1506109 (Migration)

[2016] AATA 3346

1506109 (Migration) [2016] AATA 3346 (25 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hangqun Li

VISA APPLICANT:  Mr Yushen Li

CASE NUMBER:  1506109

DIBP REFERENCE(S):  2014053875

MEMBER:Catherine Carney-Orsborn

DATE:25 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 25 February 2016 at 2:00pm

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 29 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 22 March 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.101.221(2)(b).

4.    The delegate refused to grant the visa on the basis that cl.101.221(2)(b) was not met because that the visa applicant at the time of decision did not continue to satisfy the criterion in clause101.213 being that the visa applicant’s study since November 2014 has led to the award of a professional, vocational or trade qualification.

5.    The review applicant appeared before the Tribunal on 5 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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 satisfied the dependent child criteria.  Dependent child criteria

9.    The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

Dependent child

At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

1. Identity documents on the Department file indicate that the visa applicant is being sponsored by the review applicant who is his mother.  Information on the Tribunal file           indicates that the applicant’s mother acquired Australian citizenship on 7 August      2015. 

2. The review applicant supplied bank statements and transfers which indicate that   since 2012 she has been financially supporting the visa applicant.  The visa applicant      lives with his grandparents on holidays and at other times attends student         accommodation.  The review applicant provided receipts of payments she has paid          for the visa applicant’s basic needs.

3. The review applicant provided information which shows that the visa applicant’s    father is deceased.  The visa applicant gave oral evidence which confirmed the   evidence of his mother and the documents provided that his father was deceased.            He gave evidence that he had received a small inheritance from his father.  This          inheritance was spent on his schooling.  The Tribunal is satisfied on the evidence            provided that the visa applicant is substantially reliant on the review applicant (his          mother) for his basic needs and that he has been for a substantial period of time.           The Tribunal is further satisfied that as his father is deceased and his grandparents   are pensioners he is not reliant on any other person for these basic needs.

4. Accordingly, cl.101.211(1)(a) is met at the time of application, and continues to be            met at the time of decision.

Applicant under 25 or incapacitated for work

1. At the time of application, the visa applicant must not have turned 25. 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 total or partial loss of bodily or            mental functions: cl.101.211(1)(b),(2).

2. The Tribunal has before it identity documents provided by the visa applicant.  Those         documents indicate that the applicant was born on 24 May 1994.  At the time of      application in April 2014 he was nineteen years of age. He is under twenty five years         there is nothing to indicate the applicant is incapacitated for work due to loss of bodily            or mental functions.

3. Accordingly, cl.101.211(1)(b) is met at the time of application, and continues to be            met at the time of decision.

Child-parent relationship

1. At the time of application, the visa applicant must be a child (other than adopted    child) or specific kind of step-child of an Australian citizen, permanent visa holder, or      eligible New Zealand citizen; or be adopted overseas by a person who at the time of            the adoption, was not an Australian citizen, permanent visa holder, or eligible New      Zealand citizen, but later became one: cl.101.211(1)(c).

2. Accordingly, cl.101.211(1)(c) is met at the time of application, and continues to be            met at the time of decision.

3. For the reasons above, the criteria in cl.101.211 are met.

Additional criteria for applicants over 18

1. 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

1. 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).

2. There is no information before the Tribunal to indicate that the visa applicant has   ever been engaged to be married or ever had a spouse or de facto partner.

3. 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

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

2. There is no evidence or information before the Tribunal which would indicate that the       visa applicant has been engaged in full-time work.  At the time of application the visa        applicant was nineteen and had just finished school.  He has also suffered a foot      injury which required rehabilitation.  The review applicant’s evidence is that he           continues to require assistance for his injury and may need further specialised      treatment.  The Tribunal is satisfied he has not been engaged in full-time work.

3. 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)

1. 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).

2. 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].

3. Evidence was provided to the Tribunal which shows that the visa applicant injured his      foot while at school.  He took time off study however he returned to study and is      currently enrolled.  There was nothing to indicate that he was incapacitated for work        because of loss of bodily or mental functions.

4. The applicant’s claim that the visa applicant has been in full-time study since turning        18.   The applicant provided evidence that he had a break between finishing the      equivalent of year 12 in June 2011 and starting tertiary education in March 2013 due       to his foot injury.  Given the medical evidence provided the Tribunal accepts that he     may have had to delay his studies due to his foot injury.

5. He then claims that started his tertiary studies in March 2013 and could not do an apprenticeship due to ongoing issues with his foot injury.  He provided a document     which indicates he was then enrolled in a full time English course.  He provided           information to the Department that he was studying English in a full time course from November 2014 to March 2015.

6. The Department made a decision that he was not studying in a course that leads to         the award of a professional vocational or trade qualification.

7. On 18 December 2015 the review applicant supplied to the Tribunal a document   which is a graduation certificate from Shaanxi Province Technology (Technician)       College.  The translation stated that the visa applicant studied for 3 years majoring in Computing Appliance from September 2012 to June 2015 and that he was granted         graduation. 

8. The review applicant provided an enrolment notice showing that he is presently     enrolled in Zhihua College in Xi’an Fanyi University studying Computerized Accounting.

9. This evidence contradicts evidence provided by the review applicant to the            Department that he was enrolled in that same time period for full-time study from           November 2014 to March 2015 and that he had previously been studying at Poverty        Alleviation Technical School of Weinan City from March 2013 until he left in October      2014 due to the foot injury.  The Tribunal requested the post to clarify the authenticity       and translation of the documents that had been provided. 

10. The Tribunal received information from the post which confirmed as genuine the   evidence provided by the review applicant.  The Tribunal found the witnesses to be         credible at the hearing. 

11. Given the evidence supports the claims of the visa applicant the Tribunal is satisfied        on that evidence that the applicant has been undertaking full-time study since turning      18, or within 6 months (or a reasonable time) after completing year 12 and is still            studying.

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

13. For the reasons above, cl.101.213 is met at the time of application. 

14. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b)       is met.

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

DECISION

1. 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.

Catherine Carney-Orsborn
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.

…