Mandipensa (Migration)

[2022] AATA 2270

Mandipensa (Migration) [2022] AATA 2270 (6 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Efren Hospital Mandipensa

VISA APPLICANTS:  Miss Sidona Benongcasan Mandipensa
Miss Tawaga Benongcasan Mandipensa

CASE NUMBER:  2104338

HOME AFFAIRS REFERENCE(S):          2018362346

MEMBER:Margie Bourke

DATE:6 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named visa applicants meet the following criteria for a Subclass 101 (Child) visa:

·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 06 April 2022 at 4:23pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicants over 18 – applicants undertaking a full-time course of study at an educational institution leading to an award of a professional trader vocational qualification – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.04, 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 9 March 2021 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 25 October 2018. 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 the requirements for visa applicants that had turned 18 at the time of application in cl 101.213 and cl.101.221.

4. The delegate refused to grant the visas on the basis that the first named visa applicant, Sidona Mandipensa, did not meet the requirements of cl.101.221(2)(b), amd the second named visa applicant, Tawaga Mandipensa, did not meet the requirements of cl 101.213  and cl.101.221(2)(b) because the delegate was not satisfied that the visa applicants met the requirements in relation to being a full-time student.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the visa applicants and the nature of the review. The Tribunal had regard to considerations that the conduct of the hearing by video would give the applicants the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to assess the evidence before it. The Tribunal noted that the hearing did not involve a large amount of paperwork to be put to the applicants during the course of the hearing. The Tribunal also noted that the availability of in-person hearings was restricted due to the ongoing pandemic. The Tribunal considered that the review involved a dependent child visa, and it was preferable that further unnecessary delay was avoided. For all these reasons the review applicant was invited to attend a hearing by video.

6. The review applicant was invited to attend a hearing by video on Monday, 28 March 2022. The review applicant advised the Tribunal that this date fell within one of the exam periods at the visa applicants University. The Tribunal advised the review applicant in writing that it would postpone the hearing at his request if it was provided with confirmation that the visa applicants had an exam scheduled for the day of or the day following the scheduled hearing. The review applicant did not request a postponement, and attended the hearing on 28 March 2022, but the visa applicants did not attend the hearing. After a short discussion, the Tribunal indicated it would postpone the hearing to allow the visa applicants to attend on another date if the review applicant provided confirmation that the visa applicants had an exam scheduled on that day. The hearing was postponed and rescheduled to proceed on 6 April 2022.

7. The review applicant appeared before the Tribunal by video on 6 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the two visa applicants, and the wife of the review applicant. The two visa applicants attended by video from the Philippines to participate in the hearing.

8. There was some difficulty in communication at the commencement of the visa applicants’ evidence. After some discussion, the visa applicants indicated that although English was not their first language the difficulty in communication resulted from nerves rather than any linguistic difficulty. The Tribunal indicated it would ask questions in a more gentle manner, and also proceeded to ask questions as clearly and simply as possible in the circumstances. The hearing proceeded with improved communication, and the visa applicants became more vocal and articulate in their responses.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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).

    Relationship status and history

11. 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).

12. I am satisfied based on the oral evidence before me that the two visa applicants were not engaged to be married and did not have a spouse or de facto partner and had never had a spouse or de facto partner at the time of application. I am further satisfied that at the time of decision the two visa applicants were not engaged to be married and did not have a spouse or de facto partner, and have never had a spouse or de facto partner.

13. Accordingly, the Tribunal is satisfied that the two visa applicants meet the requirements of cl 101.213(1)(a) at the time of application, and continue to meet these requirements at the time of decision.

    Not engaged in full-time work

14. 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).

15. I am satisfied based on the oral evidence before me that the two visa applicants were not engaged in full-time work at the time of application. I am further satisfied that at the time of decision the two visa applicants were not engaged in full-time work.

16. Accordingly, the Tribunal is satisfied that the two visa applicants meet the requirements of cl 101.213(1)(b) at the time of application, and continue to meet these requirements at the time of decision.

    Full-time study (or incapacitated for work)

17. 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).

18. 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).

19. 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.

20. There is no evidence before the Tribunal that either of the visa applicants are incapacitated for work due to the total partial loss of their bodily or mental functions. The Tribunal is not satisfied that either of the visa applicants are a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child in r.1.03.

21. The Tribunal has considered the visa applicants’ high school diplomas, school academic records, School of Living Tradition diplomas, course phase outlines, photos of practical studies, course certificates and confirmation of enrolment, participation as first year students  and academic records in Bachelor of Science course at Saint Michael College at Caraga.

22. I am satisfied based on the written and oral evidence before me that Sidona Mandipensa graduated from high school and completed her high school diploma, which is the equivalent of year 12 in the Australian school system, in March 2019. I accept that Sidona turned 18 years of age in November 2017. I am satisfied that the school year in the Philippines commences in June and ends in March the following year. I am satisfied that Sidona Mandipensa met the time of application requirements of cl.101.213(1)(c) as she was still studying her high school diploma at the time of application, in October 2018.

23. I am satisfied that Sidona commenced a part-time food and beverages course in April 2019, and at the beginning of the academic year in June 2019 she commenced indigenous studies at the School of Living Tradition. I am satisfied that within six months or a reasonable time of completing the equivalent of year 12 in the Australian school system, Sidona Mandipensa commenced undertaking a full-time course of study, namely the indigenous studies diploma. I accept that the indigenous studies course was full-time on the basis that the students studied at the school from Monday to Thursday, and also included staying out on country with their elders in addition to school commitments. I accept that Sidona completed the first two years of her indigenous studies degree in March 2021.

24. I am satisfied based on the written and oral evidence before me that Sidona chose to transfer to university to commence a bachelor of science degree in Business Administration which commenced in June 2021 at the St Michael College in Caraga. I accept that the visa applicant transferred to the Business Administration degree because of her focus and intention to achieve business management in her future career. I accept that the visa applicant intends to use her indigenous culture and knowledge in her future business management plans. I am satisfied that Sidona is completing the second semester of her first year of the Business Administration course. I am satisfied that Sidona has also completed a housekeeping course which was a short-term course completed in the semester break prior to the commencement of the bachelor degree and which supplemented the Business Administration course.

25. I am satisfied that the food and beverages course and the housekeeping course were short-term courses that complement the Business Administration course. I am satisfied that the visa applicant Sidona changed her vocation from the indigenous studies to a business focused degree, in order to achieve a career in which she could combine all her skills. I am satisfied that  Sidona plans to achieve a business administration and management degree so she can establish a restaurant which combines her business administration skills with her food and beverage and housekeeping skills together with her cultural and indigenous knowledge. I accept that the visa applicant Sidona Mandipensa is undertaking a full-time course of study at an educational institution leading to an award of a professional trader vocational qualification.

26. For all the above reasons the Tribunal is satisfied that the visa applicant Sidona Mandipensa has since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. I am satisfied that the visa applicant Sidona met these requirements at the time of application, and continues to meet these requirements at the time of decision.

27. I have considered the evidence in relation to the older visa applicant, Tawaga Mandipensa. This visa applicant initially told the Tribunal that she completed her high school diploma in September 2018, and had difficulty answering a question about when the school year started and ended in the Philippines. After some discussion, Tawaga told the Tribunal that the school year for all students in the Philippines commenced in June and ended in March the following year. She told the Tribunal that when she stated she completed her high school and graduated in September 2018 that this was a mistake due to nerves. The Tribunal accepts that the visa applicant Tawaga Mandipensa turned 18 in April 2016, and graduated from high school with her high school diploma in March 2018.

28. The Tribunal accepts that the visa applicant Tawaga did not undertake a full-time course of study until she commenced her indigenous studies diploma with her sister in June 2019, 15 months after she completed her high school diploma. The Tribunal accepts that Tawaga undertook a part-time study (one day a week) for six months in a food and beverages services course, and after this undertook training in the food and beverage industry. The Tribunal is satisfied that the visa applicants’ father preferred that both girls commenced the indigenous studies diploma together. I accept the review applicant, the visa applicants’ father, is an elder in the indigenous community of the Philippines. The Tribunal accepts that it was culturally appropriate for the two sisters to start learning about customary practices, powers and processes together. The Tribunal accepts that there were no other family members undertaking this study at that time in 2018. The Tribunal accepts that in the circumstances it was reasonable for the older visa applicant Tawaga to defer her studies for one year, in order to wait for her sister to participate in the indigenous studies diploma with her. As stated above the Tribunal is satisfied that the indigenous studies diploma is a full-time course and that it commenced in June 2019. For these reasons the Tribunal is satisfied that the visa applicant Tawaga Mandipensa has since turning 18 and within a reasonable time after completing the equivalent of year 12 in the Australian school system, commenced undertaking a full-time course of study at an educational institution.

29. Based on the oral and written evidence provided to the Tribunal, I am satisfied that the visa applicant Tawaga completed the first two years of the indigenous studies diploma, before transferring to commence the full-time course of study in the bachelor of Science in Business Administration. The Tribunal is satisfied that the visa applicant Tawaga is completing her second semester of her first year of the bachelor degree and has achieved honours marks as a student in her bachelor degree.

30. The Tribunal is satisfied that the visa applicant Tawaga intends, like her sister, to utilise her indigenous studies knowledge and her study and work experience in food and beverage services, to complete a Business Administration and Business Management course, and to establish a business with her father and sister in setting up a restaurant. The Tribunal is satisfied that the visa applicant Tawaga has, since turning 18 and within 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 Tribunal is satisfied that the visa applicant Tawaga Mandipensa meets these requirements both the time of application and continues to meet these requirements at the time of decision.

31. Accordingly, the Tribunal is satisfied that the two visa applicants meet the requirements of cl 101.213(1)(c) at the time of application, and continue to meet these requirements at the time of decision.

32. For the reasons above, both visa applicants meet the requirements of cl 101.213 at the time of application.

33. Further, both visa applicants continue to meet the requirements of cl 101.213 at the time of decision, and therefore both visa applicants meet the requirements of cl 101.221(2)(b).

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

    DECISION

35. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named visa applicants meet the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.

    Margie Bourke
    Member