1600791 (Migration)

[2016] AATA 4614

1600791 (Migration) [2016] AATA 4614 (28 October 2016)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mrs Punyisa Vagias

VISA APPLICANT:  Mr Wirun Ployphommas

CASE NUMBER:  1600791

DIBP REFERENCE(S):  OSF2015/0834848

MEMBER:Michelle Grau

DATE:28 October 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 28 October 2016 at 2:41pm

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 8 January 2016 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 24 September 2015. 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.101.212.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(b) was not met because the applicant was engaged in full time employment.

5. The review applicant appeared before the Tribunal on 21 October 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant is a 24 year old male from the Philippines. He is sponsored by his mother, an Australian citizen, for a child visa. The review applicant is the sponsor and the mother of the visa applicant.

8. As the visa applicant was over 18 at time of application, he needs to meet additional criteria relating to relationships, work and study. cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

9. The issue in this case is whether the visa applicant was engaged in full time study and not engaged in full time work at time of application.

10. According to his application, the visa applicant completed high school in 2011 and studied at St Theresa’s international university until his withdrawal in 2013.  A withdrawal form on file noted his last session was second semester 2012. The application form also noted that he was in full time employment, working 40 hours a week, since 1 July 2013, earning 3000 Baht. An employer certificate from KP Devise dated 10 September 2015 was provided which noted he was employed full time as warehouse officer from 1 July 2013 earning 12,000 Baht.

11. At review medical certificates were provided which indicated the applicant had a right knee arthroscopy in 2014. He was also in a motorbike accident in May 2013 and broke his arm and required stitches in his chin. A photograph of his injuries in hospital was provided.  The review applicant claimed the applicant only worked for his uncle and it was not a full time proper job.

12. At hearing the review applicant confirmed that her son (the visa applicant) had ceased studying in second semester 2012 and had not studied since. He worked for his uncle since 2013. However, the review applicant paid the son’s salary to the employer (her brother) to keep her son off the streets. The review applicant said her son (the visa applicant) worked whenever the brother called him in. She said her son was not working with her brother anymore, but her son was selling things at the weekend markets.

13. The review said her son had a knee injury from football and had time off work when he had an operation in 2014.  It was a torn ligament but is recuperated. He had a motorbike accident, in which he broke his arm in 2016 but he has recuperated. He has not studied   Her son would have a better life in Australia and they could look after him.

14. The review applicant’s husband told the tribunal the visa applicant did not want to study and was influenced by his friends and is over 21. If he were in Australia they could ‘better control’ him to study or work and he would have a better life.

    FINDINGS AND REASONS

15. It is not in dispute the visa applicant was over 18 years when he applied for the visa. As a result he has to meet the additional criteria in cl. 101.213. (see attached relevant law).  In summary those requirements are that the visa applicant is in full time study and not engaged in full time work or married or have a partner.

    Applicant’s incapacity

16. If the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions, then the study requirement does not apply. (cl. 101.213(2))

17. At review, medical certificates were provided in relation to the visa applicant’s right knee arthroscopy in 2014. Photos of his injuries from a motorbike accident in 2016 (broken arm and cut chin) were provided. However, this documentation does not evidence the visa applicant is unable to work due to any physical or mental incapacity or loss of bodily or mental functions. The tribunal does not accept the visa applicant is incapacitated for work as the motorbike injuries are transient. The tribunal does not accept that having a bad knee or arthroscopy means he is incapacitated for work and there is no medical evidence that suggests that his condition was serious or meant he was incapacitated or unable to work.

18. In addition, the visa applicant has worked full time in the past and continues to work at the markets on weekends. Further, the review applicant’s evidence was her son had recuperated and was well. The tribunal finds the applicant is not incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    Full-time study

19. 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). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

20. While 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, the tribunal has found the visa applicant is not incapacitated.

21. According to review applicant’s evidence and the visa applicant’s application and the visa applicant was not in full time study at time of application. It was evident from his education documentation on file that he ceased study in second semester 2012. The review applicant confirmed her son was not in full time study at time of application or decision.

22. Accordingly, cl.101.213(1)(c) is not met at the time of application, and continues not to be met at the time of decision. The applicant also therefore does not meet cl.101.221(2)(b).

    Not engaged in full time work

23. The applicant must also not be engaged in full time work at time of application or decision. The evidence provided with the application clearly stated and showed the applicant was in full time employment since 2013 up until time of application. It stated he worked 40 hours a week and earned 12,000 Baht. The review applicant considered it was not really full time work as the applicant worked for the review applicant’s brother and she paid his salary. While she said the applicant went to work when called by her brother, she did not know the hours he worked. However, the tribunal considers the documentary evidence provided by the employer which states the applicant’s salary and work hours makes it clear the applicant was employed full time and paid 12,000 Baht.

24. On the evidence before, it the tribunal finds the applicant was engaged in full time work at time of application. Accordingly, cl.101.213(1)(b) is not met at the time of application.

25. For the reasons above, cl.101.213 is not met at the time of application and cl. 101.221(2)(b) is not met. 

26. 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. In any event, the applicant is not an orphan relative and has not been adopted and therefore he would not meet the criteria for those subclasses.

    DECISION

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

    Michelle Grau
    Member

    
    

    ATTACHMENT – Relevant law

    Migration Regulations 1994

    1.03     Definitions

    work means an activity that, in Australia, normally attracts remuneration …

    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.

    …

    101.213
    (1)  If the applicant has turned 18:

    (a)  the applicant:

    (i)  is not engaged to be married; and

    (ii)  does not have a spouse or de facto partner; and

    (iii)  has never had a spouse or de facto partner; and

    (​b)  the applicant is not engaged in full-time work; and

    (c)  subject to subclause (2), 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.

    (2)  Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child

    14      Must not be working full-time

    Clause 101.213(1)(b) requires the applicant not to be working full-time.

    In Australia, full time work is defined on the basis of the number of hours worked each week. Persons working 35 hours or more are regarded as full-time workers; persons working for less than 35 hours are defined as part-time workers.

    The policy intention, however, is to exclude from AH-101 adult children who are in a position to support themselves financially. Under policy, therefore "full-time work" means full-time work involving remuneration. In other words, work that would otherwise be full-time (that is, at least 35 hours a week) but is not remunerated does not disqualify adult children from being a dependent child.

    However, keep in mind also 101.213(1)(c) - see section 15 Must be a full-time student.