Stanta (Migration)

[2021] AATA 1081

Stanta (Migration) [2021] AATA 1081 (18 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Delsa Banaban Stanta

VISA APPLICANT:  Mr Holden Atadero

CASE NUMBER:  1920145

HOME AFFAIRS REFERENCE(S):          CLF2017/46849

MEMBER:Margie Bourke

DATE:18 February 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2021 at 1:01pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child of the sponsor – visa applicant over 18 years – full-time course of study at time of decision – reasonable time before commencing studies – dependence upon the sponsor for financial support – studies turned into part-time – enrolment ceased during the COVID-19 pandemic – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

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 Home Affairs on 13 June 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 June 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.213, which has additional requirements for visa applicants aged 18 years and over at the time of application.

4. The delegate refused to grant the visa on the basis that cl 101.213(1) was not met because the delegate was not satisfied the visa applicant met the study requirements in cl.101.213(1)(c).

5. The tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The tribunal also had regard to the circumstances of the review applicant and the nature of the review.  In this review, the tribunal determined that it was appropriate for the hearing to be conducted by was of video link, where the covid-19 pandemic limited the opportunity for in person hearing due to safety concerns.

6. The review applicant appeared by video before the tribunal on 16 February 2021 to give evidence and present arguments. The tribunal also received evidence from the visa applicant, Holden Atadero, who attended by video link from the Philippines. The tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages, who also attended by video link.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the tribunal hearing by video.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

9. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

   Relationship status and history

10. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b).

11. The review applicant and visa applicant gave consistent evidence at the hearing about the visa applicant’s relationship history.  Based on the information before the tribunal, I am satisfied that the visa applicant has never been engaged to be married, has never been married, and has never had a de facto partner.

12. Therefore I am satisfied that the visa applicant meets the requirements of cl 101.213(1)(a) and continues to meet these requirements at the time of decision.

    Not engaged in full-time work

13. At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b).

14. The review applicant and visa applicant gave consistent evidence that the visa applicant had never held a full time or part time position of employment.  The visa applicant stated he had undertaken an unpaid work placement as part of his training in his study.  Based on the evidence before me, I am satisfied that the visa applicant has never been engaged in full time work.

15. Therefore, I am satisfied that the visa applicant meets the requirements of cl 101.213(1)(b) and continues to meet these requirements at the time of decision.

    Full-time study (or incapacitated for work)

16. At the time of application, the visa 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 101.213(1)(c).

17. 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 101.213(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 101.213(2).

18. Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(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.

19. There is no evidence before me that the visa applicant is incapacitated for work due to total or partial loss of bodily or mental functions. I am satisfied that cl.101.213(2) does not apply.

20. Based on the evidence before me, I am satisfied that the visa applicant’s father died in 2008, and the visa applicant’s mother migrated to Australia in 2012. I am satisfied that the visa applicant completed the equivalent of year 12 in the Australian secondary school system when he graduated from high school in March 2013. I am satisfied the visa applicant tuned 18 years of age in October 2013.

21. I am satisfied that the visa applicant did not commence his tertiary study at the university of Iloilo until June 2014.   This was over six months after the visa applicant completed high school, and turned 18 years of age, but I am satisfied that the visa applicant commenced full time study within a “reasonable time”.  I am satisfied that the visa applicant was dependent upon his mother for financial support, and she had financial constraints in Australia at that time in 2013. I accept that the visa applicant could not afford the cost of a computer, internet connection, or 20 pesos to attend an internet café per day in 2013 because of the limited financial support he received.  I accept dire financial distress prevented the visa applicant from undertaking study from twelve months after completing the equivalent of year 12 in the Australian school system.  I am satisfied that the visa applicant commenced full time study the following year.  I am satisfied the wait of one year was a reasonable period of time in the circumstances of dire financial distress.

22. Based on the evidence of the review applicant and the visa applicant I am satisfied the visa applicant commenced study at the University of Iloilo in a bachelor of Science in Information Technology at the beginning of the academic year in June 2014. 

23. The visa applicant provided the Department with an incomplete academic transcript with his application for the visa.  The visa applicant provided the tribunal with the complete academic transcript.  It is not clear why the academic transcript provided in June 2017 (the time of application) only recorded the subjects completed with their grades in the first two semesters in the academic year 2014-2015. I am satisfied based on the complete transcript that the visa applicant continued in full time study after the first academic year of 2014-2015.  I am satisfied the visa applicant was undertaking full time study at the time of application.

24. Based on the academic transcript provided to the tribunal, and the evidence of the visa applicant, I find the mark ‘5’ means a fail, and study full time involves 7 subjects per semester. I am satisfied that the visa applicant  studied full time in both semesters in the academic year 2014-2015, (and failed one subject), studied full time in both semesters in the academic year 2015-2016, (and failed one subject), studied full time in both semesters in the academic year 2016-2017 (and failed one subject), and then studied three subjects over the summer 2016-2017. Based on the academic transcript and the evidence of the visa applicant I am satisfied that the visa applicant studied six subjects in the first semester of the academic year 2017-2018, and failed four of the subjects, and studied three subjects in the second semester that year and failed one subject. The visa applicant studied one subject in the first semester of the academic year 2018-2019, and three subjects in the second semester, and passed all four subjects.  I am satisfied the visa applicant studied three subjects in the first semester of the academic year 2019-2020, and passed the three subjects.

25. I accept the visa applicant’s evidence that from the second semester in the academic year 2017-2018, he was mainly studying subjects that were prerequisites for the degree, that he had previously failed. The subjects were only offered as first semester subjects or second semester subjects. The visa applicant studied the repeated subjects over two more years, but only one subject college physics 2 was repeated more than once. The visa applicant could have studied more than one or three subjects from the second semester in the academic year 2017-2018.

26. The visa applicant stated he was not studying full time from the second semester 2017-2018. I accept the visa applicant’s evidence.

27. The visa applicant stated he did not continue to study in 2020, although he is interested in development design.  He stated the Philippine universities offered online study during the covid-19 pandemic, but he prefers to study face to face, so he did not enrol in any course.  He stated he in not currently studying, or enrolled to study.

28. As discussed in the hearing, it is a requirement of cl.101.213(1)(c) that the visa applicant has been undertaking a full time course of study at an educational institution leading to a professional, vocational or trade qualification. 

29. I am satisfied that the visa applicant was undertaking a full time course of study at the time of application.  I am not satisfied that after the second semester in the academic year 2017-2018 that the visa applicant has been undertaking a full time course of study. At the time of decision, I am not satisfied that the visa applicant is undertaking a full time course of study at an educational institution leading to an a ward of a professional, trade or vocational qualification.

30. Therefore, I find the visa applicant met the requirements of cl 101.213(1)(c) at the time of application in June 2017.  However, the visa applicant does not continue to meet these requirements at the time of decision.

31. For the reasons above, cl 101.213 is met at the time of application.

32. At the time of decision, cl 101.213 does not continue to be met. Accordingly, cl 101.221(2)(b) is not met.

33. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Margie Bourke
    Member