1407170 (Migration)

[2015] AATA 3120

1407170 (Migration) [2015] AATA 3120 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Analisa Lucas

VISA APPLICANT:  Miss Ma Nica Arzela Lucas

CASE NUMBER:  1407170

DIBP REFERENCE(S):  OSF2013/041972

MEMBER:Alan Duri

DATE:23 July 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.213 of Schedule 2 to the Regulations.

Statement made on 23 July 2015 at 9:11am

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 Immigration on 3 April 2014 to refuse to grant Miss Lucas a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Lucas was born on 31 January 1991 in the Philippines.  Her mother Ms Analise Lucas arrived in Australia on 11 May 2009.  She became an Australian citizen on 16 December 2014.

3. Miss Lucas applied to the Department of Immigration for the visa on 30 August 2013.  At the time her mother was a permanent resident.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met.  In particular as Miss Lucas was over 18 at the time of the visa application, she needs to satisfy educational requirements.  The delegate found that Miss Lucas had not been engaged in full time study from November 2009 until the second semester of 2010/11.

   Hearing

5. The review applicant Ms Analise Lucas appeared before the tribunal on 20 April 2015 to give evidence and present arguments. The tribunal also received oral evidence from Miss Lucas. The tribunal hearing was conducted with the assistance of an interpreter in the Tagalog language.

6. Ms Lucas was represented by Ms Jancie Gounder.

7. The tribunal received a variety of material that where relevant will be referred to below.

   Ms Analise Lucas’ evidence

8. Ms Lucas told the tribunal that she arrived in Australia on 9 May 2009 as a dependent of her ex-husband.  When she arrived in Australia her husband was living in Brisbane.  She went to live in Macquarie Fields and gave evidence of the effect that she and her husband had never cohabitated in Australia. 

9. Ms Lucas indicated that her daughter Nica completed high school in 2007 and went straight to university to undertake a Bachelor of Science in computer science course on a full-time basis.  She stated that her daughter is still studying and expects to complete her course in 2016.  Ms Lucas indicated that her daughter has never been engaged, has never lived in a de facto relationship and has never been married.  She also stated that her daughter has never worked.  Ms Lucas also told the tribunal that her daughter has always been in good health.

10. Ms Lucas indicated that she has been the sole source of financial support for her daughter.  She stated that the daughter does not receive any financial assistance from within the Philippines and she also stated that her former husband does not send money to their daughter, apart from birthday presents.  Ms Lucas told the tribunal that she sends her daughter 30,000 pesos per fortnight.

    Miss Nica Lucas’ evidence

11. Miss Lucas told the tribunal that she has never worked in any capacity.  She stated she has never been engaged, in a de facto relationship or married.  She stated that she is in good health.  Miss Lucas told the tribunal that her sole source of financial support is remittances from her mother, who sends her between 30,000 and 40,000 pesos every two weeks.

12. The tribunal asked Miss Lucas about her educational history.  She stated that after she completed her high school in 2007 she attended college at Muntinlupa and studied a Bachelor of Science in computer science degree on a full-time basis.  She stated that the normal duration of the course on a full-time basis is five years.  Miss Lucas stated that she attended university continually on a full-time basis from 2007.  She indicated that she did not pass some of her subjects in 2009/2010 and from the first semester 2011 she transferred to the San Pedro College of Business Administration.  Miss Lucas stated she is undergoing the same course and still has 21 units left.  She said that since 2011 she has studied and passed all her course requirements.

13. The tribunal asked Miss Lucas about the academic transcript provided before the hearing.  In particular, the tribunal asked about Miss Lucas’ studies from second semester 2009/10 until first semester 2011.  Miss Lucas gave evidence to the effect that she attended and participated in all courses during this period of time.  However, she did not pass most of the courses.  Miss Lucas told the tribunal that the UW code refers to “unofficial withdrawal”.  She stated that this was sometimes used by teachers for students who failed an exam so as to give the students a further opportunity to redo to the course without blemish on their record.  The code “0.00” refers to where a student does not sit a final exam.  However, Miss Lucas’ evidence on this point was somewhat confusing and vague and she also suggested that sometimes she did sit the final exam notwithstanding a 0.00 grade.  At any rate, Miss Lucas stated that she usually attended all her classes in 2009 to 2011 period.  However, she acknowledged that she was not concentrating during this period.  Her mother had recently migrated to Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship.  These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a). 

15. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

16. Miss Lucas was born on 31 January 1991 and turned 18 on 31 January 2009.  The visa application was lodged on 30 August 2013.  As Miss Lucas was over 18 at the time of the visa application she must satisfy educational requirements set out in cl.101.213:

    (1)    If the applicant has turned 18:

    (a)    the applicant:

    (i)    is not engaged to be married; and

    (ii)    does not have a spouse or de facto partner; and

    (iii)    has never had a spouse or de facto partner; and

    (b)    the applicant is not engaged in full-time work; and
    (c)    subject to subclause (2), the applicant has, 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.

    (2)    Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

17. The tribunal accepts that at the time of the visa application Miss Lucas was not engaged, not married or not in a de facto relationship.  The tribunal also accepts that at the time of the visa application she was not engaged in full time work.

18. Therefore the tribunal accepts that cl.101.213(1)(a) and (b) are satisfied. 

19. There is no evidence or no suggestion that cl.101.213(2) is applicable in this case.

20. The proposition before the tribunal is that Miss Lucas has at all relevant times been undertaking full time studies but that she has failed various subjects.

21. The tribunal has before it the following information concerning Miss Lucas’ studies:

    Visa application

22. The visa application lodged 30 August 2013 provides that Miss Lucas completed high school on 2 April 2007.  She commenced a Bachelor of Science in Computer Science course on a full time basis from 10 June 2007 and was expecting to complete the course on 30 April 2014.  The course was described as full time.

    Academic records

23. The San Pedro College of Business Administration academic transcript dated 20 December 2013 shows that Miss Lucas was undergoing full time studies from first semester 2007 until first semester 2009.   Although she enrolled in a number of courses from 2009 it appears that for nearly all the subjects she failed to achieve any credit points for a variety of reasons.  The academic record suggests that Miss Lucas resumed full time studies from first semester 2011.

24. Following the hearing the tribunal received a variety of material concerning the personal circumstances of Miss Lucas.

25. It is clear on the evidence that at the time of the visa application Miss Lucas was enrolled in courses that would otherwise meet the requirements of cl.101.213(1)(c) in that the courses were a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.  However her academic transcript shows that she had poor attendance and performance in second semester 2009/10 and the 2010/11 school year. The tribunal understands that this period roughly is from November 2009 to March 2011.

26. This leads to the question as to whether Miss Lucas was “undertaking” a full time course of study in that period.

27. Mere enrolment in a course in itself does not satisfy the requirement of cl.101.213(1)(c).  This clause requires that the applicant be undertaking a full time course of study.  “Enrolment” and “undertaking” are not synonymous.  It is possible to enrol in a course and at the same time make no attempt to actually undertake the course.  For example if  a student never attended any lectures, never handed in assignments and never sat any exams, it would be perverse to suggest that such a student was undertaking a full time course of study solely because  the student was enrolled.

28. On the other hand the Federal Court in Sok v MIAC [2007] FCA 413 has observed that the term ‘undertaking’ is not necessarily synonymous with the term ‘actively participating’.  It considered that the term could be relevantly defined as ‘engaging in’ or ‘entering upon’ some enterprise, and as such the relevant question may be whether the applicant has been engaging, or participating, or entering upon a full-time course of study.  By implication a person engaging in bona fide study who frequently fails subjects (in spite of participating in the course) can still be taken to be undertaking a course of study.  On the other hand a student who frequently fails because of lack of participation or engagement with the study cannot be said to be undertaking a course of study. 

29. As noted above Miss Lucas claims to the attended and participated in the course throughout 2009 to 2011 but failed various subjects.  If this is the case then Miss Lucas would satisfy the requirements of cl.101.213(1)(c).

30. However the academic transcript suggests otherwise.

31. The three semesters in question are second semester 2009/10 and first and second semesters 2010/11.  The transcript shows that in those three semesters Miss Lucas was enrolled in a total of 21 subjects.  Of these Miss Lucas achieved credit for three of these subjects and zero credit points for the other 18 subjects.  As for grades, Miss Lucas was given “0.00” for eight subjects; “”UW” for eight subjects and “inc” for two subjects.  On the odd occasion a “failed” was recorded against a subject back in 2008.  This strongly suggests the codes 0.00 and UW do not apply to courses where a student sat for any final exam but did not pass.  This is because the “failed” category is used in the academic record.  It follows then that the tribunal does not accept Miss Lucas’ evidence that she sat for the exams for the subject but failed and was given a UW instead of a fail.   

32. According to the transcript “inc” means incomplete and “UW” means unauthorised withdraw and one unit of each credit is “one hour lecture or recitation each week for a period of a complete semester”.  This strongly suggests that Miss Lucas effectively abandoned most of her studies in the period from November 2009 to March 2011.

33. Based on the academic record, the tribunal is not prepared to accept Miss Lucas’ evidence that she engaged, participated or entered upon a full-time course of study during the period in question, notwithstanding the fact that she had enrolled in a number of courses.

34. The effect of cl.101.213(1)(c) is that an applicant is required to have been undertaking a full time course of study at an educational institution at the time the visa application was made, and also to have been undertaking full time study from one of the above alternative points in time i.e.:

    ·since turning 18; or

    ·within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.

35. It is theoretically possible that an applicant would meet both if s/he turned 18 before completing year 12, although it would only be necessary to consider the period after completing year 12 (being the later of the two).  If the applicant has not completed the equivalent of year 12, the relevant period for the tribunal to consider is whether the study has been undertaken since turning 18 until the time the visa application was made.

36. The meaning of ‘since’ was considered in Wake v MIAC [2010] FMCA 272. The Court held that ‘since’ in this context was used in the sense of ‘continuously from’ the event of turning 18 and rejected the submission that it meant ‘at any time after’ turning 18.

37. Miss Lucas does not satisfy the first limb of cl.101.213(1)(c) because she has not been undertaking full time study since (i.e. in the sense of continuously from) she turned 18.  Miss Lucas turned 18 on 31 January 2009.  She did not undertake full time studies between the second semester 2009/10 to until the first semester of 2011/12 (approximately November 2009 to March 2011).  It follows that Miss Lucas has not been undertaking a full-time course of study since turning 18.

38. The second limb of cl.101.213(1)(c) contemplates gaps in studies the provided the breaks in study are a “reasonable time”.  However on the wording of the relevant provisions, the consideration of ‘reasonable time’ is only relevant to the period between completing the equivalent of year 12 and commencing further studies.  Miss Lucas completed high school on 2 April 2007 and commenced a Bachelor of Science in Computer Science a few months later in June 2007 (i.e. within six months of completing high school).  However as found above, the tribunal does not accept that Miss Lucas undertook a full-time course of study full time studies between late 2009 and March 2011.  

39. The regulation requires that the applicant has, 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.  “has been” in this context suggest continuously.  Given the large gap (over a year) when Miss Lucas was not undertaking studies, it cannot be said that she “has been undertaking” a course of study since completing high school.

40. However the evidence indicates that at the time of the visa application Miss Lucas had been undertaking a full time course of study since her transfer to San Pedro College of Business Administration (ie. about June 2011).     

41. This in turn leads to the question of whether Miss Lucas’ studies were undertaken within a reasonable time of her completing high school.   

42. There is no definition in the regulations as to the meaning of “reasonable time”.   However, case law indicates in determining what period of time would be reasonable one must necessarily consider the actual period of time involved, what activities if any were undertaken during that period of time; the purpose which those activities were undertaken; and if no activities connected with the ultimate course of study were undertaken and the reason for not undertaking activities related to the course of study (Sok v MIMIA [2005] FMCA). 

43. Miss Lucas provided a statement that this break in studies was due to her emotional reaction to her mother migrating to Australia and her parents’ situation in general.  The tribunal further notes that Miss Lucas continued some studies in the relevant period and remained enrolled during the relevant period.  She managed to obtain credit for a few course in the period.  While she clearly was not undertaking full time studies, she also by the same token did not cease studies altogether.  Furthermore there is no evidence that Miss Lucas worked in the period. 

44. Taking into account the principles outlined in Sok, the tribunal is prepared to accept that the reasonable time test is satisfied in this case.

45. Accordingly, cl.101.213(1)(c) is met at the time of application, and continues to be met at the time of decision.

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

    DECISION

47. The tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.213 of Schedule 2 to the Regulations.

    Alan Duri
    Member