TABANAO (Migration)

[2019] AATA 1932

TABANAO (Migration) [2019] AATA 1932 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms JEANABETH TABANAO

VISA APPLICANT:  Ms HAZEL ANGEL SELLOTE

CASE NUMBER:  1722121

HOME AFFAIRS REFERENCE(S):           OSF2016/044150

MEMBER:Hugh Sanderson

DATE:18 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2019 at 7:31am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – applicant has not been undertaking a full time course of study – suffered bullying – not received any treatment or counselling – does not accept visa applicant was incapacitated – no explanation was provided why the applicant had a gap in study – does not consider that this gap in her study can be considered a reasonable time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 Part 101, cls 101.213, 101.221(2)(b)

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 28 August 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 25 August 2016. 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.101.213 of Schedule 2 to the Regulations was not met because the delegate was not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 of the Australian school system, the visa applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

   Background

4. The visa applicant is a citizen of the Philippines and is currently 27 years old. She is sponsored in the application by the review applicant, her mother, who was granted a Skilled Migrant visa in 2010. She is now an Australian citizen.

5. The visa applicant claimed that she completed secondary school in March 2008. She then attended the University of San Carlos from 11 March 2009 to 30 March 2014 completing a Bachelor of Education. She was then employed as a customer service representative for Teleperformance from 20 May 2014 to 10 September 2014. She was also employed as a technical support associate for Convergys from 30 July 2014 to 5 November 2014. Although there was an overlap in the periods of employment, the visa applicant claimed she was working full time at these companies.

6. The visa applicant enrolled with the Southwestern University in November 2014 studying for a Masters of Arts in Teaching with the course due to be completed in October 2017.

7. The delegate who considered the application noted the following issues:

   ·The visa applicant took a six-month break from study after she completed her Bachelor of Education and was employed on a full-time basis;

   ·The academic transcript from Southwestern University shows that two of four subjects were incomplete in the second semester 2014 – 2015, the visa applicant only passed three subjects in the first semester 2015 – 2016, all three subjects in the second semester 2015 – 2016 were incomplete, and two of three subjects in the first semester 2016 – 2017 were incomplete;

   ·Since commencing her Master’s degree, the visa applicant has failed to complete seven of 13 subjects in her course; and

   ·The fact the visa applicant was working full-time from May 2014 and only completed a limited number of courses for her Master’s degree indicated that she was not undertaking a full-time course of study.

8. Based on this information, the delegate found that the visa applicant had not been undertaking a full-time course of study since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system. The delegate found the visa applicant did not meet the criteria in cl.101.213 and refused the application.

   Information to the Tribunal

9. The review applicant provided a statement to the Tribunal where she made the following claims:

   ·The visa applicant had suffered bullying at San Carlos University which was why she took six months off;

   ·The visa applicant continued to be supported by the review applicant when she was working, with the employment being only limited to giving her an opportunity to practise conversational English; and

   ·The visa applicant recommenced her studies for a Master of Arts in Education and is continuing to study full-time.

10. The review applicant appeared before the Tribunal on 5 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

11. The review applicant said the visa applicant was currently studying for a Masters in Special Education. She said that she was living with her maternal grandmother and sister in Cebu City. She said the visa applicant’s father was living in Manila. She said that her father only contacts the visa applicant infrequently and only sends money to her for her birthday and at Christmas.

12. The review applicant said that the visa applicant was working in a call centre when she was working for Teleperformance and Convergys. She said that she was working full-time. She said that the visa applicant enrolled in study at the Southwestern University in November 2014. She said that she had to have a break in her studies due to bullying she suffered from a teacher at the University of San Carlos. She said that the visa applicant still had emotional problems from the bullying, but had not received any counselling or any other treatment.

13. The Tribunal noted that the academic record the visa applicant provided to the Department from Southwestern University indicated that all courses from the second semester 2015 – 2016 were marked as incomplete. The review applicant could not explain why the courses were marked as incomplete. She said the visa applicant had dropped out of Southwestern University after the second semester in 2017 and had enrolled into a different university in November 2018. She said part of her problem was that she did not have practical teaching experience because she had not sat the Board of Education Exams, and to get a Master’s degree she was required to have completed teaching experience.

14. The Tribunal noted the evidence of the review applicant that the visa applicant had not been studying between June 2017 and November 2018. The review applicant said that she did not know what the visa applicant was doing over this period because she simply relied on the visa applicant to make her own decisions. The review applicant said that the study the visa applicant was required to do was on Fridays, Saturdays and Sundays.

15. The visa applicant gave evidence by telephone from the Philippines. She provided details of where she was living. She said that she had limited contact with her father and he only sent her money at Christmas and on her birthdays. She confirmed that she had previously worked in a call centre.

16. The visa applicant said that she was currently attending the University of Southern Philippines Foundation. She said that she had commenced studies there in November 2018. She said that she stopped studying at the Southwestern University in March 2018. She said that after that, she was not doing anything but decided to have a break because of stress. She was not able to provide details of any courses that she passed at Southwestern University since 2017. She said that most of the courses were incomplete because she had not done any practical teaching and she could not do practical teaching because she had not sat the Board of Education Exam. She said that she thought she could complete a Master’s degree if her teachers would exempt her from having to have done practical teaching, but none have allowed this so far. This was why all her courses were marked as incomplete.

17. The Tribunal asked the visa applicant what she did during the day. She said that she just lived with her grandmother. She said that she helped her grandmother by accompanying her when she needed to go to the hospital or the doctor or the bank. She said that when she was now studying, she only had to attend classes on Saturday and Sunday.

18. The visa applicant claimed that she suffered bullying from a teacher at the University of San Carlos. She said that when she arrived at her class on the second week after missing the first day of the lesson, her teacher would not allow her to join any groups that had been organised in the first week of the classes. She said that she had not received any treatment or counselling or sought any other assistance due to any stress arising from the claimed bullying.

19. The review applicant was given further time to provide information and support for the application. The Tribunal asked the review applicant to provide the following:

    ·The full academic transcript of the visa applicant showing the results of any study she had completed;

    ·Information as to any claims of bullying the visa applicant suffered or any incapacity she suffered as a result of the bullying; and

    ·Evidence of money being sent to the visa applicant by the review applicant.

20. The review applicant provided the following documents:

    ·Money transfer receipts with the most recent one dated 16 November 2017;

    ·Certifications from Southwestern University that the visa applicant had enrolled for the second semester of academic year 2017 – 2018 noting that classes for the program were held on Saturdays and Sundays;

    ·Certificate from the University of Southern Philippines Foundation confirming the visa applicant was enrolled for the second semester 2018 – 2019 with the enrolment form dated 5 November 2018; and

    ·The email correspondence between the review applicant and the University of San Carlos.

21. The correspondence between the review applicant and the University of San Carlos commenced with a letter dated 9 February 2014 with the review applicant complaining as to the treatment of the visa applicant by one of her teachers. The final email from the review applicant is dated 20 February 2014 expressing the review applicant’s thanks for resolving the complaint raised and stating she was optimistic that “things will now be in the best interest” of the visa applicant.

22. Despite the Tribunal asking the review applicant to provide a copy of the visa applicant’s academic transcript noting all courses that she had completed, this document was not provided.

23. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the visa applicant has, since turning 18, or 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 an educational institution leading to the award of a professional, trade or vocational qualification.

    Criteria for applicants over 18

25. 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).

    Full-time study (or incapacitated for work)

26. At the time of application, the visa applicant must have, since turning 18, or 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 an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c).

27. 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).

28. There is no information before the Tribunal that the visa applicant has at any time been incapacitated for work due to the loss of bodily or mental functions or for any reason at all. The Tribunal has discussed the claim the visa applicant was suffering from stress from bullying from a teacher at the University of San Carlos below.

29. 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.

30. The visa applicant, after completing high school, was enrolled in the University of San Carlos completing a Bachelor of Education on 28 March 2014. She did not enrol again in any course of study until November 2014 when she enrolled in the Southwestern University studying for a Bachelor of Education in Special Education. The period between her studies was eight months, assuming she commenced study in November 2014 which was when she was enrolled and is not likely to have been when she commenced the University term. Over this time, the visa applicant was working full-time in a call centre.

31. It was claimed that one of the reasons for the break in her study was that she had suffered bullying at the University of San Carlos from a teacher. The Tribunal does not accept that any claimed bullying would have prevented the visa applicant from continuing her studies. The Tribunal does not accept that any claimed bullying suffered by the visa applicant made her incapacitated for work due to the loss of bodily or mental functions.

32. The only information provided in respect of the claimed bullying is correspondence sent by the review applicant to the school. The issue was first raised by the review applicant on 9 February 2014 and the issue appears to have been resolved to the satisfaction of the review applicant by 20 February 2014. The visa applicant was able after this date to graduate from all her courses at the University of San Carlos, including the course which was being taught by the teacher the visa applicant had raised the complaint against. There is no information which would indicate the visa applicant sought any professional help for any stress or depression she claims to have suffered as a result of the claimed bullying. The visa applicant was able to work for a six-month period in a call centre without any difficulties.

33. The Tribunal does not accept that the visa applicant was incapacitated for any reason as a result of any claimed bullying by a teacher at the University of San Carlos or that this would provide an explanation for any reasonable break in the visa applicant’s study.

34. The visa applicant’s next course of study was at the Southwestern University which she commenced in the second semester for the school year 2014 – 2015. She claims to have continued her study at Southwestern University until the end of the second semester in the school year 2017 – 2018. The evidence of the visa applicant was that she finished study at that university in March 2018.

35. The academic transcript for the visa applicant up to the first semester of the school year 2016 – 2017 was provided to the Department. Despite the Tribunal requesting the review applicant provide the academic transcript for the visa applicant for all her studies, the review applicant did not provide this document.

36. The academic transcript provided to the Department does not indicate that the visa applicant was undertaking a full-time course of study while at Southwestern University. In her first semester of study at that university, being the second semester 2014 – 2015, she completed two courses and two of the courses that she was enrolled in were noted as incomplete. In the first semester 2015 – 2016 she only completed three courses. In the second semester 2015 – 2016 she was enrolled in three courses and all were noted as being incomplete. In the first semester 2016 – 2017 the visa applicant was enrolled in three courses, completing only one with two courses noted as incomplete. In total, for two years of study the visa applicant was enrolled in 13 courses, completing only six and being marked as incomplete the remaining seven.

37. The Tribunal requested the review applicant provide the remainder of the visa applicant’s academic transcript for the period that she was studying at Southwestern University. The review applicant did not provide this to the Tribunal. The documentation the review applicant to provide to the Tribunal showed that the visa applicant was enrolled at Southwestern University for the second semester 2017 – 2018 and that classes for that program were held on Saturdays and Sundays.

38. The Tribunal finds that the visa applicant was not undertaking a full-time course of study over the period that she was enrolled at Southwestern University. Her academic transcript shows that the majority of courses she was enrolled in up to the end of the first semester 2016 – 2017 were not completed by her. There is no information as to what courses she undertook or any results from her study after that time. The certification of attendance issued by the Southwestern University shows that she was only required to study on weekends. The Tribunal does not accept that if the course program is only conducted on weekends then it is a full-time course of study.

39. The Tribunal finds, based on the fact that the majority of courses the visa applicant enrolled in were incomplete, the failure to provide information as to the courses completed by the visa applicant after the first semester 2016 – 2017, and the fact that the information from Southwestern University was the course program only required the visa applicant to attend university on weekends, that the visa applicant was not undertaking a full-time course of study over the period she was enrolled at Southwestern University. It was over the period that the visa applicant was attending Southwestern University that the current application was filed. The Tribunal finds that at the time of the application, the visa applicant was not undertaking a full-time course of study.

40. The visa applicant completed her study at Southwestern University in March 2018. She did not enrol again in a further course of study until she enrolled in the University of Southern Philippines Foundation in November 2018, a break of eight months. The review applicant said that she did not know what the visa applicant was doing over this period as she simply relied upon the visa applicant to make her own decisions. The visa applicant said that she just stayed at home and helped her grandmother.

1. The Tribunal does not accept that the break in her study from March 2018 to November 2018 can be considered reasonable. If the visa applicant did decide to drop out of Southwestern University in March 2018 she would have had the opportunity to enrol in a further course of study to commence in the first semester of the 2018 - 2019 school year. She did not do this and waited until November 2018 to enrol in a course of study that commenced on the second semester. No explanation was provided why the visa applicant had a gap in the study.

2. At the time of the application, the visa applicant had already had an eight month gap in her study for the period from when she completed her degree at the University of San Carlos in March 2014 until she commenced her study at the Southwestern University. The Tribunal does not consider that this gap in her study can be considered a reasonable time in light of the fact that she was working full-time over this period and the course that she did ultimately enrol in was not a full-time course of study.

3. At the time of the application, the visa applicant was attending Southwestern University; however, the Tribunal finds that she was not undertaking a full-time course of study. This course appears to have been only a part-time course with lessons conducted only on weekends. The academic transcript shows that the visa applicant failed to complete the majority of the courses she enrolled in whilst at Southwestern University.

4. For the above reasons, the Tribunal finds that at the time of the application the visa applicant had not, since turning 18 or within six months 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. The gap in any study that she was undertaking was not reasonable and the course she was undertaking at Southwestern University was not a full-time course of study.

5. For these reasons, the Tribunal finds that the visa applicant does not meet the time of application criteria in cl.101.213(1)(c).

6. The Tribunal has also considered the circumstances of the visa applicant at the time of this decision. Apart from the eight month gap in her study from when she completed her degree at the University of San Carlos to commencing study at Southwestern University, the visa applicant has had a further period of at least eight months where she was not studying after she ceased any study at Southwestern University and then enrolled with the University of Southern Philippines Foundation.

7. No valid explanation was provided to why the visa applicant had this second break in her study. She does not appear to have continued any personal study or done anything else apart from staying at home and providing some assistance or company for her grandmother. Her grandmother does not appear to have needed any immediate care at that time which would have required the immediate attention of the visa applicant or her ceasing study. There is no information which would indicate the visa applicant’s grandmother needs any current care or her situation is any different to what it was when the visa applicant ceased any study. There is no explanation as to why the visa applicant could not have enrolled in the first semester of study for the year 2018 – 2019. The Tribunal is not satisfied that the gap in the visa applicant study over this period can be considered a reasonable time. When this gap in her study is considered together with the previous gap in her study in 2014 and characterised as a whole, the Tribunal finds that, even if her study at Southwestern University were considered to be full-time, the break in her study cannot be considered a reasonable time between undertaking a full-time course of study.

8. For the above reasons, the Tribunal finds that the visa applicant does not meet or continue to meet the criteria in cl.101.213(1)(c) at the time of the decision and therefore does not meet the criteria in cl.101.221.

9. 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

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

    Hugh Sanderson
    Member