Hayag (Migration)

[2023] AATA 919

Hayag (Migration) [2023] AATA 919 (5 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ma Alma Hayag

VISA APPLICANT:  Mr Don Franco Hayag

CASE NUMBER:  2017265

HOME AFFAIRS REFERENCE(S):          CLF2019/6383

MEMBER:Peter Emmerton

DATE:5 April 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 05 April 2023 at 3:20pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – over 18 years of age – full-time study requirement – study gaps – approximately 4 years – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.213

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 10 November 2020 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 15 January 2019. 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 101.213(1)(c) and 101.213(2).

4. The delegate refused to grant the visa on the basis that cl 101.213(c) was not met because they were not satisfied the applicant had been in full-time study since turning 18. Nor were they satisfied that 101.213(2) was satisfied as no evidence was tendered to demonstrate that the over 18 applicant was dependent due to being incapacitated for work due to the partial loss of the child’s bodily or mental functions. This was agreed during the hearing by the review applicant.

5. The review applicant appeared before the Tribunal on 5 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence via video from Mr Don Franco Hayag, the visa applicant and verbal evidence via telephone from Mr Bruce Preece, the husband of the review applicant, who stated that he considers himself to be the stepfather of the visa applicant. The Tribunal found all those giving evidence to be credible and honest with no evidence of obfuscation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is to satisfy clause 101.213(1)(c) the applicant needs to demonstrate that at the time the application was lodged he was validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification. The applicant must produce evidence of both enrolment and their active participation, in the course of study. In addition, the applicant must have been undertaking that course since turning 18 years of age or have commenced the studies within six months or a reasonable period after completing secondary education.

8. The Tribunal has considered the following evidence provided to the Department prior to hearing.

   • Email correspondence from Alma Hayag sent on 15 May 2019 to Immigration Manila
   • Philippines Passport belonging to Don Franco Hayag
   • Email correspondence between Immigration Manila and Alma Hayag with various dates
   • Foreign Documents including study details
   • Academic Transcripts belonging to Don Franco Hayag including various dates
   • Department of Home Affairs Refusal for a Child visa dated 10 November 2020
   • Study details including transcripts, transactions and training details.
   • Department of Immigration Family Child visa subclass 101 application checklist form (undated)
   • Consent form signed by Don Franco Hayag (undated)
   • Passport belonging to Ma Alma Hayag
   • Department of home affairs Application status dated 28 May 2018
   • Australian Birth Certificate belonging to Bruce Raymond Preece
   • Notice of assessment for Tax Year ending 2018 issued 13 July 2018 belonging to Ms Ma Alma Hayag
   • Notice of assessment for Tax Year ending 2017 issued 25 July 2018 belonging to Ms Ma Alma Hayag
   • Department of Immigration and Border Protection Sponsorship for a child to migrate to Australia form (40CH) signed 06 December 2018
   • Department of Home Affairs Tax invoice for Ma Alma Hayag dated 28 December 2018

9. The Tribunal has considered the following evidence provided to the AAT prior to hearing.

   • Applicant statement dated 27 March 2023
   • Further statement from Ma Alma Hayag, undated
   • RIA Money Transfers (transactions report) between 11 March 2021 to 24 March 2023, totalling approximately AUD $28,000
   • RIA Money Transfers between 9 December 2020 and 18 November 2020, totalling approximately AUD $10,000
   • Statement of Gregorio V. Gener (retired police officer), appears to be grandfather, dated March 27, 2023
   • Letter from Alejandro Preece, brother of Don Franco Hayag, undated, underage (8 years old)
   • Death Certificate of Emilia Saac Gener, dated 23 June 2022
   • Academic evaluation, Philippine State College of Aeronautics, printed on 27 March 2023
   • Prints of incoming/outgoing correspondence – not materially effective

   Criteria for applicants over 18

10. If, at the time of application, the visa 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).

11. The applicant’s Date of Birth is 9 August 1998 as verified by a copy of his passport. The applicant lodged his application on 15 January 2019. The Tribunal accepts the applicant was 20 at the time of application.

    Relationship status and history

12. 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).

13. The Tribunal accepts that the Certificate of No Marriage, dated 17 December 2019, the statements made by the review applicant prior to and at the hearing, indicates to the Tribunal that the applicant satisfies cl 101.213(1)(a) as he is not engaged and never been in a spousal or de facto relationship. This was confirmed by the visa applicant and review applicant at the hearing.

14. Accordingly, cl 101.213(1)(a) is met and it continues to be met at the time of decision.

    Not engaged in full-time work

15. 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).

16. The applicant completed question 40 of the Form 47CH, which requested current employment details of the applicant. The applicant advised he was not employed or currently working part time. The Department accepted this as accurate. The Tribunal has no evidence before it to refute the claim. The Tribunal confirmed this at the hearing and notes the evidence showing that some study was being undertaken at various points in time until mid-2021 and part-time food delivery work is undertaken currently. The Tribunal acknowledges that the review applicant has provided substantial sums of money to support her son who is now living alone in rented accommodation in the Philippines.

17. Accordingly, cl 101.213(1)(b) is met and it continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

18. 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).

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]. 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).

20. 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. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

21. The Tribunal has considered clause 101.213(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. Neither the applicant nor the review applicant has provided evidence of incapacity. They both confirmed at the hearing that the applicant is not incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. The Tribunal is therefore satisfied the applicant does not meet clause 101.213(2).

    Study history

22. Based upon the information provided at application and reiterated during the hearing, the visa applicant completed secondary school in March 2014. There is no evidence before the Tribunal that leads it to doubt the veracity of the evidence and therefore accepts it as factual. The contents of paragraphs 22-29 of this decision were corroborated by the review applicant at the hearing.

23. It is claimed the applicant then enrolled in a computer course at the International Electronics and Technical Institute, commencing studies there in June 2014.  He subsequently dropped the course in that first semester of the 2014-2015 School Year.  He did not continue in the second semester of the 2014-2015 School Year.

24. The applicant then commenced studies at the Philippine State College of Aeronautics in June 2015 and completed the first and second semesters of the 2015-2016 School Year in the institution.

25. In the second half of 2016 (first semester of the 2016-2017 School Year) it is claimed the applicant studied Computer Science at the Asian Institute of Computer Studies. It was during that time the applicant turned 18, (9 August 2016).

26. The sponsor claimed that following the death of his father on Christmas Day 2016 the applicant became depressed, lost inspiration and motivation and did not study for the entirety of 2017 and the first half of 2018.

27. In June 2018 he recommenced studying at the Philippine State College of Aeronautics and continued studying there until sometime in mid-2021. He has not finished his course.

28. There is no evidence before the Tribunal nor stated to the Tribunal during the hearing that the applicant has continued to study beyond the forementioned point in time.

29. The visa applicant clearly undertook substantial breaks away from study totalling approximately 2 years which took place prior to his visa application on 15 January 2019. According to the information provided, the applicant had gaps in study, since commencing post-secondary studies, from some stage in the second half of 2014 until mid-2015 and again from January 2017 until June 2018. In total this amounts to over two years of study gaps since commencing post-secondary school study and 18 months since turning 18 years of age. He has additional study gaps from mid-2021 until the current day. The total study gaps are approximately 4 years as was agreed at the hearing.  

30. On the information available I am not satisfied that the applicant had been actively participating in full time study leading to a professional, trade or vocational qualification since completion of his secondary school.

31. Whilst the Tribunal has some sympathy for the applicant and his circumstances, this is not a relevant factor that can be considered when assessing the requirements for this visa type and the Tribunal has no discretion in this matter.

32. Accordingly, cl 101.213(1)(c) is not met. It continues to not be met at the time of decision.

33. The applicant does not meet clause 101.213(2).

34. For the reasons above, cl 101.213 is not met at the time of application.

35. At the time of decision, cl 101.213 continues to not be met. Accordingly, cl 101.221(2)(b) is not met.

36. 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

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

    Peter Emmerton
    Member