1505465 (Migration)

[2016] AATA 3312

1505465 (Migration) [2016] AATA 3312 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms THI HONG YEN NGUYEN

VISA APPLICANT:  Mr TRI TRUNG DO

CASE NUMBER:  1505465

DIBP REFERENCE(S):  2014027613

MEMBER:Michael Cooke

DATE:24 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

·cl.101.221 of Schedule 2 to the Regulations

Statement made on 24 February 2016 at 3:34pm

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 17 April 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 2 June 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 of the Regulations.

4. The delegate refused to grant the visa on the basis that cll.101.213 and 101.221 were not met because the delegate was not satisfied that the visa applicant had, 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.

5. The sponsor‘s representative sent the Tribunal a comprehensive submission addressing the issues in the case. The Tribunal has decided that a decision can be made ‘on the papers’ without recourse to a hearing.

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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa 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.

   Additional criteria for applicants over 18

9. 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

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).

11. The Tribunal has no evidence that the visa applicant is engaged to be married or has or ever has had a spouse or de facto partner.

12. 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

13. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). The Tribunal finds no evidence that the visa applicant is engaged in full-time work.

14. 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)

15. 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).

16. 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].

    Findings and reasons relating to:

    ·Whether the applicant was/is incapacitated for work because of loss of bodily or mental functions; and if not

17. The Tribunal finds no evidence that the applicant was/is incapacitated for work because of loss of bodily or mental functions.

    ·Whether the applicant has been undertaking full-time study since turning 18 or within 6 months (or a reasonable time) after completing year 12; when the study commenced; and whether the applicant is still studying.

18. The Tribunal has examined the visa applicant’s study regime and makes the following observation. The visa applicant completed Vietnamese High School in December 2009. In March 2010 he began studying a foundation course at World Nail School. Having completed this he then studied Hair Cutting at World Nail School from October 2010- April 2012. He then followed this with studies in Skin Care Skills from May 2012-February 2014. He has been studying Advanced Hair Cutting at Nail World School from March 2014 until the present.

19. His representative has commented as follows on the adverse findings in the delegate’s decision:

    I particularly note the Migration Regulations do not define the words 'educational institution.' There is nothing in the legislation which excludes World Nail School from satisfying the requirements of being an educational institution, on the basis that the school provided the Visa Applicant with a structured course and his subsequent completion of the course led to the award of a trade qualification that enables him to practice in the trade of hairdressing. Similarly, as 'professional, trade or vocational qualification' is not defined I submit that the meaning is open to interpretation based on its common and ordinary meaning.

    Adopting the common definition of the words 'education institution' I would suggest the World Nail School satisfies the criteria because it administers a course of education or training that leads to the award of a qualification in the trade profession. World Nail School is a registered school in Vietnam and the certificate awarded to Mr Do amounts to a qualification in trade. A relevant consideration is that it enables him to practice in his chosen trade profession of hairdressing. The decision maker failed to look beyond this and duly consider the merits of Mr Do's application.

    The decision maker appears to be attempting to define educational institution in a restrictive manner according to departmental policy, and interpreted the clause to the effect that educational institution must have Australian education equivalency.

20. The Tribunal has read the sponsor’s representative’s submission. Case law prevents the Tribunal from ‘slavishly relying on policy’ in the PAMs - see El Ess v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1038:

    “PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations."

    It was further established at p. 45 of the judgment that:

    PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account."

21. The Tribunal has examined the visa applicant’s qualifications and study regime and finds that he has been consistently pursuing full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12 in the Australian system. His studies have been at an institution which has awarded him with diplomas and certificates after the successful completion of his chosen courses of study. His successful completion of these consistent courses has given him the versatility and skills to work in his chosen profession.

22. Accordingly, cl.101.213(1)(c) is met at the time of application, and continues to be met at the time of decision.

23. The Tribunal finds that the visa applicant meets cl.101.213 at time of application.

24. The Tribunal finds that at the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is also met.

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

    DECISION

26. 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 of Schedule 2 to the Regulations.

    Michael Cooke
    Member