Roa (Migration)

[2018] AATA 2328

Roa (Migration) [2018] AATA 2328 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Jann Roa

CASE NUMBER:  1611345

HOME AFFAIRS REFERENCE(S):           CLF2016/18308

MEMBER:Kira Raif

DATE:27 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 27 June 2018 at 4:14pm

CATCHWORDS
Migration – Child (Residence) (Class BT) – Subclass 802 (Child) – Over 18 – Full time study – Completed three years of university study – 15 month gap in study – Dependence – Evidence of financial transfers – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 802.214, 802.221

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 11 July 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the Philippines born in January 1994. The applicant applied for the visa on 21 March 2016. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate was not satisfied the applicant engaged in full-time study. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 27 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (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. 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).

6. 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).

7. 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).

8. 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.

   Does the applicant meet the study requirement?

9. The applicant was born in January 1994 and was over the age of 18 at the time the application was made.

10. The applicant stated on the application form that he completed secondary schooling in March 2012. The applicant claims that from October 2013 until March 2015 he attended Liceo De Cagayan University where he undertook a Bachelor of Science and Accountancy but he withdrew from the course. In his submission to the Tribunal the applicant states that he withdrew because he was waiting for the Australian visa. The applicant also provided to the Tribunal evidence of having enrolled in the Certificate III in Individual Support with Partners in Training. The course was scheduled to run between July 2016 and March 2017. The applicant subsequently provided to the Tribunal evidence of having completed the Certificate III in Individual Support and evidence of his enrolment in the Diploma of Nursing from February 2018 with the completion date of July 2020. The applicant provided to the Tribunal evidence of having completed a number of other courses which do not appear to lead to any formal qualifications.

11. The applicant told the Tribunal in oral evidence that he completed secondary study in March 2012. He started an Accounting course in June 2012 in one university but transferred to a different university in October 2013 because of his marks. The course was a five year course and he only studied for three years before he travelled to Australia in February 2016. He stopped studying in March 2015. The applicant said that he stopped studying because he made the application for the Australian visa and he would not get the credit for his studies once he came to Australia. The applicant said that in that period of one year between March 2015 and February 2016 he stayed at home with his brother and did not do anything at all.

12. The applicant said that after he came to Australia, it took him time to adjust and he started his studies in July 2016. He did a course in Individual Support, which he completed at the end of 2016 and then had a work placement, so the course finished around March 2017. He then started the Diploma of Nursing from February 2018. Between March 2017 and February 2018 the applicant said he did some courses which did not lead to a formal qualification. The applicant said that his present Nursing course is a part-time course that runs for about 15 hours a week. The applicant said that a full-time course was not available to him, however, he also suggested to the Tribunal that he could transfer to a full-time course if required.

13. The Tribunal has considered the applicant’s study since he turned 18 or completed secondary schooling. The applicant completed three years of university study but abandoned the course and had not undertaken any study, or any study-related activities for about a year before his migration to Australia. While the Tribunal accepts the applicant’s evidence that was expecting to migrate, that should not have precluded the applicant from continuing with his studies.

14. The applicant completed a Certificate III in Australia in March 2017 but since that time the applicant has not engaged in full-time study leading to a formal qualification. He completed a number of courses that did not lead to formal qualifications and his present course is not undertaken on a full-time basis. Such courses cannot be considered for the purpose of the study requirement. That is, the applicant has not engaged in relevant study since March 2017. The applicant’s representative submits that the shorter courses were quite expensive and it would be unfair to discount such courses. The Tribunal is mindful that the study requirement is not dependent on the cost of the course. It requires the applicant to have undertaken courses on a full-time basis and leading to a formal qualification. The applicant has not done that for about 15 months and he is not engaged in such study at the time of this decision, for the purpose of cl. 802.221.

15. The Tribunal is not satisfied that the applicant has, since turning 18 or within 6 months or a reasonable time after completing the equivalent of Year 12, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal is not satisfied the applicant continues to meet that requirement at the time of this decision because he is not presently enrolled in a full-time course. There is no evidence that the applicant is a dependent chid within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal is not satisfied the applicant meets cl. 802.214 and cl. 802.221.

16. The Tribunal questioned the applicant and his mother about the applicant’s dependence. Evidence of financial transfers has been presented to the Tribunal. However, having found that the applicant does not meet the study requirement, it is not necessary for the Tribunal to consider the issue of dependence.

17. There is no suggestion that the applicant is an orphan relative of the sponsor, who is his biological mother. The mother’s whereabouts are known and there is no claim of any incapacity. The Tribunal is also mindful that the applicant was over the age of 18 at the time the application was made. The Tribunal is not satisfied the applicant is an orphan relative of an Australian relative for the purpose of Subclass 837.

18. The applicant raised concerns about the processing of his subclass 445 application. The Tribunal cannot comment on that application as it is not the matter that is before the Tribunal.

    Conclusion

19. 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

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

    Kira Raif
    Senior Member