Modica (Migration)

[2021] AATA 188

Modica (Migration) [2021] AATA 188 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rosemarie Modica

VISA APPLICANT:  Miss Maria Noella Rose Leonidas

CASE NUMBER:  1923071

HOME AFFAIRS REFERENCE(S):          CLF2018/44136

MEMBER:David Crawshay

DATE:22 January 2021

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 22 January 2021 at 12:36pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study since turning 18 – no response to tribunal’s invitation to provide evidence – work and study history – no evidence of relevant study and large gaps in low-level study – no explanation for gaps – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 101.213(1)(c), 101.221(2)(b)

CASES
Hasran v MIAC [2010] FCAFC 40
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 28 June 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 20 February 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 (the Regulations). Relevantly to this case, they include cl.101.213, which comprises criteria that must be satisfied by visa applicants who are 18 or older at the time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because he was not satisfied based on the available information that the visa applicant had, since turning 18 or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking the relevant study as required by cl.101.213(1)(c).

5. On 7 January 2021, the Tribunal wrote to the review applicant pursuant to s.359(2) of the Act, inviting him to provide evidence that the visa applicant satisfied the requirements of cl.101.213 at the time of application and continued to satisfy the requirements of that clause at the present time. The Tribunal was motivated to write to the review applicant in this way because there appeared to be little evidence to demonstrate that the visa applicant satisfied the requirements of cl.101.213 and cl.101.221(2)(b). The invitation was sent to the review applicant at the last address provided in connection with the review and advised him that, if the information was not provided in writing by 21 January 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information and believes it is reasonable to do so as the evidence indicates that the visa applicant was not able to satisfy the requirements of cl.101.213(1)(c).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant has fulfilled the criteria relating to full-time study under cl.101.213(1)(c) at the time of application and at the time of this decision.

   Criteria for applicants over 18

9. 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)

10. 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).

11. 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).

12. 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.

13. In the visa applicant’s visa application form, she states that she completed her schooling at St Joseph School – La Salle in 2011. She then states on that form that she worked as a salesperson at a shopping mall from 2011 until 2012. She claims that her first course of post-secondary study was an English course at STI West Negros University which began in 2013 and ceased in 2014, after which time she worked for an IT teleservices company in 2015 and 2016. Finally, she claims to have studied a health care services course from January until October 2017 at Our Lady of Mercy College, after which time she claims to have started “processing” her child visa application. Documents submitted at the Department stage confirm the visa applicant’s study history. A letter from the IT teleservices company confirms that she had been employed there for at least the period from 8 November 2015 until 2 December 2015 when the letter completed and signed.

14. There is otherwise no evidence to demonstrate that the visa applicant had been engaged in study of the type required under cl.101.213(1)(c), including during the extended gaps between her studies – the first from when she graduated in 2011 until she began an English course at STI West Negros University in 2013, and the second from when she finished that course in around mid-2014 until January 2017 when she began her health services course at Our Lady of Mercy College. There is also no evidence to demonstrate that she is currently studying or has been doing so since October 2017 when she completed the aforementioned health services course. This is despite the Tribunal seeking this information through its s.359(2) letter of 5 January 2021.

15. The Tribunal has considered the evidence in front of it. Based on this evidence, it finds that the visa applicant completed her secondary schooling in or around mid 2011. It finds that she then had a gap in studies that lasted until around mid-2013. It finds that she therefore waited for around two years to begin her post-school studies from when she graduated – this is the first gap in studies. It finds that she then studied in a course until around the middle of 2014 and did not subsequently commence further studies until January 2017. It finds that this second gap comprised around two-and-a-half years. It finds that she completed her last studies in October 2017 and has not studied since then – a third gap of more-than-three years. It finds that she is not currently studying.

16. The Tribunal notes that there is little if any explanation given for the three gaps in the visa applicant’s study from when she graduated from school. Again, this is despite the Tribunal inviting the review applicant to provide evidence. Based on the totality of the evidence, and in the absence of any explanation as to why the first gap would constitute a “reasonable time”, and why her study history after this time (including the two other gaps in study) would warrant the conclusion that she had been undertaking relevant study during that period,[1] the Tribunal is not satisfied that the visa applicant had been undertaking the relevant study within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system.

    [1] Hussein v MIBP [2017] FCCA 3247, [111] (Judge Barnes). In doing so, the Tribunal must have regard to all relevant circumstances including the nature and duration of the gaps and any explanation for the gaps (at [114]).

17. Accordingly, cl.101.213(1)(c) is not met at the time of application.

18. There is no evidence in front of the Tribunal to demonstrate that the visa applicant was incapacitated for work because of loss of bodily or mental functions at the time of application. Clause 101.213(2) does not apply.

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

20. Clause 101.213 does not continue to be met at the time of decision. Indeed, there is no evidence to show that the visa applicant has been studying beyond October 2017, which is before the date of application, and there is no evidence that she is currently studying.

21. Therefore, cl.101.221(2)(b) is not met.

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.

    David Crawshay
    Member