Wenzel (Migration)

[2018] AATA 364

Wenzel (Migration) [2018] AATA 364 (31 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Shirley Bernal Wenzel

VISA APPLICANT:  Miss Kim Nicole Bernal

CASE NUMBER:  1700634

DIBP REFERENCE(S):  2016043910

MEMBER:Moira Brophy

DATE:31 January 2018

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.

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

Statement made on 31 January 2018 at 9:05am

CATCHWORDS

Migration – Child (Migrant) (Class AH) – Subclass 101 (Child) – Visa applicant is over 18 – Break in study – Reasonable period – Cared for younger siblings – Completed tertiary education

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

ISSUE

1. The issue in the present case is whether the visa applicant, Miss Kim Nicole Bernal, met the study requirements for the visa at the time of application and continues to meet those requirements at the time of decision.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 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).

3. The visa applicant applied to the Department of Immigration for the visa on 15 March 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).

4. 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 and cl.101.221.

5. The delegate refused to grant the visa on the basis that cl.101.213(1)© was not met because the delegate found that since the applicant turned 18 or within six months of her turning 18 she had not been undertaking a full time course of study leading to a professional trade or vocational occupation and the reason given was not compelling.

6. The review applicant appeared before the Tribunal on 11 January 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino, Filipino (Tagalog) and English languages.

7. The review applicant was represented in relation to the review by her registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Subclass 101 (Child) visa is a visa for people outside Australia seeking a permanent visa on the basis of being the dependent child (natural, adopted or, in certain circumstances, step-child) of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen.

   Additional criteria for applicants over 18

10. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

11. Miss Bernal turned 18 on 20 February 2013. The application was made on 15 March 2016. She is therefore required to meet the additional criteria.

    Full-time study (or incapacitated for work)

12. 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).

13. 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].

14. There was no evidence before the Tribunal that Miss Bernal was incapacitated for work because of loss of bodily or mental function.

15. The review applicant Mrs Wenzel told the Tribunal her daughter had graduated from High School on 30 March 2011. She was aged 16 at that time.

16. Miss Bernal turned 18 on 20 February 2013 and it was not contended that she had commenced tertiary study prior to that date.

17. According to documentation submitted prior to the hearing Miss Bernal commenced studying at the Far Eastern University in a Bachelor of Science in Hotel and Restaurant Management program in first semester of 2014/2015.

18. The Tribunal was mindful that at the time of the original decision the applicant had stated in a letter dated 3 April 2016 that she had stopped her schooling because she had to help her mother take care of her younger brother and sister stating “I took my responsibilities because my mother was working and very busy in managing our business and have no time to take care of my brother and sister.” (Folio 176 DIAC file).

19. On 8 January 2018 a submission was received from the agent representing the applicant. In that submission it was submitted that the completion of secondary school in the Philippines was the equivalent of year 10 in Australia.

20. The Tribunal noted an email sent from the partner of the review applicant to her migration agent drawing attention to the fact the review applicant had to make application to the Philippine courts to have the birth certificate of the applicant amended and that she had not been issued her high school papers until that amendment was effected. The name on her birth certificate was not that name under which she had been enrolled at school. She was not able to enrol in further study until the high school papers were issued in the name on her birth certificate.

21. From that email the Tribunal has obtained the following timetable:

    ·30 March 2011 the applicant graduated from high school

    ·20 November 2011 started proceedings for change of birth certificate;

    ·January 2012 court case filed;

    ·4 February 2013 Court granted petition for correction of birth certificate;

    ·25 June 2013 certification from Manila City Hall received;

    ·6 November 2013 National Statistics Office issue corrected birth certificate;

    ·January 2014 commence process of seeking enrolment in further studies;

    ·April 2014 the applicant sat for University entrance examinations;

    ·12 May 2014 enrolled at Far Eastern University in a Bachelor Of Science in Hotel and Restaurant Management;

    ·June 2014 commenced studies.

22. This sequence of events was corroborated by the review applicant in her evidence at the time of hearing. The review applicant told the Tribunal that while she and her husband had married in 2006 and had two children she had not been able to join him in Australia until the issue of the birth certificate for her two older children was resolved. That process had been a long and painful process for her and particularly so in the context of the prevailing social and religious culture in the Philippines. The Tribunal found the review applicant to be a credible witness who gave her evidence in a clear and consistent manner. The Tribunal was confident it could rely on her evidence in the makings of findings of fact.

23. When put to the review applicant that the applicant had in fact provided her with assistance with the younger children and that was the reason for the break in her study the review applicant agreed the applicant had provided her with assistance but stated that while that assistance had been a great help to her it was a situation bought about by factors other than her need for help with the younger children. Her evidence of her support of her daughter both emotionally and financially during the consequent period of separation was corroborative of her evidence that her intention and that of her daughter had always been for her daughter to continue her studies to better prepare her for her future.

24. In all the circumstances of this case the Tribunal has formed the view that the period in which the visa applicant was not undertaking study leading to a formal qualification was a reasonable period.

25. The Tribunal is satisfied that the visa applicant is the dependent child of the holder of a permanent visa and has, since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian education system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

26. Accordingly, cl.101.213(1)(c) is met at the time of application, and continues to be met at the time of decision.

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

    DECISION

28. e 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.

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

    Moira Brophy
    Member