Pantollano (Migration)

[2019] AATA 2073

Pantollano (Migration) [2019] AATA 2073 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Cris Pantollano

VISA APPLICANT:  Mr John Christian Pantollano

CASE NUMBER:  1719201

HOME AFFAIRS REFERENCE(S):           OSF2016/044075

MEMBER:Hugh Sanderson

DATE:12 February 2019

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 12 February 2019 at 11:34am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – not studying full-time since turning 18, within six months, or reasonable time after completing equivalent of Australian year 12 – in 18-month period engaged in one-month barista course – personal reasons – financial difficulties – lack of evidence – not incapacitated – 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

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 and Border Protection on 21 July 2017 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 6 July 2016. 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

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 at the time of the application the visa applicant had, since turning 18 or within six months 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.

   Background

4. The review applicant was born in the Philippines and first entered Australia in 2006. He is an Australian citizen. He is married to Annabelle Pantollano who has continues to live in the Philippines. They have the following children all of whom reside with their mother in the Philippines:

   ·Christine – currently 25 years old;

   ·John (the visa applicant) – currently 21 years old;

   ·Carlos – currently 19 years old; and

   ·Chrizabelle – currently 17 years old.

5. The visa applicant stated that he finished secondary school in the Philippines on 21 March 2013 when he was 16 years old. At the time of the application it was claimed that he was enrolled in the Makati Science Technological Institute of the Philippines. He did not provide information as to the date of enrolment or the date course was to be finished. He provided a National Certificate II in Automotive Servicing issued on 10 February 2015 when he was 17 years old. A letter was provided showing that he had done on-the-job training with Honda Cars from 27 April 2015 to 28 September 2015. He claimed that he was not paid for doing this work experience. He claimed that once that position ended he tried to look for work but was unable to find any appropriate employment.

6. In January 2016 he commenced study of food and beverages at the Honorio MC Lopez Technical Institute and took his last exam on 15 June 2016. He then enrolled as a student of Bachelor of Science in Information System (Information Technology) at the Makati Science Technological Institute of the Philippines.

7. The delegate who considered the application noted the following issues:

   ·At the time of the application the visa applicant was 19 years and 10 months old;

   ·The visa applicant was 15 years old when he graduated from high school;

   ·The visa applicant turned 18 years old at the time he was undertaking on-the-job training with Honda;

   ·The visa applicant ceased any study in December 2016 due to claimed financial difficulties;

   ·The visa applicant’s attendance at Honorio MC Lopez Technical Institute was for weekends only and was not a full-time course of study;

   ·The period from when the applicant turned 18 and his commencing a full-time course of study at Makati Science Technological Institute was 11 months which was not considered a reasonable time between undertaking a full-time course of study.

8. As the delegate had concluded that the break-in full-time study was not a reasonable time, the delegate found the applicant did not meet the criteria in cl.101.213(1)(c) and refused the application.

   Information to the Tribunal

9. The applicant provided an affidavit to the Tribunal where he made following claims:

   ·After graduating from secondary school in March 2013 he enrolled in Samson College of Science and Technology undertaking a two-year course in automotive servicing and graduated in March 2015;

   ·From April 2015 to September 2015 he was employed by a Honda car dealer as a cadet technician without pay or allowance;

   ·From October 2015 to January 2016 he looked for part-time work without success;

   ·From February 2016 to June 2016 he enrolled at Technical Education and Skills Development Authority undertaking a course in food and beverage which was conducted on weekends from 12:00 pm to 5:00 pm and during the week he would study;

   ·From June 2016 he studied at Makati Science undertaking a Bachelor of Science of Information Technology but due to financial problems dropped out in December 2016;

   ·From January 2017 to February 2017 the applicant stayed at home with his mother;

   ·In March 2017 he undertook a one month barista course;

   ·From April 2017 the applicant stayed at home with his mother and when his parents were approved a loan to buy a house he assisted in “finishing work” that needed to be done before their family moved into a new home in October 2017;

   ·No information was provided as to what the applicant did from October 2017 to June 2018; and

   ·From June 2018 the applicant enrolled in STI College undertaking a four-year course to complete a Bachelor of Science of Information Technology.

10. The review applicant appeared before the Tribunal on 11 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The hearing was combined with the hearing of the review applicant’s review application for his child, Christine Pantollano, who gave oral evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether, at the time of the application and at the time of the decision, the applicant has, since turning 18, or within six months or 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 professional, trade or vocational qualification.

    Criteria for applicants over 18

13. 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)

14. 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).

15. 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).

16. There is no claim that the visa applicant has at any time been incapacitated for work due to the loss of bodily or mental functions or for any reason.

17. 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.

18. The Tribunal has considered all the circumstances of the visa applicant and his study since turning 18 up to the time of this decision. There are a number of periods, since the applicant turned 18, that it does not appear that he has been engaged in full-time study.

19. The most significant period of concern is the period from December 2016 when the applicant ceased his study at Makati Science Technological Institute until June 2018 when he enrolled at STI College. This is a period of 18 months over which the only study the applicant participated in was a one month barista course in March 2017. The applicant claimed that he ceased his study at Makati Science Technological Institute due to “personal reasons and financial problems”.

20. No explanation has been given as to what “personal reasons” were affecting the visa applicant which required such a lengthy break in any study. No claim was made that he was incapacitated for any reason and any personal reasons he may have had did not prevent him from doing the one-month barista course. He stated that all he did over this period was stay at home with his mother and help her move house, which happened in October 2017. The Tribunal is not satisfied that any “personal reasons” would make this break in any study of the applicant a reasonable time when considering whether the applicant has been undertaking a full-time course of study.

21. There is little information as to what “financial problems” were being encountered is to providing a reason why the applicant was not studying. It appears the visa applicant and his family have always been dependent upon the review applicant for their financial support. The review applicant was working over this period with the same employer and it does not appear that there was any significant financial hardship or dire financial necessity that would affect the review applicant which would have prevented the visa applicant from continuing his study. The visa applicant’s sister, Christine, discontinued her studies in March 2017. The review applicant would, therefore, not have any expenses related to Christine’s education over an extended period of the time the visa applicant was not attending any studies. The review applicant purchased the property in which the visa applicant and his family moved into in October 2017. There is nothing to indicate that any financial obligation of the review applicant in purchasing this property would have prevented him from continuing to provide financial assistance to his family. It the family was facing dire financial issues, there is no information that the visa applicant or his sister made any attempt to address the financial problems by seeking any paid employment.

22. The evidence of the visa applicant was that the only thing he did over this period, apart from attending the one-month barista course, was to stay at home and help his mother. The visa applicant claimed that he was trying to organise a further course for the visa applicant to study, however, it was quite difficult to enrol the visa applicant into a course due to the problems with the Philippines school year. The Tribunal does not accept this. The Filipino school year runs from July to June each year. If the visa applicant did genuinely intending to enrol in any full-time course of study he would have been able to do that within six months of his ceasing study at Makati Science Technological Institute. The Tribunal does not accept that any claimed difficulties of the visa applicant in trying to find a course of study to enrol his son over a 18 month period during which the only study he did was a one-month barista course means that the time the applicant was not undertaking a full-time course of study was a reasonable time.

23. The Tribunal finds that from December 2016 until June 2018, a period of 18 months, the applicant was only engaged in a one-month barista course. The Tribunal is not satisfied that this period can be considered a reasonable time that the visa applicant was not undertaking a full-time course of study.

24. The visa applicant had significant other periods where, since turning 18, he was not undertaking a full-time course of study. This includes the four-month period when he ceased on-the-job training at Honda in September 2015 until he started studying at TESDA. This course of study was conducted only on weekends from noon to 5:00 pm. Although the applicant claimed that he was not working and for the rest of the week just studied at home, the Tribunal does not accept that the applicant was undertaking a full-time course of study. The Tribunal finds that for the four-month period the applicant was at TESDA he was only studying part-time. He only commenced undertaking a full-time course of study when he enrolled at Makati Science Technological Institute in June 2016 until he dropped out in December 2016 after six months of study.

25. The application was filed on 6 July 2016. At that time, the applicant had only been undertaking a full-time course of study for a period of one month. The Tribunal does not accept that at the time of the application that the break in the applicant study, including the period when he was only study part-time, can be considered reasonable. Accordingly, the Tribunal finds that at the time of the application the applicant does not meet the criteria in cl.101.213(1).

26. The Tribunal has considered whether the applicant would meet the time of decision criteria. When looking at the whole of the history of the applicant’s study since he turned 18, and in particular the period since he ceased study at Makati Science Technological Institute in December 2016, the Tribunal is not satisfied that the applicant has, since turning 18 or within a reasonable time after completing the equivalent of year 12 of 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.

27. The Tribunal finds that the applicant at the time of this decision does not continue to meet the criteria in cl.101.213(1) and therefore does not meet the criteria in cl.101.221(2)(b).

28. 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

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

    Hugh Sanderson
    Member