1503819 (Migration) - [2016] AATA 3311

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1503819 (Migration)

Details

AGLC: 1503819 (Migration) [2016] AATA 3311
Case: [2016] AATA 3311
Decision Date: 18 February 2016

CaseChat Overview and Summary

In the case of 1503819 (Migration), the applicant, Miss Wei, sought a Child (Migrant) (Class AH) visa, which was denied by the tribunal. The primary issue before the tribunal was whether Miss Wei met the requirements of cl.101.213, specifically the need to have been undertaking full-time study at an educational institution since turning 18, or within a reasonable time after completing the equivalent of year 12 in the Australian school system. Miss Wei completed a vocational course equivalent to high school in July 2010, but did not commence her accounting course until February 2013, creating a gap of approximately 32 months. The tribunal considered whether this gap was reasonable, a decision influenced by factors such as the activities undertaken during this period, including whether Miss Wei was employed.

The tribunal weighed the evidence presented by Miss Wei and her mother, Mr Bennett, against the detailed file note from the department’s interview with Miss Wei in November 2013. The file note indicated that Miss Wei had been employed as a sales assistant from July 2010 until April 2012, a claim Miss Wei denied. The tribunal questioned the credibility of Miss Wei's evidence, particularly in light of the specific details about her employment provided in the file note, which was made shortly after the purported employment. The tribunal concluded that if Miss Wei was employed for a significant portion of the gap period, it would not be considered a reasonable time for the purposes of cl.101.213, potentially disqualifying her from meeting the visa requirements. Additionally, if the tribunal did not accept Miss Wei's evidence about her employment status, it could lead to the conclusion that she was not a credible witness regarding her circumstances during this period, further impacting her eligibility.

In conclusion, the tribunal affirmed the decision not to grant Miss Wei a Child (Migrant) (Class AH) visa, finding that she did not meet the prescribed criteria, particularly the requirement to have been undertaking full-time study within a reasonable time after completing the equivalent of year 12. The tribunal's decision hinged on the credibility of Miss Wei's evidence and the substantial gap between her completion of high school and the start of her accounting course.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.101.213Any of the above scenarios would the reason or a part of the reason for the tribunal affirming the decision under review.

Decision

Reasons for decision

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 DuriMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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. …

Ratio Decidendi

Legal Principle Established

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