1500035 (Migration)

[2016] AATA 3199

1500035 (Migration) [2016] AATA 3199 (4 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jason Tri Duc Nguyen

VISA APPLICANT:  Master Tianxiang He

CASE NUMBER:  1500035

DIBP REFERENCE(S):  OSF2013/091734

MEMBER:Wendy Banfield

DATE:4 February 2016

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 04 February 2016 at 6:04pm

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 16 December 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 7 March 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).

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 in China and is currently 25 years old. At the date of application, he was 23 years old. The review applicant is the visa applicant’s step-father and is the sponsor of the application. The applicant applied for the visa on the basis of being an adult dependent child of his mother.

6. At the time of application, the visa applicant was completing a music degree at Shenyang Conservatory of Music. The visa applicant graduated from this course in July 2013. As it was difficult to establish a career in music, the visa applicant enrolled in several cooking courses from August 2013 until September 2014.

7. When the delegate considered the application, they were not satisfied that based on the course of study, the visa applicant was a full-time student studying a single subject that would lead to the award of a formal qualification and therefore he did not meet the criteria in cl.101.221(2)(b). The decision was issued on 16 December, 2014.

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

   ·     Submission by the representative explaining course of study undertaken and industry recognition;

   ·     Information about the course components undertaken by the visa applicant;

   ·     Certificates of course components completed by the visa applicant;

   ·     Admissions guide for the Jiangxi New East Cuisine College;

   ·     Examples of equivalent TAFE courses in Australia.

9. The review applicant appeared before the Tribunal on 23 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tianxiang He, the visa applicant and Ms Huiming Wang, the visa applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the visa applicant meets the additional criteria for an applicant who has 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

13. 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

14. 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).

15. 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

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

17. 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 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)

18. 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).

19. 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]..

20. At the time of application, the applicant was completing a degree in music. Shortly thereafter he undertook a series of cooking courses on a full-time basis which he continues to study at the time of decision. The courses consisted of a Western Cooking Course, Chinese Cooking Course and Western Style Pastry Course. The applicant is continuing to gain qualifications in cooking at a TAFE equivalent college in Jiangxi, China by undertaking a two year certificate course on a full-time basis. The Tribunal is satisfied that the applicant has engaged in a single course of study, commercial cookery.

21. 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.

22. 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

23. 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.

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

    DECISION

25. 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.

    Wendy Banfield
    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.

    …