Tribunal does not consider it is impossible to meet the study criteria, even given the delay in the processing of the applications. For example, a student who has commenced university study at the time of application is likely to be continuing with such study at the time of decision after a few years. It is certainly not impossible to meet the criteria despite the present delays. Further, the statutory criteria cannot be waived in light of the person’s circumstances or other circumstances affecting the processing of an application. The requirements of cl. 802.221 are clear and unambiguous. The applicant must continue to meet certain time of application criteria at the time of decision. There are no waiver provisions.

27. The representative submits that the time of decision must be considered as the time of the primary decision, otherwise the system is unfair given the delay in the processing of the application. The Tribunal does not accept that argument. It is well established that in reviewing a decision to refuse to grant a visa, where the prescribed criteria require the Tribunal to be satisfied of matters at the ‘time of decision’, the relevant point in time is the time of the Tribunal’s decision and not the delegate’s decision (Yu v MICMSMA [2020] FCA 209).

28. Clause 802.221 requires that at the time of this decision, the applicant continues to meet cl 802.214(1)(c) which relates to study. Thus, the applicant must be engaged in full-time study at the time of this decision. (See also Opoku-Warev MIBP (2015) 297 FLR 416.) The applicant is not so engaged. The Tribunal is not satisfied that 802.214(1)(c) continues to be met at the time of decision. The applicant does not meet cl. 802.221.

    Is the applicant a dependent child?

29. The applicant told the Tribunal in oral evidence that she has been working in Australia. She first worked in cafes and restaurants and now works in aged care as a community care worker. She is working 20 hours per week and earns about $1300 a fortnight. She started her current job in aged care in January 2020 and prior to that she had similar income in the hospitality industry.

30. The applicant told the Tribunal that her father moved to a different area. She lives with her brother and they share the rent. The applicant said that her father gives her money when he can, may be $500 every couple of months or a little more on special occasions and he does not provide her with any other financial help. The applicant said that her expenses include $1300 a month in rent, up to $500 a month for bills, and may be $400 a month for food and clothes. She said she shares rent with her brother and pays for food and clothes and other expenses from her own income. The applicant said she tries to be independent. She was dependent on her father for the first 1.5 – 2 years after coming to Australia as she did not work initially. Later on, she wanted to work part-time and be independent because she did not know whether her father would be able to continue to support her.

31. The Tribunal finds that the financial support the applicant receives from her father is minimal. Her evidence is that her father gives her around $500 every few months while her income from employment is around $2600 a month, which is considerably higher. Her evidence to the Tribunal is that she tries to be independent and her various expenses are paid for from her own income.

32. The representative submits that the applicant is still dependent on her father as he provides her with $500 or more and dependency is not defined by the amount of money but the fact that the father provides support which the applicant requires to survive. In the Tribunal’s view, that claim overlooks the requirement in r. 1.05A(1)(a)(ii) which provides that reliance on another person must be greater than reliance on any other person or source of support. In this case, the applicant’s evidence is that her income from employment, which is primarily used to pay for rent and shelter-related bills, food and clothing, is far greater than the income from the father. The Tribunal is not satisfied that the applicant’s reliance on her father is greater than her reliance on any other source (income from employment). Neither does the Tribunal accept the applicant’s submission that she needs to rely on the income from her father to meet her expenses. The applicant has not satisfied the Tribunal that her income from employment is insufficient to cover her needs for food, shelter and clothing. The Tribunal is not satisfied the applicant is wholly or financially reliant on her father for financial support to meet her basic needs at the time of this decision. The Tribunal is not satisfied that the applicant’s reliance on her father is greater than her reliance on another source of support. For the reasons set out above, the Tribunal notes that the time of decision is the present time of the Tribunal’s decision and not the time of the primary decision.

33. There is nothing to suggest the applicant is incapacitated for work (her evidence is that she has been continuously engaged in employment for a number of years).

34. The Tribunal is not satisfied that at the time of this decision, the applicant is a dependent child of her father. She does not continue to meet cl. 802.212(1)(a). For that reason also, the applicant does not meet cl. 802.221.

35. The applicant’s parents are alive, their whereabouts are known and there is no evidence of their incapacity. The applicant does not meet the definition of ‘orphan relative’ and the requirements for the grant of the subclass 837 visa.

    Conclusion

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.

    Kira Raif
    Senior Member