Cabero (Migration)

[2017] AATA 974

Cabero (Migration) [2017] AATA 974 (15 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Analyn Nacional Cabero

VISA APPLICANT:  Mr Jherimias Jairo Cabero DEOCAREZA

CASE NUMBER:  1612495

DIBP REFERENCE(S):  2015032681

MEMBER:Kira Raif

DATE:15 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 June 2017 at 8:53am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Over 18 criteria – Full time course of study leading to professional, trade or vocational qualification –Not enrolled in full time course since turning 18 or or within reasonable time – Not undertaking activities preventing full time study

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 101.213, cl 101.221(2)(b)

CASES

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 on 22 July 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 is a national of the Philippines, born in 1994. He applied to the Department of Immigration for the visa on 28 July 2015. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the visa applicant met the study requirements. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 13 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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). 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).

6. 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].

   Does the visa applicant meet the study requirement?

7. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicant stated on the application from that he completed high school in March 2011 at the age of 16 and was then enrolled at Dela Salle University. He transferred to AMA Computer College but stopped being enrolled in the 2015 – 2016 academic year. The primary decision record indicates that the visa applicant failed, or withdrew, from all or most of his subjects in 2011 – 2013 academic years and he was not enrolled in any study at the time of the primary decision. The delegate also found, with respect to past study, that enrolment in itself was not sufficient to meet the study requirement and that an active participation in study was required.

9. The review applicant provided a written submission to the Tribunal on 6 June 2017. The review applicant provided evidence of money transfers made to the visa applicant and the Tribunal accepts that the review applicant has been providing financial support to her son. The review applicant presented an academic transcript from Dela Salle Araneta University for 2011 – 2013 academic years which was issued on 23 November 2015 and a certification issued by AMA University in November 2015 indicating the visa applicant was enrolled in a Bachelor of Science (Computer Science) from the first Trimester of 2013 until the first Trimester of 2015 – 2016. There is another Certification from St. Peter Velle Technical Training Centre indicating the visa applicant has been a student of the Centre in an Electronic Product Assembly Servicing course between August 2016 and December 2016 and that course runs each Saturday from 1 pm to 5 pm. There is a further statement indicating the visa applicant will continue with the course on Saturdays from July to October 2017. The review applicant provided a declaration in which she stated that her son had asked for a transcript from AMA University but was required to pay a bribe for the transcript.

10. The applicant’s representative provided a written submission to the Tribunal in which the representative notes that the visa applicant was 20 years old when the application was made. With respect to the child’s study, the representative claims that the visa applicant completed secondary schooling in 2011 and enrolled the Bachelor of Science at De La Salle Araneta University in May 2011. He did the course for two years and completed the second semester in 2012 – 2013 academic years when he withdrew from the university and enrolled in a Bachelor of Science degree at AMA in the first trimester of 2013 – 2014. He withdrew from that study in December 2015 and started another pre-vocational electrical course between August 2016 and December 2016 at St Peter Technical Training Centre. The representative submits that the applicant never engaged in any employment and was a full-time student in all three institutions and there was no time gap in his study. The representative argues that after leaving the AMA University in December 2015, the applicant took time to find another course and there was a gap of eight months before he started pre-vocational course at St Peter Velle Technical Training Centre.

11. In oral evidence to the Tribunal the review applicant confirmed that after completing high school, the visa applicant did a Computer Engineering course at La Salle University. He did that study between 2011 and 2013. Because he failed the subjects, he moved to a different school and continued with the same course. He studied at AMA University between 2013 and the end of 2015. The review applicant said that her son struggled with his studies, and his visa was refused, so he changed to vocational studies.

12. The review applicant said that the visa applicant was not studying between December 2015 when he left AMA University and August 2016 when he commenced the present course, as they were waiting for the visa. The review applicant confirmed that the present course is done over the weekends, one day a week. She confirmed that the vocational course is not a full-time course. In her post-hearing written submission to the Tribunal of 14 June 2017 the review applicant stated that the visa applicant did not enroll in a course after December 2015 because they were expecting the visa to be granted and later on, the courses were full and it took him time to find a suitable course where he could enroll. The Tribunal acknowledges that evidence but does not consider there were circumstances that prevented the visa applicant’s enrolment in a full-time course since December 2015. It may be that the family made the decision not to enroll the visa applicant because they were expecting him to come to Australia. It may be that certain courses that the visa applicant preferred to do were not available at short notice. None of that establishes the visa applicant’s inability to engage in full-time study.

13. The Tribunal acknowledges the review applicant’s evidence that the visa applicant has nobody to support him and that his academic results were not very good. The Tribunal acknowledges that there are a number of factors that affected the family’s decisions in relation to the visa applicant’s study. However, the Tribunal is not satisfied that any of these matters would have prevented the visa applicant from being able to enroll in a full-time course of studies since December 2015. The Tribunal accepts that for a variety of reasons the family made the decision for the visa applicant not to enroll in a full-time course of study but the Tribunal is not satisfied that he was unable to enroll in such a course.

14. As the current course that the visa applicant is undertaking is not a full-time course, the Tribunal is unable to consider that study for the purpose of cl. 101.213(1)(c). At the time of this decision, the visa applicant is not enrolled in any full-time study, for the purpose of cl. 101.221. The Tribunal finds that the visa applicant has not been enrolled in a full-time course of study since December 2015 when he left university. There were no reasons for his non-enrolment between December 2015 and August 2016 and the Tribunal is not satisfied that since December 2015 the visa applicant was unable to engage in full-time study or that he engaged in any activities that were necessary to enable him to study or were in any way relevant to study. There were no activities undertaken by the visa applicant between December 2015 and August 2016 and very limited activities that the visa applicant undertook since August 2016 that were relevant to full-time study.

15. The last time when the visa applicant engaged in full-time study was December 2015. The Tribunal is not satisfied that since turning 18 or or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal is not satisfied the visa applicant continues to meet cl. 101.213(1)(c) at the time of this decision. There is no suggestion that at the time of making the application, the applicant was a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’. Clause 101.213(2) does not apply to him. The Tribunal is not satisfied that the visa applicant meets cl. 101.221.

16. There is no evidence that the visa applicant is an adopted child of the sponsor or that he is an orphan relative of the sponsor. The Tribunal is not satisfied that he meets key criteria for the grant of the other visas in Class AH.

17. In her submission to the Tribunal of 14 June the review applicant notes that the visa applicant has no close family support in his home country, that his father passed away and that the family want to be reunited in Australia. The Tribunal acknowledges that evidence but, having found that the visa applicant does not meet one of the requirements for the grant of the Child visa, the Tribunal has no option but to affirm the decision under review.

    Conclusion

18. 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

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

    Kira Raif
    Senior Member