Reyes v Minister for Immigration

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REYES v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1721

MIGRATION – Migration Review Tribunal – equivalent of year 12 in Australia – completion of secondary school in the Philippines – case before Tribunal run on the basis that completing secondary school in the Philippines at the age of 18 is the equivalent of completing year 12 – application dismissed.

Migration Regulations 1994, Sch.2 cl.101.213

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294

Applicant: DANILO REYES

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 625 of 2006

Judgment of: Riley FM

Hearing date: 12 October 2007

Date of Last Submission: 12 October 2007

Delivered at: Melbourne

Delivered on: 29 November 2007

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Hymans Solicitors

Counsel for the Respondents: Mr Mosley

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed on 15 May 2007 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 625 of 2006

DANILO REYES

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of the Philippines. At the age of 23, he applied for a Child Migrant Class AH visa. The applicable criteria at the time of the application were set out in clause 101.213 of Schedule 2 to the Migration Regulations 1994. That clause is 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; and

   (iii)    has never had a spouse; 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. (emphasis added)

   (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.

2. All of the issues in this case concern clause 101.213(1)(c), and in particular, the meaning of “the equivalent of year 12 in the Australian school system”. It appears that, in the Philippines, secondary school lasts for four years, rather than six, as in the Australian education system.

3. The evidence was that the applicant, at the age of 18 years, finished secondary school in April 2000. At that point, he was eligible for college. He commenced an electrician’s course in October 2001. It was a 72 hour course, which he completed in November 2001. Between June 2003 and February 2004, the applicant was enrolled in a…