Moreno (Migration)

[2017] AATA 805

Moreno (Migration) [2017] AATA 805 (2 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Loida Moreno

VISA APPLICANT:  Mr Sander Moreno

CASE NUMBER:  1517958

DIBP REFERENCE(S):  OSF2015/032513

MEMBER:Catherine Wall

DATE OF DECISION:  2 May 2017

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 02 May 2017 at 8:59am

CATCHWORDS
Migration – Child (Migrant)(Class AH) visa – Subclass 101 – Full-time study requirements – Not dependent child – Not undertaking full-time study leading to professional, trade or vocational qualification – No waiver on compassionate grounds

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

CASES
Sok v MIMIA [2005] FMCA 190
Wake v MIAC [2010] FMCA 272

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 on 11 November 2015 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2.    Mr Sander Moreno is a 25 year old citizen of the Philippines. He applied to the Department of Immigration for the visa on 9 April 2015. His visa application is sponsored by his mother, Ms Loida Moreno, a 45 year old Australian citizen. Mr Moreno is the review applicant in this matter. 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 delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied that the full-time study requirements were met.

4.    A record of the delegate’s decision was provided to the Tribunal for the purpose of review.

5.    Ms Moreno appeared before the Tribunal on 28 April 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Sander Moreno, and from his sister, Carla Luis.  

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

CONSIDERATION OF CLAIMS AND EVIDENCE

Additional criteria for applicants over 18

7. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: 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)

8. 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). However, 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). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

9.    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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

1. The Tribunal finds, on the basis of Sander’s oral evidence and identity documents, that at the time of application he was 23 years of age.

2. There is no evidence before the Tribunal that Sander was or is incapacitated for work because of loss of bodily or mental functions, and Sander made no claims in this regard.

3. On the basis of oral and documentary evidence, the Tribunal finds that Sander completed his secondary schooling in March 2009 at Macario Molina National High School. His post-secondary study history is as follows:

• He undertook a Bachelor of Science in Criminology from June 2009 to April 2012, as evidenced by an academic transcript issued by the Erhard Systems Technological Institute on 11 September 2013;

• He undertook a National Certificate 11 in RAC Servicing (full time) from May 2012 to October 2012, as evidenced by a certificate issued 15 October 2012);

• He undertook a National Certificate 11 in Automotive Servicing from February 2013 to July 2013, as evidenced by a certificate issued 3 July 2013);

• He sat multiple licensing exams between October 2013 and October 2014; and

• He commenced studies in Bachelor Computing Studies February 2015 and continues to be enrolled, as evidenced by a certification from the Erhard systems Technological Institute dated 28 March 2017.

1. The witnesses gave consistent evidence that Sander did not undertake study between July 2013 and June 2015 because he was caring for his grandmother who was seriously ill. The Tribunal has had regard to medical evidence detailing Sander’s grandmother’s illness, hospitalisation and death during that period.

2. In a written statement to the Tribunal Ms Moreno said that Sander sat many exams during the period October 2013 to October 2014 to keep his current qualification relevant. She said that he did not work from October 2013 to October 2014 because he was caring for his grandmother, and because she (Ms Moreno) suffered a work injury and could not afford to support Sander’s continuing education. The Tribunal has considered medical evidence of Ms Moreno’s illness and treatment during 2013 and 2014

3. The Tribunal has had regard to the policy regarding the study requirements contained in the Department’s Procedures Advice Manual (PAM 3), noting that it is not bound by the policy. This states that the term ‘reasonable time’ as it applies to a break in study, is solely intended to cover the period between secondary school and post-secondary studies. It is not intended that ‘reasonable time’ take account of breaks once post-secondary studies have commenced, or for breaks between post-secondary studies and postgraduate studies.

4. When read together, the language and nature of the provision suggests there is a requirement that the applicant has been continuously undertaking study from the time of commencement of post-secondary studies to the time of decision. In particular, the wording “continues” in conjunction with 'has been undertaking' study implies that the requirement is continuous. Such an interpretation is also consistent with the policy intention of the provision, namely that the purpose of the visa is to provide for children who are engaging in education or training.

5. The meaning of ‘since’ was considered in Wake v MIAC [2010] FMCA 272. The Court held that ‘since’ in this context was used in the sense of ‘continuously from’ the event of turning 18 and rejected the submission that it meant ‘at any time after’ turning 18.

6. The Tribunal put to Ms Moreno that the available evidence indicates that Sander has not been undertaking a full-time course of study since turning 18 or within a reasonable time after completing the equivalent of year 12. In response, she said that Sander could not study for a period between 2013 and 2015 because he had to care for his grandmother. While acknowledging this, the Tribunal explained that there is no capacity to waive the legal requirements on the basis of compassionate grounds. 

7. The Tribunal found Ms Moreno and Sander to be credible witnesses who gave truthful evidence about their circumstances. The Tribunal has sympathy for Sander’s circumstances. It is not in dispute that he has been, and continues to be, dependent on his mother, however it is necessary for him to satisfy the study requirement set out in cl.101.213 as well as demonstrating dependence.

8. On the evidence before it, the Tribunal finds that Sander commenced post-schooling studies in 2009. He undertook full time courses of study between 2009 and July 2013. He was not engaged in a full-time course of study between July 2013 and June 2015.

9. The Tribunal is not satisfied that Sander Moreno has, 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).

10. Accordingly, the Tribunal finds that cl.101.213(1)(c) is not met at the time of application. As the Tribunal has already found, for the reasons above, that Sander Moreno was not a dependent child within the meaning of (b)(ii) of the definition of dependent child, the Tribunal further finds that cl.101.213(2) does not apply. Accordingly, Sander Moreno does not satisfy cl.101.213.

11. 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

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

Catherine Wall
Member