Verba (Migration)

[2021] AATA 3404

Verba (Migration) [2021] AATA 3404 (23 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Danilo Verba

VISA APPLICANT:  Mr Daniel John Verba

CASE NUMBER:  2105177

HOME AFFAIRS REFERENCE(S):          20201092

MEMBER:Kira Raif

DATE:23 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl 101.213(1)(c) of Schedule 2 to the Regulations; and

·cl 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 23 August 2021 at 12:35pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – evidence of studies provided upon review – applicant changed courses – decision under review remitted

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 22 April 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 is a national of the Philippines, born in 1996. He applied for the visa on 2 January 2020. 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 23 August 2021 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. 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).

7. 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).

8. 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.

   Does the applicant meet the study requirement?

9. The visa applicant was born in August 1996 and was over the age of 18 when the application was made. There is no evidence that het applicant was married or engaged to be married or that he has a de facto partner. He meets cl. 101.213(1)(a). There is no evidence of the visa applicant’s employment and the delegate accepted that he was not employed in full-time work. The visa applicant meets cl. 101.213(1)(b). The issue before the Tribunal is whether the applicant meets the study requirements in col. 101.213(1)(c).

10. There is no evidence that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions.

11. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was born in July 1996. He stated on the application form that he was not undertaking a post-secondary course. With respect to his past study, the visa applicant indicated that he had undertaken study at the Technological Institute of the Philippines (TIP) but did not provide commencement and completion dates. The visa applicant provided some evidence of his study, including a student card and a student registration form for the 2019 academic year and evidence of payment of fees.

12. On form 80 the applicant stated that between July 2013 and October 2018 he was enrolled in a Computer Engineering course at Mapua University but withdrew from the course. The applicant indicated that from October 2018 to November 2019 he studied Electronics and Communication Engineering at the TIP.

13. The delegate noted that there was no evidence that the visa applicant had actively engaged in studies and that evidence of enrolment was not sufficient. The delegate was not satisfied the visa applicant was studying continuously between July 2014 and October 2018 and that cl. 101.213 was satisfied.

14. The review applicant explained to the Tribunal in oral evidence that his son did not know that he had to provide all the evidence and failed to provide evidence of his study at Mapua University. The review applicant states that his son had never had a break at studying.

15. The review applicant provided additional evidence to the Tribunal. This includes statements from Mapua university confirming fee payments between 2012 and 2018, Certificates of Matriculation from Mapua University, the study timetable from Mapua University and evidence of fee payments from the TIP. Having regard to that evidence, the Tribunal is satisfied that the visa applicant was enrolled at Mapua University and was actively engaged in studies at that institution between 2014 and October 2018. This is evident from the visa applicant’s study timetables, matriculation certificates and evidence of regular fee payments made to the educational institution. The Tribunal finds that since turning 18 (in July 2014) or a reasonable period from that time the visa applicant had engaged in full-time study at Mapua university leading to a formal qualification.

16. The review applicant explained to the Tribunal that his son did not complete the course at Mapua before he transferred to the Technological Institute of the Philippines. The review applicant explained that some of the subjects his son wanted to do were not offered at Mapua University and that is the reason his son transferred to another institution. The visa applicant is still undertaking the course at TIP and will finish the course in March 2022. Upon completing o the course, the visa applicant will receive a degree in Electronic Communication Engineering. Following the hearing, the review applicant provided to the Tribunal evidence of the visa applicant’s present enrolment and study at TIP, including receipts for payments and the visa applicant’s academic transcript. Having regard to that evidence, the Tribunal is satisfied the visa applicant had engaged in full-time study leading to a formal qualification at TIP from 2018 and he continues to study at the time of this decision.

17. Overall, the Tribunal is satisfied that at the time of application, the visa applicant had been undertaking full-time study since turning 18 and he continues to meet this requirement at the time of decision. Accordingly, cl 101.213(1)(c) is met. It continues to be met at the time of decision, for the purpose of cl. 101.221.

18. The Tribunal finds that cl 101.213 is met at the time of application. At the time of decision, cl 101.213 continues to be met. Accordingly, cl 101.221(2)(b) is met.

    Conclusion

19. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.213(1)(c ) of Schedule 2 to the Regulations; and

    ·cl 101.221(2)(b) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member