VERMEULEN (Migration)

[2022] AATA 5254

VERMEULEN (Migration) [2022] AATA 5254 (19 December 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Ms Jocelyn Buctot VERMEULEN

VISA APPLICANTS:  Ms Tiffany Jean HUMANG-IT BUCTOT

Ms Jassie BUCTOT

REPRESENTATIVE:  Ms Jasmin Angel

CASE NUMBER:  2100253

HOME AFFAIRS REFERENCE(S):          CLF2019/5444

MEMBER:  Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:         19 December 2022 at 11:45 am (WA time)

DATE OF WRITTEN RECORD:               1 February 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decisions under review with the direction that the primary applicant meets:

·cl 101.213(1); and

·cl 101.221(2)(b)

Statement made on 01 February 2023 at 1:38pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study requirement – gap or break from study – pregnancy, childbirth and early childcare – changes to course of study – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 101.213, 101.221

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 4 December 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) Subclass 101 visas under the Migration Act 1958 (Cth) (the Act).

1. At the hearing on 19 December 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Department of Home Affairs for a primary visa application in the name of Ms Tiffany Jean Humang-It Buctot, date of birth 15 June 1998, and also for the secondary vis applicant being her daughter Ms Jessie Buctot born on 23 September 2017.  On 7 January 2019 Ms Tiffany Buctot applied for a child migrant residence (Class AH) (Subclass 101)  visa  on  the  basis  of  her  being  the  dependent  child  of Mrs Jocelyn Vermeulen, an Australian citizen.

1. The delegate refused the visa application on 4 December 2020 because they were not satisfied that the primary applicant satisfied clause 101.213 in schedule 2 of the Migration Regulations. On page four of the delegate’s decision record, the delegate stated that:

In considering whether a break in studies, a reasonable period of the break in study must be between completing secondary studies and commencing post-secondary studies, therefore as the break in studies is after the applicant commenced post-secondary studies this break is not considered to be for a reasonable period.

1. As a result, the applicant has not been in continuous full-time study since she turned

   18 years of age, and therefore the delegate was not satisfied that she met subclause 101.213(1)(c) which is primarily what the Tribunal has considered today, amongst some other matters that I will get on to.

1. In particular the delegate was concerned that since the applicant had already turned 18 prior to the visa application being lodged, that they did not satisfy, as I said, 101.213(1)(c) which requires the applicant be enrolled in a full-time continuous course of study, and of course there are some exemptions and some flexibility within the guidelines of reasonableness, and there are also reasonable exemptions to the application of this that can be and should be considered in the application of this clause.

1. At the time of the visa application the applicant was enrolled in a course of study, and at the time of this decision the Tribunal is also satisfied that the applicant is currently enrolled and attending a full-time course of study.

1. It is also not disputed that for a period of time in between application and decision the applicant was not undertaking study, so essentially the role of the Tribunal is to consider why that was the case and whether or not it falls within what could be

considered a reasonable reason for not having maintained that full-time course of enrolment, along with, as I mentioned, a couple of other issues that the Tribunal believed was relevant to consider.

1. The Tribunal held a hearing today in order to allow the review applicant, the visa applicant’s mother, to present arguments and give evidence. The applicant was represented during the hearing.

1. The review applicant offered further witness being her daughter, the primary visa applicant to the Tribunal, however the Tribunal was not of the view that it required to hear evidence from her in order to reach a decision on the application. The Tribunal was assisted today by a certified interpreter, however the interpreter was largely not required and we had no issues understanding each other.

1. Further, as far as documentary evidence is concerned, the Tribunal was in receipt of further evidence that was not available to the delegate, in particular evidence of enrolment post the delegate’s decision in a full-time course of study, as well as a detailed statement from the primary visa applicant and evidence of continuous financial support being sent from the sponsor, being the applicant’s mother, back to her daughter in the Philippines, demonstrating that she remains continually dependent on her mother here in Australia for her living expenses, including food and education costs, which have been assessed to be approximately some AU$500 per month.

1. The Tribunal places weight on this evidence in determining if the primary visa applicant remains dependent to the sponsor, her mother, as defined and required in regulation 1.05A(1).

1. When considering all of the evidence as a whole and that you have continuously demonstrated over the period of the application that you maintain support for your daughter, the Tribunal is satisfied that sufficient evidence exists to demonstrate the visa applicant remains the dependent of the visa sponsor, and the Tribunal finds as such. Therefore, it is a matter to consider the application of course of 101.213(1)(c) in particular with regard to the issue I started on, and that is the study and enrolment history for the visa application.

1. As part of the submissions to the Tribunal by the review applicant and her representative, the Tribunal received a detailed submission which includes case precedents and guidelines on interpreting what is reasonable as far as a break in study might look like, and I just want to take some parts of that submission and go through them.

1. In paragraph 28 of the review applicant’s representative’s submission, it stated that case law provides that a gap or break from study, once post-secondary studies have commenced, is permissible by subclause 101.213(1(c) of schedule 2 to the regulations, depending on the circumstances of the applicant during that temporary period.

1. I do note that in recent times the Tribunal has considered this in other cases, including the application of breaks and study for longer periods of time due to

circumstances beyond the control of the primary visa applicant, in this case the child, such as school enrolments being shut down due to the COVID-19 pandemic.

1. This is to be considered in balance, and it is to be considered fairly. Further, on 29 of this submission the issues before the Tribunal are whether the primary visa applicant, and the daughter of the Australian citizen, commenced study within six months or a reasonable time of completing the equivalent of year 12, and whether Tiffany has been studying a full-time course since she commenced study, despite a temporary break due to giving birth to her daughter.

1. For students in the Philippines who graduated in or before 2016, the equivalent of year 12 in the Australian school system is achieved through one of the following methods: a certificate of graduation from high school plus two years of higher education studies or equivalent supplementary studies, or a high school diploma plus two years of higher education studies or equivalent supplementary studies.

1. I will not continue with all of it, but I will just jump through to 32, which reads:

At the time Tiffany turned 18 she was about to commence her third year of her post-high school bachelor’s degree, the equivalent of the first year of her tertiary education, and as such should be deemed that she commenced study within six months of completing the equivalent of year 12 in the Australian education system.

1. The Tribunal is satisfied that that is a reasonable explanation, and clearly, she was enrolled in a full-time course of study that led to an essential stage for her to progress in order to therefore further enrol in the tertiary education which she ended up commencing.

1. As far as the temporary break in study is concerned it was considered that the Tribunal has consistently held that a gap or break in study is permissible depending on circumstances of the case, which I have already mentioned. I now move on to 45 of your representative’s submission, as discussed Tiffany had intended to complete the fourth year of her course before she discovered she was pregnant in May 2017, and as we clarified during the hearing, she was 18 years old at that time.

1. The Tribunal accepts this caused her to temporarily rethink her plans and she deferred her study for the next two semesters while she was having her baby. Once Jassie was a child, (the secondary visa applicant), and was nine months old, the visa applicant elected to recommence study, however decided to change courses and institutions at this time. I would say that even if the pregnancy of the child was not involved, it is still perfectly reasonable to change courses of study, and she has been continuously studying ever since, and she continues to remain a full-time student currently completing her Bachelor of Science in Agribusiness.

1. The Tribunal considered the policy with regard to breaks in study, which provides for consideration of a break due to giving birth as the reason for delaying the commencement of study for longer than six months. In light of this the Tribunal finds that it is similarly a sufficient reason to have a temporary break once study has commenced, and as such a break does not sever Tiffany’s status as undertaking relevant study.

1. In short, the Tribunal accepts, as I outlined during the hearing, that pregnancy, childbirth and early childcare is clearly a satisfactory reason for a break in study. In particular, considering that the primary visa applicant was not in a relationship, and is essentially in a position where she is a single parent and caring for that child herself. Having determined that, it is only right that the Tribunal finds that subclauses 101.213(1) and 101.221(2)(b) are met, not only at the time of the application but therefore also at the time of this decision, and having determined that, the appropriate course of action therefore is to remit the application.

DECISION

1. The Tribunal remits the application for reconsideration with direction that the primary visa applicant meets the following criteria;

   ·     clauses 101.213(1) and 101.221(2)(b).

   Joseph Francis Member