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

1. 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.

2. 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. 

3. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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).

6. 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.

7. 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. 

8. 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]

9. 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

10. 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

11. 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.

12. It was submitted at hearing that cl.101.213(1)(c) allowed “reasonable time” to elapse between periods of post-secondary education, and was not limited to the period of time between finishing secondary education and starting a full time course. 

13. In considering this submission, I also looked to the policy guide of the Department, the Procedures Advice Manual on this point.  The policy of the Department is not binding on me, can be considered where it is consistent with the legislation.  This states at The AH-101 Main Applicant at paragraph 15:

    Under policy, the term 'reasonable time', as it applies to a break in study, is solely intended to cover the period between secondary school and post-secondary studies. It is not intended that 'reasonable time' take account of breaks once post-secondary studies have commenced or for breaks between post-secondary studies and postgraduate studies.

14. The submission of Mrs Shea’s representative is that Mr Lam did commence his studies immediately after completing the equivalent of year 12 in the Australian schooling system and is silent on breaks after commencing tertiary studies.  He submits it is common among Australian tertiary students to take breaks from studies.  I agree that a plain reading of the provision shows that it the reference to a ‘reasonable time’   relates to periods between a person’s secondary education, and not their tertiary education.  I do not consider it allows for breaks in tertiary study.

15. Mrs Shea said that Mr Lam finished the equivalent of year 12 in the Australian schooling system in August or September of 2007.  He immediately started a course in construction at Ton Duc Thang School.  He did not finish this course, and stopped studying in June 2008 because the course did not suit him.  He was then waiting for a course that would suit him better and was at home supporting his grandmother.  In August 2009 he enrolled in Kent International College doing Web Design. This lead to a break in his study of over a year.  He did Web Design for six months and completed it in April 2010.

16. After this course he wanted to do a Diploma in Digital Technology, however the family had financial problems, and he had to wait for Mrs Shea to gain employment to support him.  At that time, Mrs Shea returned to Australia and finished her study in aged care.  She was able to gain employment in this area in 2012 and soon after that contacted Mr Lam to say she could support him to do the course he wanted to do.  The course he wanted to do did not start until April 2013, however there were not enough interest to start the course at this time, and he eventually started in June 2013.  This lead to a break in his study for a further three years. 

17. Mrs Shea’s statutory declaration states Mr Lam has been financially dependent on her and her husband.  She said the Web Design course was intended as preparatory to the Diploma.  She says by early 2013 they were in a position to fund his Diploma, and that during the breaks in his studies Mr Lam has helped other family members in a voluntary capacity and in particular giving physical support to his elderly grandmother.  

18. Mr Lam turned 18 on 22 October 2007, after he finished the equivalent of year 12 in the Australian school system.  He then started at Ton Duc Thang School, but ceased his studies in June 2008.   In August 2009, he commenced a further course. 

19. I find that when Mr Lam turned 18 he was undertaking a full time course, but that this ceased when he left the course in June 2008.  He did not then undertake further full time study until August 2009.  He had a further period of time between April 2010 and June 2013 when he did not study.  While I appreciate this was due to financial constraints, I do not consider he meets the requirement to have been undertaking full time study since turning 18, or within  6 months or a reasonable time after completing his secondary education. 

20. Accordingly, cl.101.213(1)(c) is not met at the time of application, and Mr Lam does not meet the criteria for the grant of the visa.

21. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Kate Millar
    Member