Serrano (Migration)
[2024] ARTA 463
•6 November 2024
SERRANO (MIGRATION) [2024] ARTA 463 (6 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Kevyn Nuqui Serrano
Respondent: Minister for Home Affairs
Tribunal Number: 2016387
Tribunal:Alison Murphy
Place:Melbourne
Date: 6 November 2024
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
I, Senior Member A Murphy certify this is the
Tribunal's statement of decision and reasons.
Statement made on 6 November 2024 at 8:54am
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) visa – applicant is over 18 – applicant ceased all studies for almost four years – applicant had not been undertaking a full-time course of study at an educational institution –– decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 October 2020 to refuse to grant the visa applicant a Child (Residence) (Class BT) Subclass 802 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the Philippines, born in May 1995. He arrived in Australia in August 2018 as the holder of a visitor visa and applied for the Child (Residence) (Class BT) Subclass 802 visa on 25 June 2019. The delegate refused to grant the visa on the basis that the applicant did not meet the requirements of cl 802.214. In particular the delegate was not satisfied that the applicant was not engaged in full time work as required by cl 802.214(1)(b), nor that the applicant met the study requirement contained in cl 802.214(1)(c).
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).
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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the criteria for applicants over the age of 18 set out in cl 802.214.
Criteria for applicants over 18
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).
In this case the delegate was not satisfied the applicant met the study and work requirements contained in cl 802.214(1)(b) and cl 802.214(1)(c).
Work and relationship history
At hearing the applicant gave sworn evidence consistent with his earlier written statements to the effect that he has never been married, engaged to be married or in a de facto relationship. There being no evidence to the contrary, the Tribunal accepts that to be true.
10. The applicant has consistently stated that he has never worked full time. While the delegate was not satisfied in this regard, the Tribunal has the benefit of letters from his current and former employers confirming substantial parts of the applicant’s work history.
11. The applicant worked for a barista at Starbucks in the Philippines between 16 July 2016 and 1 August 2018 prior to travelling to Australia. A letter from his employer confirms that his employment was part time.
12. The applicant later worked as a larder chef at the White Rhino Restaurant and Bar between January 2019 and May 2019. While there is no documentary evidence showing his employment status at that time, the Tribunal accepts his oral evidence that he was employed on a part time basis noting that he was also studying full time at the Gold Coast Learning Centre during this period.
13. Since 2020, the applicant has worked as a barista for Starbucks in Robina and a letter from his employer confirms that his employment did not exceed 20 hours as at October 2020. While there is no more recent documentary evidence of the applicant’s employment status, the Tribunal accepts his sworn evidence to the effect that he continues to work part time.
14. Therefore the applicant meets the requirements set out in cl 802.214(1)(a) and cl 802.214(1)(b).
Full-time study (or incapacitated for work)
15. 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).
16. 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).
17. 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.
18. There is no suggestion that the applicant is or has in the past been incapacitated for work due to the total or partial loss of his bodily or mental functions and for that reason he is not a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. As such he is required to meet the relationship, work and study requirements set out in cl 802.214 and cl 802.221.
19. There is no dispute about the applicant’s study history, which is recorded in several statutory declarations made over the course of these proceedings. The applicant’s written and oral statements are consistent with the documentary evidence issued by his various education providers and the Tribunal accepts each of the following matters to be true:
· The applicant completed his high school diploma at Guagua National Institute in the Philippines on 17 November 2010 prior to turning 18 in May 2013;
· In June 2011 he commenced a Bachelor of Science in Hotel and Restaurant Management at Angeles University Foundation as evidenced by the academic record from that institution. He graduated from that course in April 2015, shortly before turning twenty;
· The applicant was granted a visitor visa in May 2018 and arrived in Australia in August 2018 aged 23. He was subsequently granted a student visa in December 2018;
· The applicant undertook a Diploma of Human Resources at Gold Coast Learning Centre between January 2019 and January 2020;
· The applicant undertook a Diploma of Business at Gold Coast Learning Centre between February 2020 and October 2020;
· The applicant undertook a Diploma of Leadership and Management at Gold Coast Learning Centre between January 2021 and February 2022;
· The applicant received a letter of offer to enrol in an Advanced Diploma of Leadership and Management at Gold Coast Learning Centre commencing in April 2022, but he was unable to accept that offer because his student visa had expired.
20. The Tribunal notes the applicant’s evidence that he has undertaken a Coffee Masters course during the course of his part time employment at Starbucks in the Philippines and later in Robina, Queensland which is also referenced in the documentary evidence provided by those employers. As discussed with the applicant at hearing, such a course cannot be considered against the study requirements for the visa both because it was not undertaken on a full-time basis and because it was not undertaken at an educational institution.
21. The applicant’s representative submitted that the regulation does not require an applicant to undertake ‘continuous’ full-time study since turning 18 and that it should suffice that the applicant was in full time study at the time he turned 18, at the time the visa application was made and for some time after the visa application was refused. It is submitted that the applicant’s plans to come to Australia to study were derailed when his visitor visa was refused in 2015 but that it was always his intention to resume his studies in Australia.
22. The representative referred the Tribunal to the Department’s Policy Guidance, submitting that it allows breaks in the study requirement in accordance with the applicant’s circumstances. The circumstances in this case are that feeling very disappointed following the visitor visa refusal in 2015, the applicant provided care for his elderly grandfather until his aunt took over those duties until July 2016, while remaining financially dependent on his mother. He worked part time between July 2016 and August 2018, ceasing his employment to travel to Australia in August 2018. Once here he got migration advice that enabled him to resume his studies in Australia as he always intended. In the two and a half years since completing his Australian studies he has worked part time as a barista at Starbucks in Robina while living with his mother and his siblings and remaining substantially financially dependent on his mother.
23. It is submitted that the Tribunal should exercise its discretion to find that the applicant has been undertaking full time studies since turning 18, except for reasonable breaks in his studies in the circumstances described above. It was noted that the applicant is now aged 29 and the study requirements should be looked at in light of his age.
24. However as discussed with the applicant at hearing, the legislative requirement is that at the time of application, ‘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’. The Australian courts have held that the requirement is to be interpreted in the sense of ‘continuously from’ the event of turning 18.[1] As set out in the delegate’s decision, the reference to a ‘6 months, or a reasonable time’ is only relevant to the period between completing the equivalent of year 12 and commencing further studies.
[1] Wake v MIAC [2010] FMCA 272
25. More recently the Australian courts have held that the requirement that an applicant ‘has . . . been undertaking’ full-time study does not necessarily involve continuous involvement in study, rather it requires a decision-maker considering whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that the visa applicant has been undertaking relevant study in that period. This involves an examination of what the applicant has been doing in that interval.[2]
[2] Hussain v MIBP [2017] FCCA 3247
26. The Tribunal has considered other Tribunal decisions submitted by the applicant’s representative about which it is said that the Tribunal has exercised a discretion or extended some flexibility to its interpretation of the legislative requirements. In particular the Tribunal was referred to the following passage in Tran (Migration) [2018] AATA 1925 (4 May 2018), which is stated to be an example of a case in which the Tribunal applied ‘reasonableness in all the circumstances’:
49.. . . Further, the Tribunal accepts that the visa applicant finished secondary school in October 2016, moved to Ho Chi Minh City in January 2017 and commenced studying in March 2017, initially studying an English course and from April 2017 to November 2017, studied a nail course at a Nail academy. The Tribunal accepts on the evidence that the visa applicant finished studying at the Nail Academy but did not pass the course and, as evidenced by documents before the Tribunal, has re-enrolled and commenced further studies at the Nail Academy in March 2018, following the New Year celebrations.
27. The Tribunal in that case was considering a break in studies of less than 6 months between the applicant completing secondary school and commencing further studies. In concluding that the applicant met the study requirements in that case, the Tribunal did not exercise a discretion or apply a test of reasonableness in all of the circumstances, rather such a break is within the plain language of both the regulation itself and the Departmental Policy Guidelines. After that break she remained enrolled in and continued to engage in full time study, repeating a year of studies when she did not pass the first time.
28. In a further decision to which the Tribunal was referred by the applicant’s representative, being Flores (Migration) [2021] AATA 1779 (24 May 2021), the Tribunal found that the applicant commenced a university course in her home country before moving to Australia where she continued her studies after attending English courses to achieve the necessary IELTS to enrol in an Australian course. It concluded that while she did not engage in any formal study for a year because of her visa restrictions, she engaged in informal studies by attending English classes in order to support her future study. The Tribunal concluded that she met the relevant visa criteria.
29. The Tribunal considers those cases to be factually distinguishable from the present case. Having regard to the applicant’s studies in the Philippines and Australia, it is clear that the applicant was not enrolled in or otherwise engaged in any course of study at an educational institution for a period of almost four years between completing his Bachelor of Science in April 2015 and commencing his Australian studies in January 2019.
30. Nor can it be said that his conduct during that period, characterised as a whole, otherwise warrants a conclusion that he was undertaking relevant study. Rather his evidence is that between April 2015 and July 2016 he cared for her elderly grandfather. Between July 2016 and early August 2018 he worked Starbucks, before travelling to Australia in August 2018. After arriving in Australia he undertook an IELTs test and applied for a student visa in October 2018 which was granted in December 2018. He commenced his studies in January 2019.
31. The Tribunal finds that the applicant ceased all studies at an educational institution for almost four years after finishing his Bachelor of Science in April 2015. The Tribunal concludes that at the time of application, the applicant had not, since turning 18, been undertaking a full-time course of study at an educational institution.
32. Accordingly, he does meet the criteria set out in cl 802.214(1)(c).
CONCLUSION
33. 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
34. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Date(s) of hearing: 24 October 2024
Representative for the Applicant: Mr Mark Adams (MARN: 1686800)
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