Taylor (Migration)

[2018] AATA 2051

Taylor (Migration) [2018] AATA 2051 (1 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Daniel Wayne Taylor

VISA APPLICANT:  Miss Clydel Aya-ay

CASE NUMBER:  1722544

HOME AFFAIRS REFERENCE(S):           2016044043 OSF2016044043

MEMBER:Ann Duffield

DATE:1 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 01 June 2018 at 2:10pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 101 (Child) –Whether the applicant had been undertaking full-time study since turning 18 – Gap in full time study–  Family circumstances – No compelling reasons – Changed College courses – Mother living in Australia on a Partner visa – Decision under review affirmed

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

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 21 July 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 22 June 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied that the applicant had, since turning the age of 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.

5.    The review applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, the mother of the visa applicant. The Tribunal did not speak with the visa applicant at the hearing as it was not requested to do so, however it invited the visa applicant to provide a written statement after the hearing which the Tribunal received.

6.    The review applicant was represented in relation to the review by his registered migration agent who also attended the hearing.

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

BACKGROUND

8.    The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

9.    The applicant is a citizen of the Philippines born on 16 May 1996 (21 years old). She applied for the visa subject to this review on 22 June 2016 when she was 20 years old.

1. Her mother migrated to Australia on 8 June 2014 as the spouse of an Australian citizen. The applicant was not included in her mother’s application at the time of her migration.

2. The applicant finished high school in March 2013 at the age of 16. After she graduated she enrolled in a post-secondary course for one semester in 2014-2015. The applicant turned 18 in May 2014.

3. The applicant did not attend school from second semester of school years 2013-2014 until recommencing for the first semester of school year 2015-2016.

4. The delegate found that the applicant had not been in active post-secondary studies for three school semesters or approximately 15 months. The delegate did not consider this to be a “reasonable” time and refused the visa.

5. The review applicant is a citizen of Australia and the step-father of the visa applicant.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant had, since turning the age of 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.

Full-time study (or incapacitated for work)

1. The visa applicant does not claim to be incapacitated for work because of loss of bodily or mental functions and has advanced no evidence to support such a claim.

2. 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).

3. 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).

4. 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. Determining what is a ‘reasonable time’ within the meaning of this subclause requires consideration of the surrounding circumstances, that is, 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. The assessment necessarily depends on all the circumstances of the case. Examples cited by the Court in Sok v MIMA of circumstances that may justify a finding that periods of time beyond six months would be reasonable include:

   a.a young person undertaking a one year exchange student program in another country;

   b.living and working in another country;

   c.civil unrest interrupting studies;

   d.illness; and

   e.military service.

5. The visa applicant does not satisfy any of these exceptions.

6. The review applicant and Mrs M claim that they have been supporting the applicant financially since around 2015 and that she has been studying since 2016. Mrs M told the Tribunal that the applicant is living with her Aunt in Negros whilst she is in full-time study. She says that the applicant does not work but helps her aunt with the housework and also assists in looking after her infirm grandfather (Mrs M’s father). Evidence provided by the parties indicate that Mrs M’s father is 74 years old and was treated and confined to hospital for 7 days in February 2016 for Stage II hypertension and community acquired pneumonia – Moderate Risk. The medical evidence does not indicate whether Mrs M’s father required in home or any other kind of care beyond his hospitalisation.

7. Mrs M’s oral evidence however was that the visa applicant took three semesters off from her studies in 2014-2015 in order to look after her grandfather who had taken ill.  This does not align with the medical evidence provided. The visa applicant’s written submission states that the reason she did not attend school for three semesters between 2013-2015 was because Mrs M could not afford to send her to school. There is no mention from her about looking after Mrs M’s infirm father, who was, in any case, only hospitalised in 2016.

8. The reasons provided by the visa applicant and Mrs M in relation to why she had not been studying at the required period were consistent but not persuasive or compelling. Both claimed poverty and family circumstances prevented the visa applicant from attending school consistently after the completion of her high school studies. During that time the visa applicant was also performing household duties and looking after her grandfather who had fallen ill. The visa applicant claimed that her step-father, the review applicant and her mother had been providing her with financial support during the relevant period.

9. The parties provided money transfers from Mrs M to the visa applicant which begins in around 2015, not from mid-2014 when she arrived in Australia. The total amount transferred appears to be around $8,900 from 2015-2017. The parties claim that the visa applicant was living with Mrs M’s sister after Mrs M departed for Australia in June 2014 and helped with housework and so on to pay her way until Mrs M could send her some money. The review applicant told the Tribunal that Mrs m has not worked since arriving in Australia and that he provided the money that was sent to the visa applicant.

10. The Tribunal had a discussion with the parties about the reasons why the visa applicant was not sponsored at the same time as her younger sister in 2016. Mrs M claims that they had no money at the time as the review applicant was not working. The review applicant however told the Tribunal that he had been working as an interstate truck driver for the past 8 years and was earning around $8,000 a month. He said at the time that the Mrs M came to Australia to marry him; he had some debts to pay and could not afford to pay for the applications of the two girls.

11. Asked why she didn’t sponsor the visa applicant at the time of her migration to Australia to join the review applicant, Mrs M claimed that the review applicant could not afford to sponsor both of her daughters at the same time. Asked why she waited so long to sponsor her eldest daughter she told the Tribunal that she was too embarrassed to ask the review applicant for more money to pay for the application. She said that he was the one who subsequently paid for the application in 2016. Later Mrs M told the Tribunal that the reason that she didn’t sponsor the visa applicant at the time was because she would not meet the criteria and she thought that if she included her children in her spouse application, it would take longer to get her visa.

12. Enrolment details and results provided by the parties in relation to the visa applicant’s study show that she has attempted two significantly different courses of study over the past two years.

13. Documents provided by the parties to the tribunal show that the applicant attended and completed the following courses:

    a.Tanon College First Semester 2013-2014 – Business studies

    b.Tanon College First Semester 2015-2016 – business studies

    c.Tanon College second semester 2015-2016 – business studies

    d.San Carlos Technical School – first semester 2017 – Automotive Servicing

    e.Receipts from Tanon College for studies in a finance course for second semester of the 2017-2018 academic year.

    f.Applicant results from Tanon College for second semester academic year 2017-2018 for a Finance Course.

14. The applicant finished school in March 2013 so the evidence provided shows that she did not attend full time study for a period of around three semesters. At the end of studying three semesters of business studies, the visa applicant then enrolled in Automotive Servicing course before re-enrolling in a finance course at her previous college. The review applicant was not certain what the visa applicant had been studying but thought that she had been attending an institution similar to an Australian TAFE.

15. The evidence provided by the parties has been neither persuasive nor compelling on any measure. The evidence from Mrs M is that she was aware at the time of her migration to Australia in 2014 that the review applicant would not meet the criteria and as a result her own visa may not have been granted, or at best delayed. In the Tribunal’s mind the subsequent enrolment of the applicant in three different courses is indicative of a contrivance to meet migration requirements rather than a genuine effort of obtaining a qualification in a chosen field.

16. The evidence as a whole has not persuaded the Tribunal that the visa applicant had not been working full time since leaving high school and that the reasons put forward as to why she did not study for at least 15 months from the time she left school, have not been contrived to meet migration requirements. In any case, the Tribunal is not satisfied that 15 months absence from studying is a reasonable time or that any of the reasons posited by the parties as to why the applicant did not study over that period are reasonable such that they would allow the requirement to be met.

17. The Tribunal accepts that the applicant has provided documentary evidence of her studies in three different courses over the past several years.

18. Having considered all the evidence, the Tribunal is not satisfied that the applicant had been undertaking full-time study since turning 18 or within 6 months (or a reasonable time) after completing Year 12. The applicant therefore does not meet the requirements of cl.101.213.

CONCLUSION

1. 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

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

Ann Duffield
Senior Member