Moore (Migration)

[2021] AATA 3324

Moore (Migration) [2021] AATA 3324 (26 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Pilar Moore

VISA APPLICANT:  Miss Leni Ann Condes

CASE NUMBER:  1911621

HOME AFFAIRS REFERENCE(S):          CLF2017/58557

MEMBER:Helena Claringbold

DATE:26 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2021 at 3:53 pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – spouse or de facto partner – child of the relationship – gap in studies – casual employment – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, 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. On 4 August 2017, Miss Leni Ann Condes, the visa applicant, applied for a Child (Migrant) (Class AH) visa. The applicant was based on the visa applicant’s relationship with Mrs Pilar Moore, the sponsor and review applicant.

2. On 9 April 2019, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the visa applicant meets the criteria in cl.101.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations). On 8 May 2019, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. 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).

4. On 17 August 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The review applicant was not represented in relation to the review by a registered migration agent or an Australian legal practitioner.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file.

   ISSUE

7. The issue in this case is whether, at the relevant time, the visa applicant was a full-time student at an educational institution leading to the award of a professional, trade or vocational qualification at the time of the application and decision and therefore satisfies cl.101.213(1) and cl.101.221(2)(b) of Schedule 2 to the Regulations.

   Additional criteria for applicants over 18

8. At the time of application, the visa applicant was over 18 years old, therefore additional requirements relating to relationships, work and study must be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.101.221(2)(b) of Schedule 2 to the Regulations.

   Full-time study (or incapacitated for work)

9. At the time of application, the visa applicant must have, 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 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). These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

10. 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).

11. 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.

    CLAIMS AND FINDINGS

    BACKGROUND ON THE EVIDENCE

12. The visa applicant was born in 1996 in Imus Cavite, Philippines. Her biological parents are the sponsor and Mr C. Her stepfather was Mr M. He died in November 2019. She has 3 siblings who live in the Philippines and 3 siblings who live in Australia. She has not declared any partner relationships. On 4 August 2017, the visa applicant applied for a Child (Migrant) Subclass 101 visa. At the time of the visa application she was 20 years of age.

13. The sponsor was born in 1967 in Imus, Philippines. She was previously married to Mr M until his death in November 2019. She is engaged to be married to Mr H. She lives in Australia.

    Is the visa applicant incapacitated for work?

14. There is no evidence before the Tribunal that at the time of making the application, the applicant was incapacitated for work due to the loss of bodily or mental functions. Therefore, the applicant does not meet cl.101.213(2) of Schedule 2 to the Regulations.

    Relationship status and history

15. 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).

16. The sponsor told the Tribunal the following: the visa applicant is not engaged to be married and has not had and does not have a spouse or de facto partner. However, later in the hearing the applicant stated that the applicant has a son who was about a year old. The applicant was living in the sponsor’s home with the father of their son but was not married. She had lived with him prior to their son being born and continued to live with him. There is no evidence, that at the time of application, the applicant was engaged or in a partner relationship. Therefore, the applicant meets cl.101.213(a) of Schedule 2 to the Regulations. There is evidence, that at the time of decision, the applicant is in a partner relationship with the father of her child and has lived with him for approximately one year. The Tribunal is concerned that initially when the Tribunal asked about the visa applicant’s relationship status it was told that she not been and was not in a partner relationship. However, the Tribunal has not made a finding on the relationship status of the visa applicant.

    Was the visa applicant undertaking full-time study?

17. Information provided in support of the visa application is as follows:

    ·On 9 October 2014, the applicant turned 18 years of age.  In March 2015, she completed her secondary education at Imus National High School.

    ·In June 2015, she was admitted to the AISAT College studying Hotel and Restaurant Services.  In June 2017, after two years of post-secondary school at Asean Institute of Science and Technology (AISAT) College, she graduated in Hotel and Restaurant Services.

    ·From 4 September 2017 to 8 December 2017, she studied and completed a National Certificate II in Barista at Imus Vocational and Technical School.

18. On 8 May 2019, the Tribunal received a letter from the sponsor and her then partner Mr M. They declared the following: It appears that the visa application was refused due to lack of continuity of tertiary education since the visa applicant turned 18. The sponsor has six children and they have sponsored three of them to come to Australia.  The visa applicant is the last of the children to be sponsored. They monitored the visa application and understood that there was no problem and they needed to wait. They did not ensure that there were no gaps in the visa applicant’s education since her turning 18. They assumed that the delay in processing the visa application was due to pressure on the Department. The gap in the visa applicant’s education was a foolish oversight with far reaching affects on the visa applicant. The three children who migrated to Australia are working and are no burden to the Australian community and there is no reason to believe that the visa applicant would not be the same.

19. The sponsor told the Tribunal the following: The visa applicant completed secondary school education at the Imus National High School.  She then completed two years of study graduating in Hotel and Restaurant Services before completing the National Certificate II in Barista at the Imus Vocational and Technical School.  The visa applicant has not undertaken any study since December 2017.  Since December 2017, the visa applicant has not worked or done anything.

20. Mr H, the sponsor’s partner told the Tribunal the following: He will provide support for the visa applicant and help her obtain employment. Six months after the visa application was made the visa applicant studied hospitality.

21. Ms C, the visa applicant’s sister told the Tribunal the following: She wants the visa applicant to come to Australia. She is grateful to be in Australia which has offered her opportunities. The visa applicant is the last of her siblings to be sponsored by the sponsor.

22. The Tribunal put information to the sponsor under s.359AA of the Act. The relevance and consequence of the information was explained to the sponsor. She was invited to comment on or respond to the information and told that she could seek additional time to do so. The sponsor responded at the Tribunal hearing. The information put to the sponsor is as follows:

    The visa applicant was working in a factory when they were asked about the six-month gap. She worked for a couple of months earing $20 daily and then resigned.

23. The sponsor responded and stated the following: As far as she knew the visa applicant was working casually from Monday to Saturday.  Sometimes the employers closed the shops so the visa applicant looked for another job. She wanted to work but the sponsor told her not to work until the visa application was finalised.

24. The Tribunal is concerned that the information about the visa applicant’s employment was not given willingly by the sponsor.  However, it makes no further findings on the visa applicant’s employment.

25. The Tribunal considered the evidence individually and completely. It is satisfied that the visa applicant completed her secondary education in March 2015. She then completed two years post-secondary school studies graduating in Hotel and Restaurant Services.  In September 2017, she began studies for a National Certificate II in Barista which was completed in December 2017. The Tribunal is satisfied that the visa applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification until December 2017.

26. The Tribunal at the time of application, is satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Therefore, the applicant meets cl.101.213(1) of Schedule 2 to the Regulations.

27. The evidence before the Tribunal is that the visa applicant has not undertaken studies since December 2017. The Tribunal at the time of decision, is not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. 

28. Therefore, at the time of decision, cl.101.213 of Schedule 2 to the Regulations does not continue to be met. Accordingly, the visa applicant does not meet cl.101.221(2)(b) of Schedule 2 to the Regulations.

29. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.

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

    DECISION

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

    Helena Claringbold
    Member