1410604 (Migration)

[2015] AATA 3121

1410604 (Migration) [2015] AATA 3121 (24 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tursilah Knight

VISA APPLICANT:  Mr Ahmad Barkah Muis

CASE NUMBER:  1410604

DIBP REFERENCE(S):  OSF2014/030700

MEMBER:Hugh Sanderson

DATE:24 July 2015

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 of Schedule 2 to the Regulations; and

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

Statement made on 24 July 2015 at 12:59pm

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 9 June 2014 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 21 March 2014. 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).

4. The delegate refused to grant the visa on the basis that cl.101.221(2)(b) was not met because the delegate was not satisfied that at the time of the decision the visa applicant remained a full-time student.

   Background

5. The visa applicant was born on 19 June, 1992 in Indonesia and is currently 23 years old. At the date of the application he was 21 years old. The review applicant is the visa applicant’s mother and sponsor of the visa applicant. She was granted a subclass 100 Partner (Residence) visa on 7 November, 2011 and has the right to reside permanently in Australia.

6. At the time of the application the visa applicant was studying for a Diploma of Accountancy at the Budi Luhr University in Jakarta. The visa applicant graduated from this course on 10 April, 2014.

7. An officer from the department interviewed the visa applicant and it was noted the requirement that at the date of the decision the visa applicant must be continuing to be a full-time student. The visa applicant advised the department that he was enrolled in an English language course and also a business tax course. The business tax course lasted for nine weeks for one day per week.

8. When the delegate considered the application, the delegate was not satisfied that based on the current course of study of the visa applicant he was a full-time student at the time of the decision and therefore did not meet the criteria in cl.101.221(2)(b). The decision was issued on 9 June, 2014.

9. The review applicant provided further material, including the following, in support of the application:

   ·Enrolment in the GS Fame Institute of Business, Jakarta, dated 13 June, 2014; for a Bachelor of Science – Business Administration and

   ·Letter from the GS Fame Institute of Business confirming his enrolment up to 26 June, 2015 for the same course.

   The hearing

10. The review applicant appeared before the tribunal on 24 July, 2015 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant and the review applicant’s husband.

11. The evidence given by all the witnesses was consistent. The visa applicant after completing his accounting course enrolled in a Bachelor of Science in Business Administration at the GS Fame Institute of Business. One of the reasons he choose that the course provider was that it is associated with the University of Canberra and there was an opportunity to transfer any credits from that course to an Australian educational institution. The visa applicant commenced this course in September 2014, after the summer break, and has now completed two semesters of the eight semester that need to be completed to graduate finally from this course.

12. The visa applicant provided a copy of his individual record and attendance list for the course.

13. The visa applicant confirmed upon his return to Indonesia in September 2015 he will be continuing this course. If he is granted the visa, he intends to transfer his studies to Newcastle University. He confirmed that he is still dependent upon his mother and stepfather for his support.

14. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether the visa applicant meets the additional criteria for an applicant who is turned 18 years of age. In particular, whether the applicant satisfies the study requirements at the time of the decision.

    Additional criteria for applicants over 18

16. 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).

    Relationship status

17. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.101.213(1)(a).

18. The tribunal accepts the information from the visa applicant that he is single and has never been engaged to be married or ever had a spouse or de facto partner. Accordingly, cl.101.213(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Not engaged in full-time work

19. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b).

20. The applicant has remained in full-time study and any employment he has had since turning 18 has been on a part-time basis. At the time of the hearing, the visa applicant was present in Australia on a visitor visa and was not working. Accordingly, cl.101.213(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

21. 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).

22. 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].

23. At the time of the application, the applicant was studying for a Diploma of Accountancy at the Budi Luhr University in Jakarta. He graduated from this course on 10 April, 2014. He then commenced a Bachelor of Science – Business Administration with the GS Fame Institute of Business. This course started, after the summer break, in September 2014. Over his break in his studies, the applicant participated in some part time courses which he felt would be of benefit to him. The applicant has currently completed the first year of this course which he anticipates will last for three years and will be continuing that study.

24. The tribunal is satisfied that the break between the visa applicant completing the Diploma of Accountancy and the commencement of the Bachelor of Science – Business Administration of five months over the summer break is reasonable in all the circumstances. Further, the tribunal is satisfied that the two full-time courses the visa applicant has been studying are a related course of study for a single purpose.

25. The tribunal finds that the visa applicant has, since turning 18, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The tribunal finds that he is still undertaking this course of study.

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

    Conclusion on additional criteria for applicants over 18

27. For the reasons above, 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.

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

    DECISION

29. 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 of Schedule 2 to the Regulations; and

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

    Hugh Sanderson
    Member