Rodger (Migration) - [2024] AATA 692

Rodger (Migration) [2024] AATA 692 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Class AH) Child (Subclass 101) visa under s 65 of the Migration Act 1958 (Cth)
APPLICANT:  Paul Ian Mansit TIGLAO
SPONSOR:Craig Robert RODGER
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2110036
HOME AFFAIRS REFERENCE:               CLD2020/1740
MEMBER:Kate Chapple
DATE:26 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Class AH) Child (Subclass 101) visa.
The Tribunal refers the case to the Department to be brought to the attention of the Minister.

Statement made on 26 February 2024 at 3:16pm
CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – applicant was over 18 years of age and not enrolled in and participating in full time education – break in the applicant’s study occurred after completion of his first full-time, post-secondary university course of study – mother’s terminal cancer diagnosis with limited life expectancy – unique and exceptional circumstance – there are circumstances that warrant the case being brought to the Minister’s attention – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 101.213
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 June 2021 to refuse to grant the applicant a Child (Class AH) Child (Subclass 101) visa (‘child visa’) under s 65 of the Migration Act 1958 (Cth) (‘the Act’).
The applicant applied for the child visa on 10 January 2021. The delegate refused to grant the child visa on the basis that the applicant did not satisfy the requirements of subclause 101.213(1)(c) of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) because, per the delegate’s decision:
The applicant turned 18 years of age on 6 February 2017.
At the time the application was lodged the applicant advised in his application form 47CH that the date of completion of his study at Our Lady of Fatima University was 21 March 2019. He advised he was not currently undertaking a post-secondary course of study.
An Our Lady of Fatima University graduation certificate confirmed completion of studies in a Bachelor of Science in Information Technology on 21 March – the year was not decipherable on the certificate but on information provided elsewhere in the application this supports graduation in March 2019.
A letter from the sponsor of the applicant, signed on 28 November 2019, stated that the applicant graduated from his University Studies in Information Technology in March 2019 and at the time of writing of the letter the applicant was considering enrolling in a Masters Degree in Computer Engineering in the next semester.
Therefore at the time the application was lodged, the applicant was over 18 years of age and not enrolled in and participating in full time education.
Additionally, no evidence has been provided of study since 21 March 2019 and into the start of 2020.
As this break in study was taken after the applicant completed post-secondary study the break in study is not considered a reasonable break, as the Regulations require that the applicant be undertaking full time study since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system. Therefore the applicant has not been a continuous full time student since turning 18.
Therefore I am not satisfied the applicant meets paragraph 101.213(1)(c).
I also considered sub regulation 101.213(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 I am satisfied the applicant does not meet sub regulation 101.213(2).
As the applicant does not satisfy paragraph 101.213(1)(c) and sub regulation 101.213(2), I therefore assess that the applicant does not satisfy regulation 101.213 of the Migration Regulations.
The delegate was satisfied that the applicant had never married or been in a de facto relationship and therefore met the requirements of subclause 101.213(1)(a) of Schedule 2 to the Regulations.
The delegate was satisfied that the applicant was not employed or working and therefore met the requirements of subclause 101.213(1)(b) of Schedule 2 to the Regulations.
The applicant, who resides in the Philippines, lodged an application for review of the delegate’s refusal on 6 August 2021. The sponsor’s request for priority consideration was granted by the Tribunal. The sponsor was invited to attend an in-person hearing on 16 February 2024, and appeared on that day to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the applicant.
The sponsor provided documentary evidence to the Tribunal in relation to the following matters:
6.1.The health condition and treatment status of the applicant’s mother.
6.2.The health condition and treatment status of the applicant’s stepsister.
6.3.Completion of the applicant’s Bachelor of Science in Information Technology.
6.4.The status of the applicant’s current undertaking of a Bachelor of Science in Computer Science.
More particularly, the sponsor provided the following to the Tribunal:
7.1.Statement by applicant dated 28 July 2021.
7.2.Letter of support from Mylene Rodger dated 28 July 2021.
7.3.ICCT Colleges Tentative and Assessment Form for applicant dated 10 July 2021.
7.4.Certificate of Bachelor of Science in Information Technology for applicant.
7.5.Official Transcript of Records of applicant’s Bachelor of Science in Information Technology.
7.6.Money transfer records.
7.7.Pathology letter dated 3 June 2021.
7.8.Letter from Dr Samantha Barbour dated 21 July 2021.
7.9.Letter from Dr Jeffery Goh dated22 July 2022.
7.10.Clinical letter regarding Stephanie Rodger dated 26 March 2020.
7.11.Email from applicant dated 10 January 2024 – requesting priority status due to Mylene Rodger’s diagnosis.
7.12.Letter from Dr Goh dated 30 November 2023.
7.13.Letter from applicant dated 8 February 2024.
7.14.Appointment slip, regarding the release of requested school documents.
7.15.ICCT Colleges Official Registration and Assessment Form – demonstrating studies undertaken 2021 to 2024.
7.16.Screenshot of Student Ledger from 2021 – 2022.
7.17.Applicant’s university cards.
7.18.ICCT Certificate of Current Enrolment.
The Tribunal is satisfied that the applicant does not meet the requirements of subclause 101.213(1)(c) of Schedule 2 to the Regulations and continues to satisfy the requirements of Subclauses 101.213(1)(a) and (b) of Schedule 2 to the Regulations. Further, the Tribunal considers there are circumstances that warrant the case being brought to the Minister’s attention.
The Tribunal has not considered other requirements for the child visa as these matters were not considered by the delegate.
This decision record summarises the oral evidence, sets out the Tribunal’s consideration of the evidence and applicable law and the reasons for its decision and referral.
THE HEARING
The sponsor gave evidence, summarised by the Tribunal as follows:
11.1.The sponsor has been working for Big W for 30 years. He has been in his current role as retail store manager since 2008 or 2009, responsible for numerous stores during that time. He is currently located at the Underwood store, around 25 minutes’ drive from home.
11.2.The sponsor met his wife, the applicant’s mother, in Manila in 2012 or 2013 when he was holidaying there with a friend, and she was working at the Slouch Hat Hotel. After four or five weeks in Manila he returned to Australia, then went back to see his wife. He brought her to Australia on a number of tourist visas before they decided to marry. She was still married at the time, however her first husband had left when the applicant was under a year old; there were no other children. After a lengthy process, the first marriage was formally annulled in the Philippines. The couple married in Australia in July 2017; she had been granted a partner visa and is now a permanent resident. The sponsor thinks she is eligible to apply for citizenship, however they haven’t progressed that given all her health issues.
11.3.The applicant and his mother lived with her extended multi-generational family outside Manila. The family took care of the applicant while his mother went to work.
11.4.The sponsor met the applicant and his wife’s extended family on one of his return visits to Manila. The applicant was in high school at the time. The family has always been very supportive of the relationship. When the couple returned to Australia to marry and live, the applicant was still studying his first degree, which he began in 2015. He continued living with the extended family, and his mother and the sponsor sent financial support from Australia for his study and living expenses. The plan was that the applicant would in time come to Australia to live, however they didn’t properly acquaint themselves with the Regulations for the grant of a child visa.
11.5.The applicant completed his first degree in March 2019. The applicant’s mother, the sponsor, and their daughter (then aged 3) went to Manila in 2019 for his graduation ceremony. After finishing his first degree, the applicant thought about doing his Masters, but he’d been studying for a long time having not taken a break between high school and university, and his grandmother got sick. He always intended to do more study, but time got away from him; he stayed at home to look after his grandmother while his aunts and uncles went to work. Covid-19 also intervened, which caused significant challenges in university studies across the Philippines.
11.6.The applicant started his second degree in the first trimester of 2021. He is still living with his mother’s extended family. His mother sends him money whenever it’s necessary, and one of his cousins is helping with his study fees. He’s not in a relationship.
11.7.The applicant’s mother was diagnosed with cervical cancer in 2021. She got treatment and was declared cancer free. The applicant’s mother, the sponsor, and their daughter were due to visit the applicant and extended family for a holiday in October 2023. However, in September, a blood clot appeared in the mother’s right calf; she went for tests, and it was discovered that the cancer had metastasised to her lymph system, lungs, neck, and lower back area. They had to cancel their holiday. She has completed courses of chemotherapy and radiation therapy and is receiving immunotherapy every three weeks at Greenslopes Hospital. The chemotherapy made her very unwell and depleted for two weeks each dose. The immunotherapy has far fewer side effects; a dose is administered in one to two hours, and she recovers much more quickly and is more mobile than she has been. She is a very strong and independent person. Emotionally, she has her good and bad days. She is on pain medication, which makes her feel lethargic. She is able to cook and do bits and pieces around the house; she can’t do the washing or drive.
11.8.The treatments are referred to as palliative; the doctors don’t talk about a cure because metastatic cervical cancer is terminal, and they have not said how long the treatments might extend his wife’s life. The sponsor thinks the metastases happened quickly because his wife had a scan six months prior and she was all clear.
11.9.The sponsor took five months’ leave from work to care for his wife through the early treatments; he went back to work full-time in the first week of February 2024. He works on a roster, which includes weekends and long days, 7am to 6pm. The sponsor’s mother, who is elderly, helps when she can by driving his wife to the shops and appointments when the sponsor is at work.
11.10.The applicant and his mother are very close, they talk every day or every second day. They haven’t seen one another since his graduation in 2019. The situation is very tough for both mother and son. The applicant would do anything for his mother; if he were here with them, he would be an extra pair of hands to help care for his mother, and to get to know and help with his younger stepsister.
11.11.The applicant’s mother and sponsor have a daughter, now aged 8. Four years ago, her paediatrician made a report setting out her clinical notes and assessments after doing a range of tests with the daughter and indicated that her features were suggestive of Autism Spectrum Disorder (ASD). Their daughter has not been formally diagnosed with ASD, however she is now attending a special school and receives an NDIS-funded package including occupational therapy, speech therapy and psychological support. She has improved a lot with the extra support, though is not where an 8-year-old ought to be. She is very smart, with advanced technology skills; her most challenging issues are with social interaction and communication. The sponsor’s mother also drives their daughter to appointments when the sponsor is at work.
11.12.The Tribunal gave the sponsor the opportunity to contact the applicant in the Philippines in the event he was available to give evidence over the telephone.
The Tribunal spoke to the applicant on the telephone without an interpreter, noting that he has limited English speaking skills. He told the Tribunal that: he will complete his second degree in 2025, and his grades are around 85%; he talks to his mother almost every day; he wants to take care of his mother and sister; when he’s not at university and studying, he cares for his grandmother; and he’s not working.
The Tribunal explained to the sponsor that, based on the evidence, the applicant does not satisfy the requirements for the grant of a child visa, in particular for the reason that he had, when he made the application, not undertaken a course of study continuously since he turned 18. The Tribunal further explained that there is no exercise of discretion permitted by the regulations empowering the decision maker or Tribunal to make exemptions in certain circumstances. The Tribunal therefore can only affirm the delegate’s decision.
The Tribunal then explained to the sponsor the statutory discretion vested in the Minister personally to make a more favourable decision than the Tribunal’s decision in unique or exceptional circumstances. The Tribunal advised the sponsor that it was prepared to make a recommendation to the Department that the case be referred to the Minister for consideration on compassionate grounds in a timely manner. The Tribunal emphasised that the process and ultimate outcome are beyond the Tribunal’s powers, and once the decision and recommendation are sent to the Department, the Tribunal has no further role.
The Tribunal requested the following additional material from the sponsor to accompany the recommendation: letter from his daughter’s school principal; evidence of his daughter’s NDIS package; a record of the applicant’s university results to date in his second degree; and a written statement from the applicant if he wishes to add to his oral evidence. The Tribunal granted the sponsor until 26 February 2024 to provide the additional material.
APPLICABLE LAW
Under the criteria to be satisfied at the time of application:
16.1.Provision 101.211 of Schedule 2 to the Regulations provides (inter alia) that:
(1) The applicant:
(a) is a dependent child of:
(i)an Australian citizen; or
(ii)the holder of a permanent visa; or
(iii)an eligible New Zealand citizen; and
(b) subject to subclause (2), has not turned 25; and
(c) either:
(i)is:
(A)the child (other than adopted child); or
(B)the step-child within the meaning of paragraph (b) of the definition of step-child;
of the Australian citizen, holder of a permanent visa or eligible New Zealand citizen mentioned in paragraph (a)
….
16.2.Provision 101.213 of Schedule 2 to the Regulations provides that:
(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.
CONSIDERATION OF EVIDENCE AND APPLICABLE LAW
The Tribunal considers the oral evidence of the sponsor and applicant truthful accounts of their respective circumstances.
The Tribunal accepts all documentary evidence submitted in support of the application for review and particularised in paragraphs 7 and 25 of this decision record.
The Tribunal is satisfied as to the fact of the following at the times stipulated by the applicable law and currently:
19.1.The applicant’s mother is a holder of a permanent visa.
19.2.The sponsor is an Australian citizen.
19.3.The applicant is the biological and dependent child of the holder of a permanent visa and the stepchild and dependent child of an Australian citizen.
19.4.The applicant is not engaged to be married.
19.5.The applicant does not have a spouse or de facto partner.
19.6.The applicant has never had a spouse or de facto partner.
19.7.The applicant is not engaged in full-time work.
The Tribunal notes the following:
20.1.The applicant turned 18 on 6 February 2017.
20.2.The applicant commenced his first full-time, post-secondary university course of study (a Bachelor of Science in Information Technology) at Our Lady Fatima University, Philippines, in 2015 at age 16 and the degree was conferred upon the applicant on 21 March 2019, at age 20.
20.3.The applicant commenced his second full-time university course of study (a Bachelor of Science in Computer Science) at ICCT Colleges, Philippines in 2021, at age 22 and continues this undertaking, expecting to complete the degree in 2025.
20.4.At the time the applicant turned 18, the applicant was already undertaking full-time, post-secondary university study and continued to do so for two more years.
20.5.The applicant took a break from full-time, post-secondary university study from 2019, at age 20, to 2021, at age 22.
20.6.The applicant applied for a child visa on 10 January 2020, at age 21. At that time, the applicant was not undertaking full-time post-secondary university study and had not done so for at least ten months.
The Tribunal notes the following legal commentary:
The applicant is required to have been undertaking full-time study at the time the visa application was made, and also to have been undertaking full-time study from one of the above alternative points in time.[1]
The meaning of ‘since’ was considered in Wake v MIAC.[2] 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.[3]
On the wording of the relevant provisions, it would appear that the consideration of ‘reasonable time’ is only relevant to the period between completing the equivalent of year 12 and commencing further studies.
……
Policy further provides that the ‘reasonable time’ is not intended to cover breaks once post-secondary schooling has commenced including between post-secondary studies and post-graduate studies. However, Policy is not binding and the Tribunal must ensure that it applies the relevant test in the Regulations and that all relevant circumstances arising on the claims and evidence are considered.
……
Further, in Reyes v MIAC,[4] Riley FM observed that this regulation is not concerned with whether a person is entitled to enter college or university. Rather, it is concerned with allowing people who are over 18 and who are thus legally adults, to continue to be eligible for the visa on the basis that they are doing full-time, career-oriented, post-secondary courses of the sort usually undertaken by young adults. Her Honour also confirmed that whether an educational qualification is the equivalent of year 12 in Australia is a question of fact for the Tribunal.[5]
In MIAC v Henschel,[6] the Court held that the Tribunal asked an incorrect question in circumstances where the applicant had not been undertaking a course of study since turning 18 but considered whether if the applicant were now to do so, it could be categorised as an embarkation which had been undertaken within a reasonable time after completing the year 12 equivalent.[7] This case emphasises that the Tribunal must ensure it asks the correct question, having regard to the language of the provision.
[1] In MIAC v Henschel [2013] FCCA 584, the Court saw nothing ambiguous about the requirements of the legislation, considering that ‘…[e]ither the applicant [had], since turning 18, been undertaking a full-time course of study…or he [had], within six 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 [7]. In this case, the Court found that the Tribunal overlooked the requirements of cl 802.214 of whether the applicant was at the relevant time undertaking a fulltime course of study as described in the Regulations, at [10]. The subsidiary enquiry was whether the study had been undertaken within the appropriate temporal limits at [11]. See also Khan v MICMA [2023] FCA 463.
[2] Wake v MIAC [2010] FMCA 272.
[3] Wake v MIAC [2010] FMCA 272 at [25]–[26]. The Court held that this interpretation was from the ordinary meaning of the word having regard to the language and immediate legislative context.
[4] Reyes v MIAC [2007] FMCA 1721 at [14].
[5] Reyes v MIAC [2007] FMCA 1721 at [16].
[6] MIAC v Henschel [2013] FCCA 584.
[7] MIAC v Henschel [2013] FCCA 584.

The Tribunal notes the applicable law requires that 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 should be.
The Tribunal notes that the break in the applicant’s study occurred after completion of his first full-time, post-secondary university course of study and before he commenced his second full-time university course of study, not after he completed year 12 at secondary school.
The Tribunal therefore finds that the applicant does not satisfy the requirements of provision 101.213(1)(c) of Schedule 2 to the Regulations.
REFERRAL FOR CONSIDERATION OF MINISTERIAL INTERVENTION
The sponsor provided to the following material to the Tribunal following the hearing:
25.1.Covering letter from sponsor.
25.2.Screenshots of the current academic results for the primary review applicant Bachelor of Science in Computer Science for the years 2021 to 2024.
25.3.Statement by applicant dated 20 February 2024.
25.4.Letter from Darling Point Special School dated 2 February 2024.
25.5.NDIS activity statements for the period of 16 November 2023 and 15 December 2023, 16 December 2023 and 15 January 2024, 16 January 2024 and 15 February 2024
25.6.NDIS Assessment Report dated 6 October 2023.
The Tribunal notes the Minister’s guidelines on ministerial powers (s 351, s 417 and s 501).
The Tribunal notes the section in the Guidelines titled, ‘Cases that should be brought to my attention – unique or exceptional circumstances’, and notes in the particular the following circumstances:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit where at least one member of the family is an Australian citizen or Australian permanent resident.
The Tribunal considers that the evidence supports the following conclusions:
28.1.While the applicant does not satisfy the requirements of provision 101.213(1)(c) of Schedule 2 to the Regulations, he continues in full-time university study and otherwise satisfies the requirements.
28.2.The ongoing separation of the applicant and his mother is causing considerable distress to both individuals given their very close relationship and the mother’s terminal cancer diagnosis with limited life expectancy.
28.3.The applicant’s separation from his Australian family unit is placing a considerable burden on the sponsor who, while also in full-time employment in a position of managerial responsibility, is the primary carer of the applicant’s mother and their daughter who has high special needs.
28.4.As the applicant has shown his commitment to family in the Philippines by caring for his ill grandmother, the applicant not only wishes to have time with his mother before she passes and to build a relationship with his younger stepsister, he also wishes to share in the responsibility for their care.
28.5.The applicant is able to complete his current course of study online in Australia.
28.6.On completion of his current course of study, the applicant will have been conferred two bachelor’s degrees in information technology and computer science and is likely to be highly employable in those fields.
28.7.The unique or exceptional circumstance set out in paragraph 27 of this decision record is satisfied warranting the case being referred to the Department to be brought to the attention of the Minister.
28.8.The particular circumstances of the case warrant priority attention.
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Class AH) Child (Subclass 101) visa.
The Tribunal refers the case to the Department to be brought to the attention of the Minister.
Kate Chapple
Member