Pasuengos (Migration)

[2023] AATA 1422

Pasuengos (Migration) [2023] AATA 1422 (11 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Melanor Cabrera Pasuengos

REPRESENTATIVE:  Ms Cyril Gabito (MARN: 1383988)

CASE NUMBER:  2015829

HOME AFFAIRS REFERENCE(S):          CLF2020/2051

MEMBER:Peter Emmerton

DATE:11 May 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 11 May 2023 at 12:15pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant had not been a continuous full-time student since turning 18 – applicant has turned 18 – have not studied for a period in excess of 3.5 years post turning 18 – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, cls 802.214, 802.221

CASES

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 13 October 2020 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 21 January 2020. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, 802.226A), the criteria to be met in this case include cl 802.214.

4. The requirements of cl.802.214 (requirement to be met at time of application) are as follows.

   (1) If the applicant has turned 18:

   (a) the applicant:

   (i) is not engaged to be married; and
   (ii) does not have a spouse or de facto partner; and
   (iii) has never had a spouse or de facto partner; and

   (b) the applicant is not engaged in full-time work; and

   (c) subject to subclause (2), the applicant 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.

   (2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the
   application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

5. The delegate refused to grant the visa on the basis that cl 802.214(1)(c) and cl.802.214(2) were not met (requirement to be met at time of application). This was because the applicant has not been a continuous full-time student since they turned 18 nor was the applicant dependent due to being incapacitated for work due to the total or partial loss of their bodily or mental functions.

6. The applicant appeared before the Tribunal on 11 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s mother, Ms Melanie Vaska. The Tribunal found all those giving evidence appeared to do so in an open and honest manner without obfuscation.

7. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether or not the applicant meets the requirements of cl 802.214(1)(c) and cl.802.214(2).

10. The Tribunal has reviewed and considered the following evidence presented to the delegate and the Department.

    ·IMMI Acknowledgement of Valid Application - Post Lodgement Melanor Cabrera.PDF

    ·Covering letter (email) - point_of_contact, Cyril Gabito

    ·802 - Melanor Cabrera Pasuengos

    ·CLF2020-2051 – Application for Child Visa

    ·CLF2020-2051 – Application for Child Visa

    ·CLF2020-2051 – Application for Child Visa

    ·CLF2020-2051 – Application for Child Visa

    ·s56 Request for More Information

    ·s56 Request for More Information

    ·Covering letter (email) – point of Contact Cyril Gabito

    ·s56 Request for Information

    ·Supporting document - s56 Request for Information

    ·IMMI Refusal Notification with Decision Record

    ·Covering letter (email) - Point_of Contact Cyril Gabito

    ·AAT Disclosure Checklist - Melanor Cabrera Pasuengo

11. The Tribunal has reviewed and considered the following evidence presented to it prior to the hearing.

    ·Passport – Melanor Cabrera Pasuengos

    ·Birth Certificate - Melanor Cabrera Pasuengos

    ·Notice of Visa Grant – subclass 100 – Melanie Vaska

    ·Secondary Education – Academic Records

    ·BA in Business Administration – Academic Records

    ·Cert III in Individual Support – Academic Records

    ·Certificate IV in Human Resources – Academic Records

    ·Bank Statements - Melanor Cabrera Pasuengos

    ·Bank Statements - Melanie Vaska

    ·Court Document – Melanie Vaska

    ·Legal documents – Paul Vaska

    ·Statement – Melanie Vaska

    ·Correspondence from TAFE SA – current study

    Criteria for applicants over 18

12. If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).

    Relationship status and history

13. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

14. Question 14 of Form 47CH asks about the relationship status of the applicant. The delegate accepted as factual that the applicant had never married or been in a de facto relationship. Under questioning at the hearing, the applicant satisfied the Tribunal that they had never been married or been in a de facto relationship and no evidence has been presented to the Tribunal that establishes a contrary conclusion.

15. Accordingly, cl 802.214(1)(a) is met. It continues to be met at the time of this decision.

    Not engaged in full-time work

16. At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b).

17. The applicant was required to complete question 40 of the Form 47CH, which requested current employment details of the applicant. The applicant advised the Department they were not employed at the time of application. The delegate accepted this statement as factual when considering the application before them. As the applicant was not working full-time, the delegate was satisfied that the applicant met clause 802.214(1)(b).

18. The Tribunal questioned the applicant and the applicant’s mother during the hearing and was reassured that at the time of application and at the time of this decision, the applicant was not working.

19. The Tribunal accepts the evidence in the form of a written statement made by the applicant’s mother and accompanying Bank Statements and money transfer documents, that the visa applicant is materially dependent upon the sponsor for support and has been for the relevant substantial of time period. This was reiterated to the satisfaction of the Tribunal at the hearing by both the sponsor and the visa applicant.

20. Accordingly, cl 802.214(1)(b) is met. It continues to be met at the time of this decision.

    Full-time study (or incapacitated for work)

21. At the time of application, the 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 802.214(1)(c).

22. 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 802.214(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 802.214(2).

23. Where cl 802.214(1)(c) applies, it must continue to be met at the time of decision: cl 802.221(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.

24. The delegate assessed the applicant lodged their application on 21 January 2020. Included in the application was a copy of the applicant’s passport. The applicant’s date of birth is (date supplied) 1996, making the applicant 23 years of age on the date the application was lodged.

25. The Tribunal has likewise accepted the same assessment of age by viewing a copy of the applicant’s Birth Certificate and Passport identification pages. At the time the applicant turned 18 they were studying full-time secondary education studies. They completed this study in March 2016. Based on the information provided, the delegate was satisfied the applicant was a full-time student until 30 March 2016. The Tribunal likewise accepts this as accurate.

26. The Tribunal observes that the original Birth Certificate incorrectly places an “X” indicating the incorrect gender of the applicant. This was explained to the Tribunal that a clerical error was made, and it was subsequently corrected via Court proceedings so as to enable the visa applicant to obtain a Passport. This lack of a Passport was the reason given by the applicant’s mother as to why the applicant did not initially come to Australia when her mother did. The Tribunal has no evidence before it which indicates a contrary conclusion.

27. The applicant arrived in Australia on 7 July 2019 as the holder of a Tourist (subclass 600 visa), granted on 20 May 2019. At question 39 in the application form 47CH, the applicant advised they were studying Individual support. This course commenced on 11 October 2019 and no completion date was supplied to the delegate. The Tribunal has viewed the Certificate lll issued Certificate of Completion dated 13 March 2020. In addition, a Certificate indicating the completion of a Certificate lV in Human Resources has been provided with an issue date of 9 December 2021. It notes the Academic Transcript indicating current study being undertaken at TAFE SA.

28. The delegate determined that at the time of application on 21 January 2020, the visa applicant was a full-time student. The Tribunal concurs and finds that this fact is not in dispute. However, the applicant must be a continuous full-time from the date of turning 18. The applicant turned 18 in (date supplied) 2014.

29. In both written submission and testimony before the Tribunal, at the hearing, the applicant has provided evidence they resumed full time study in Australia from 19 December 2019. The applicant has by their own admission acknowledged that they have not studied for a period in excess of 3.5 years post turning 18.

30. In considering whether a break in study is a reasonable period, the break in study must be between completing secondary studies and commencing post-secondary studies. The Tribunal has been provided with a University Degree Certificate and Academic Record Certificate clearly indicating the applicant undertook and successfully completed a Bachelor of Science in Business Administration at Centro Escolar University, Philippines between 2012 and 2016. The Tribunal has determined the gap in question is not directly after secondary studies and it is very substantially longer than what is deemed as reasonable, had it been immediately post-secondary study completion. Up to 12 months if a person undertakes a Gap Year before commencing tertiary studies, post-secondary high schooling can be considered a reasonable period in most cases. Therefore, this break is not considered to be for a reasonable period at the relevant point in time.

31. The Tribunal accepts the evidence presented to it that one of the reasons the studies were not undertaken immediately post completion of a Bachelor of Science in Business Administration was completed, were financial. Both the parent and stepparent were unable to finance such activity due to their financial circumstances, critical health issues and other family support commitments. The Tribunal has some sympathy for the circumstances the family and the visa applicant found themselves facing which appears to not have been of their own making. It observes that they appear to have tried to work very hard to overcome the negative issues in their lives at that time and the Tribunal commends their diligent actions.

32. Therefore, with the substantial evidence before it, the Tribunal is satisfied the applicant has not been a continuous full-time student since turning 18. The Tribunal is not satisfied the applicant meets sub-clause 802.214(1)(c)

33. The applicant must be a continuous full-time student since turning 18 years of age. The applicant has not provided either the delegate at the time of their decision nor the Tribunal at the time of this decision with evidence that demonstrates this fact to be true. The Tribunal is satisfied that the substantial break between study courses is not what was envisaged as appropriate when considering the meeting of the criteria set out in cl 802.214(1)(c).

34. The Tribunal has turned its mind to clause 802.214(2), which states that the study clause will not apply for those applicants over the age of 18 years of age who are dependent due to being incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. As the applicant has not provided any evidence of incapacity to either the delegate or the Tribunal, it has therefore determined the applicant does not meet the requirements specified in clause 802.214(2). This was corroborated during the hearing.

35. Accordingly, cl 802.214(1)(c) is not met. It continues to not be met at the time of decision.

36. For the reasons above, cl 802.214 is not met at the time of application.

37. At the time of decision, cl 802.214 continues to not be met. Accordingly, cl 802.221(2)(b) is not met.

38. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

39. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

40. Peter Emmerton

    
    

    Member