Alcantara (Migration)

[2023] AATA 1940

Alcantara (Migration) [2023] AATA 1940 (16 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bernadette Rino Alcantara

REPRESENTATIVE:  Ms Alfe Roder (MARN: 0746052)

CASE NUMBER:  2002983

HOME AFFAIRS REFERENCE(S):          CLF2019/7768

MEMBER:Peter Emmerton

DATE:16 May 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 16 May 2023 at 12:12pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had not been a continuous full-time student since turning 18 – applicant has turned 18 – have not studied for a period in excess of 4 years post turning 18 – a substantial break is not considered reasonable within the requirements set out in the relevant legislation – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, cls 802.214, 802.221

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 Home Affairs on 5 February 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 February 2019. 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 (Cth) (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 requirements of cl.802.214 (requirement to be met at time of application) are as follows.

   (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.

5. The delegate refused to grant the visa on the basis that cl 802.214(1)(c) and cl.802.214(2) were not met (requirement to be met at time of application). This was because the applicant has not been a continuous full-time student since they turned 18 nor was the applicant dependent due to being incapacitated for work due to the total or partial loss of their bodily or mental functions. Nor in the delegate’s view did they satisfy cl 802.221(2)(b) as they did not present any evidence to show that they were a fulltime student at the time of the delegate’s decision.

6. The applicant appeared before the Tribunal on 16 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s mother, Ms Norayda Alcantara and Mr Rocco Comito, the applicant’s mother’s husband, (stepfather). The Tribunal found all those giving evidence appeared to do so in an open and honest manner without obfuscation.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether or not the applicant meets the requirements of cl 802.214(1)(c) and cl.802.214(2).

10. The Tribunal has reviewed and considered the following evidence presented to the delegate and the Department.

    ·Department notification of refusal and decision, dated 5 February 2020

    ·Letter from applicant to Department, dated 15 December 2019

    ·Department personal particulars

    ·Philippine Statistics Authority – certifying that records do not appear of birth, dated 27 November 2019

    ·X6 Western Union money transfers, between 11 January 2017 and 19 September 2017 – totalling approximately AUD $1,096 if partially-legible docs read correctly

    ·Statement of Yolanda Alcantara, dated 15 December 2019

    ·Dept request for further information, dated 26 November 2019

    ·Department notification of invalid application for a BT 802 visa, dated 11 February 2019

    ·Letter from Norayada Rino Alcantara to Department, stamped by Department 20 February 2019

    ·Evidence of travel in 2015

    ·Payslip records for Norayada Rico, dated mainly 2018, with Jan 2019 listed

    ·Letter of support from Rocco Comito, dated 30 March 2015

    ·Tenancy Agreement of Rocco Comito and Christian Comito, 12 March 2015

    ·Letter of support of Norayada Comito and Rocco Comito, dated 26 January 2019

    ·Birth Certificate of Bernadette Rino Alcantara

    ·Police clearance, employment details, academic records of Applicant

    ·Further NAB Bank Statements of Western Union transfers Feb 2017 to Jan 2019 totalling AUD $9,537

11. The Tribunal has reviewed and considered the following evidence presented to it prior to the hearing.

    ·Legal Submissions from Representative, dated 10 May 2023

    ·Applicant Letter of Course Completion, Glen Institute, course completion of 19 February 2023

    ·Applicant Confirmation of Enrolment (COE) - Certificate III in Commercial Cookery, 23 March 2020

    ·Applicant Result Records, Glen Institute, issued 2 February 2023

    ·Applicant Certificate III in Commercial Cookery, Glen Institute 19 February 2023

    ·Applicant Confirmation of Enrolment (COE) - Certificate IV in Commercial Cookery, issued 15 February 2023

    ·Philippine Statistics Authority, certifying that Bernadette Rino Alcantara does not appear in indices of marriages, as of 31October 2019 – Dated 27November 2019

    ·Copies of Western Union money transfers – Already supplied on Department file as outlined above

    ·Progress Report Card of Bernadette Alcantara, Saint Joseph Academy of Dasmarinas Inc. - 2012 – 2013

    ·Passport biometric page of Bernadette Alcantara

    Criteria for applicants over 18

12. If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).

    Relationship status and history

13. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

14. Question 14 of Form 47CH asks about the relationship status of the applicant. The delegate accepted as factual that the applicant had never married or been in a de facto relationship. Under questioning at the hearing, the applicant satisfied the Tribunal that they had never been married or been in a de facto relationship and no evidence has been presented to the Tribunal that establishes a contrary conclusion.

15. Accordingly, cl 802.214(1)(a) is met. It continues to be met at the time of this decision.

    Not engaged in full-time work

16. At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

17. The applicant was required to complete question 40 of the Form 47CH, which requested current employment details of the applicant. The applicant advised the Department they were employed fulltime by Green Tee Incorporated, (a Nike subsidiary) prior to their arrival in Australia on a Visitor visa dated 16 January 2018.  This was prior to the time of application dated 19 February 2019. A Certificate of Employment was provided by the applicant’s employer verifying the facts and the Tribunal notes the visa applicant could not have worked for the company post her arrival on 21 June 2018 as she has not returned to the Philippines, as is clearly verified by the Departmental travel data. As the delegate assumed the applicant was working full-time, the delegate was satisfied that the applicant did not meet clause 802.214(1)(b).

18. The Tribunal has formed a different view. In addition it has referred to the Pay Slips furnished by the applicant which demonstrate the applicant’s work and remuneration at the time of application prior to entering Australia, the Tribunal questioned the applicant and the applicant’s mother during the hearing and was reassured that at the time of application, the applicant was not working. It was also satisfied that the applicant is a fulltime student at the time of this decision.

19. The Tribunal accepts the evidence in the form of a written statement made by the applicant’s mother and accompanying Bank Statements and money transfer documents, that the visa applicant is materially dependent upon the sponsor for support and has been for the relevant substantial of time period since her arrival in Australia and continues to be so dependent at the time of this decision. This was reiterated and explained to the satisfaction of the Tribunal at the hearing by the sponsor, her spouse and the visa applicant.

20. The Tribunal is satisfied that the applicant was not working fulltime at the time of application and therefore can satisfy cl 802.214(1)(b).

21. Accordingly, cl 802.214(1)(b) is met. It continues to be met at the time of this decision.

    Full-time study (or incapacitated for work)

22. 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).

23. 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 802.214(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 802.214(2).

24. Where cl 802.214(1)(c) applies, it must continue to be met at the time of decision: cl 802.221(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.

25. The delegate accepted the applicant turned 18 years of age (date stated) in January 2015. The Tribunal has likewise accepted the same assessment of age by viewing a copy of the applicant’s, Birth Certificate, National Identification document and Passport identification pages. At the time the applicant turned 18 they were not studying full-time. This is a fact accepted by the delegate, the Tribunal and reinforced by the admissions of the visa applicant. They were working due to the family experiencing financial difficulties. This is not in dispute. This was again corroborated at the hearing by the applicant and both witnesses.

26. The Tribunal notes on the 17 December 2019, the Department received an email from the visa applicant, describing the following, extract as follows:

    “Evidence that I was a full time student at the time of application, including periods of
    no study
    Bernadette stopped full-time studies at the end of 2014, because of financial hardship.

    Period of No Study
    Bernadette completed high school in 2013, and continued into university to pursue a Arts
    Bachelor in Mass Communication in 2014, but unfortunately through her parents separating,
    the family finances could not support that.

    Her mother had travelled to Saudi Arabia to work and provide financially for Bernadette and
    her sisters, but it just wasn't enough. Bernadette need to find work and did so in Manila &
    Makati which required her to live nearby her work, or travel hours each day.
    Bernadette's income was barely enough to cover her expenses and still required financial
    assistance from her mother. Once established in Australia, and allowed to work, Bernadette's mother (Norayda Alcantara) started providing family financial assistance allowing Bernadette to join her & her sisters in Australia.

    SPECIAL CONSIDERATION REQUESTED

    Although we understand that one of the criteria is that the child is a full-time student, we hope that these special circumstances that forced her to give up her studies and seek employment is considered and accepted as valid.
    Bernadette had no other means of support in the Philippines until her mother could start
    providing for her & her sisters..... as her biological father has not supported her or her sisters
    in many years. Given the opportunity, she would love to return to her studies in Australia.

    Bernadette, is a very responsible adult, and loving child and sister. Bernadette sacrificed her
    much loved studies, to seek full-time employment to help support her sisters through some
    very tough times…. allowing them to continue their studies. This selfless act is a testament to her character. During her stay here, she has demonstrated that she will fit into the Australian culture well. We can guarantee Bernadette will meet the obligations of her visa, and will be fully supported by us, as we will provide adequate accommodation and enough financial support to meet her reasonable living needs in Australia. She will live in our family home, and will use this opportunity to better her life through education in the future”.

    The email also included the following relevant document:

    Form 80
    ‘Question 19 of Form 80 asks about the applicant’s employment. The applicant provided the following details of employment.

    March 2015 April 2016 EL Fashion & Design Corp. Philippines (ADIDAS)
    Officer in Charge

    March 2016 Jan 2018 Green Tee Inc (Nike)
    Assistant Store Supervisor

    June 2018 No Work, No work rights on my visa, Supported by mother’

    Question 20 of Form 80 asks the applicant to provide details of all tertiary education and
    qualifications (this includes college/vocational schools, university, research/thesis, specialist
    training and skill/trade qualifications). The applicant advised the following study

    Study Course Status
    Sept 2013 - Oct 2014 Lyceum of the Philippines University
    Bachelor of Arts in Mass Communications – Withdrew

    Consideration of clause 802.214

27. The delegate determined that at the time of application, the visa applicant was not a full-time student. The applicant turned 18 years of age in January 2015 and completed their secondary study in 2013. At the time the application was lodged on 19 February 2019, the applicant advised they were not currently enrolled in or undertaking a post-secondary course of study leading to a trade, vocational or professional qualification. In both written submission and testimony before the Tribunal at the hearing, the applicant has acknowledged this as correct. The Tribunal concurs and finds that this fact is not in dispute.

28. The Tribunal accepts that the applicant is currently studying a Certificate lV in Commercial Cookery. The details associated with the applicant’s study both in Australia and the Philippines have been corroborated to the satisfaction of the Tribunal during the hearing.

29. In considering whether a break in study is a reasonable period, the Tribunal must consider if the break in study occurred between completing secondary studies and commencing post-secondary studies. This is clearly not the case as indicated by the visa applicant’s written evidence and verbal testimony. The applicant completed Secondary School and commenced University within a reasonable time however through no fault of their own they withdrew and commenced work in order to assist in supporting the family. The Tribunal has sympathy for this circumstance. Clearly the financial circumstances engulfing the family were not of their making and it could reasonably be interpreted that they were putting the needs of their siblings and the family unit ahead of their own needs.

30. Regardless of the reasons, the applicant took a break in study between October 2014 and coming to Australia. This is a break of in excess of 4 years and did not occur between Secondary School and commencement of Tertiary studies. This substantial hiatus is not considered a reasonable break within the requirements set out in the legislation.

31. The Tribunal notes the written submission provided to it on 10 May 2023 by the applicant’s representative in which the challenges associated with commencing study in Australia because of the restrictions arising from the Covid-19 pandemic were canvassed. The pandemic created challenges in relation to restriction of movement within Australia from March 2020. The applicant arrived in Australia on 21 June 2018. The initial visitor visa (subclass 600) was superseded by a Bridging visa (subclass 010) on 8 July 2018 and the second subclass 600 visa concluded 30 April 2019. After this date study could have been undertaken. There is no evidence before the Tribunal that prior to the Covid-19 restrictions imposed on the Australian population, the applicant commenced or resumed study. The applicant took a break from study, in excess of 18 months duration, after arriving in Australia, prior to any possibility of the pandemic interfering with the engagement in study. This substantial hiatus is not considered a reasonable break within the requirements set out in the legislation.  

32. The Tribunal notes that the visa applicant according to her testimony and supported by the Australian Government issued Overseas Student Confirmation of Enrolment (CoE), supplied by the applicant, commenced study on 20 April 2020 and completed this Certificate lll in Commercial Cookery on 30 May 2021. The next verifiable period of study which was for a Certificat lV in Commercial Cookery, as per the fore mentioned document and testimony of the applicant, commenced on 20 August 2023 and is currently ongoing at the time of this decision and will conclude towards the end of 2023. The Tribunal again notes that more than 18 months has elapsed since the previous course was completed. As previously stated, such a substantial break is not considered reasonable within the requirements set out in the relevant legislation. The Tribunal observes that the total number of substantial breaks from study in the relevant period after the completion of High School is in excess of 7 years and more than 5 years post turning 18 years of age.

33. Therefore, the Tribunal is satisfied the applicant has not been a continuous full-time student since turning 18. The Tribunal is not satisfied the applicant meets sub-clause 802.214(1)(c)

1. The applicant must be a continuous full-time student since turning 18 years of age. The applicant has not provided either the delegate at the time of their decision nor the Tribunal at the time of this decision with evidence that demonstrates this fact to be true. The Tribunal is satisfied that the substantial break between study courses is not what was envisaged as appropriate when considering the meeting of the criteria set out in cl 802.214(1)(c).

2. The Tribunal has turned its mind to clause 802.214(2), which states that the study clause will not apply for those applicants over the age of 18 years of age who are dependent due to being incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. As the applicant has not provided any evidence of incapacity to either the delegate or the Tribunal, it has therefore determined the applicant does not meet the requirements specified in clause 802.214(2). This was corroborated during the hearing.

3. Accordingly, cl 802.214(1)(c) is not met. It continues to not be met at the time of decision.

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

5. At the time of decision, cl 802.214 continues to not be met. Accordingly, cl 802.221(2)(b) is not met.

6. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

   DECISION

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

   Peter Emmerton
   Member