1400612 (Migration)

[2015] AATA 3003

1400612 (Migration) [2015] AATA 3003 (2 July 2015)

DECISION RECORD

REVIEW APPLICANT:  Ms Yajuan Wang

VISA APPLICANT:  Mr Yan Zhang

MRT CASE NUMBER:  1400612

DIBP REFERENCE(S):  OSF2010/087641

TRIBUNAL MEMBER:  Rieteke Chenoweth

DATE:2 July 2015

PLACE OF DECISION:  Sydney  

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

Statement made on 02 July 2015 at 8:01am

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 on 4 December 2013 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 to the Department of Immigration for the visa on 26 June 2012. 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 which requires that the student has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the English language course of study undertaken at Harbin Yanghua Lianpian Foreign Language School was 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 1 December 2014 and 3 February 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Yan Zhang, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant is the dependent child of the review applicant and if so, whether he has, since turning 18 been undertaking a full-time course of study at an educational institution lading to the award of a professional, trade or vocational qualification.

   Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   Dependent child

10. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

11. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

12. The visa applicant was born on 19 February 1988. The application for this visa was lodged on 26 June 2012.  At the time of application the visa applicant was 24 years old.

13. Ms Wang, the review applicant told the Tribunal she had divorced her first husband who is the father of the visa applicant. There is a copy of the divorce court proceedings on the Department file showing the divorce was granted on 5 July 1993.  The visa applicant was 5 years old at the time and his father was granted custody. In about 2005 Ms Wang was  awarded custody of the visa applicant because the father had financial difficulties. There is a copy of the Civil Mediative Verdict from The People’s Court of Daoli District, Harbin City on the Department file showing that the custody was granted to Ms Wang. Since that time she has supported the visa applicant financially.

14. Ms Wang said that in 2005 or 2006 the visa applicant went to live with her sister because he was not getting on with his father. She sent money to her sister to pay for the costs of his upkeep and later also sent money directly to him as well as giving her sister money when she was in China. For the last 3 years the visa applicant has been living at the University. There are copies of financial remittances on the Department and Tribunal files. Ms Wang said she goes to China about once a year and when the visa applicant was living with her sister she would take money to her then to pay for the costs of his upkeep. She said she talks to her son on the phone and if he needs money she sends it to him.

15. The visa applicant told the Tribunal he has been supported financially by his mother who for some years has sent money directly to him. He said that when he was living with his aunt he knew that his mother was sending money to her to support him. He has never had a full time job and has relied on the money his mother sends.

16. The Tribunal is satisfied that the visa applicant has been financially supported by Ms Wang for many years and that he is reliant on her for financial support to meet his basic needs for food, clothing and shelter. This reliance is greater than any reliance on any other person.

17. Clause 101.213(1)(a) provides that an applicant who has turned 18, must not be engaged to be married, does not have or has ever had, a spouse or de facto partner and is not engaged in full time work. In this application Ms Wang and her son has given evidence that her son is not married, has never been married or in a de facto relationship and is not engaged in full time work. He has only done a part time internship.

18. The legislation further requires that since turning 18, or within 6 months or within a reasonable time of completing the equivalent of year 12, has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

19. Ms Wang and her son both gave evidence that he had left school in 2007 and studied at a variety of institutions since then. From July 2007 he studied at the Heilongjiang College of Education in a course of Computer studies.  Mrs Wang submitted a document from the College attesting to this. It states he was due to graduate in 2010.  Ms Wang gave evidence that from August 2010 until January 2011 he studied at the Heilongjiang Vocational Institute of Ecological Engineering.  He majored in Interior Design Technology.  There is a document submitted attesting to this.  Ms Wang said her son had not liked the course of study and had therefore ceased.  She said that while he was doing this full time interior design course he was also doing a full time English course studying at night and after he dropped out of the interior design course he continued to study English full time.

20. The Tribunal asked Mr Zhang why he had been studying English.  He said that this was because the codes for the computer programing were written in English. The Tribunal notes that there is no documentary evidence that Mr Zhang was studying English full time at the time he stopped doing the interior design course.  In addition, the Tribunal is not satisfied that the full time study of English is a course of study leading to the award of a professional, trade or vocational qualification. In this, the Tribunal notes Mr Zhang’s evidence that he needs the English course for computer programming.  However, it notes that there is evidence that in China in every college or university English is a compulsory course for every non-English major student (The Globalisation of the English Language. Reflections on the Teaching of English in China. Du Hui in the International Education Journal Vol 2 No 4 2001.)  In addition, the Tribunal considers that if the computer course required knowledge of English in order to become proficient in programming it would have been included as an integral part of the course. Accordingly, the Tribunal does not accept that the English course undertaken by Mr Zhang was itself leading to the award of a professional, trade or vocational qualification as required by the legislation.

21. The Tribunal further noted that Mr Zhang studied an interior design course for a period of 6 months from August 2010 to January 2011. He did not complete the course. Mrs Wang said that this was because it was a course she had encouraged him to do but he did not enjoy it and so he did not continue or complete the course. While the Tribunal accepts that the course was not one which Mr Zhang wanted to continue with, it was not undertaken in the period immediately after finishing the equivalent of year 12 in the Australia school system. Therefore the Tribunal considers he did not, within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, undertake a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal does not consider that completing 6 months only of the course means it constituted a full-time course of study at an educational institution leading to the award of a professional, trade of vocational qualification.

22. Accordingly, cl.101.213(c) is not met at the time of application, and does not continue to be met at the time of decision.

23. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible new Zealand citizen, but later became one: cl.101.211\()1)(c).

24. There is evidence on the Department file and the Tribunal is satisfied that the visa applicant is the son of the review applicant. Accordingly,  cl.101.211(1)(c) is met at the time of application and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

25. 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).

26. 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].

27. On the basis of the evidence submitted to it the Tribunal is not satisfied that the visa applicant has 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).

28. There is no evidence before the Tribunal that the visa applicant was incapacitated for work due to the loss of bodily or mental functions (cl.101.213(2)).  

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

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

31. 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

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

    Rieteke Chenoweth
    Member

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03   Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)    is dependent on that person; or

    (ii)   is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    1.05A Dependent

    (1)     Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)    the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)   the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …