Castaneto (Migration)

[2017] AATA 1623

Castaneto (Migration) [2017] AATA 1623 (18 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Susana Noveno Castaneto

VISA APPLICANT:  Miss Althea May Limet

CASE NUMBER:  1614223

DIBP REFERENCE(S):  OSF2015032608

MEMBER:Hugh Sanderson

DATE:18 September 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 18 September 2017 at 3:33pm

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Full-time course of study – Lengthy gaps in studies – No current year 12 studies in the Philippine school system – Year 12 equivalent studies completed after 18 years – Dependence upon the review applicant – Reasonable time

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 101.213, r 1.05A

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 applied to the Department of Immigration for the visa on 11 June 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the delegate found that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had not been undertaking a full-time course of study.

   Background

4. The review applicant was born in the Philippines. She first entered Australia in 2004. She became an Australian citizen in 2010. She is the mother of the visa applicant.

5. The visa applicant is a citizen of the Philippines and is currently 24 years old. She previously applied for a Child visa on 24 June 2013, however, this application was refused. She then applied for a Student visa on 21 January 2014, however, this application was refused.

6. The visa applicant stated that she completed high school on 28 March 2010. She then commenced study in May 2010 at the De Lasalle College of St Benilde, however withdrew from this course in September 2010. She then enrolled in December 2010 in a four month Culinary Arts and Hotel Management course that finished in March 2011. She then enrolled in June 2011 in the College of TAFE NSW in the Philippines and completed a Certificate III in Hospitality in July 2012. Her next course of study was 21 months later at St Dominique College of Asia, School of International Hospitality and Tourism Management. She commenced this course on 16 June 2014 and the estimated date of completion of that course was 31 October 2016. She said that she had never been in paid employment.

7. The visa applicant provided a statement where she made the following claims:

   ·When her mother migrated to Australia in 2004 she was left in the care of her grandparents;

   ·When she finished her study in July 2012 she expressed a desire to be with her mother and she suffered a number of misfortunes which increased her desire to be with her mother;

   ·The visa applicant became disillusioned and took a “short break” from her studies;

   ·The review applicant suggested the visa applicant see her doctor, but she was too embarrassed to do so; and

   ·At the suggestion of her mother, she enrolled in May 2014 to continue her Hospitality course at St Dominique College of Asia.

8. The visa applicant was interviewed by the Department on 18 August 2015. During this interview, the visa applicant made the following claims:

   ·She completed her secondary school education in March 2010 when she was 16 years old;

   ·The visa applicant then enrolled in St Benilde College from May to September 2010 studying International Hospitality Management ;

   ·The applicant then transferred for the academic year 2011 to 2012 with St Dominique College of Asia undertaking a Certificate 3 in Hospitality Commercial Cooking and Hospitality Pastries, finishing her study in July 2012 ;

   ·From August 2012 to March 2014 the applicant was not undertaking a full-time course of study; and

   ·On 16 June 2014 the visa applicant resumed study at St Dominique College of Asia undertaking a Bachelor of Science in Hospitality Management.

9. The delegate who considered the application noted the following issues:

   ·At the time of the application the visa applicant was over the age of 18 years and there is no evidence that she is incapacitated for work;

   ·The applicant completed the equivalent of secondary school in Australia on 28 March 2010 and turned 18 years of age on 6 July 2011;

   ·The applicant was not involved in any post-secondary studies for the period from July 2012 to March 2014; and

   ·The period when the visa applicant was not studying was in excess of six months and was due to her desire to join her mother.

10. Taking these matters into account, the delegate found that since turning 18 or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had not been undertaking a full-time course of study in an educational institution leading to the award of a professional, trade or vocational qualification. Accordingly, the delegate found that the applicant did not meet the criteria in cl.101.213(1)(c) and refused the application.

    Information to the Tribunal

11. The review applicant’s agent provided submissions to the Tribunal where the following was claimed:

    ·It was an error to conclude that the visa applicant completed the equivalent of year 12 in the Australian school system when she finished study at high school in March 2010;

    ·At that time the visa applicant was only 16 years of age and she had only completed year 10 and the Philippines school system did not include years 11 and 12 in the school system;

    ·Years 11 and 12 only started in the Philippines school system in the 2016 – 2017 school year;

    ·Since she finished year 10, the visa applicant “has by and large been either studying or attempting to gain entry to Australia in order to be with her parents and to study here”;

    ·She has since then enrolled for a Bachelor of Science which, if the applicant successfully completes the first year of that degree at a university in the Philippines, is recognised by the University of Queensland as the equivalent to Queensland’s Year 12;

    ·The visa applicant has not completed year 12 in the Philippine school system as it did not exist at that time, and only when she completed the first year in her Bachelor of Science degree can she be considered as having completed the equivalent of year 12 in the Queensland school system; and

    ·As the visa applicant only successfully completed year 1 in her Bachelor of Science in the Philippines in 2015 and has been continuously studying since then she meets the criteria.

    The hearing

12. The review applicant appeared before the Tribunal on 30 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant was represented in relation to the review by her registered migration agent who attended the hearing.

13. The review applicant said that her daughter’s father, Roberto Limet, was currently working in Abu Dhabi as a senior electrical contractor. She said that she believed he left the Philippines in 2012. Prior to that he had been living with his mother, the visa applicant and his son in his home in the Philippines. She said that she did not have contact with Mr Limet, but if she wished to discuss things about their children she would contact his mother.

14. The review applicant said that she sent money to Mr Limet when she first came to Australia to help support the children. She could not recall how much that was. She said that when they got older she would send the children directly US$500 per month to pay for school fees and other things. She said that Mr Limet was paying for their food clothing and shelter. She said that if the children ever needed extra things for school projects or excursions then she would send money. She said that she had no evidence of sending money to support the children over this time.

15. The review applicant provided details of the visa applicant study once she completed high school. She said the visa applicant stopped studying at de Lasalle College as it was a five hour commute from her father’s home and she did not want to continue this. She dropped out after the first term. She said that the visa applicant then studied at the International School of Culinary Arts and Hotel Management doing a four month course which she completed. She then had three months off when she waited for her next course to commence at St Dominici College. She said that over the three month period she did nothing apart from staying at home or visiting friends.

16. After completing the course at St Dominici the visa applicant then came to Australia on a three-month Visitor visa, but she only stayed for two months leaving Australia before Christmas 2012. The review applicant said the visa applicant then just had a break from study. They decided to apply for a Child visa which was refused. They then applied for a Student visa which was also refused.

17. The Tribunal asked the review applicant what activities the visa applicant was undertaking from December 2012 when she returned from her holiday in Australia until June 2014 when she recommenced to studies, a period of about one and a half years. The review applicant said that she was not doing any work and she was practising baking for friends and family. She said she was not doing any work but was really enjoying what she was doing at home and loved doing the things she was doing. The Tribunal noted that this was inconsistent to the claim that had previously been made that she was depressed over this period. The review applicant then said that the visa applicant was really depressed but she did not go to see a doctor or get any treatment for any claimed depression.

18. The Tribunal noted that for one and a half years after turning 18 years old the visa applicant was not undertaking any course of study. The review applicant said that she just wanted her daughter to come and be with her in Australia. She said that she would have continued her studies but it was just a big mistake. When they applied for the first Child visa it was refused because she was not studying and so they applied for a Student visa to come to Australia, but this was also refused. The review applicant said that if the visa applicant was granted the visa she planned to do an advanced diploma in hotel management in Australia.

19. The review applicant said the visa applicant was fit and healthy and had no medical problems.

20. The review applicant said that the home in which the visa applicant was living was owned by her father. She said that the visa applicant’s father bought the land in 1983, before they started living together. She said that she then financed the building of a home on the land which was done by Mr Limet. She said that she had no legal title on the property.

21. The review applicant said that as well as sending money to her children, she also sent them boxes of clothes and other things for their needs such as soap. She said that she did this twice a year.

22. The visa applicant gave evidence by way of telephone. She said that when she finished her course in September 2012 she decided to visit her mother. She said that she wanted to continue her studies but wanted to be with her mother. She said that she did not enrol in any other courses because it was the wrong time or the academic year. The Tribunal noted that she was not undertaking any course of study for one and a half years which would overlap any academic term. The visa applicant said that she was busy applying for the Child visa and she did not have time to do anything else.

23. The visa applicant said that for the year and a half she was not undertaking any course of study she remained in her home by herself. She said that she was baking in her house. She claimed that she was depressed, but did not seek any medical treatment over this time.

24. The Tribunal discussed with the applicant’s agent the submissions made in support of the application. The Tribunal noted the submission that the period to consider whether the visa applicant was undertaking a full-time course of study at an educational institution only commenced when she completed year one in her Bachelor of Science in Hospitality Management in 2015. This meant that if a person stopped studying before the age of 18 and then recommenced study at age 23 to complete a course as suggested meant that the period from age 18 to 23 when the person was not engaged in any study would not be considered relevant. The applicant’s agent agreed that this was consistent with their submission.

25. The review applicant was given further time to provide documents to show when the visa applicant completed her first year of study and any other submissions.

    Further information in submissions

26. The visa applicant provided documents to show that she had studied at St Dominique College of Asia for the school year 2014 – 2015.

27. The review applicant’s agent provided further submissions in support of the application. The applicant again submitted that the applicant only finished the “equivalent to an Australian Year 12 qualification” as defined by various educational institutions in Australia for the purpose of admission to their courses in June 2015. Accordingly, the period when the Tribunal should consider “the applicant has, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 of the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of the professional, trade or vocational qualification”, should only date from June 2015 and not from when she turned 18 years old or completed any study after her 18^th birthday.

28. If this argument was not accepted, it was submitted that any gap in her study should be considered “a reasonable time” as she only stopped studying because she wanted to be with her mother and pursue her studies in Australia and it would not have made any sense to commence any study in the Philippines. It was submitted that her plans to study in Australia were stalled because her application for a Child visa filed on 29 August 2013 and a Student visa filed on 21 January 2014 were refused. It was only then that she realised she should instead pursue studies in the Philippines. It was submitted that due to the anxiety the applicant was suffering also prevented her from commencing any studies. It was submitted that the fact that the applicant has continued to study since July 2014 indicates that she is a genuine student and always planned to continue her studies.

29. The review applicant’s agent then made submissions that the visa applicant had always been dependent upon the review applicant and that her father did not provide any significant or regular financial support.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

31. The issue in this case is whether the applicant has, since turning 18, within six 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.

    Additional criteria for applicants over 18

32. 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)

33. 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).

34. 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].

35. The review applicant’s agent has argued that the visa applicant only completed the equivalent of year 12 in the Australian school system in March 2015 and therefore the Tribunal should only consider whether she has been undertaking a full-time course of study since that time. The Tribunal does not accept this argument.

36. The basis of this argument is that the regulations provide two different times after which it should be considered the 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. It is argued that in various educational institutions in Australia for the purpose of admission to an undergraduate degree the successful completion of one year of a bachelor’s degree in a recognised university in the Philippines is deemed equivalent to completing the Australian Year 12 at high school under the universities qualification assessment references.

37. The Tribunal finds that the reading and plain meaning of cl.101.213(1)(c) does not support this interpretation. The use by various Australian educational institutions that completing the first year of a bachelor’s degree in a recognised by university is equivalent to completing Year 12 in an Australian high school is for a purpose not relevant to the immigration regulations. The purpose for the definition applied by some Australian educational institutions is so that those institutions may be satisfied that the applicant for enrolment with that university or academic institution has the necessary qualifications and academic background to be admitted into their relevant course study. It is relevant to the qualifications that the applicant has obtained and not whether the applicant has continued to be a student.

38. The definition of what is considered “equivalent of year 12 in the Australian school system” is not universal with an all educational institutions. Some institutions require a higher qualification for overseas students. As was provided by the review applicant, TAFE SA states that for the Philippines a “High School Diploma or a Certificate of Graduation +2 years of bachelor degree” is considered the equivalent qualification. The issue for the educational institutions is the quality of the education the applicant has been receiving in their home country, and not whether the applicant continued to be a student.

1. A student who is studying to complete year 12 in the Australian school system is not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Many students attending high school or equivalent educational institutions turn 18 before completing year 12. If this provision were not included in the legislation, it could be found that applicants who had already turned 18 before completing high school would not meet the criteria for the grant of the visa because their continuing to study at high school would not be considered as leading to the award of a professional, trade or vocational qualification.

2. During the hearing, the review applicant’s agent acknowledged that by using this definition an individual could have left school before turning 18, have not been undertaking any full-time course of study until they were 23 years old, then enrolled in a bachelor’s degree and, after completing the first year and then continuing the studies met the criteria for the grant of the visa. The Tribunal accepts that if the submissions by the review applicant’s agent were accepted the person could meet the requirements of the regulations, however, Tribunal does not accept that this is a correct interpretation of the regulations.

3. The Tribunal finds that the visa applicant completed high school, as is stated in her application, on 28 March 2010. This was before the visa applicant turned 18. The Tribunal must then consider whether the applicant has, since turning 18, or within six months or a reasonable time after completing her high school studies, she has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

4. The visa applicant continued her study after she completed high school by enrolling at the De Lasalle College of St Benilde. She withdrew from that course and after a three month break then commenced study at a vocational course which she completed in March 2011. After a further three month break she then commenced a second vocational course in June 2011. She turned 18 years in July 2011 while studying this course and completed the course in September 2012. The next course of study she commenced was not until June 2014, a gap of one year and nine months. The Tribunal has considered whether this gap of one year nine months can be considered a reasonable time that the applicant has not been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

5. It was argued that the time that the visa applicant was not engaged in full-time studies should be considered reasonable as she was applying for a Child visa and then a Student visa to enter Australia. It was argued that it was reasonable not to study as she planned to move to Australia and it would not have made sense to commence study in the Philippines. The visa applicant also claims that she was suffering from anxiety and as such was not able to study over that period.

6. The visa applicant stated that for the 21 months that she was not undertaking any full-time course of study she stayed at home living in her father’s home with her paternal grandmother and not doing anything apart from seeing friends and baking things for her friends and family. The review applicant initially stated that the visa applicant was not doing any work, but just enjoying being at home and she loved doing the things she was doing.

7. The review applicant’s agent argued that the circumstances of the visa applicant were comparable to the decision in the Tribunal’s decision in 1009660 [2013] MRTA 249. In that decision, the Department found that the applicant had not been studying for a period of about two years. In its decision, the Tribunal found that over that two-year period the applicant was undertaking various computer courses in anticipation for future studies in Australia and also studying English at home in order to successfully complete the IELTS exam which she was required to complete for a Student visa which he had applied for to enter Australia. The visa applicant in that case was a citizen of Bangladesh and was resident in India on a Student visa which required her to study full-time, which she was.

8. The circumstances in that case are completely different to the circumstances of the current visa applicant. The visa applicant in this case was staying in the home of her father, living with her paternal grandmother and not doing anything apart from baking for friends and family and enjoying her life. She did not enrol in any short-term courses to assist her in any future study, if she did have any plans to do so in Australia or in the Philippines. She took a two month’s holiday in Australia commencing in October 2012. No information has been provided that would indicate that she made any enquiries or took any steps to see what would be required to enrol in any educational courses in Australia over the time that she was in Australia. The applicant applied for a Child visa on 29 August 2013, almost 12 months after she had last undertaken any full-time course of study. There is nothing to indicate that when applying for that visa the visa applicant indicated that she had any intention to undertake any further study in Australia or anywhere else. That application was refused by the Department. The review applicant stated that this was because the visa applicant was not studdying. It was only then that the applicant took steps to enrol in a course of study in Australia and applied for a Student visa. That application was also refused by the Department.

9. The Tribunal finds that for the 21 months while the applicant was not undertaking any full-time course of study the applicant was not undertaking any activities which could be considered as preparing her future study or engaging in any continuing education. The fact that she just stayed at home “enjoying her life” and baking for friends and family indicates that at that time she considered her study at an end. She may have wished at that time to live in Australia, which was why she filed the Child visa application in August 2013, however, this does not indicate that any break in her undertaking a full-time course of study can be considered reasonable. The visa applicant only recommenced her studies after she was refused a Student visa to enter Australia and then recommenced study, 21 months after she had last been engaged in a full-time course of study.

10. It was claimed that the visa applicant could not undertake any full-time course of study because she was too busy applying for the Child visa and Student visa. The Child visa application was made almost 12 months after she completed her previous full-time course of study. The Tribunal does not accept that applying for a visa to enter Australia would prevent any person from being able to undertake a full-time course of study if they had any intention to do so. This is particularly so as the visa application was made 12 months after the applicant had ceased any study and claimed that she was not involved in any other activity.

11. The review applicant has also claimed that the visa applicant was over the time that she was not undertaking a full-time course of study suffering from anxiety and depression. Apart from the claims made and the submissions of the review applicant’s agent, there is nothing to support this claim. During the hearing, the review applicant initially stated that the visa applicant was enjoying her life and loved doing the things she was doing over the time that she was not undertaking any full-time course of study. It was only after the Tribunal pointed out to the review applicant she had previously claimed that the visa applicant was depressed over this period that the review applicant repeated this claim, saying that although she had wanted the visa applicant to go and see a doctor about this, she had not. The review applicant also gave evidence that the visa applicant was fit, healthy and had no mental health problems.

12. There is no plausible information that the visa applicant has had any mental health problems at any time. The review applicant appears to have been quite capable of applying for a Child visa and a Student visa over the period that she was not undertaking any full-time course of study. There is no evidence of her seeking any medical assistance or any independent information show that she was incapacitated for any reason which would prevent her from studying. The Tribunal does not accept the submissions made by the review applicant’s agent that her baking for friends and family indicates that she was suffering from depression for a condition which would have prevented her from undertaking any full-time course of study.

13. The Tribunal has considered all the circumstances of the visa applicant and the reasons why it was claimed that for the 21 months after completing her course at St Dominique College of Asia in September 2012 she was not undertaking any full-time course of study. The Tribunal is not satisfied that in considering all the circumstances of the visa applicant, both individually and cumulatively, that it can consider the 21 months a reasonable time that the applicant had not been undertaking a full-time course of study at an educational institution leading to the award of the professional, trade or vocational qualification.

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

15. As indicated above, it was claimed that the visa applicant was suffering from “anxiety” over the period that she was not undertaking any study. No information has been provided which would indicate the visa applicant obtained or sought any medical treatment over this period. The evidence of the visa applicant was that she just staying at home baking. She was able to then enrol in a further course of study in July 2014 and recommenced studies without seeming to have any difficulties. The review applicant described the visa applicant as being fit and healthy and suffering from no medical complaints.

16. As indicated above, the Tribunal does not accept that over the period that the applicant was not undertaking any study that she was incapacitated for any reason which would have prevented her from studying if she chose to do so or that any anxiety she may have been suffering at that time led to a total or partial loss of her bodily or mental functions. The applicant has continued to study since June 2014 and there is no information which would indicate she is incapacitated for work due to the total or partial loss of her bodily or mental functions.

17. Accordingly, the Tribunal finds the exclusion in cl.101.213(2) does not apply.

18. An issue was raised at the hearing and submissions were provided by the review applicant’s agent as to whether the visa applicant was a dependent of the review applicant, her mother, as defined in reg.1.05A. This issue rose in significance when it was acknowledged that the visa applicant had always been living in the home of her father with her paternal grandmother. It appeared that the visa applicant was primarily dependent upon the financial support from her father and therefore was not substantially reliant on the review applicant, her mother, for financial support to meet her basic needs for food, clothing and shelter.

19. As the Tribunal has concluded that the visa applicant does not meet the criteria in cl.101.213 the Tribunal has not made any finding in respect of this aspect of the application.

20. For the reasons above, cl.101.213 is not met at the time of application or at the time of this decision. 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

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

    Hugh Sanderson
    Member