Marquez (Migration)

[2020] AATA 5153

Marquez (Migration) [2020] AATA 5153 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Alice Marquez

VISA APPLICANT:  Ms Kathlene Mandap

CASE NUMBER:  1906264

HOME AFFAIRS REFERENCE(S):          201734743 CLF2017/34743

MEMBER:Margie Bourke

DATE:29 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 29 October 2020 at 3:32pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study requirement – withdrew from tertiary studies in 2018 – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 1 February 2019 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 for the visa on 3 April 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 (the Regulations). Relevantly to this case, they include cl.101.213 and cl.101.221.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the applicant was not in active studies after completing high school in 2011 until she enrolled in fulltime studies in 2016.

5. The tribunal considered that in-person hearings were not available due to the covid-19 pandemic.  The tribunal had regard to its objectives to provide a mechanism for review that was fair, just, economical, informal and quick.  The tribunal, after having regard to the nature of this review, and the circumstances of the review applicant, decided this was an appropriate matter to conduct the hearing by video.

6. The review applicant appeared before the tribunal by video on 29 October 2020 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant who attended by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The interpreter attended the hearing by video.

7. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

8. 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).

9. Prior to the hearing the review applicant had provided the tribunal with documents relevant to time of decision findings in cl.101.221(2)(b). The visa applicant gave evidence that was relevant to findings in relation to cl.101.221(2)(b).

10. For this reason I have set out the requirements of cl.101.213, which must continue to be met at the time of decision to satisfy cl.101.221(2)(b). I have then proceeded immediately to consider whether the visa applicant meets cl.101.221(2)(b). I have not made time of application findings in relation to whether the visa applicant meets the requirements of cl.101.213, considering this unnecessary in the circumstances of this review.

    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).

    Not engaged in full-time work

12. 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).

    Full-time study (or incapacitated for work)

13. 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).

14. 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).

15. 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.

16. There is no evidence before the tribunal that the visa applicant is incapacitated for work by total or partial loss of mental or bodily functions.  Both the visa applicant and the review applicant stated they had no health issues. There is no evidence that the visa applicant is a dependent child within the meaning of r.1.03(b)(ii). I am satisfied cl.101.213(2) does not apply, and the visa applicant must therefore meet the requirements of cl.101.213(1)(c).

17. The visa applicant and the review applicant stated the visa applicant has never been employed.  The evidence before the tribunal is the visa applicant is single – and has never been engaged or partnered or married.

18. The review applicant provided the tribunal with a document entitled Pampanya College official transcript which recorded the subjects completed by the visa applicant in 2016, 2017 and 2018.  The transcript recorded the visa applicant had been granted an honourable discharge from the course.  

19. The visa applicant gave evidence that she had ceased studying in 2018 as the course was too difficult.  I accept based on the written and oral evidence before me that the visa applicant withdrew from her tertiary studies in 2018.

20. I am satisfied that at the time of decision the visa applicant is not undertaking a full time course of study.  I accept the visa applicant does not continue to meet the requirements of cl.101.213(1)(c) at the time of decision, and therefore does not meet the requirements of cl.101.221(2)(b).

21. For the reasons above, cl.101.221(2)(b) is not met at the time of decision.

22. 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

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

    Ministerial Intervention

24. [Details redacted].

25. [Details redacted].  

    Margie Bourke
    Member