1516890 (Migration)

[2016] AATA 4613

1516890 (Migration) [2016] AATA 4613 (31 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Cristeta Sanglay

VISA APPLICANT:  Mr Arnel Jr Sanglay

CASE NUMBER:  1516890

DIBP REFERENCE:  OSF2014/039978

MEMBER:Deborah Morgan

DATE:31 October 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 31 October 2016 at 9:55am

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 19 November 2015 to refuse to grant Mr Arnel Jr Sanglay (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 17 October 2014. He was sponsored for the visa by the above named review applicant, his mother.

3. 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).

4. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213 that applies to applicants who have attained 18 years at time of application.

5. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.101.213 because his study since leaving school has not been continuous, with two periods of employment and another period of no study and no employment.

6. The review applicant appeared before the Tribunal on 25 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence in person from Mr Christopher Brown, the review applicant’s husband, and from the visa applicant by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa applicant was born in the Philippines on 11 January 1992. He was therefore aged 22 years at time of application.

9. The visa applicant’s birth certificate (Department file, folio 59) states that Cristeta L. Desipeda is his mother and that Arnel V. Sanglay is his father.

10. Evidence of the visa applicant’s education was submitted to the Department.

11. The visa applicant stated that he has not married and that he does not have children.

12. The review applicant was an Australian permanent resident at time of application. 

13. The review applicant provided a copy of the delegate’s decision to the Tribunal.

    Issue before the Tribunal

14. The issue in this case is whether the visa applicant meets the criteria in clause 101.213 in Subclass 101 which applies to applicants who have attained 18 at time of application.

    Additional criteria for applicants over 18

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).

    Full-time study (or incapacitated for work)

16. The Tribunal finds that the visa applicant turned 18 years on 11 January 2010.

17. It is not disputed that the visa applicant was aged 22 years at time of application.

18. It is not claimed that the visa applicant is incapacitated in any way.

19. At the time of application, Australian migration law requires that 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).

20. 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].

21. 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].

22. Documentary  evidence with respect to the visa applicant’s education on the Department’s file indicates as follows:

    ·He completed his secondary education on 1 March 2007.

    ·He undertook a Diploma in Information Technology at STI Education Services Group and graduated on 22 April 2010.

    ·He enrolled as an associate in Computer Technology at Chrisville Institute of technology from June 2012 until March 2013.

    ·He recommenced studying at STI College in the academic year 2014 -2015 in a Bachelor of Science in Information Technology.  

23. The delegate’s decision records that during his interview with the Department, the applicant stated he ceased all study between March 2013 and June 2014 because he was caring for his sibling and his sister’s children. 

24. In Form 47CH the visa applicant stated he worked from June 2010 to October 2010 for Samsung as a production operator and then for Philex Corporation from July 2011 to December 2011, also as a production operator.

    New material submitted to the Tribunal

25. The review applicant provided a written submission that explained the visa applicant’s breaks in study were for the purpose of caring for younger family members. She also referred to their former migration agent’s long delay in lodging visa applications for her children. She asked the Tribunal to consider this case on compassionate grounds. 

26. Mr Chris Brown, the review applicant’s partner, also provided a written submission to the Tribunal which refers to the two years delay by their migration agent in lodging the review applicant’s children’s visa applications. Mr Brown informs that the review applicant’s younger son Arcris has been granted a visa and is living with them.

27. A bundle of money transfers from the review applicant to the visa applicant, the most recent being dated 23 July 2016; records of video chat and photographs were also submitted. 

    Oral evidence received during the Tribunal hearing

28. The review applicant told the Tribunal that their former advisor in the Philippines failed to inform them about the additional requirements for child visa applicants who are older than 18 years. Furthermore, their Filipino agent said that visa applications had been lodged for both the visa applicant and his younger brother but in fact that had not occurred.

29. Mr Brown said they were let down by their migration agent in the Philippines

30. The review applicant said that the visa applicant is not presently working and is studying full-time in information technology at STI College.

31. The visa applicant resides with his sister, Crisell, and her two children aged 9 and 10 years.

32. The review applicant provides financial support to the visa applicant with assistance from her husband.

33. The review applicant confirmed that the visa applicant graduated from his Diploma in IT in April 2010, then he worked for three months with Samsung and in the second half of 2011 he worked for Philex for about six months.

34. The Tribunal asked the review applicant to state what the visa applicant did for the first 6 months of 2012. She said she did not recall.

35. From March 2013 to June 2014 the visa applicant cared for her son and for Crisell’s children while she was studying.

36. The visa applicant told the Tribunal that his mother supports him financially and he does not work. He is studying full-time and expects to graduate in March 2017.

37. The visa applicant told the Tribunal that he cared for his sister’s two children while she studied tourism.

38. The visa applicant told the Tribunal that the review applicant’s five sisters live in a different part of the same city as him. They do not assist him financially but he sees them about once a month.

39. The visa applicant said he has a girlfriend for three years but has not yet proposed to her.

    Findings

40. The applicable criteria in this case are those set out in clause 101.213 that applies to the visa applicant at time of application as follows:

    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.

    101.213 (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.

41. The Tribunal is satisfied on the evidence that the visa applicant has good health and he is not and has not been incapacitated for work because of loss of bodily or mental functions. Accordingly, the visa applicant cannot rely on the criterion in subclause 101.213(2).

42. The Tribunal is satisfied that at time of application, 17 October 2014, the visa applicant was aged 22 years and was studying a Bachelor of Science in Information Technology that he commenced in June 2014.

43. The Tribunal accepts that at time of decision the visa applicant continues to study the same degree with the expectation of graduating in March 2017.  

44. As stated above (refer paragraph 40), Australian migration law, has specific requirements which must be met by the visa applicant which the Tribunal now turns to consider.  

45. The evidence is that since turning 18 the visa applicant studied and was granted a Diploma in Information Technology on 22 April 2010. After that graduation the visa applicant worked for two different companies as a production operator for periods totalling about 9 months in 2010 and 2011.

46. The Tribunal notes that more than two years passed from the time of the visa applicant’s graduation in April 2010 to him undertaking further study in June 2012.  The evidence is that the visa applicant stopped study again in March 2013.

47. On the grounds of the visa applicant’s two years break from study from late April 2010 to June 2012 and his next break in study from April 2013 to June 2014 the Tribunal fails to be satisfied that since turning 18 the visa applicant has been in full-time study.

48. The Tribunal has taken into account the circumstances surrounding the visa applicant’s non-study periods and finds he stopped study to work for some of the time from April 2010 to June 2012 and that he stopped study again from April 2013 to June 2014. It is claimed the visa applicant’s second break in study was to care for younger family members.

49. In relation to the first break from study, the Tribunal is satisfied that was the visa applicant’s own decision.

50. With respect to the visa applicant’s second break from study, it is claimed that occurred because was caring for his sister’s children.  That in part occurred because the review applicant had migrated to Australia to be with her partner; and, as the review applicant submits, to make a better future for her children. In this context the Tribunal notes the review applicant was granted a Subclass 309 visa on 13 January 2010 and that she arrived in Australia under that visa on 12 February 2010, soon after the visa applicant turned 18.

51. In summary, the evidence demonstrates that since turning 18 (on 11 January 2010) to time of application (17 October 2014), at most, the visa applicant only studied for one year and three months of that period of four years and  nine months. 

52. For the above reasons, the visa applicant in this case has not been undertaking a full-time course of study at an educational institution since turning 18 or within 6 months or a reasonable time after completing his secondary school education. 

53. On the basis of the above findings the Tribunal fails to be satisfied on the evidence that the visa applicant has been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing the equivalent of Australia’s year 12.

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

55. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.

56. There have been no claims advanced in this case in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Deborah Morgan
    Member