1406126 (Migration)

[2015] AATA 3070

1406126 (Migration) [2015] AATA 3070 (8 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Marisa McNulty

VISA APPLICANT:  Mr Phiriya Jitrattanapong

CASE NUMBER:  1406126

DIBP REFERENCE(S):  OSF2013/006310

MEMBER:Alan Duri

DATE:8 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 08 July 2015 at 3:55pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Jitrattanapong was born in Thailand on 13 October 1990.  His mother Marissa McNulty now lives in Australia and she was granted a Subclass 100 permanent partner visa on 24 May 2010.

2. On 8 May 2013 Mr Jitrattanapong applied for a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 on the basis that he was a dependent child of his mother Mrs McNulty.

3. On 12 March 2014 the delegate refused to grant the visa on the basis that cl.101.213 because Mr Jitrattanapong does not meet the educational requirements for applicants aged over 18.

   Hearing

4. The review applicant Mrs McNulty appeared by videoconference from Brisbane before the tribunal on 7 July 2015 to give evidence and present arguments. The tribunal also received oral evidence from Mr Jitrattanapong.  The tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

   Mrs McNulty’s evidence

5. Mrs McNulty told the tribunal that her son was born on 13 October 1990.  He finished the equivalent of year 11 in Thailand when he was about 16 or 17.  His subsequently joined the Thai Army.  She indicated that after he left the army he worked on a part-time basis at a hotel in Phuket.

6. Mrs McNulty confirmed that her son did not study after leaving the army.  She stated that she led him to believe that he would be granted a visa to come to Australia.  She did not want him to study in Thailand because he would only have to give up the course to resume studies in Australia.  Mrs McNulty did not realise how long the process would be.

7. Mr Jitrattanapong is currently in Australia and he told the tribunal that he arrived in November 2014 on a student visa.  Mr Jitrattanapong confirmed his mother’s evidence that after leaving the army in April 2013 he did not undertake any course of education.  He indicated that he was working at the time.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Mr Jitrattanapong was born on 13 October 1990 and turned 18 on 13 October 2008.  The visa application was lodged on 8 May 2013.  As Mr Jitrattanapong was over 18 at the time of the visa application he must satisfy educational requirements set out in cl.101.213:

   (1)    If the applicant has turned 18:

   (a)    the applicant:

   (i)    is not engaged to be married; and

   (ii)    does not have a spouse or de facto partner; and

   (iii)    has never had a spouse or de facto partner; and

   (b)    the applicant is not engaged in full-time work; and
   (c)    subject to subclause (2), the 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.

   (2)    Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

9. There is no evidence or no suggestion that cl.101.213(2) is applicable in this case.

10. The tribunal has before it the following information concerning Mr Jitrattanapong’s studies:

    ·Mr Jitrattanapong left school when he was 15 (about 2005) and worked for a few years before joining the Thai Army.

    ·At the time of the visa application Mr Jitrattanapong was not studying in any capacity. 

11. There is no evidence or suggestion that Mr Jitrattanapong was undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification at the time of the visa application in May 2013.  Accordingly, cl.101.213(1)(c) is not met at the time of application. 

12. It follows that an essential criterion for the grant of a Subclass 101 visa is not met.  There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Alan Duri
    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.

    …