Tabanao (Migration)

[2017] AATA 2597

Tabanao (Migration) [2017] AATA 2597 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Gemma Gacuma Tabanao

VISA APPLICANT:  Ms Gianne Gacuma Tabanao

CASE NUMBER:  1621436

DIBP REFERENCE(S):  2016044006

MEMBER:Kira Raif

DATE:30 November 2017

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 30 November 2017 at 7:49am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Failed to enrol in a course – Active engagement in studies required – Work experience rather than training – Financial dependence

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

CASES
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 on 23 November 2016 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 is a national of the Philippines, born in October 1993. She applied to the Department of Immigration for the visa on 25 May 2016. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the visa applicant met the study requirements. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 22 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sister and a friend. The review applicant was represented in relation to the review by her registered migration agent. 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 (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).

5. 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). However, 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). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

6. 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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

   Does the applicant meet the study requirements?

7. The visa applicant was born in October 1993 and the Tribunal finds that she had turned 18 by the time the application was made. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

8. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated in her application, in relation to her studies, that from 2011 until the first semester of 2012 she undertook a post-secondary course in Business Administration at the University of San Carlos. She then re-commenced her studies in a Bachelor of Science in Hospitality and Restaurant Management at the same institution from Semester 1 of 2014. That is, the applicant was not engaged in any study between the second semester of 2012 and the first semester of 2014. The visa applicant explained in her application that in that period she travelled to Australia to visit her family and also planned to get work experience.

9. The review applicant provided to the Tribunal a copy of a statement from the University of San Carlos dated September 2016 confirming the visa applicant’s enrolment in the third year of a Bachelor of Science course, as well as an ‘admission slip’ for the first semester of 2016-2017. The review applicant presented to the Tribunal evidence of the visa applicant’s past enrolment and addressed the issue of financial dependence.

10. In oral evidence to the Tribunal the review applicant said her daughter completed high school in March 2010. She commenced a Bachelor of Science in June 2010 and did that course until March 2011 before transferring to another course in June 2011. She completed that study in October 2012. Her daughter resumed her studies in June 2014.

11. The review applicant said her daughter came to Australia and had a break from her studies from October 2012 to March 2013, for one semester. There was a school holiday during part of that period and her daughter did not resume the course immediately when the academic year commenced because she was confused about what she wanted to study and wanted to change the program. The visa applicant travelled to Australia again between November 2013 and February 2014 to attend to family matters. She resumed her study in June 2014.

12. The review applicant’s evidence suggests the visa applicant was not engaged in university study between October 2012 and February 2014. The review applicant said her daughter did an informal and unpaid ‘traineeship’ in coffee shops to gain experience but there is no suggestion that this was formal training leading to an award or that the training was part of a course or a prerequisite for the visa applicant to enrol in any course. That ‘training’ to which the review applicant refers appears to have been work experience rather than training. The Tribunal does not consider that engagement to have been ‘training’ or study for the purpose of cl. 101.213.

13. The review applicant told the Tribunal that her daughter was still enrolled in a course even when she was not attending. The Tribunal is of the view, however, that the study contemplated by cl. 101.213 requires an active engagement in studies, not merely formal enrolment. Thus, even if the visa was formally enrolled in a course since turning 18 or since completing high school but was not actively engaged in studies, such enrolment would be insufficient to meet the study requirement.

14. The review applicant said her daughter travelled to Australia because they had not seen each other for some time and she wanted her daughter to come to Australia and during the second visit there were some family affairs. The review applicant’s representative noted that the review applicant has been going through hardship, particularly when she lost her husband, and the visa applicant came to Australia to provide support. The Tribunal accepts that evidence and is prepared to accept that during her visits to Australia the visa applicant provided emotional support to her mother. The Tribunal is not satisfied, though, that these matters prevented the visa applicant from engaging in studies. The visa applicant may also have had the option of studying in Australia and while the review applicant told the Tribunal that her visa did not allow her to study, a Student visa would have enabled the visa applicant to remain in Australia with the family and to engage in studies. Thus, while the Tribunal accepts there were significant events that affected the family and the review applicant’s well-being, the Tribunal is not satisfied on the basis of the evidence before it that these events prevented the visa applicant from engaging in studies.

15. Notably, there is no medical evidence to satisfy the Tribunal that the visa applicant was incapable of engaging in studies, either because of her emotional distress or circumstances affecting the family or for any other reason. The review applicant said her daughter was going through identity crisis and did not know what she wanted to do. That appears to be the real reason she did not engage in studies, rather than her inability to do so for any reason.

16. The Tribunal has considered the social worker’s report submitted on 29 November 2017. The social worker outlines the visa applicant’s background and her relationship with her parents – matters which the Tribunal accepts. However, the Tribunal considers the clinical observations in the report to be unpersuasive. Essentially, the report fails to state how the social worker reached the conclusions that she did, whether she has been treating the visa applicant on an ongoing basis (the report indicates that the visa applicant is known to the social worker but it is not apparent that there was ongoing treatment) or whether the observations are made purely on the basis of the visa applicant’s or the review applicant’s self-reporting. The Tribunal is mindful that the issue of the visa applicant’s study was the main reason for the refusal of her primary application and the applicant was put on notice that this was an issue that needs to be addressed before the Tribunal. It is odd, in these circumstances and given that the review applicant is represented before the Tribunal, that the visa applicant sought to obtain and produce the report from the social worker only in response to the discussion at the hearing. In the Tribunal’s view, if these matters did affect the visa applicant’s capacity to study, this evidence would have been made available to the delegate and to the Tribunal earlier and not as a response to the Tribunal’s concerns.

17. The Tribunal also considers it highly problematic that the social worker offers an opinion that the break in the visa applicant’s study was a reasonable period. With respect, determination of whether the break in studies was a reasonable period, which is a legal construct, is a matter for the Tribunal.

18. The report indicates that during her visit to Australia the visa applicant, due to various personal issue, missed schooling and stayed in Australia and by the time she returned to her home country, it was too late to enrol an attend classes. This does not appear to suggest that the visa applicant was incapable of engaging in studies, simply that she made the decision to remain in Australia for longer and missed enrolment. The report indicates that later on, the visa applicant was unsure what course she wanted to do and her mother suggested that she takes time off, which was also the review applicant’s oral evidence to the Tribunal. Again, the evidence is not that the visa applicant was incapable of engaging in studies but rather that she was uncertain of what to do (there is a reference to identity crisis) and for that reason, she did not enrol. The report indicates that the period when the visa applicant was not studying gave her time to ‘regain her physical health and reckoning’. However, as noted above, there is no medical evidence to suggest that the visa applicant’s physical health was poor. If that was the case, the Tribunal would expect to see contemporaneous records from a medical practitioner and not a statement from a social worker prepared several years later. That is not sufficient.

19. The representative also submits that the review applicant was too distressed by family circumstances and could not enrol her daughter and her daughter relied on the mother to enrol her. The Tribunal acknowledges the review applicant’s evidence about her daughter’s dependence and reliance on her, but the Tribunal is not convinced the visa applicant, being over the age of 20, was incapable of enrolling herself in a course, even if she had always relied on her mother to do that in the past. The Tribunal is mindful that the visa applicant was living away from her mother and was capable of independent (physically if not financially) living and engaging in the ‘traineeship’ program involving employment as well as other activities. The Tribunal does not accept that the visa applicant failed to enrol in a course because she was unable to enrol without her mother’s help.

20. The Tribunal acknowledges the representative’s submission that the visa applicant always intended to be enrolled in a full-time course and continues to be enrolled at present. That may be the case but the Tribunal does not consider intention to be sufficient, what is required is active engagement in studies, although intention may be relevant in determining whether the period of not studying was a reasonable period.  

21. The representative refers to another Tribunal decision. The Tribunal finds such reference unhelpful since the Tribunal decisions have no precedential value and each case depends on the particular circumstances of the applicant.

22. The Tribunal finds that the visa applicant was not undertaking any study between October 2012 and February 2014, for a period of approximately 16 months. The review applicant’s evidence is that an academic year in the Philippines runs from June to March. The Tribunal accepts that for a period of time when the visa applicant was not engaged in studies, the course was not in session, however, not the entire period between October 2012 and February 2014 covered school holidays. Even taking account of the three to four months of holidays, the visa applicant was not undertaking any study for a period of about 12 months.

23. The Tribunal has considered the various reasons for the break in studies but for the reasons given above, the Tribunal does not accept the visa applicant was prevented from studying for any reason or that she was unable to engage in studies for any reason or that they were legitimate reasons for her not engaging in studies. The Tribunal is not satisfied that the visa 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. The Tribunal is not satisfied the visa applicant meets cl. 101.213.

24. The review applicant provided evidence of her daughter’s financial dependence. In light of the finding above, the Tribunal has not assessed whether the visa applicant is a dependent child, although the Tribunal accepts the evidence that the review applicant has been providing financial support to her daughter.

25. There is no suggestion that the visa applicant is an adopted child of the sponsor and she does not meet the requirements for the grant of the Adoption visa. She is sponsored by her mother, whose whereabouts are known and who is not incapacitated, and the visa applicant does not meet the requirements for the grant of the Orphan Relative visa.

26. The review applicant requested that the visa be granted on compassionate grounds. As the Tribunal explained to her in the course of the hearing, it has no power to recommend visa grant on compassionate grounds. Having found that the visa applicant does not meet the prescribed criteria for visa grant, the Tribunal must affirm the decision under review.

    Conclusion

27. 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

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

    Kira Raif
    Senior Member