1508393 (Migration) - [2016] AATA 3046

1508393 (Migration) [2016] AATA 3046 (9 January 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Anh Thi Shea
VISA APPLICANT:  Mr Trieu Duong Lam
CASE NUMBER:  1508393
DIBP REFERENCE(S):  OSF2014/026980
MEMBER:Kate Millar
DATE:9 January 2016
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 09 January 2016 at 11:09am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Trieu Duong Lam is a citizen of Vietnam. His mother, Mrs Thi Anh Shea came to Australia as the spouse of Mr Roger Shea and is now an Australian citizen. Mrs Shea wants Mr Lam to come to Australia, and on 10 July 2014 Mr Lam applied for a Child (Migrant) (Class AH) visa. At the time he applied for the visa, Mr Lam was twenty five years old.
A delegate of the Minister refused his visa application because the delegate was not satisfied Mr Lam met the additional criteria that apply to a person who has turned eighteen years of age at the time of the application. In particular, the delegate was not satisfied he met the requirement that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian schooling system, he had been undertaking a full time course of education at an educational institution leading to the award of a professional, trade or vocational qualification. This was because the delegate found Mr Lam had two breaks from study, the first was fourteen months between 2008 and 2009 and the second for three years two months between 2010 and 2013.
Mrs Shea appeared before the tribunal on 19 November 2015, and was represented by her registered migration agent. The tribunal also heard from her husband, Mr Roger Shea. The tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time of Mr Lam’s application, the Child (Migrant) (Class AH) visa contained three subclasses, and of these claims have only been made in respect of Subclass 101 (Child). The criteria for a subclass 101 visa are set out in Part 101 of Schedule 2 of the Migration Regulations 1994 (the Regulations).
The criteria include, at cl.101.213(1)(c), that the 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.
This does not apply to applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions. While Mr Lam had some difficulty with the health criteria as he had a problems with his lungs,…

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 1508393 (Migration)

Details

AGLC: 1508393 (Migration) [2016] AATA 3046
Case: [2016] AATA 3046
Decision Date: 9 January 2016

CaseChat Overview and Summary

The case involved Mr Lam, who applied for a Child (Migrant) (Class AH) visa under Subclass 101. The Tribunal considered the application and concluded that the decision to deny the visa should be affirmed. The Tribunal focused on the criteria set out in cl.101.213(1)(c) of the Migration Regulations 1994, which requires the applicant to have been undertaking a full-time course of study at an educational institution leading to a professional, trade or vocational qualification. The Tribunal examined Mr Lam's studies in construction, Web Design, and Digital Technology, and determined that his studies in construction did not prepare him for his vocational path.

The primary legal issue was whether Mr Lam's studies met the requirements of cl.101.213(1)(c) of the Migration Regulations 1994. The Tribunal considered the purpose of the studies and whether they were undertaken continuously from turning 18 or within a reasonable time after completing the equivalent of year 12 in the Australian school system. The Tribunal found that Mr Lam's studies did not meet the criteria as his studies in construction did not prepare him for his vocational path. Additionally, the Tribunal found that the period of time between completing his tertiary degree and commencing another course was not reasonable.

The Tribunal affirmed the decision not to grant Mr Lam a Child (Migrant) (Class AH) visa under Subclass 101. The Tribunal concluded that Mr Lam's studies did not meet the requirements of cl.101.213(1)(c) of the Migration Regulations 1994. The Tribunal also found that there were no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117). As such, the Tribunal affirmed the decision not to grant Mr Lam a visa under Class AH.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE At the time of Mr Lam’s application, the Child (Migrant) (Class AH) visa contained three subclasses, and of these claims have only been made in respect of Subclass 101 (Child). The criteria for a subclass 101 visa are set out in Part 101 of Schedule 2 of the Migration Regulations 1994 (the Regulations). The criteria include, at cl.101.213(1)(c), that the 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. This does not apply to applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions. While Mr Lam had some difficulty with the health criteria as he had a problems with his lungs, Ms Nguyen said he no longer has any health problems and there is no suggestion he is incapacitated for work. This provision contemplates a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might 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.[1] 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.[2][1] Sok v MIMIA [2005] FMCA 190 at [15][2] Sok v MIMIA [2005] FMCA 190 at [28] The facts of Sok turned on the nature and purpose of the activities in the time that elapsed between secondary and tertiary education. It does not address the period of time between completing a tertiary degree and commencing another course. In Sok, Federal Magistrate Reithmuller states that this provision contemplates a single course of study at a single institution.[3] [3] At paragraph 15 Federal Magistrate Reithmuller also states that consideration must be given to courses taken after school in order to prepare for the vocational course ultimately pursued.[4] Mr Lam’s initial career path was in construction. He then studied Web Design and then Digital Technology. I do not consider his studies in construction were to prepare for the vocational path he has ultimately pursued. [4] At paragraph 25 Clause 101.213(1)(c) was considered by Federal Magistrate Smith in Wake v Minister for Immigration & Anor.[5] Federal Magistrate Smith describes this requirement as requiring the person to meet one of the two wings of the definition, being either since turning 18 or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system.[6] Federal Magistrate Smith found the use of the word “since” in this context means “continuously from”.[7] [5] [2010] FMCA 272[6] at paragraph 10[7] ibid, paragraph 25.

Decision

Reasons for decision

There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).DECISION The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.Kate MillarMember

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.