Noan (Migration) [2025] ARTA 135 (30 January 2025)

Decision and			
Reasons for Decision 

Applicant:	Mr Daniel Salkimut Kanawi Noan
Respondent:	Minister for Immigration and Multicultural Affairs 
Tribunal Number:	2101728
Tribunal:	Kira Raif
Place:	Sydney
Date:	30 January 2025
Decision:	The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 30 January 2025 at 09:13am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – study requirements – not engaged in studies when application made – later studies, with long gap, and current study – limited options – no evidence of mental health provided – delays in processing of application – decision under review affirmed

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 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 27 January 2021 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.  	On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal. 
3.  	The applicant is a national of PNG, born in December 1998. He applied for the visa on 17 July 2019. The delegate refused to grant the visa on the basis that the requirements of cl. 802.214 were not met as the delegate was not satisfied the applicant met the study requirements. The applicant seeks review of the delegate’s decision. 
4.  	The applicant appeared before the Tribunal on 14 and 29 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, sister and step-father. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
5.  	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).
6.  	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.  
7.  	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
8.  	The applicant was born in December 1998 and the application for the visa was made in July 2019. The Tribunal finds that the applicant was over the age of 18 when the application was made. 
Relationship status and history
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 to indicate that the applicant is, or has ever been, engaged or married or that he 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
11.  	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).
12.  	The applicant claims he has never engaged in full-time employment. There is nothing to contradict that evidence. Accordingly, cl 802.214(1)(b) was 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 he was, at the time of application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The applicant was over the age of 18 when the application was made. The Tribunal finds that the applicant must meet the requirements of cl. 802.214(1)(c). 
17.  	When making the application, the applicant stated that he had undertaken the following study:

2/06 - 12/18		primary and secondary schooling, PNG
02/19 -	07/19		AMEP Program, TAFE Queensland 
18.  	In a submission that accompanied the application the applicant stated that he was undertaking a single subject at TAFE and, because he is a dependent child, he is not required to engage in full time study. The applicant also subsequently informed the delegate that he was not able to continue with his studies due to Covid. 
19.  	The Tribunal is mindful that, contrary to the submission from the applicant’s representative, there is no legislative requirement that a dependent child need not engage in study. This waiver only applies in relation to those applicants who meet the paragraph (b)(ii) of the definition of ‘dependent child’. That is, a child who is incapacitated for work due to the total or partial loss of bodily or mental functions. In the present case, the applicant has not claimed such incapacity and has not presented any evidence of such incapacity. Otherwise, the dependence requirement is separate from, and additional to, the study requirement. The Tribunal finds that the study requirement does apply in the present case. 
20.  	The delegate noted that the applicant’s AMEP course ended on 1 July 2019 and there was no evidence that the applicant had been engaging in studies at the time the application was made. The delegate was not satisfied the applicant was engaged in studies between September 2017 and May 2018 and also since July 2019. 
21.  	In his submission to the Tribunal of 10 January 2025 the applicant provided further evidence including personal CVs and resumes of his parents. The applicant states that the delegate erred in finding that there was a gap in his studies. The applicant states that he should be permitted to remain in Australia without the consent of his biological father (and he provides reasons for that claim). As the father’s consent has not been raised as an issue (and the applicant is over the age of 18), the Tribunal has not considered that issues. The applicant refers to his personal background, as well as his and his mother’s circumstances. 
22.  	In his submission of 28 January 2025 the applicant provided a detailed outline of his past study and migration history. The applicant refers to the delays in the processing of his application, stating that four years of delays had a negative impact on his state of mind and also affected his ability to engage in study. The applicant states that he planned to study at TAFE but his visa did not allow him to study for more than three months. Once his visitor visa expired, he was not informed that he could study on his new visa and he did not receive appropriate advice from his lawyer. The applicant states that the courses he had considered required a paid apprenticeship which incorporated full-time work which was not permitted by his visa. The applicant referred to his and his family’s personal circumstances. The applicant also notes that during Covid the educational facilities were closed and he was not able to study. The applicant refers to the financial hardship and the cost of the visa processes and enrolment, stating that his family could not afford the tuition fees. 
23.  	With respect to his study, the applicant’s evidence to the Tribunal is as follows:
02/19 – 05/19	Skills to access learning pathways -
07/19 – 11/19	Cert I in Skills for Education and Training pathways 
03/21 – 06/21	Cert II in Engineering pathways 
08/21- 04/22	Cert III in Health services assistance 
07/21-?		Cert II in Skills for Work and Vocational Pathways 
12/24 – current 	Diploma in Emergency Health care 
24.  	The applicant also completed a First aid and CPR Skill set course in October 2021. He told the Tribunal this was a one-day course and, as such, the Tribunal does not consider that it led to any formal qualification and cannot be considered for present purposes. 
25.  	In oral evidence during the first hearing, the applicant stated that he has not undertaken any study between April 2022 and December 2024 because most courses involved apprenticeships and he was not allowed to work. He also stated that he did not want to do other courses and ‘gave up’. 
26.  	The applicant told the Tribunal that after completing the Certificate III, he looked for other courses but they were not suitable. Some were for high school students, some were not in Cairns and some required an apprenticeship. Other courses required an international student fee which the family could not afford. The applicant states that he had very limited options. 
27.  	The Tribunal does not accept the applicant’s evidence. The Tribunal does not accept that all courses required an apprenticeship (even if the applicant was not able to complete an apprenticeship due to his visa restrictions and the Tribunal has not considered whether an apprenticeship equates to full-time employment for the purpose of a Child visa). The applicant did complete a number of courses – in particular, health–related courses – which did not require an apprenticeship and there were, undoubtedly, other courses available at TAFE and other institutions that would not have required the applicant to complete an apprenticeship. 
28.  	Neither does the Tribunal accept that the applicant did not have other study options. There would have been some courses available locally, including those courses that the applicant did enrol in and was able to complete, and there may also have been some courses available online. The Tribunal is mindful that in December 2024 the applicant was able to enrol in a suitable course. He told the Tribunal that this course was recommended by his migration agent and they did not know about that course provider earlier. The fact that the applicant was able to enrol in December 2024 also suggests that appropriate courses were available earlier. 
29.  	The applicant told the Tribunal that they were desperate for him to do a course and his mother had to pay the international student fees. The applicant’s mother Ms Sheena Towle told the Tribunal that there were limited courses available for a year and they then had to wait for a further year before enrolling. Ms Towle told the Tribunal that she had spent a lot of time searching for appropriate courses but some, such as the university course, were very expensive. Mr Towle told the Tribunal that during Covid he was laid off and there was no financial support and the family’s finances affected the applicant’s ability to study. The applicant’s sister Ms Sian-Tia Noan Towle told the Tribunal that she sees her mother and brother struggling mentally and financially. She referred to her brother’s help and protection when she needed it. She states that the lawyers advised him that the applicant was not able to work and there were misunderstandings over the years. The Tribunal acknowledges that evidence. 
30.  	The Tribunal has considered the claim that the family was not financially able to support the applicant’s study. The Tribunal is mindful that there is no documentary evidence regarding the family’s financial situation or other options that may have been available to the applicant (for example, he refers to having a payment plan with the current institution. It is unknown whether there may have been a possibility of a student loan). The Tribunal also notes the evidence that other family members had been able to engage in employment and there is no documentary evidence to indicate whether some of this income could have been used towards the applicant’s tuition fees. 
31.  	The applicant has not satisfied the Tribunal that between April 2022 and December 2024 there were no other study options. The applicant has not presented evidence of what courses may have been available and what the fees may have been and whether there were different payment options such as payment by instalment or other forms of financial support offered to students. There is no documentary evidence about the family’s financial circumstances and even if the family had limited income, there is no probative evidence to satisfy the Tribunal that the family’s income would have been insufficient to support the applicant’s study in some course, or to support other activities relevant to study. On the limited evidence before it, the Tribunal is not satisfied that the applicant failed to engage in study between April 2022 and December 2024 due to financial hardship. 
32.  	The applicant refers to his poor mental health during the relevant period, stating he was affected by the uncertainty of his visa and his future. The Tribunal finds that evidence problematic, firstly because there is no persuasive and contemporaneous evidence from health professionals confirming that the applicant was incapable of engaging in study in the relevant period. Secondly, this is because the applicant did engage in study at a later period and there is no probative evidence before the Tribunal to indicate that the applicant had undertaken treatment that would have improved his health and enabled him to study. The applicant told the Tribunal that he spoke to a doctor but was told that there needs to be a further assessment before a report could be provided and Ms Sheena Towle told the Tribunal that the applicant did not wish to see a health professional and there were high consultation fees. On the limited evidence before it, the Tribunal is not satisfied that the applicant’s mental health precluded him from engaging in study. There is also no probative evidence to indicate that the applicant was incapacitated for work due to the total or partial loss of mental functions. 
33.  	The Tribunal finds that the applicant had not engaged in any study between April 2022 and December 2024. He told the Tribunal that during that period, he supported his sister, stayed at home and played sport. He also engaged in some voluntary activities and, he claims, learned practical and helpful skills. The Tribunal is not satisfied that in that period, the applicant had engaged in any activities that were relevant to study. 
34.  	The applicant had not engaged in study for a period exceeding two and a half years, between April 2022 and December 2024. On the limited evidence before it, the Tribunal is not satisfied that the break in study was due to the unavailability of courses, limited finances or the applicant’s poor mental state, or a combination of such factors. On the evidence before it, the Tribunal is not satisfied that the applicant had, 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. The Tribunal is not satisfied the applicant meets cl 802.214(1)(c) at the time of decision for the purpose of   cl 802.221. 
35.  	As the applicant was over the age of 18 at the time of application, he does not meet the definition of orphan relative and the requirements for the grant of the Orphan Relative visa. There is also no evidence to indicate the applicant is an adopted child of the sponsor and the Tribunal is not satisfied he meets the requirements for the grant of the Adoption visa. 
decision
36.  	The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Date(s) of hearing	14 and 29 January 2025
Representative for the Applicant: