Amida (Migration)

[2022] AATA 1589

Amida (Migration) [2022] AATA 1589 (28 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lester Amida

REPRESENTATIVE:  Mrs Daniela Annemarie Ion (MARN: 1792307)

CASE NUMBER:  2005586

HOME AFFAIRS REFERENCE(S):          CLF2019/18835

MEMBER:Maxina Martellotta

DATE:28 February 2022

PLACE OF DECISION:  Perth

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

Statement made on 28 February 2022 at 8:13am

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant has turned 18 – at the time of visa application the applicant was not engaged in a course of full-time study –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

Migration Regulations 1994, cls 802.214, 802.221

CASES
Huynh v MIMA [2006] FCAFC 122
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 7 March 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 11 April 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 (1) (c) and 802.221 of the Act.

4. The delegate refused to grant the visa on the basis that cl 802.214 (1) (c) and 802.221 were not satisfied.

   Background

5. The applicant was invited to attend a hearing on 20 December 2021. On 13 December 2021 request made by his representative to defer the hearing date to allow additional time to obtain documents was granted. The hearing was rescheduled to 4 February 2022. A further request to defer the hearing was received on 11 January 2022 but on this occasion, it was not granted. The hearing method was changed with the applicant’s consent from in person to conference video due to the COVID-19 pandemic and the increase in community spread of the infection.

6. On 4 February 2022 the tribunal convened a hearing however after about 30 minutes it became apparent that due to poor audio quality the hearing could not proceed. The tribunal with the consent of the applicant deferred the hearing to 11 February 2022 on which date the hearing proceeded.

7. The hearing on 11 February 2022 took place by conference video. As noted, the Tribunal exercised its discretion to hold the hearing by video.  The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

8. The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Mrs Hernandez[1].  Mrs Hernandez’s partner was also present at the hearing but did not give evidence.  The applicant requested time to provide further documents following the hearing and this request was granted allowing the applicant until close of business 15 February 2022. This additional information has been considered by the Tribunal.

   [1] The witness was not present whilst the applicant gave his evidence.

9. The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant satisfies the study requirements at the at the time of application.

    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).

13. In this matter the tribunal is satisfied that at the time of making his application the applicant was 21 years of age.

    Relationship status and history

14. 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).

15. At hearing the applicant confirmed and the tribunal finds that he is not engaged to be married and does not or ever had a spouse or defacto partner. Accordingly, cl 802.214(1)(a) is met. It continues to be met at the time of 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. At hearing the applicant confirmed and the tribunal finds that at the time of application he was not engaged in full time work.  Accordingly, cl 802.214(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

18. 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).

19. 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].

20. 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).

21. 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.

22. The applicant provided evidence regarding his circumstances at the time of making his application.  He made no submissions or provided any evidence that at that time he was incapacitated for work due to the loss of bodily or mental functions and the tribunal so finds. This means that the study requirements must be met.

23. The following evidence was presented:

    a)The applicant completed secondary school study at the Carlos F Gonzales High School on 29 March 2014. The applicant stated that this was the equivalent of completing the equivalent of year 12 in the Australian school system.

    b)The applicant enrolled in an Electrician course in June 2014 at the Universal Institute of Science and Technology but only completed the first semester (three months) he ceased studying in about August/September 2014. The applicant said that he decided to stop studying in order to help his grandmother care for his siblings.

    c)The applicant told the Tribunal that he was helping care for three siblings who at the time ranged in age from about 15 years to 12 years of age. He said that he wanted his siblings to finish school and he would help his grandmother with household tasks such as cleaning and washing.

    d)The applicant was not engaged in any study until he enrolled in a two-year Hotel and Restaurant Management course with the Asian Institute of Science and Technology. He enrolled in that course in June 2015 – however he only completed one semester and ceased studying in February 2016. He said the reason he ceased this course was again due to his decision to assist his grandmother with the care of his siblings but also it was because he was becoming more involved in church activities.

    e)In March 2016 he turned 18 years of age.  From this time he became more involved with his church Ambassador of Christ the Saviour Global Ministry.  Activities included being the lead guitarist in the church band; engaging in a discipleship program (School of Leader I, II and III) and evangelising. The applicant said that engagement in the School of Leader course involved regular bible studies (three times a week), and church worship. The purpose of the course was to deepen his understanding of the bible and to allow him to undertake a leadership role in his church to teach children bible studies. 

    f)The leadership course is something offered by his church. The church pastor provided him with a letter certifying that the applicant completed the leadership course. The applicant said that the course qualified him to go into a higher level of bible studies.  He agreed that he was not engaged in a theology course but says that his pastor was licenced to qualify someone to become a pastor in the church and that completing the course would allow him to pursue that as a possibility. The applicant says that his four years with the church should be accepted by the Tribunal as a course of full-time study for the purposes of his visa application.

    g)He was involved with these church activities until July 2018. Following this he remained connected with the church. He was not studying but was focused on church activities and serving as a church musician. He was also travelling to Australia on a regular basis to visit his mother and family – spending three months in Australia before returning to the Philippines for a couple of weeks before returning to Australia. In January 2019 he decided to remain in Australia and applied for the child visa on 11 April 2019.

    h)The applicant said that he was not studying at the time he made his visa application. He asked his mother to financially support him to enrol in studies, but about this time his grandfather suffered a stroke and his mother returned to the Philippines to take care of him. His stepfather paid the costs of the grandfather’s care.  Due to this financial situation his mother told him to wait until 2020 to undertake studies. He could not recall when this happened and how long his mother was away taking care of his grandfather.

    i)Mrs Hernandez in her evidence told the tribunal that she travelled to the Philippines for a couple of weeks in around June 2019 to care for her father and that her partner met the costs of that care.

    j)In December 2019 the applicant inquired about a TAFE aviation course – however there was no availability because he had inquired too late. He did not inquire before then because they had no money to pay for a course. In the period April 2019 until December 2019 he mixed songs and produced music and taught himself how to do sound engineering.

    k)In February 2020 he enrolled with ICT to undertake an online computer course.  He ceased after two or three months around April 2020 because he was struggling with the language.

    l)He next enrolled in a Certificate III hospitality course with APSI which he started around 20 July 2020. He completed some one-day units in August 2020 for which he received a certificate of completion. He stopped the course in about September 2020 because he found it difficult to undertake a work placement in combination with his studies.  He was also upset about his father death in August 2020

    m)When he received news that his father had died this caused him to be fearful because of the circumstances in which he had died. The applicant said that his mother and father had separated when he was quite young.  His father was in prison and the last time he saw him was in July 2018 before he travelled to Australia. When the family received news of his father’s death this was in circumstances where his father had been released from prison and went missing. The applicant says his father was killed by the authorities.

    n)He told his course assessor that his father had died but did not consult with the institution before deciding to stop the course or to inquire about options.  This was because his mind was not in a good place and he was fearful.

    o)Since stopping the course he has not re-engaged in study. He focused upon his music and volunteering at a local church. He inquired about a SAE course in September 2021 but because his passport had expired in August 2021, he could not enrol.

    p)The day before the hearing (10 February 2022) he inquired about enrolling in a Certificate IV English course.  He only made the inquiry at this time because his passport was expired. After the hearing the applicant provided confirmation of enrolment in that course.

24. The tribunal considered the applicants submissions that the leadership course undertaken with his church in the period 2016 to 2018 constitutes a relevant course of study. The tribunal does not agree with this submission. The qualification contemplated by clause 802.14 (such as a degree or technical college qualification) is one that is obtained as a result of undertaking a course of study at an education institution or some type of accredited body.[2] The leadership course the applicant undertook through his church was not something that resulted in a qualification and it was not a course of study provided by either an education institution or other accredited body. The applicant described it as something he did as part of his voluntary activities with the church for the purpose of deepening his understanding of the bible teachings and to enable him to take on a leadership role within the church.

    [2] Sok v MIMIA [2005] FMCA 190 (Riethmuller FM, 4 March 2005).

25. In this matter the tribunal finds that since turning 18 years of age in March 2016, the applicant has enrolled and participated in the following courses:

    a)An online IT course which he commenced in about February 2020 and which he ceased in about April 2020.

    b)A Certificate III hospitality course with APSI which he commenced in around 20 July 2020 and stopped attending in about September 2020.

    c)Following the hearing the applicant has enrolled in a Certificate IV in Spoken and Written English.

26. At the time of his visa application as made on 11 April 2019 the applicant was not engaged in a course of full-time study. The last period in which he had engaged with full time study was when he was enrolled in the Hotel and Restaurant Management course with the Asian Institute of Science and Technology which he ceased in February 2016 after one semester. Since turning 18 years of age in March 2016 the applicant did not engage in a course of full-time study until he enrolled in the online IT course in February 2020. As noted, the applicant says that in the period between turning 18 years of age and commencing the IT course, he was focused on church activities, assisting his grandmother and travelling to Australia. The Tribunal does not consider that these activities can be described as undertaking a course of study in the sense that he was ‘engaging in’ or ‘entering upon’ some enterprise relevant to full time study.

27. Accordingly, cl 802.214(1)(c) is not met and for the reasons above, cl 802.214 is not met at the time of application.

28. 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

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

    Maxina Martellotta
    Member