Jamieson (Migration)

[2018] AATA 5808

Jamieson (Migration) [2018] AATA 5808 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ma Regina Jamieson

VISA APPLICANT:  Miss Rea Esperanza Perenia

CASE NUMBER:  1622457

HOME AFFAIRS REFERENCE(S):           OSF2016/043861

MEMBER:Kate Millar

DATE:7 December 2018

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 07 December 2018 at 10:27am

CATCHWORDS
MIGRATION – Child (Migrant)(Class AH) visa – Subclass 101 (Child) – study requirement –not undertaking full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221(2)(b)

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 Immigration and Border Protection on 2 December 2016 to refuse to grant Miss Rea Perenia a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. Miss Perenia is a citizen of the Philippines.  Her mother, Mrs Ma Regina Jamieson is a citizen of Australia. 

3. Miss Perenia applied for the Child (Migrant) (Class AH) visa on 15 February 2016. At the time of her 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).

4. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The criteria include at cl.101.213 that, if the applicant has turned 18, he or she meets additional criteria. The additional criteria include since turning 18 or within 6 months or a reasonable period after completing the equivalent of year 12 in the Australian school system the applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional or trade qualification.

5. Miss Perenia turned 18 in 2009, and was 24 years old at the time of the application.  As she was over 18 at the time of application, she must meet the additional requirements for applicants over 18.

6. The delegate found she did not meet the study requirement as she had included in her statement that she ceased studying from 2010 to 2011 to care for her grandmother.  The delegate also found Miss Perenia had not provided information on her education for the 2009/2010, 2011/2012, 2012/2103 and 2014/2015 school years, which start and end in the middle of the year in the Philippines.

7. Mrs Jamieson before the Tribunal on 23 October 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether at the time of the visa application and the time of this decision, Miss Perenia meets the additional criteria for applicants who are over 18 years of age at the time of application.

   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).

    Full-time study (or incapacitated for work)

11. 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 (‘the study requirement”): cl.101.213(1)(c).

12. 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).  Mrs Jamieson said that Miss Perenia does not have a condition that would make her unable to work or study and this does not apply. 

13. At the time of decision, the applicant must continue to meet the study requirement (cl.101.221).

14. The study requirement appears to contemplate a single full-time course of study such as a degree or a technical college qualification at a particular institution, although it may extend to  a qualification that is obtained from an institution or accreditation body on satisfying 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].

15. 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].

16. 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.

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

18. Mrs Jamieson was a difficult witness.  In the course of her evidence she changed the dates in which Miss Perenia studied at different colleges, the order of the courses Miss Perenia studied, and the period of time she studied.  The Tribunal initially attributed these difficulties to her unfamiliarity to the process and her strong desire to have her daughter come to Australia, however it became apparent in the latter parts of the hearing that she was aware of the difficulty with this matter and that her level of distress related to the probable outcome of the hearing of this matter.  Mrs Jamieson said she was aware she could seek the intervention of the Minister if her application was not successful.  

19. Miss Perenia was at High School in 2009 at Our Lady of Purity Academy.  She finished school in March 2010.  She provided with her visa application school records showing that she did fourth year of 2008/2009.  Mrs Jamieson said fourth year was the last year of secondary school.  The school year finishes in March.

20. Miss Perenia’s application form states she completed her secondary education in March 2009.  A transcript was provided from the Technological Foundation Institute states that Miss Perenia finished in the school year 2008/2009, which indicates she finished in March 2009. 

21. Mrs Jamieson submitted that Miss Perenia finished secondary school in March 2010.  This is not supported by any of the documents before me, and I find she completed her secondary education in March 2009.

22. Mrs Jamieson provided a certificate of enrolment and a receipt for the Technological Foundation Institute, with an enrolment date in June 2012, for the school year 2012/2013.  Miss Perenia’s academic transcript states she studied first year and first semester in the school year 2013/2014 and not in 2012/2013.  However it also states she studied second year in 2012/2013.  Her transcript states she graduated in March 2014.  Giving Miss Perenia the benefit of the doubt, she commenced this course in June 2012.

23. Miss Perenia’s written statement declares she stopped studying in the school year 2010/2011 to care for her grandmother.  Mrs Jamieson said that her sister decided to move from Manila to assist in caring for their mother in the first half of 2011.

24. The enrolment for the technological Foundation Institute indicates she recommenced her study in June 2012, over three years after she finished her secondary education. 

25. Mrs Jamieson was asked why Miss Perenia stayed at home for over three years to care for her grandmother when her aunt had arrived to care for her.  Mrs Jamieson said this was because her aunt was caring for other children as well, her mother was in and out of hospital, and when her mother was at home she required a high level of care including assistance with bathing and mobility. 

26. Mrs Jamieson produced a receipt for a deposit for 2014/2015 school years for the International Business College.  Mrs Jamieson was asked to provide an academic record to show she attended this course.  Mrs Jamieson was asked to show what would establish that Miss Perenia attended this school in June 2014. 

27. Mrs Jamieson then gave evidence that Miss Perenia went for half a semester for this course.  She also then said she went for one semester and then stopped.  Miss Perenia then started looking for another school. 

28. After this, Mrs Jamieson says Miss Perenia commenced at La Carlota College doing a course called AB English.  The result card is stamped 10 December 2015.  This indicates she started June 2015.  It follows that in the period between October 2014 and June 2015 she stopped studying and was looking for another course.  This is a break of one semester.

29. Mrs Jamieson said Miss Perenia finished the English course in March 2016 and commenced book keeping in June 2016 and completed this course in March 2017.

30. From March 2017 she has not returned to school.  Mrs Jamieson said she cared for her mother until she died in 18 April 2018.  She is not currently at school and Mrs Jamieson said she no longer wants to go to school.

31. It was explained to Mrs Jamieson that the requirement at the date of decision is that Miss Perenia continues to meet the criteria for the visa.  Mrs Jamieson had applied for a review of the decision to refuse the visa on 15 February 2016, when Miss Perenia was still studying.  However at the time of this review, she was no longer studying.  She does not intend to return to study. 

32. This means that even if I were to be satisfied that Miss Perenia met the requirement that since turning 18, or within 6 months or a reasonable period 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 at the time of her application, she does not meet this requirement at the time of this decision. 

33. It follows that she does not continue to meet cl.101.213(1)(c) at the time of this decision, and the decision is affirmed. 

34. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Kate Millar
    Member