Chan (Migration) [2020] AATA 4226 (7 October 2020)

Last Updated: 22 October 2020

Chan (Migration) [2020] AATA 4226 (7 October 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Miss Arianne Lynn Chan

CASE NUMBER: 1909869

HOME AFFAIRS REFERENCE(S): CLF2018/70432

MEMBER: Kira Raif

DATE: 7 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 07 October 2020 at 11:09am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 18 not engaged in full-time study – some study in home country, withdrawal from many subjects and not a student at time of delegate’s decision – some study in Australia, but no enrolment at time of tribunal’s decision – caring for young siblings – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.214, 802.221

CASE
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP [2015] FCCA 1638; (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 29 March 2019 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 is a national of the Philippines, born in November 1996. She applied for the visa on 11 June 2018. 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 full-time study. The applicant seeks review of the delegate’s decision.
3. The applicant appeared before the Tribunal on 7 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. 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.
6. 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). These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

Criteria for applicants over 18

7. There is no evidence that the applicant is engaged to be married or that she has, or has ever had, a spouse or de facto partner. The applicant meets cl. 802.214(1)(a). There is no evidence that the applicant had been engaged in full-time work and her evidence to the Tribunal is that she had never worked. The applicant meets cl. 802.214(1)(b). There is nothing to suggest that the applicant is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal finds that cl. 802.214(2) does not apply.
8. The Tribunal must consider the applicant’s study, for the purpose of cl. 802.214(1)(c). 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).
9. 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] FCCA 1638; (2015) 297 FLR 416.
10. The applicant was born in November 1996. As the application was made in June 2018, the applicant was 21 years of age when making the application. She turned 18 in November 2014.
11. 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 study in the Philippines in March 2014. The applicant indicated that from June 2014 she enrolled in a Bachelor of Computer Science / Bachelor of Nursing course at St Claire College of Caolcan / Our Lady of Fatima University and in her declaration, she claimed to be a full-time student at that university until her arrival in Australia. The primary decision record indicates that the applicant’s academic transcripts show that the applicant withdrew from many of the subjects. Thus, in 2015-16 academic year the applicant completed only 2 units and in 2016-17 she withdrew from all her subjects. The delegate was not satisfied the applicant was a full-time student while at university. Further, the applicant did not provide evidence of any enrolment at the time of the primary decision. She informed the delegate that after arriving in Australia in March 2018, she enquired about enrolling in a course but was told that she did not have the right visa. The delegate was not satisfied the applicant met cl. 802.214(1)(c).
12. The applicant provided a number of documents to the Tribunal on 6 October 2020. These include evidence of her study at TAFE NSW in 2019 resulting in the completion of the Certificate II in Information, Digital Media and Technology, personal ID documents, photographs and her mother’s citizenship certificate. It is unfortunate that the submission of these documents was not accompanied by any explanation or submission from the applicant’s representative addressing the issues that arise on review or explaining the relevance of the presented documents.
13. In her declaration dated 30 September 2020 the applicant states that since arriving in Australia in March 2018, she has been living with her mother and step-father and has been fully supported by her parents as she cannot work due to visa conditions. The applicant states that she completed her study in 2019 and has delayed further study as her mother is supporting her other siblings. The applicant refers to her responsibility to help look after the other children and states that is the reasons she was not focussed on her study in the Philippines as she took responsibility for her young siblings in their daily care. The applicant stated that the course she did in the Philippines was ‘not to her liking’ and she did not do well.
14. The applicant provided a statement from her mother, who confirms that she is fully supporting the visa applicant for her financial needs.
15. In oral evidence the applicant said that once she turned 18, she started a nursing course and at the same time she was taking care of her siblings. She did that course from 2014 until 2016 or 2017 but she did not complete the course. The applicant confirmed that she did not complete many subjects in that course because she had to take care of her younger siblings. The applicant said she then did one semester of a computer science course but she did not continue with the second semester as she came to Australia. The applicant states that after she came to Australia in March 2018, she enrolled in a TAFE course in June 2019 and completed the course in December 2019. Between March 2018 and June 2019 she held a visitor visa. She has not studied after completing the course in December 2019 because it is expensive to do that on a Bridging visa. The applicant stated that if she is granted a visa, she wants to study more and then get a good job.
16. The applicant’s mother Ms Kilcher told the Tribunal that she lives with her daughter at the same address. She referred to her employment and said that she has been supporting the visa applicant. Ms Kilcher stated that her daughter wanted to study more but because their financial situation has been difficult, she asked her daughter to wait for the visa to be granted.
17. Having regard to the review applicant’s evidence, the Tribunal finds that she had not been engaged in any study since December 2019 and she is not enrolled in any study at the time of this decision. 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-Ware v MIBP [2015] FCCA 1638; (2015) 297 FLR 416.) The applicant is not so engaged. For that reason, the Tribunal is not satisfied the applicant meets cl. 802.221. It is not necessary to consider whether the applicant is a dependent child of the sponsor.
18. There is no evidence that the applicant is an orphan. While her biological father has passed away, the whereabouts of her mother (the sponsor in this case) are known and there is no suggestion of the sponsor’s incapacity. The evidence before the Tribunal is that the sponsor is supporting the visa applicant and her siblings. The Tribunal is also mindful that the visa applicant was over the age of 18 when the application was made. She does not meet the definition of the term ‘orphan relative’ and the requirements for the grant of that visa.

Conclusion

19. 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

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

Kira Raif
Senior Member