1504228 (Migration)

[2015] AATA 3952

1504228 (Migration) [2015] AATA 3952 (30 December 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Bich Thuy Nguyen

VISA APPLICANT:  Miss Gia Han Tran

CASE NUMBER:  1504228

DIBP REFERENCE:  OSF2014/027670

MEMBER:Deborah Morgan

DATE:30 December 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

Statement made on 30 December 2015 at 6:36pm

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 (the delegate) on 27 February 2015 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 July 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). Relevantly to this case, they include cl.101.213 which relates to applicants such as the visa applicant who have turned 18 at time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate determined that the visa applicant had not, since turning 18 or within six months after completing the equivalent of Australia’s year 12, been undertaking a full-time course of study at an educational institution.

5. The review applicant appeared before the Tribunal on 13 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Claims

8. The visa applicant was born in Vietnam on 9 March 1995 – refer birth certificate, Department file, folios 82 & 83. She therefore was 19 years at time of application.

9. The visa applicant completed her secondary education at Lac Long Quan High School in July 2013. 

10. The visa applicant undertook an apprenticeship in hairdressing with Hung Hair Salon from 1 October 2013 to 1 April 2015 – Department file, folios 73 & 74.

11. The Tribunal received documentary evidence that the visa applicant enrolled with A Au Hair Design and Aesthetic Training Company (hereafter referred to as “A Au Hair Design”) from 10 March 2015.

12. Documentary provided at review indicates that the visa applicant enrolled in a four months Vocational Graduate certificate/ Vocational Diploma course with Tomiluc Vocational Training Company Limited (hereafter referred to as “Tomiluc”), Ho Chi Minh City that commenced on 24 October 2015.

13. The review applicant, who sponsored the visa applicant for the grant of the visa, is the visa applicant’s mother.

14. The review applicant became an Australian permanent resident on 16 May 2014.

    Issues before the Tribunal

15. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, as in this case, 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).

16. The primary issue in this case is whether the visa applicant meets the criteria in cl.101.213(1)(c) that applies at time of application. 

17. 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). 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).

18. 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].

19. 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. The Tribunal received oral evidence that the visa applicant has good health and has not ever been incapacitated for work because of loss of bodily or mental functions. Accordingly, subclause 101.213(2) does not apply in this case.

21. The visa applicant turned 18 on 9 March 2013. The evidence is that she was still a secondary student when she turned 18. 

22. The Tribunal is satisfied that the visa applicant graduated from secondary school on 31 July 2013 – refer Department file, folio 71: Certificate of High School Graduation.

23. After the hearing the Tribunal received the visa applicant’s high school graduation certificate that includes her examination scores in six subjects and states she is eligible for High School Graduation according to the regulations of the Ministry of Education and Training.

24. The Tribunal is satisfied that 31 July 2013 is the date the visa applicant completed the equivalent of Australia’s year 12.

25. The visa applicant gave oral evidence that she was not paid during her apprenticeship at Hung Hair Salon. However, after she completed her apprenticeship in late 2014, she stayed on working at Hung Hair Salon and received a “gift” of money from the owner equivalent to two months’ salary. The visa applicant told the Tribunal that she has not worked since that time.

26. The Tribunal is satisfied on the evidence that the visa applicant commenced with A Au Hair Design on 10 March 2015. She gave oral evidence that she ceased with them on 11 September 2015.

27. In her statutory declaration dated 26 October 2015 the review applicant declared that she only recently learned that neither Hung Hair Salon nor A Au Hair Design is a qualified hairdressing institution.

28. The review applicant also declared that Tomiluc will provide the visa applicant with a “recognised qualification in hairdressing.”  

29. The Tribunal is satisfied by the documentary evidence that Tomiluc is authorised to grant “Vocational Diplomas issued by the Vietnam General Department of Vocational Training”.

30. The visa applicant told the Tribunal that she is studying full-time at Tomiluc, that she is supported financially by the review applicant and that she does not work.

31. The Tribunal is satisfied on the documentary evidence provided at review that the visa applicant has been undertaking a vocational training course at Tomiluc since 24 October 2015. Accordingly, a period exceeding two years and two months passed after the visa applicant completed the equivalent of year 12 (on 31 July 2013) before she commenced a vocational qualification course. 

32. Because the 6 months requirement in subclause 101.213(1)(c) is exceeded, the Tribunal  turns to consider whether the visa applicant satisfies the “reasonable time” provision in cl.101.213(1)(c).

33. Relevantly, the review applicant’s statutory declaration stated that the visa applicant undertook an apprenticeship in hairdressing “to decide whether she would like to continue with her career path”.  

34. The Tribunal notes that the visa applicant’s apprenticeship with Hung Hair Salon was for 18 months from 1 October 2013 to 1 April 2015 (refer Department file, folio 73) and, according to her mother, during that period she was making up her mind about her career path.

35. The visa applicant told the Tribunal that until recently she did not appreciate that Australian migration law required her to attend a recognised educational institution to study hairdressing. With that knowledge she moved to Ho Chi Minh City to attend Tomiluc for the purpose of obtaining a diploma in hairdressing.

36. As stated above, subclause101.213(1)(c) requires an applicant to have been undertaking study at “an educational institution”.

37. The Tribunal finds that the visa applicant commenced full-time study in hairdressing at Tomiluc only on 24 October 2015.

38. The Tribunal finds that the visa applicant commenced study at Tomiluc because the review applicant understood that for the grant of a Subclass 101 visa, the visa applicant needed to undertake a hairdressing course in Vietnam with a recognised qualification.

39. The Tribunal considers that but for the requirements of this visa class for applicants over 18, the visa applicant would not have commenced study at Tomiluc on 24 October 2015.

40. The Tribunal acknowledges that the review applicant and the visa applicant wish to be reunited in Australia where the visa applicant could undertake further study.

41. As outlined above, the Tribunal has weighed the visa applicant’s circumstances since she attained 18.

42. For the reasons given above, the Tribunal is not satisfied that the visa applicant has been undertaking full-time study at an educational institution since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.

43. Accordingly, cl.101.213(1)(c) is not met at the time of application and the visa applicant is not eligible for the grant of the visa.

44. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met.

45. The Tribunal is satisfied that no claims have been advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

46. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Deborah Morgan
    Member