1503819 (Migration)

1503819 (Migration) [2016] AATA 3311 (18 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Youlan Zhang
VISA APPLICANT:  Miss Juan Wei
CASE NUMBER:  1503819
DIBP REFERENCE(S):  OSF2014/023440
MEMBER:Alan Duri
DATE:18 February 2016
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 18 February 2016 at 8:26am

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Miss Wei was born on 7 April 1991 in Fujian province China. Her mother Ms Zhang has continuously been in Australia since 2006 and she became a permanent resident on 21 October 2013.
On 10 March 2014 Miss Wei applied for a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
On 9 March 2015 the delegate refused to grant the visa on the basis that cl.101.211 and cl.101.213 were not met. The delegate did not accept that Miss Wei met the dependency test in r.1.05A. Furthermore the delegate did not accept that Miss Wei met the educational requirements in cl.101.213.
Hearing
The review applicant Ms Zhang appeared before the tribunal on 29 January 2016 to give evidence and present arguments. The tribunal also received oral evidence from Ms Gui Ying Wei, Mr Dennis Bennett and Miss Wei. The tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
Ms Zhang was represented by her registered migration agent Mr Hao Ran Shen.
During the hearing the tribunal received various material including concerning documents concerning Miss Wei’s current studies.
Ms Zhang’s evidence
Ms Zhang told the tribunal that her daughter Miss Wei has never been engaged or married or in a de facto relationship. Ms Zhang stated that her daughter is in good health and that she has never worked.
The tribunal noted a file note suggesting that Miss Wei told the department in an interview in November 2013 that she had worked from July 2010 until April 2012 on a full-time basis. Ms Zhang strongly denied this to be the case and said that her daughter had unsuccessfully tried to find a job and may have undertaken a trial job. The tribunal noted there was specific detail in the file note as to the employment arrangements. Ms Zhang suggested that this was perhaps what Miss Wei’s friend was doing.
The tribunal asked Ms Zhang about her daughter’s education history. Ms Zhang gave very vague evidence about her daughter’s education history. She stated that her daughter studied English at a vocational school from 2007 to 2010. This particular course finished in July 2010 and her daughter unsuccessfully looked for work. Ms Zhang said that her daughter stayed at home without doing anything until she started an accounting course in February 2013. The tribunal noted that material provided before the hearing indicated that the particular accounting course is due to finish in February 2016 (that is, shortly after the tribunal hearing). The tribunal asked Ms Zhang about her daughter’s intentions regarding study. Ms Zhang replied that her daughter wishes to study in Australia.
Ms Zhang told the tribunal that she came to Australia in 2006 and has never been back to China. She indicated that her daughter lived with her up until her arrival in Australia. Ms Zhang told the tribunal that after 2006 her daughter lived with her elder sister. Ms Zhang explained that she had accumulated approximately 50,000 to 60,000RMB, which she gave to her father. Ms Zhang’s father in turn paid about 500RMB per month to Ms Zhang’s elder sister for Miss Wei’s financial support. This money lasted about five years and around the same time (in 2011) Ms Zhang’s father passed away. Ms Zhang told the tribunal that her daughter was unaware of the financial arrangement. After 2011 Ms Zhang used to send money to China for her daughter’s support via friends. She also sent money through Western Union. Ms Zhang denied that her ex-husband or any other family members in China have provided any financial support to Miss Wei. She reiterated that she has been the sole source of financial support for her daughter since her coming to Australia. Ms Zhang does not work in Australia but is supported by her husband, who gives her an annual allowance of $5,000.
Ms Gui Ying Wei’s evidence
Ms Gui Ying Wei told the tribunal that she was born on 7 October 1967. She is unrelated to the visa applicant Miss Wei but she has known Ms Zhang from when they both lived in China. Ms Gui Ying Wei told the tribunal that she recalled that in 2011 and 2012 Ms Zhang gave her $2000 on each occasion to give to Ms Zhang’s elder sister.
Mr Bennett’s evidence
Mr Bennett indicated that he is married to Ms Zhang and he is Miss Wei’s stepfather. Mr Bennett told the tribunal that he was aware that his wife had given her friend “Sasha” [Ms Gui Ying Wei] and her son John money to take to China for Miss Wei’s support. Mr Bennett was also aware that his wife had remitted money directly to China for her daughter’s support.
Mr Bennett indicated that he had very limited knowledge concerning Miss Wei’s educational history, except to the extent that he was aware that she was currently studying a course.
Miss Wei’s evidence
Miss Wei told the tribunal that she attended primary school until she was about 13 or 15. She then attended Middle School for about three years and straight after she attended a vocational school up until 2010. Miss Wei indicated that the vocational school was the equivalent of high school. She completed a vocational school (studying business English) in 2010.
The tribunal asked Miss Wei what she did after 2010. She stated that she stayed at home. She tried to look for a job, but was unsuccessful. In the meantime, she stated that she was learning accounting through correspondence. Upon further questioning Miss Wei indicated that she had not enrolled in any particular correspondence course, but she simply looked up information on the computer.
Miss Wei gave evidence to the effect that she was in reasonable health and that she had never worked. Miss Wei told the tribunal that her sole source of financial support has been through her mother who sends money to her aunt.
The tribunal noted the file note dated November 2013 where it was reported that she had advised the department that she worked from July 2010 until April 2012. Miss Wei denied saying such a thing and she indicated that she would have told the department that she had tried to find a job. She conceded that she worked at a trial job for three days, but she was not hired. Miss Wei recalled that at interview she was asked if she was working and she thought that she told the department that she had applied for the particular job.
Comments/response to information
On 2 February 2016 the tribunal wrote to Ms Zhang under s.359A of the Act inviting her to comment on responds to information, in particular file note concerning her daughter’s reported admission to the department that she had been employed. The relevant part of the s.359A letter provides:
The department’s records indicate that your daughter Ms Wei had previously applied for Subclass 445 visa. As a part of the visa processing the department conducted an interview with your daughter on 12 November 2013. The relevant file note provides:
“On 12 November 2013, I conducted a phone interview with PA [your daughter Ms Wei]. Phone interview was conducted in Mandarin. Interview time is from 11:30 AM to 12:35 PM
“PA advised that after finishing her studies, majoring in Business English and 2010, she worked as a sales assistant in a clothes shop until April 2012…….
“According to PA, when she was employed as a sales assistant from July 2010 to April 2012, she only took two days off per month. Her wage consists of her basic salary RMB1400 per month and commission (1% of the selling price). Her employer also offered meal allowance RMB100 per month. The clothes shop is a chain store selling high-class clothes highly priced. She has been living at her maternal aunt’s house for seven or eight years.”
The 12 November 2013 file note is relevant because the tribunal may find that Ms Wei was employed from July 2010 until April 2012.
The tribunal notes your evidence and Ms Wei’s evidence denying that she has ever worked in any capacity.
However, the file note contains specific detail about the working conditions and rates of pay of the job. The file note was made the year following the purported employment. The tribunal may find that the file note is a reliable indicator of Ms Wei’s circumstances in 2010 to 2012. The tribunal may not accept your evidence taken at the hearing that Ms Wei has never worked.
The relevance of the above information is that the effect of cl.101.213(1)(c) is that an applicant is required to have been undertaking a full time course of study at an educational institution at the time the visa application was made, and also to have been undertaking full time study from one of the above alternative points in time i.e.:
• since turning 18; or
• within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.
Ms Wei gave evidence to the effect that the vocational course she undertook between 2007 and July 2010 was equivalent of high school education.
It is also common ground that Ms Wei commenced her accounting course in February 2013.
This means that there is a gap of approximately 32 months between Ms Wei completing the equivalent of high school (July 2010) and the commencement of her current studies in February 2013.
This in turn will lead the tribunal to the question of whether or not whether the gap in studies was within a reasonable time. In determining what is a ‘reasonable time’ for this requirement, case law such as Sok v MIMIA [2005] FMCA 190 indicates that 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 there was a gap.
Therefore, Ms Wei’s employment status is a relevant consideration in assessing whether or not the commencement of the accounting course in February 2013 was made within a reasonable time for the purposes of cl.101.213.
If the tribunal finds that Ms Wei was employed for a large period in the gap between July 2010 and February 2013, and the tribunal may find that then the gap in full time studies is not a reasonable time for the purposes of cl.101.213.
This could lead the tribunal to find that Ms Wei does not meet the requirements of cl.101.213.
The tribunal further notes that Ms Wei claims to have privately studied accounting through correspondence in this period. However, if the tribunal does not accept her evidence that she did not work in the period, the tribunal may find that Ms Wei is not a credible witness when it comes to evidence about her circumstances during this period.
This also could lead the tribunal to find that Ms Wei does not meet the requirements of cl.101.213.
At any rate, the tribunal was provided with evidence that during the period between the two courses Ms Wei stayed at home and looked for a job. The tribunal may find that even at face value that this evidence would lead the tribunal to find that the commencement of the accounting course in February 2013 was not made within a reasonable time of her commencing the equivalent of high school education in 2010.
This also could lead the tribunal to find that Ms Wei does not meet the requirements of cl.101.213
Any of the above scenarios would the reason or a part of the reason for the tribunal affirming the decision under review.
On 16 February 2016 the tribunal received a response by way of a submission from Ms Zhang’s migration agent Mr Shen. Where relevant this submission will be referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Miss Wei has lodged a child migrant visa application on the basis of being of being the daughter of an Australian permanent resident Ms Zhang. Miss Wei was over 18 at the time of the visa application. She is therefore required to satisfy various financial dependency and educational requirements
Educational requirements
Miss Wei was born on 7 April 1991 and turned 18 on 7 April 2009. The visa application was lodged on 10 March 2014, when she was 23 years old. As she was over 18 at the time of the visa application she 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.
Clause 101.213 also needs to be continued to be satisfied at the time of the decision (cl.101.221(2)(b)).
The tribunal accepts that Miss Wei is not engaged, or is married or in a de facto relationship. The tribunal also accepts that at the time of the visa application and time of decision she was not engaged in full time work.
Therefore the tribunal accepts that cl.101.213(1)(a) and (b) are satisfied.
There is no evidence that cl.101.213(2) is applicable in this case.
Based on the combination of the evidence obtained at the hearing and on the forms and documents lodged with the department, the tribunal makes the following findings concerning Miss Wei’s studies::
·From September 2007 until July 2010 Miss Wei was undertaking a Commercial English course at the Qiaoxing Light Industrial College of Fujian.
·From February 2013 to date Miss Wei has been undertaking an accounting course at the Qiaoxing Light Industrial College.
The effect of cl.101.213(1)(c) is that Miss Wei is required to have been undertaking a full time course of study at an educational institution at the time the visa application was made, and also to have been undertaking full time study from one of two alternative points in time i.e.:
·since turning 18; or
·within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.
As far as the tribunal understands, Mr Shen’s submission appears to suggest that the only requirement under cl.101.213(1)(c) is that the applicant be undertaking studies at both the time of application and time of decision. Mr Shen’s submission, with due respect, cherry picks the department’s policy and ignores the construction of cl.101.213(1)(c). In fact the regulation clearly requires an applicant to have been undertaking a full-time course of study at an educational institution from one of the two alternate points of time listed above.
Judging from his response to the s.359A letter, Mr Shen’s views about the legal issues surrounding cl.101.213(1)(c) are at variance with the tribunal’s understanding of how the law should apply..
Has Miss Wei, since turning 18, been undertaking a full-time course of study at an educational institution?
The meaning of ‘since’ in the context of cl.101.213(1)(c) was considered in Wake v MIAC [2010] FMCA 272. The Court held that ‘since’ in this context was used in the sense of ‘continuously from’ the event of turning 18 and rejected the submission that it meant ‘at any time after’ turning 18.
It is apparent in the facts of the case that Miss Wei has not been undertaking full time study since turning 18. Miss Wei turned 18 on 7 April 2009 and she did not undertake full time study at an educational institution from July 2010 to February 2013. This is notwithstanding her claim that she undertook private study at home. There is no evidence that her claimed private study was at “an educational institution leading to the award of a professional, trade or vocational qualification”.
Has Miss Wei 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?
The tribunal is prepared to accept Miss Wei’s evidence that her studies up to July 2010 at the vocational school were the equivalent of high school. The tribunal is prepared to accepts that Miss Wei completed the equivalent of year 12 in the Australian school system upon completion of her studies at the vocational college in July 2010.
It is common ground that Miss Wei commenced an accounting course from February 2013.
There is no evidence that Miss Wei was undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification in the period from July 2010 to February 2013.
·Did Miss Wei undertake studies within six months?
There is no suggestion or evidence that Miss Wei has within 6 months 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.
Miss Wei completed the equivalent of year 12 in 2010 and she next undertook studies at an educational institution over two years later in February 2013.
·Did Miss Wei undertake studies within a reasonable time?
The question before the tribunal boils down to whether Miss Wei has within 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.
Mr Shen’s submission does not provide any useful information on this point only to state “The Sok case regards a child visa application and in the case, the Magistrate has interpreted ‘reasonable time’ but has not given 101.213(1)(c) proper application”.
There is no definition in the regulations as to the meaning of “reasonable time”. However, case law indicates in determining what period of time would be reasonable one must necessarily consider the actual period of time involved, what activities if any were undertaken during that period of time; the purpose which those activities were undertaken; and if no activities connected with the ultimate course of study were undertaken and the reason for not undertaking activities related to the course of study (Sok v MIMIA [2005] FMCA 190).
As noted in Sok, the meaning of the term “reasonable” must be seen in the context of the legislative scheme. This appears to contemplate expecting reasonable ongoing support that parents may provide to enable young adult children to complete their education and to what extent it is reasonable for a parent to support a child until they obtain a relevant qualification and are able to support themselves.
The tribunal notes there was gap over two and a half years in studies. Regarding the length of the period, Sok clearly cautions against placing too much weight on the length of time. Certainly the length of time cannot be the only consideration and must be seen in conjunction with other factors.
A relevant factor in determining whether the “reasonable time” test is satisfied is consideration of what activities were undertaken during that period of time. As noted above, Miss Wei was reported to have told the department in connection to an earlier Subclass 445 visa application that she was employed on a full-time basis from July 2010 until April 2012. Both Miss Wei and her mother, Ms Zhang categorically denied that Miss Wei has ever worked. In response to the s.359A letter, Mr Shen submitted:
“We are instructed that in July 2010, the visa applicant attempted to seek employment. One company had given her an offer parallel to the working conditions stated in the department file. When the officer of the department called the visa applicant, she mentioned the company offer for employment with such conditions, however, did not actually engage in such work.
“The delegate of the Minister does not provide crucial information details such as the date of work commencement, the company location, the company name, whether the visa applicant has had any employment contract/s, and, if yes, whether it was an oral agreement or agreement in writing or who the company contacts were, etc.
“Such information shall be critical in order to satisfy prove that the visa applicant was employed when she filed the visa application.”

The tribunal does not accept the above explanation. The file note is self-explanatory. Miss Wei clearly indicated she worked from July 2010 until April 2012. She clearly outlined her working conditions to the extent she advised about her salary and other working conditions. The tribunal finds it implausible that Miss Wei was simply relating to the department the conditions of a job offer that never eventuated. The file note record an interview conducted on 12 November 2013. The tribunal finds it implausible that Miss Wei would have told department officer that she worked from July 2010 until April 2012, unless she did in fact work. The tribunal is satisfied that there is sufficient detail in the file note in that it nominates her occupation (sales assistant); her remuneration; and general working conditions. Significantly Miss Wei gave specific information as to the period of her employment, namely from July 2010 until April 2012. Given the amount of detail in the file note the tribunal is not prepared to accept Miss Wei’s evidence at the hearing and Ms Zhang’s evidence at the hearing, denying that she had ever worked.
The tribunal does not accept that the fact that the file note does not provide details such as the company location or contract details to be significant. The fact of the matter is that the department did not need to go into such information for the purposes of the Subclass 445 visa. At any Miss Wei herself advised the department she worked during the period in question.
Accordingly, as Miss Wei herself advised the department, the tribunal finds that Miss Wei was employed from July 2010 until April 2012. The tribunal was provided with evidence that during the period in question Miss Wei looked for work. Given that the tribunal has found that Miss Wei actually did work from July 2010 until April 2012 the tribunal is prepared to accept that following the cessation of her employment in April 2012 Miss Wei looked for work until the resumption of studies in February 2013.
The tribunal places no great significance on the fact that Miss Wei stated that she was learning accounting through correspondence. Miss Wei gave evidence that she had not enrolled in any particular correspondence course, but she simply looked up information on the computer.
After considering the above information, the tribunal does not accept that the gap between the cessation of her studies in July 2010 and the resumption of studies in February 2013 is a reasonable period. She spent the period in question (over two and a half years), either working or looking for work. The tribunal does not accept that Miss Wei has within 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.
Accordingly Miss Wei does not satisfy cl.101.213. Accordingly, cl.101.221(2)(b) is also not met.
Given the tribunal’s findings concerning the educational requirements, the tribunal did not need to consider the financial dependency requirements.
For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.
In respect of the other visa subclasses of the visa class sought, there is no material which would permit a finding that Miss Wei meets prescribed criteria for the visa sought.
DECISION
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.
…

[2016] AATA 3311

18 February 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction