1416746 (Migration)

[2015] AATA 3951

1416746 (Migration) [2015] AATA 3951 (21 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs PAWEENA SRIMORA

VISA APPLICANTS:  Miss KANOKWAN PHICHAI
Miss PATWADEE PHICHAI

CASE NUMBER:  1416746

DIBP REFERENCE(S):  2013006428

MEMBER:Margie Bourke

DATE:21 December 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 101 (Child) visa:

·cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 21 December 2015 at 2:51pm

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 6 August 2014 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied to the Department of Immigration for the visas on 15 July 2013. 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(1)(c) and cl.101.221(2)(b) which require that the visa applicants are undertaking a full time course of study at an educational institution leading to the award a professional, trade or vocational qualification at the time of application and at the time of decision.

4. The delegate refused to grant the visas on the basis that cl.101.213 and cl.101.221 were not met because the delegate was not satisfied the visa applicants had been continuously engaged in full time study since they had turned 18.

5. The review applicant appeared before the Tribunal on 7 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the two visa applicants by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The main issues in this case is the two visa applicants had, since turning 18, or within six 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.

   Criteria for dependent children applicants over 18

9. There are 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

10. 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). The review applicant stated that both of her daughters were neither engaged nor married nor had a de facto partner. The review applicant stated she was in contact with her daughters three times a week and if they have a problem she spoke to them every day. The review applicant stated that on the basis of her regular contact with her daughters she knew that they were not engaged or married or had a de facto partner. The visa applicants told the Tribunal that they lived with their maternal grandparents, aunt, uncle and cousin and each other. The visa applicants told the Tribunal that they had never been engaged or married or had a de facto partner. Based on the consistent and credible oral evidence before it, the Tribunal is satisfied that the two visa applicants were not engaged, married or had a partner at the time of application or at the time of decision, and have never had a spouse or de facto partner. Based on the consistent and credible oral evidence of the review applicant and the two visa applicants the Tribunal is satisfied that the two visa applicants have never been engaged, married or ever had a spouse or de facto partner.

11. 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

12. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). The review applicant and the two visa applicant stated that the two visa applicants had never worked or earned money from employment. The oral evidence at the hearing was that the visa applicants’ father had not financially supported them for many years and the visa applicants had not had contact their father for a long time. The Tribunal has considered the evidence of the financial transfer receipts from the review applicant to the older visa applicant from 2012 to 2015. Based on the consistent and credible oral evidence and the written evidence the Tribunal is satisfied that neither of the visa applicants have been engaged in full time work at the time of application or at the time of decision.

13. 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)

14. 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).

15. 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].

    Kanokwan Phichai

16. The Tribunal has made the following findings in relation to the academic career of the first named visa applicant. In making these findings the Tribunal has considered the oral evidence of the first named visa applicant and the oral evidence of her mother the review applicant, together with the academic records provided in support of the application. Based on her birth certificate the Tribunal is satisfied the first named visa applicant was born on 17 July 1989. Based on the oral evidence before it the Tribunal is satisfied that the first named visa applicant was aged 17 when the review applicant left Thailand in 2007. Based on her untranslated school record, (which was translated by the interpreter at the hearing) the first named visa applicant completed her secondary schooling on 25 March 2008. The Tribunal is satisfied that the Thai secondary schooling is similar to the Australian secondary school system and the first named visa applicant completed the equivalent of the Australian year 12 at secondary school.

17. The Tribunal is satisfied based on the translated receipt and transcript of course including date of admission issued from the King Mongkut’s Institute of Technology Ladkrabang that the first named visa applicant commenced an engineering course majoring in electronics in 2008. The tribunal is satisfied based on the transcript of the course that the first namedvisa applicant commenced study at the institute on 2 June 2008, which was within six months of her completing secondary schooling. The Tribunal is satisfied that the first named visa applicant commenced undertaking the full-time course of study within six months or a reasonable time after completing the equivalent of her year 12 secondary schooling. The Tribunal accepts the evidence of the first named visa applicant that the first year of study involved pre-requisite subjects prior to being admitted to the bachelor degree. The Tribunal has considered the transcript of course and accepts the first named visa applicant undertook subjects in 2008 that included “foundation” or “general” or “principals of” particular subjects, which indicates the first named visa applicant studies pre requisite subjects before commencing the bachelor degree the following year.  Based on the certificate of that same institute the Tribunal is satisfied that the first named visa applicant was then admitted to a Bachelor of Engineering commencing June 2009. The Tribunal is satisfied that the first named visa applicant was undertaking the full-time course of study at this institute leading to an award of a professional trade qualification. Based on that same certificate the Tribunal is satisfied that the first named visa applicant studied the Bachelor of Engineering until October 2012, the first semester of her fourth year.

18. The Tribunal is satisfied based on the evidence from the first named visa applicant and the review applicant that the first named visa applicant then applied for and was accepted at the Ramkhamhaeng University in Bangkok commencing on 10 June 2013 a Bachelor of Arts course which should lead to the award of a professional qualification.  The Tribunal is satisfied, based on the written and oral evidence before it, that the first named visa applicant is studying this course full-time at the time of decision.

19. The issue to be determined by the Tribunal is whether these facts meet the criteria of cl.101.213(c) and cl.101.221(2)(b). The Tribunal has given consideration to the term ‘reasonable time’ in the provision and is satisfied that this term is only relevant to the period between completing the equivalent of year 12 and commencing further studies. The Tribunal considers that the term ‘reasonable time’ is not intended to cover breaks once the post secondary schooling/study has commenced. The Tribunal considers it appropriate to assess the circumstances of the individual situation. The Tribunal has considered the case of Sok v MIMIA [2005] FMCA 195, in which the Court considered a submission in relation to three part-time courses being undertaken simultaneously and the Court found they did not meet the criteria of a single full-time course of study. The Tribunal does not consider that these comments apply to the situation where the visa applicant has changed a single full-time course of study to another single full-time course of study. The Tribunal finds that in this situation where the first named visa applicant has changed her course of study from the Bachelor of Engineering to Bachelor of Arts at a different educational institution, it does not mean that the first named visa applicant is not continuing to undertake a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

20. The Tribunal has considered that the first named visa applicant ceased study of the Bachelor of Engineering in October 2012, and did not start the Bachelor of Arts until June 2013, a period of eight months. The Tribunal accepts that the first named visa applicant had failed four subjects in her Bachelor of Engineering course and one subject twice, and had decided she would not be able to graduate in the course. The Tribunal accepts that the first named visa applicant was not financially able to transfer to a private university. The Tribunal accepts the evidence that to apply to a public university in Thailand is a process which involves an application, sitting a test in March and commencing at the beginning of the university year in June. The Tribunal accepts that in the standard Thai university year the first semester commences in June and the second semester commences in October. It is also possible to study a summer semester in April. The Tribunal accepts that after the first named visa applicant withdrew from the Bachelor of Engineering course in the second semester in 2012 she was unable to commence a further course until she was accepted at the beginning of the next university year in June 2013. Based on the evidence before it the Tribunal is satisfied that the first named visa applicant had been engaging or entering upon a full-time course of study during the period of October 2012 to June 2013. During this period the first named visa applicant had commenced a process to apply for the course, sit the relevant exam and become enrolled. Having regard to all the evidence and circumstances of the case of the Tribunal is satisfied that at the time of application and continuing on at the time of decision the first named visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification since she commenced her post-secondary school studies.

    Patwadee Phichai

21. The Tribunal has made the following findings in relation to the second named visa applicant, based on the oral evidence of the second named visa applicant and the review applicant and the academic records provided in support of the application. Based on her birth certificate the Tribunal is satisfied that the second named visa applicant was born on 21 April 1993. Based on the evidence before it the Tribunal is satisfied that the second named visa applicant was 13 years of age when her mother, the review applicant left Thailand to come to Australia in March 2007. The Tribunal is satisfied based on the translated upper secondary school transcript that the secondary visa applicant graduated from secondary school on 16 March 2011. The Tribunal is satisfied that the second named visa applicant completed the equivalent of the year 12 in the Australian school system in the Thai secondary school system.

22. Based on the transcripts of records provided by the Thai-Niche Institute of Technology the Tribunal is satisfied that the second named visa applicant commenced a Business Administration degree on 1 April 2011. The Tribunal is satisfied that the second named visa applicant commenced a full-time course of study at an educational institution leading to a professional qualification within six months or reasonable time after completing the equivalent of year 12 in the Australian school system.

23. The second named visa applicant told the Tribunal that she chose the Thai-Niche Institute of Technology because she was introduced to the school by a friend. She stated that she passed the first semester of the business administration course and so continued. The second named visa applicant stated that at the Institute it was compulsory to study in Japanese and she could not keep up her studies in this language. The second named visa applicant stated she stopped her studies in May 2012.

24. The second named visa applicant stated that she had applied for admission to the University with her sister, sat the relevant test in March 2013 and commenced her Humanities Bachelor degree in June 2013. She stated financially she could not afford to attend a private university. The second named visa applicant told the Tribunal she did not realise she would not be able to continue her business administration course until it was too late to apply to be enrolled in a public university and sit the test in March 2012.  The Tribunal has considered the second named visa applicant was not actively studying from May 2012 until June 2013. However the Tribunal is satisfied that the second named visa applicant has changed full-time courses because she was unable to complete the business administration course as it was compulsory to study in Japanese. The Tribunal is satisfied that due to financial constraints the second named visa applicant was limited to studying within the public university system, and had to apply within its processes and sit the requisite tests and, if accepted commence at the beginning of the university year. After considering the particular circumstances of this case the Tribunal is satisfied that the second named visa applicant has been engaged in a full-time course of study or entering upon a full-time course of study since completing the equivalent of year 12 in the Australian school system.

25. Based on the written evidence that the second named visa applicant was studying a Humanities Bachelor degree at Ramkhamhaeng University at the time of application, and had continued to study the bachelor degree, and her oral evidence at the hearing  that she was still undertaking this course of study, the Tribunal is satisfied the second named visa applicant is undertaking a full time course of study at an educational institution at the time of decision.

26. For the above reasons the Tribunal is satisfied that both the visa applicants have since turning 18 or within six months or 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.

27. 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

28. For the reasons above, cl.101.213 is met at the time of application. 

29. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

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

    DECISION

31. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the visa applicants meet the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations.

    Margie Bourke
    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.

    …