1508958 (Migration)

[2016] AATA 3561

1508958 (Migration) [2016] AATA 3561 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr EFRAIM TONGCO PADAGAS

CASE NUMBER:  1508958

DIBP REFERENCE(S):  CLF2015/30543

MEMBER:Rieteke Chenoweth

DATE: 17 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 17 March 2016 at 9:03am

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 29 June 2015 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 to the Department of Immigration for the visa on 22 May 2015. 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).

3. 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.

4. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate was 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 delegate noted that the applicant had completed his secondary high school in the Philippines in June 2007.  He undertook a further 2 year course at St Chamuel Institute of Technology in the Philippines from 2007 to April 2009 which was the year he turned 18. He did not provide any evidence of study  until he commenced a Certificate III in Hospitality and Commercial Cookery in February 2015.

5. The applicant appeared before the Tribunal on 16 March 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ejam Hemcro Padagas, the father of the applicant, Mr Perkin Abalo, the boyfriend of the applicant’s sister and Ms Cormelto Cotpanodom, the applicant’s step-mother. 

6. The applicant was represented in relation to the review by his registered migration agent.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether 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

   Dependent child criteria

9. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

   Additional criteria for applicants over 18

10. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

    Full-time study (or incapacitated for work)

11. 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). 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.802.214(2). This requirement must continue to be met at the time of decision: cl.802.221(2)(b).

12. 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].

13. The applicant told the Tribunal he had completed his high school education in the Philippines in 2007. He had then enrolled in a two year Hotel and Restaurant Management at the St Chamuel Institute of Technology in the Philippines.  He completed this in April 2009.

14. The applicant said that after he finished the Hotel and Restaurant Management course he was unable to continue studying because his father could not support him financially to continue his studies. He therefore obtained a job in April 2010 in a pizza and pasta shop.  He worked there until September 2010 after which he had a period of unemployment.  His father had helped him and his sister financially during this period.  In April 2011 he started work in an Amusement arcade and continued this work until September 2013.  He then had another period of unemployment. He did not do any further study in the Philippines. He is currently studying hospitality in Australia at TAFE.  He is due to graduate at the end of 2016.

15. The applicant’s father told the Tribunal his son had not continued with his studies because the family were not able to support him financially.  The applicant and his sister had lived with the applicant’s grandfather who died in 2008. He submitted a copy of the grandfather’s death certificate. The applicant and his sister came to Australia in 2015.  However the applicant’s father was not able to financially support both of them to study and so the sister had returned to the Philippines to care for her mother there. He said that his son had not continued with his studies because the family could not afford to support him while studying and it was too difficult for him to work as well as studying. He wants his son to continue his studies in Australia and live with his family here as he loves his son.

16. The applicant‘s step mother gave evidence that the family’s financial position made it too difficult for the applicant to continue to study. She said that the applicant’s father had financially supported him as much as he was able to but that the financial demands of his new family in Australia had made this very difficult.

17. The boyfriend of the applicant’s sister gave evidence that the family had financial difficulties and that the applicant was not able to continue with his studies because of this. He said that the economic circumstances in the Philippines were such that it was difficult for the applicant and his sister to find work and support themselves financially.

18. There is no evidence that the applicant is incapacitated for work because of bodily or mental functions.

19. The Tribunal finds that the applicant ceased studying in 2009 and did not resume his studies until 2015. This means there was a 6 year gap in his studies. The Tribunal accepts that there were family financial reasons that caused the applicant to cease his studies and that he has resumed his studies as soon as this was possible.

20. The Tribunal is not satisfied that the applicant has, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australia school system, has been undertaking a full time course of study at an educational institution  leading to the award of a professional trade or vocational qualification.      

21. Accordingly, cl.802.214(1)(c) is not met at the time of application.

22. For the reasons above, cl.802.214 is not met at the time of application. 

23. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.

    DECISION

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

    Rieteke Chenoweth
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)       is dependent on that person; or

    (ii)      is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    …

    step-child, in relation to a parent, means:

    (a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or

    (b)a person who is not the child of the parent but:

    (i)       who is the child of the parent’s former spouse or former de facto partner; and

    (ii)      who has not turned 18; and

    (iii)     in relation to whom the parent has:

    (A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or

    (B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …