Uren (Migration)

[2024] AATA 2891

Uren (Migration) [2024] AATA 2891 (31 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maria Bella Villarta Uren

VISA APPLICANT:  Ms Jasmin Villarta Candelario

REPRESENTATIVE:  Ms Cyril Gabito (MARN: 1383988)

CASE NUMBER:  2105603

HOME AFFAIRS REFERENCE(S):          CLF2020/19324

MEMBER:Peter Emmerton

DATE:31 July 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 31 July 2024 at 12:59pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – relationship status and history – not engaged in full-time work – full-time study (or incapacitated for work) – substantial break in study – ‘force majeure’ – reasonable period – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 23 February 2021 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 3 June 2020. 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(1)(c) and 101.213(2).

4. The delegate refused to grant the visa on the basis that cl 101.213(c) was not met because they were not satisfied the applicant had been in full-time study since turning 18. Nor were they satisfied that the requirements of 101.213(2) were met as no evidence was tendered to demonstrate that the over 18 applicant was dependent due to being incapacitated for work due to the partial loss of the child’s bodily or mental functions. This was also agreed during the hearing by the review applicant.

5. The review applicant appeared before the Tribunal on 31 July 2024 to give evidence and present arguments. The Tribunal found the review applicant to be credible and honest with no evidence of obfuscation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is to satisfy clause 101.213(1)(c) the applicant needs to demonstrate that at the time the application was lodged they were validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification. The applicant must produce evidence of both enrolment and their active participation, in the course of study. In addition, the applicant must have been undertaking that course since turning 18 years of age or have commenced the studies within six months or a reasonable period after completing secondary education.

8. The Tribunal has read and carefully considered the evidence presented to the delegate and the Department.

9. The Tribunal has read and carefully considered the following additional evidence provided to the AAT prior to hearing.

   ·Submission by the Representative, Ms Gabito - 24 July 2024

   ·Passport bio page of Jasmin Villarta Candelario- expiry date- 31/05/2032

   ·Birth certificate of Jasmin Villarta Candelario

   ·Partner Visa Grant for Maria Bella Villarta- 09/03/2020

   ·Statement by Maria Bella Villarta

   ·Statement by Jasmin Villarta Candelario

   ·Department notice of refusal of application for a Child (Migrant) (class AH) (subclass 101) visa - 23/02/2021

   ·Department Decision Record- 23/02/2021

   ·Academic transcript of Jasmin Villarta Candelario from St. Catherine’s College

   ·Typhoon info/news

   ·Further submission of dated 29 July 2024 – money transfer receipts

   ·Additional money transfer receipts dated 29 July 2024

   Criteria for applicants over 18

10. 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).

11. The applicant’s Date of Birth is in January 1997 as verified by a copy of their passport. The applicant lodged the application on 3 June 2020. The Tribunal accepts the applicant was 23 at the time of application. The Tribunal questioned the review applicant during the hearing in relation to the visa applicant and when she turned 18 years of age and is satisfied DOB is correct.

    Relationship status and history

12. 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).

13. The Tribunal accepts that the statement made in the application in Question 13 of Form 47 CH indicates to the Tribunal that the applicant satisfies cl 101.213(1)(a) as they are not engaged and never been in a spousal or de facto relationship. This was also accepted by the delegate. This was confirmed by the review applicant at the hearing.

14. Accordingly, cl 101.213(1)(a) is met and it continues to be met at the time of decision.

    Not engaged in full-time work

15. 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).

16. The applicant completed question 40 of the Form 47CH, which requested current employment details of the applicant. The applicant advised they were not employed or currently working part-time. The Department accepted this as accurate. The Tribunal has no evidence before it to refute the claim. The Tribunal confirmed this at the hearing and was confident of the voracity of the review applicant’s responses.

17. A voluminous number of Money Transfer Receipts were provided showing a substantial sum of money has been transferred by the review applicant to her daughter, the visa applicant, over many years. The Tribunal accepts as reasonable the review applicant’s testimony she paid for a modest residence to be built for her daughter on her eldest daughter’s property in Cebu. It has no evidence to indicate this is untrue. It is accepted by the Tribunal the review applicant has been supporting her daughter for the multiple year period of post-secondary study as well as her childhood prior to that time.

18. Accordingly, cl 101.213(1)(b) is met and it continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

19. 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).

20. 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).

21. 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.

    Clause 101.213(2) (incapacitated for work)

22. The Tribunal has considered clause 101.213(2), which states that the study clause will not apply for those applicants over the age of 18 years of age who are dependent due to being incapacitated for work due to the total or partial loss of the child’s bodily or mental functions. Neither the applicant nor the review applicant has provided evidence of incapacity. The review applicant confirmed at the hearing that the visa applicant is not incapacitated for work due to the total or partial loss of her child’s bodily or mental functions. It is noted the delegate made the same determination at the time of their decision. It is in addition observed her successful long term study history indicates positive mental functionality. The Tribunal is satisfied the applicant does not meet clause 101.213(2).

    Study history

23. The applicant turned 18 years of age in January 2015. At the time the applicant turned 18 they were studying Hotel and Restaurant Management full time at St. Catherine’s College. They continued their study at St. Catherine’s College until semester 1 of the 2014-2015 academic year. Based on the information provided, the Tribunal is satisfied the applicant was a full-time student until December 2014.

24. The applicant has provided evidence they resumed full time study in The Philippines from 19 June 2017.

25. The Tribunal accepts that when the application was lodged on 3 June 2020, the applicant was a full-time student. However, the applicant is also required to be a continuous full-time student since they turned 18.

26. It is clear from the evidence provided by the delegate and the Department the applicant has in their view had a 2-year 6-month break from study between December 2015 and June 2017. The review applicant questioned the length of the break, the Tribunal has formed a view it was at least 2 years based upon the evidence before it submitted by the applicant. This is a very substantial break in study and the break being 2 years or 2.5 years is a moot point.

27. The applicant has provided evidence that there was an additional break claimed to be the result of a typhoon on 16 December 2021. It is unclear as to why as to why this necessitated a change to a completely different unrelated course however, the Tribunal accepts the typhoon and its subsequent drastic impact upon services such as telephone, internet and electricity are beyond the control of the applicant, she clearly recommenced study as soon as practicable in this instance.

28. Under questioning the review applicant explained that her daughter changed courses as she preferred the new course as a career option and this preference was further enhanced as she could attend in person rather than online as the educational institution was nearby. It is accepted this is a rational explanation The Tribunal believes it would be unreasonable to consider this a break in study and so is not considered relevant in this matter. It is in the view of the Tribunal an environmentally imposed pause beyond the applicant’s control, truly a ‘Force Majeure’.

29. In considering whether a break in study is a reasonable period, the break in study must be between completing secondary studies and commencing post-secondary studies. Therefore, as this break in studies is after the applicant finished secondary study and commenced their post-secondary studies this break is not considered to be for a reasonable period as determined by the relevant legislation.

30. The Tribunal acknowledges the argument put forward on behalf of the visa applicant that the financial circumstances surrounding the dependant applicant determined her mother was unable to finance her study and this constituted a reasonable break in study. The Tribunal appreciates the reality facing the individuals concerned.

31. The representative further argued that the circumstances detailed in Sok v Minister for Immigration [2005] FMCA 190 support the argument that the more than 2-year break in the applicant’s tertiary study was reasonable and should be applied in this case. The Tribunal disagrees with this argument as the matter referred to in the case cited was not referring to a break within a tertiary study course but rather the reasonable circumstances surrounding a break between secondary education and commencement of tertiary/vocational courses. The Tribunal agrees there can be a cogent argument that supports the concept of a break of up to 6 months to approximately 1 year as often seen in the Australian student cohort’s reference to a “gap year”. That is not the relevant issue in this case.

32. The break in study post turning 18 did not occur between the finalisation of secondary schooling and the commencement of tertiary or vocation courses equivalent to TAFE or Certificate level in the Australian context. The break was during a tertiary period of study. To conflate this with the findings in the forementioned case is inappropriate. To take this argument to mean a more than 2-year break is reasonable is not supported by the facts. The Tribunal for clarity notes this was not a break imposed by the legitimate Government of the applicant such as can occur in the case of compulsory military service.

33. On the information available the Tribunal is not satisfied the applicant had been actively participating in full time study leading to a professional, trade or vocational qualification since completing secondary school and from the age of 18.

34. Whilst the Tribunal has some sympathy for the applicant and the financially limiting circumstances which are claimed to have necessitated the study break. The claim made by the review applicant that she was raising 3 children on her own without financial support is considered entirely plausible and the Tribunal commends her hard work and dedication to her children. This however is not a relevant factor that can be considered when assessing the requirements for this visa type. The Tribunal has no discretion in this matter based on compelling or compassionate grounds.

35. The applicant’s representative requested the Tribunal seek Ministerial intervention on her client’s behalf. The Tribunal has encouraged the representative to undertake such action. The Tribunal will however not seek to do so as the legislation appears to be functioning as intended.

36. Accordingly, cl 101.213(1)(c) is not met. It continues to not be met at the time of decision.

37. The applicant does not meet clause 101.213(2).

38. For the reasons above, cl 101.213 is not met at the time of application.

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

40. 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

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

    Peter Emmerton
    Member