1412618 (Migration)

[2015] AATA 3381

1412618 (Migration) [2015] AATA 3381 (25 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Carina Fontanilla

VISA APPLICANT:  Ms Maricar Diaz

CASE NUMBER:  1412618

DIBP REFERENCE(S):  OSF2014037017

MEMBER:Hugh Sanderson

DATE:25 August 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 25 August 2015 at 1:01pm

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 22 April 2014 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied to the department of Immigration for the visa on 16 January 2014. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the delegate was not satisfied that at the time of the application the applicant had not, 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.

   Background

5. The review applicant is a citizen of the Philippines. She first came to Australia on 5 June, 2008 holding a subclass 309 Partner (Temporary) visa. She was granted a subclass 100 Partner (Residence) visa on 2 June, 2010. She now has the right to reside in Australia permanently. She has two children, currently aged 14 and 7 years old who were secondary applicants for her Partner visa and both continue to reside with the review applicant.

6. The visa applicant is the eldest child of the review applicant. She was born on 31 May, 1989 and is a citizen of the Philippines. She was not included in the review applicant’s partner visa application and remained living in the Philippines after the review applicant moved to Australia.

7. In her application, the visa applicant stated that she finished her secondary education at Marikina High School in April 2004 when she was almost 15 years old. She did not do any studies after that until attending the Dios Santos STI College doing a “caregiver course” which commenced on 9 May, 2010 when she was 20 years old and was completed on 16 December, 2011. She provided various certificates to confirm this course was completed on 16 December, 2011. No information was provided as to any further study or employment she held since that date.

8. In a statement provided by the visa applicant at the time of the application she stated she was renting a small place as she had finished all her studies.

9. The delegate who considered the application noted that at the time of the application the visa applicant was 24 years and 7 months old. As the applicant had turned 18 at the time of the application, the delegate considered whether the applicant met the criteria in cl.101.213. The delegate noted the applicant turned 18 on 31 May, 2007 and that the applicant had stated that she finished High school in June 2004. The delegate noted that the next course of study the visa applicant participated in did not commence until 9 May, 2010, almost 3 years since the applicant turned 18. The visa applicant was not currently undertaking any studies after her caregiving course finished on 16 December, 2011, more than two years before the current application was filed.

10. The delegate found that there had been two periods of three years and two years length where the visa applicant had breaks in undertaking full-time study. The delegate was not satisfied that the lengthy gaps in any study, with no compelling reason to account for this gap in study, could be considered a reasonable period. Accordingly, the delegate was not satisfied that at the time of the application the applicant had, 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. Accordingly, the delegate concluded that the applicant did not meet the criteria in cl.101.213(1)(c). The delegate was not satisfied that the applicant met the criteria in any other subclass of visa and refused the application.

11. The review applicant provided further submissions to the tribunal where she made the following claims:

    ·She did not include the visa applicant in her Partner visa application because there was a problem with her birth certificate with inconsistent names and so she remained in the Philippines with the review applicant planning to save money to rectify the problem;

    ·The visa applicant was studying a Bachelor of Nursing since June 2007, however, her husband did not allow her to provide financial assistance to the visa applicant;

    ·The review applicant separated from her husband who had sponsored her for the Partner visa and then cancelled his sponsorship of the visa applicant;

    ·The visa applicant had to stop studying nursing in June 2011 as the review applicant could not support and pay for the school fees;

    ·The review applicant then borrowed money from friends to allow the visa applicant to do an aged care course or a caregiving course which commenced in June 2011 and finished in December 2011;

    ·The visa applicant then applied for overseas nursing jobs, but was unsuccessful; and

    ·She wishes for her daughter to be with her in Australia as it is very expensive to pay for her to come to Australia on Tourist visas.

12. Various documents were provided indicating the visa applicant was enrolled in studies as follows:

    ·Short Course in Caregiving completed 16 December 2011;

    ·Basic Baking for 120 hours between 22 April 2014 to 15 May 2014; and

    ·Enrolment in Bachelor of Science in Nursing for the school year 2015-2016, second semester only.

    The hearing

13. The review applicant appeared before the tribunal on 25 August 2015 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant. The tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages. The review applicant was represented in relation to the review by her registered migration agent who did not attend the hearing.

14. The review applicant said that after the visa applicant finished high school in 2004 she studied nursing for two years. She then said that it was for four years that she was studying nursing. She said that the visa applicant did not obtain the certificate she was studying for a she could not afford to continue to attend the studies.

15. The review applicant said that after finishing nursing in 2008 the visa applicant then started looking for work in hospitals and also in community services. She said that she was not able to get employment and so started studying caregiving in May 2010, which she finished in December 2011. She said the visa applicant applied for work after that time in the Philippines and overseas but was not able to obtain any employment. She said that the visa applicant then studied a bakery course in April 2014 and, once that course was finished, commenced a hospitality course which she is still doing.

16. The review applicant confirmed that her daughter was not incapacitated for work for any reason.

17. The tribunal noted the requirement for the grant of a Child visa where the applicant is over 18 that 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. The tribunal noted that there appeared to be at least two significant gaps in any study undertaken by the visa applicant. The first was between 2008 and the visa applicant commencing her study in caregiving in May 2010. The second was another significant gap from her completing the caregiving studies in December 2011 to starting a basic bakery course which lasted for less than a month commencing in April 2014.

18. The review applicant said that the reasons the visa applicant stopped any study was due to financial difficulties and that she never worked over that period, although she was looking for work.

19. The visa applicant gave evidence to the tribunal by telephone. The visa applicant proved to be a particularly poor historian with her incapable of providing the dates of her various studies. She said that after finishing high school she studied nursing but this took longer than usual as she had a one-year break during those studies. She said that she did not complete the nursing course but finished studying in May 2008. She said that she did not start studying again until she started her caregiver course in May 2010. She said that she did not work or look for any employment over this period.

20. The visa applicant said that after finishing her caregiver course in December 2011 she still had one week of work to do and this was delayed so that she could travel to Australia. She said that she did not do any further study until she started the bakery course in April 2014 and is now studying hospitality. She said that she did not apply for any employment or seek any work throughout the time that she was not studying. The tribunal noted that this was inconsistent with the statement she had previously made to the department. The visa applicant claimed that she just stayed at home waiting for a visa to come to Australia.

21. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether the applicant has, 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.

    Additional criteria for applicants over 18

23. 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).

    Full-time study (or incapacitated for work)

24. At the time of application, the visa 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.101.213(1)(c). However, 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.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

25. 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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

26. There is no information which would indicate that the visa applicant is incapacitated in any way for any reason.

27. The visa applicant has provided various documents to establish her studies since she turned 18. The information about her studies has been inconsistent, in particular her claim that she was studying at nursing after she finished school in 2004 until 2008. A letter provided by De Los Santos STI College dated 15 May, 2015 states as follows:

    This is to satisfy that MS. Maricar Fantanilla Diaz was officially enrolled in the College of Nursing of this school leading to the degree of BACHELOR OF SCIENCE IN NURSING (BSN) Course year from School Year 2015-2011 2^nd SEMESTER only. (sic)

28. This statement is inconsistent with the information provided by both the visa applicant and the review applicant, quite apart from the perplexing information that she was enrolled in the “School Year 2015-2011” (sic).

29. Taken at its best, after the visa applicant finished high school she studied nursing until May 2008 (ignoring a 12 month period when she was not studying as claimed by the visa applicant). She did not participate in any further studies until May 2010, two years later, when she commenced studying for a Certificate in Caregiver. She completed this study in December 2012. She did not commence any further studies for a period of more than two years when she commenced a Basic Bakery Course in April 2014. She claims, since then, to have been studying hospitality.

30. The tribunal has considered whether the two gaps in her study between her ceasing studying for a Nursing degree in May 2008 until her commencing the Certificate in Caregiver in May 2010 and the gap after she finished that course in December 2011 until her commencing further studies in April 2014 can be considered a reasonable period for the purposes of cl.101.213(1)(c). It is noted that at the time of the application the applicant was not enrolled in any course of study and had not been so for a period of over two years.

31. The gaps in the visa applicant study she has had since she turned 18 have been in excess of two years on each of the two occasions she stopped studying. It was claimed that the reason for this break in her studies was due to the financial restraints of the review applicant. The tribunal does not accept that merely claiming that a person is not able to afford to attend continuing studies after they have turned 18 provides a ground for claiming that any significant gap in their studies is a reasonable time. If the only reason she stopped studying was due to financial constraints, there is no information as to any employment the visa applicant obtained to offset those difficulties.

32. During those gaps in her study, the review applicant stated that after finishing her studies in December 2011 the visa applicant looked for work, including looking for work overseas. There is no indication that there was any intention of the visa applicant at that time to continue any studies. When the visa applicant eventually did commence further studies in April 2014, this was after the department had issued their decision and was for a course of study unrelated to her earlier studies as a nurse or caregiver.

33. When considering the visa applicants activities since turning 18, the tribunal finds that she has not 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 finds that the periods since turning 18 when she has not been studying cannot be considered a reasonable time. The fact there were two gaps of more than two years each in her studies, the fact that the studies the applicant is now undertaking are unrelated to her earlier studies, that it does not appear that the visa applicant achieved anything in trying to offset any financial issues the review applicant may have faced over the period, and that it appears the visa applicant was not studying and did not have any plans to study at the time the application was filed leads the tribunal to this conclusion.

34. Accordingly, cl.101.213(1)(c) is not met at the time of application. 

35. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

36. The tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Hugh Sanderson
    Member