1506433 (Migration)

[2016] AATA 3200

1506433 (Migration) [2016] AATA 3200 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Svetlana Kirillova

VISA APPLICANT:  Mr Dmitry Kirillov

CASE NUMBER:  1506433

DIBP REFERENCE(S):  2014/042646

MEMBER:Rieteke Chenoweth

DATE:10 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 10 February 2016 at 1:08pm

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 7 May 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 18 August 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 requires that where the visa applicant has turned 18 he or she is not in full-time work and 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.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied that the visa applicant was undertaking full time study.

5. The review applicant appeared before the Tribunal on 9 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Dmitry Kirillov, the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian 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

8. The issue in this case is whether the visa applicant is engaged in full-time study.

   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).

   Full-time study (or incapacitated for work)

10. 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).

11. 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].

12. The review applicant told the Tribunal her son, the visa applicant had finished secondary school in 2010.  He had then gone on to the Moscow Power Engineering Institute to study technology for nuclear and hydroelectric power. He studied this for 2 years.  He then spent a year in the army doing compulsory military service before enrolling in the Moscow State Building Construction Institute where he is studying construction.

13. The review applicant said she considered her son was studying on a full time basis.  The Tribunal put to her that in the decision record the delegate considered that according to the certificate and student book provided to the Department,  the applicant is enrolled in the ‘internal/external’ form of studies. This form of studies was for people who want to obtain higher education but could not undertake full time study. The Australian Embassy in Moscow had confirmed that the course of study undertaken by the visa applicant was for 12 hours of study per week while full time students have 25 hours per week.

14. The review applicant said that her son was enrolled in the course because it was 30% cheaper than the alternative day time course. Her son studied during the day and went to classes in the evening.

15. The visa applicant told the Tribunal he went to the university in the evening and sometimes there were classes on the weekend as well. He spends his days at home studying and preparing for his courses. He said he was studying about 20 hours per week.  He sometimes works in a part time job. He said his course was cheaper than the day time course because those students used more hours in direct tuition.

16. At the end of the hearing the migration representative submitted that the course undertaken by the visa applicant was a full time one because he spent his days studying as well as attending classes in the evening and therefore it should be considered full time.

17. The Tribunal accepts that the visa applicant is studying in the Moscow State University of Civil Engineering.  The course of study he is undertaking is 30% cheaper than that undertaken by other, full time, students.  The Tribunal considers that although the visa applicant spends his time during the day studying and may therefore be occupied with his studies all day and in the evening, this does not mean it is a full time course of study. The Tribunal notes the Australian Embassy in Moscow has confirmed with the University that students undertaking the ‘internal/external’ form of studies do 12 hours per week at the University compared with full time students who have 25 hours of study commitments per week.  The Tribunal is not satisfied that the visa applicant is undertaking a full time course of study.

18. There is no evidence before the Tribunal that the visa applicant is incapacitated for work due to loss of bodily functions or mental functions.     

19. Accordingly, cl.101.213(1)(c) is not met at the time of application, and does not continue to be met at the time of decision.

20. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Rieteke Chenoweth
    Member