Alba (Migration)

[2019] AATA 2008

Alba (Migration) [2019] AATA 2008 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Francisco Libranda Alba

VISA APPLICANT:  Mr Rush Rainier Rioflorido Alba

CASE NUMBER:  1702118

HOME AFFAIRS REFERENCE(S):           2015059600 OSF2015/059600

MEMBER:Helen Kroger

DATE:21 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 21 March 2019 at 11:41am

CATCHWORDS

MIGRATION ­– Child (Residence) (Class AH) visa – subclass 101 (Child) visa – not a full time student since 2018 – criteria relating to study specified not met – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

CASES

Hussain v MIBP [2017] FCCA 3247

Opoku-Ware v MIBP (2015) 297 FLR 416

Sok v MIMIA [2005] FMCA 190

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 and Border Protection on 2 December 2016 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 for the visa on 19 November 2015. 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). Relevantly to this case, they include cl.101.213(1)(c), subclause (2) requiring the applicant to be undertaking full time study at an educational institution within 6 months or a reasonable time, after completing the equivalent of the Australian education system Year 12 at the time of the application and decision.

4. The delegate refused to grant the visa on the basis that he/she was not satisfied that the applicant met the criteria set out in cl.101.213(1)(c).

5. The review applicant (sponsor and applicant’s father) appeared before the Tribunal on 21 March 2019 to give evidence and present arguments. The applicant’s mother, Mrs Alba and Aunty, Mrs Dowson attended the hearing as witnesses to support the applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

6. The hearing was conducted with the assistance of an Interpreter in the English and Filipino languages.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether cl.101.213(1)(c) is met.

   Criteria for applicants over 18

8. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

   Relationship status and history

9. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

10. There is no evidence before the Tribunal to indicate that the above criteria are not satisfied.

11. Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

12. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

13. The evidence before the Tribunal does not suggest that the applicant was engaged in full time work at the time of the application and evidence at hearing indicates that the applicant is currently looking for full time work, has worked on a ‘casual’ basis, as submitted by the review applicant, although is not currently employed.  Accordingly, cl.101.213(1)(b) is met at the time of the application, but not at the time of the decision.

    Full-time study (or incapacitated for work)

14. 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).

15. 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.101.213(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.101.213(2).

16. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(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.

17. The evidence before the Tribunal indicates that the applicant completed the equivalent of an Australian Year 12 qualification in March 2009, commenced higher education studies in 2010 and graduated in a Bachelor of Arts from the Eastern Quezon College Inc on 1 April 2017, and subsequently completed a 6 month cookery course at the San Pedro Technological Institute in 2017. Evidence was submitted at hearing that he has since undertaken an electrician’s course in 2018 and has not been studying since the completion of that course. The applicant’s father submitted that his son has been looking for full time employment in that field since its completion and has occasionally been employed on a casual basis. There is no evidence before the Tribunal to indicate that the applicant is seeking to resume studies and has been seeking full time employment since 2018. 

18. During the applicant’s study periods, the review applicant has been financially supporting him, and presented documentation at hearing to support that claim.

19. The oral submissions at hearing (the evidentiary basis being the audio recording of the hearing) indicate that the applicant has not been a full time student since 2018 and is currently seeking full time employment. Accordingly the applicant does not satisfy the criteria set out in cl.101.213(1)(c) at the time of decision and it is therefore not relevant to this decision, to consider whether the criteria is satisfied at the time of application.

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

21. At the time of decision, cl.101.213 does not continue to be met. Accordingly, cl.101.221(2)(b)  is not met.

22. 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

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

    Helen Kroger
    Member