Formoso (Migration)

[2021] AATA 4037

Formoso (Migration) [2021] AATA 4037 (5 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jennifer Siembre Formoso

VISA APPLICANT:  Mr John Benedict Formoso

CASE NUMBER:  1910968

HOME AFFAIRS REFERENCE(S):          201721919 CLF2017/21919

MEMBER:Moira Brophy

DATE:5 October 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.213(1)(a)(b) and (c) of Schedule 2 to the Regulations; and

·cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 05 October 2021 at 3:06pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa –applicant is over the age of 18 years – studies were ongoing –  reasonable full-time study period  –applicant continued to be a full time student at time of decision – credible evidence –decision under review remitted

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 Home Affairs on 23 February 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 13 March 2017. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.221(2)(b) which requires that an adult child, that is, a child who has turned 18, be a full-time student at the time of decision.

4. The delegate in a decision dated 23 February 2019 refused to grant the visa on the basis that cl 101.213(2) was not met because the visa applicant had turned 18 and there was insufficient evidence to show he had since turning 18 or within a reasonable period after completing the equivalent of year 12 in the Australian school system been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant, Ms Jennifer Siembro Formosa, gave evidence to the Tribunal at a teleconference on 30 August 2021. The Tribunal also received oral evidence from the visa applicant, Mr John Benedict Formosa, and the partner of the review applicant Mr Harley Jones.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

9. The visa applicant (the applicant) is a 25-year-old male. He is a citizen of the Philippines. His mother lives in Australia with his stepfather and stepbrother. He has another brother and sister residing in Australia with his mother.

10. The applicant’s mother, Ms Jennifer Siembro Formosa was sponsored to Australia on a Partner visa by Mr Harley Jones. She arrived in Australia on 10 March 2012 and became an Australian citizen on 19 September 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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).

12. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations. Relevantly to this case, they include cl 101.213 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work, and study.

13. The delegate refused to grant the visa on the basis that cl 101.213(2) was not met because there was no evidence that the applicant had since turning 18 or within a reasonable period after completing the equivalent of year 12 in the Australian school system been undertaking a full-time course of study leading to the award of a professional, trade or vocational qualification.

14. The issues in this case are whether the applicant meets cl 101.213 and cl 101.221.

    Criteria for applicants over 18

15. If, at the time of application, the 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

16. 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).

17. The Tribunal accepts the evidence of the sponsor and the applicant that the applicant is not married, engaged to be married or in a defacto relationship now, and was not at the time of application. There is no evidence to contradict this and no reason not to accept the evidence of the sponsor and applicant.  Accordingly, cl 101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

18. 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).

19. The Tribunal accepts, on the evidence of the sponsor and the applicant, and evidence of regular remittances provided by the sponsor, that the applicant is not, and has never, been engaged in full-time work. Accordingly, cl 101.213(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

20. 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 101.213(1)(c).

21. 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).

22. The Tribunal observes no claims have been made, and there is no evidence to suggest the applicant was incapacitated for work due to the loss of bodily or mental functions, and therefore cl 101.213(2) is not met in the present case.

23. 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 (Hussain). The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416 (Opoku-Ware). These cases are discussed further below.

24. In the material before the delegate, including the application form and Form 80 subsequently provided, evidence was provided that the applicant was undertaking a course of study at the time of application (13 March 2017). The information provided was that he had completed his Junior High School Diploma (equivalent of Year 10) at AMSIC Integrated School in 2017. The Certificate provided to the Tribunal was dated 6 April 2017. He then completed his Senior High School Diploma (equivalent of Year 12) at AMSIC Integrated School in 2019. The Certificate provided was dated 4 April 2019. The Tribunal is satisfied that the visa applicant's higher secondary schooling is the equivalent of year 12 in the Australian school system because it entitled the visa applicant to admission into university to undertake an undergraduate degree.

25. The applicant then enrolled and completed a TESDA Certificate of Training in Computer Systems Servicing, a prerequisite for Computer Systems Serving NC 11. His Certificate of Completion was dated 24 November 2019. Proof of enrolment at TESDA in Computer Systems Servicing NC11 was provided, along with a letter from TESDA indicating that as at 1 March 2020 all classes in the course had been cancelled to comply with COVID Enhanced Community Quarantine in Luzon. At the time of hearing the applicant told the Tribunal an online learning platform had subsequently been introduced and he was studying the course he was enrolled in at the time of the hearing. The Tribunal is satisfied that the applicant's current course of study will lead to the award of a professional, trade or vocational qualification.

26. The applicant submits that because he is now studying, he can meet the requisite criteria.

27. Significantly and relevantly for this review, the evidence before the Tribunal is that since completing the equivalent of Year 12 in 2019, the applicant has continued to study on a full-time basis albeit not for a period when the college was closed due to COVID.

28. The Tribunal was especially mindful of the history of this matter as set out above. The Tribunal was impressed by the sponsor and the applicant at the time of hearing and the genuine attempts they had made to understand and comply with the requirements of the visa they had applied for. The Tribunal appreciates the difficulties and trauma suffered because of the continued separation of the applicant and his mother.

29. For the reasons above, the Tribunal is satisfied cl 101.213(1)(a)(b) and(c) is met at the time of application and that at the time of decision cl 101.221(2)(b) is met.

30. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.213(1)(a)(b) and (c) of Schedule 2 to the Regulations; and

    ·cl 101.221(2)(b) of Schedule 2 to the Regulations.

    Moira Brophy
    Member