Barker (Migration)

[2020] AATA 4997

Barker (Migration) [2020] AATA 4997 (7 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chavanun Barker

VISA APPLICANT:  Miss Pornpavee Barker

CASE NUMBER:  1821701

HOME AFFAIRS REFERENCE(S):          2017006796 OSF2017/006796

MEMBER:Peter Smith

DATE:7 September 2020

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.101.211 of Schedule 2 to the Regulations;

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 7 September 2020 at 3:05pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time course of study – wholly or substantially reliant on the sponsor for financial support – dependent child of the sponsor – visa applicant over 18 years – two degree courses since secondary school – course requirement to exhibit Fine Arts work – brief internship for a company in South Korea – decision under review remitted    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.213, 101.221; rr 1.03, 1.05

CASES

Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

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 Home Affairs on 25 July 2018 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 for the visa on 14 June 2017. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative).  In the present case, the visa applicant only makes claims 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.101.211, cl.101.213 and cl.101.221.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) because the delegate was not satisfied that the visa applicant had, 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.

5. An application to review the delegate’s decision to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa was made to the Tribunal on 26 July 2018.  Attached to the application for review is a copy of the delegate’s notification letter and Decision Record dated 25 July 2018.

6. Based on information received from the review applicant’s representative that was favourable to the review applicant’s case, the Tribunal determined that the review should be decided on the papers.

7. The review applicant was represented in relation to the review by his authorized representative and authorized recipient, a registered migration agent.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In the present case, the question for the Tribunal to determine is whether at the time of application, the visa applicant is a ‘dependent child’ of an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.101.211(a), and whether the visa applicant meets the additional criteria in respect of a child who has turned 18 at the time of application.

10. 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).

11. In conducting this review, the Tribunal has had regard to the material held on the file of the Department of Home Affairs (the Department) and the material held on the file of the Tribunal.

    Age requirement

12. 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).  Applicants who turned 18 at the time of application, must continue to satisfy the dependent child time of application criterion and not have turned 25, or if they do not satisfy that criterion, it is only because they have since turned 25: cl.101.221(2)(a)(ii).

13. The visa applicant was born on 8 March 1994.  A certified and translated copy of the visa applicant’s Certificate of Birth was provided to the Department by the visa applicant.  The Certificate relevantly provides that the visa applicant was born on 8 March 1994.  Based on this information, the Tribunal is satisfied that the visa applicant had at the time of application turned 18. 

14. Accordingly, cl.101.211(1)(b) is met at the time of application, and does not continue to be met at the time of decision only because the visa applicant has turned 25.

    Child-parent relationship

15. 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).

16. There is no evidence at the time of application that the visa applicant is an adopted child or a specific kind of step-child of the review applicant.

17. The visa applicant claims to be the child of the review applicant who is an Australian citizen.  As mentioned above at para [13], the visa applicant provided a certified and translated copy of her Certificate of Birth to the Department.  The Tribunal has reviewed the Certificate.  The Certificate records the review applicant as the visa applicant’s father.  Based on this information, the Tribunal is satisfied that at the time of application, the visa applicant is the child of the review applicant.

18. Records obtained by the Department provide that the review applicant acquired Australian citizenship on 12 December 2006.  Based on this information, the Tribunal is satisfied that the review applicant is an Australian citizen for the purposes of cl.101.211.

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

    Criteria for applicants over 18

20. As the visa applicant had at the time of application turned 18, she needs to meet certain requirements 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).

    Relationship status and history

21. 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). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

22. The Tribunal has reviewed the information and evidence on the files of the Department and the Tribunal.  The Tribunal has not identified any information or evidence that would indicate that the visa applicant is at the time of application engaged to be married or has ever had a spouse or de facto partner.  In the absence of any evidence to the contrary, the Tribunal is satisfied that the visa applicant is not engaged to be married or has ever had a spouse or de facto partner.

23. Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

24. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

25. The Tribunal has reviewed the information and evidence on the files of the Department of the Tribunal.  The Tribunal has not identified any information or evidence that would indicate that the visa applicant is engaged in full-time work.  In the absence of any evidence to the contrary, the Tribunal is satisfied that the visa applicant is not engaged in full-time work.

26. Accordingly, cl.101.213(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

27. 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).

28. 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]-[16]. In determining what is a ‘reasonable time’ for cl.101.213(1)(c), 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 [19]. 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).

29. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

30. The visa applicant completed her secondary schooling on 30 March 2012 at Trian Udom Suksa, Bangkok, Thailand.  After she completed her secondary schooling, the visa applicant enrolled in a Bachelor of Fine and Applied Arts (Fine Arts Degree) at King Mongkut’s Institute of Technology Ladkrabang (KMITL).  The visa applicant commenced studying her Fine Arts Degree on 11 June 2012 and successfully completed it on 30 May 2016.  The Tribunal accepts on the evidence that the visa applicant completed her secondary schooling at Trian Udom Suksa, Bangkok, Thailand on 30 March 2012.  The Tribunal accepts on the evidence that the visa applicant enrolled in a Fine Arts Degree at KMITL.  The Tribunal accepts on the evidence that the visa applicant commenced studying her Fine Arts Degree on 11 June 2012.  The Tribunal accepts on the evidence that the visa applicant completed her Fine Arts Degree on 30 May 2016.

31. On 8 and 9 July 2016 attended and exhibited her thesis at a Degree Show in relation to her Fine Arts Degree.  Based on information from KMITL below, the Tribunal accepts that on 8 and 9 July 2016 the visa applicant attended and exhibited her thesis at a Degree Show. 

32. On 1 December 2016 the visa applicant commenced studying for a Bachelor of Economics Degree at Ramkhamhaeng University (RU) on 1 December 2016.  The Tribunal accepts on the evidence that the visa applicant commenced full-time study in Economics on 1 December 2016.  The visa applicant is expected to complete her Economics Degree in mid-2022.  Based on the information from RU, the Tribunal accepts that the visa applicant is expected to complete her Economics Degree in mid-2022.

33. Between 15 January 2017 and 31 March 2017, the visa applicant participated in a 10 week off-campus internship at Dilussion Inc in South Korea.  The Tribunal accepts on the evidence that the visa applicant participated in a 10 week off-campus internship in South Korea between 15 January 2017 and 31 March 2017.

34. The delegate expressed two concerns about whether the visa applicant was undertaking full-time study in respect of the visa applicant’s course of study.  The first relates to the visa applicant completing her Fine Arts Degree and completing her Degree Show and beginning her Economics Degree at RU.  The second relates to the visa applicant participating in a 10 week off-campus internship between January 2017 and March 2017 and her academic difficulties in respect of her Economics Degree after returning to Thailand after completing her internship.  The delegate found that these activities indicated that the visa applicant was not actively participating in a course of full-time study for the purposes of cl.101.213(1)(c).

35. The visa applicant provided the Department with copies of her official academic transcript from RU dated 8 February 2018.  The transcripts show that the visa applicant was enrolled in her Economics Degree in semesters one and two of 2016.  The transcript shows that the visa applicant was enrolled in nine subjects however she had only received grades for one of those subjects. In response to questions about her academic results, the visa applicant told the delegate that she was doing an internship for a company in South Korea during semester two and three of the 2016 academic year, and that she ‘does not like foreign language very much, and she was just getting back from Korea and concentrated on experimenting what she really liked to study’.

36. The delegate was not satisfied that the visa applicant’s internship was inclusive of, or directly related to the visa applicant’s Economics Degree.  Although the delegate was satisfied that the visa applicant remained enrolled in her Economics Degree between January 2017 and March 2017, the delegate was not satisfied on the evidence that the visa applicant was actively participating in a course of full-time study during semesters two and three of the 2016 academic year.

37. The Tribunal has received further information from the review applicant that addresses the delegate’s two concerns.  The Tribunal notes that this information was not made available to the delegate to consider at the time of application.

38. In relation to the first concern raised by the delegate, the review applicant has provided the Tribunal with material from KMITL relevant to the question of whether the activities undertaken between May 2016 and 11 July 2016 and November 2016 indicate that the visa applicant was not undertaking a course of full-time study in 2016.

39. The review applicant has provided the Tribunal with on official timetable from which provides information to new students about the dates and events relevant to undergraduate courses for semester one of 2016.  The dates and events relevant to the present case include the dates new students could make an application to RU for admission into an undergraduate degree for semester one of 2016.  The timetable required new students to apply to RU for admission into an undergraduate course for Semester one of 2016 either between 4 and 7 June 2016 and 25 June 2016 and 4 July 2016.  The timetable required new students to attend orientation on 6 July 2016 and attend lectures from 8 July 2016 until 18 October 2016. 

40. The review applicant has provided the Tribunal with material from KMITL relevant to the period between 30 May 2016 and 8 and 9 July 2016 and 16 November 2016.  This period is relevant to the question of whether the activities undertaken by the visa applicant in this period indicate that the visa applicant was not undertaking a course of full-time study.

41. The visa applicant attended the Degree Show on 8 and 9 July 2016.  At the show the visa applicant exhibited her thesis.  The visa applicant’s Academic Transcript for her Fine Arts Degree shows that the visa applicant received a grade for her participation in the Degree Show.  The review applicant has provided a letter from the Program Director of the Fine Arts Degree at KMITL.  The letter states that it is a course requirement for all students including the visa applicant to attend a Degree Show and to exhibit their Fine Arts work to complete the degree.  The Program Director says in her letter that the visa applicant was required to attend the show on 8 and 9 July 2016 to exhibit her thesis.  The Program Director also says in her letter that the Degree Show is held one to three months after the last day of final semester because students need time to work on their exhibits.

42. The review applicant has provided the Tribunal with information from KMITL that confirms that the visa applicant attended her graduation ceremony at KMITL on 16 November 2016.  Based on this information, the Tribunal accepts that the visa applicant attended her graduation ceremony at KMITL on 16 November 2016 and was awarded a Bachelor of Applied and Fine Arts.

43. The Tribunal has considered the material from KMITL about the activities undertaken by the visa applicant in the period from July 2016 until November 2016. The Tribunal is satisfied based on this information that the gap of four months between July 2016 and November 2016 is reasonable because the activities undertaken by the visa applicant were related directly to her Fine Arts Degree.  The Tribunal has also considered KMTL’s official timetable for semester one of 2016.  The Tribunal is satisfied that it would not have been possible for the visa applicant to commence full-time studies at RU in semester one at RU because she was required to prepare for the Degree Show and exhibit her thesis on 8 and 9 July 2016 in order to completer her degree. 

44. The Tribunal is satisfied that once the visa applicant completed all of her activities relating to her Fine Arts Degree, the visa applicant enrolled in the first semester that was available to her at RU which depended on the completion date of her work at KMITL and the RU timetable for that year.

45. The Tribunal notes that the visa applicant completed her secondary schooling on 30 March 2012 and after her graduation she commenced full-time study on 11 June 2012 at KMITL.  The Tribunal is satisfied that a gap of three months after completing secondary school and commencing full-time study is in the present case reasonable because the visa applicant immediately enrolled at KMITL at the first available date.

46. Given the dates for the commencement of courses are set by KMITL and RU and given the visa applicant was actively engaged in activities relating to her studies, the Tribunal is satisfied that the visa applicant has since leaving high school continued to undertake full-time time studies during this period, as she enrolled in the first program that was available to her in her chosen field of studies (shifted to economics beginning with her RU studies in December 2016) and that she would therefore by any reasonable standard meet the requirements of reg.101.213(1)(c) for this period.

47. The Tribunal has considered whether the visa applicant’s secondary schooling is the equivalent of year 12 in the Australian school system.  The Tribunal is satisfied that the secondary schooling the visa applicant completed is the equivalent of year 12 in the Australian school system because it entitled the visa applicant admission to an undergraduate course at university.

48. The Tribunal has considered whether RU is an educational institution that will lead to the award of a professional, trade or vocational qualification.  The Tribunal notes that RU is a higher education institution that offers undergraduate degrees.  Upon successful completion of her Economics Degree the visa applicant will be awarded a professional qualification in Economics.

1. The review applicant has provided the Tribunal with material from RU which relates to the second aspect of the delegate’s concern in respect of the visa applicant’s full-time study.  This material is relevant to the question of whether the visa applicant’s activities in participating in a 10 week off-campus internship between January and March 2017 and her academic difficulties after returning to Thailand after completing her internship indicate that the visa applicant was not undertaking a course of full-time study.  The Dean of the Faculty of Economics from RU has provided a letter about the visa applicant’s internship and whether it is related to the visa applicant’s current course of study.  Relevantly, the Dean says in his letter:

   ‘This letter is to provide further information about how the voluntary internship Pornpavee Barker participated in from 1st January 2017 to 31st March 2017 as a Project Management intern is directly related to her study at Ramkhamhaeng University as it is commonly done, non-punishable and most importantly beneficial for her study.

   At the Faculty of Economics, Ramkhamhaeng University, we have always endorsed voluntary internship programs which are programs students of our faculty are keen on doing as they improve students’ knowledge, sharpen their skillset and also give them a better understanding of what it is actually like to work in the field that they study. Most students take this opportunity as a confirmation of whether what they stydy (sic) is what they want to pursuit in their life and in some cases, whether they fit the market demand…

   What Pornpavee Barker, like many of our students, did for an internship at Dilussion Inc, South Korea is relevant to the course she attends at Ramkhamhaeng University and has proved to benefit her study here. She took the internship in the recommended time gap and during the time she was a student. I hereby confirm that the voluntary internship she completed is something we as teachers always encourage our students to do at Ramkhamhaeng University, as it expands the knowledge and experience of our students beyond the classroom and as proven very useful for students who choose to complete it. We as the faculty fully support voluntary internships as an important part of our students’ education’.

2. The review applicant’s lecturer confirms that the visa applicant has since December 2016 engaged in full-time study at RU.  The review applicant has also provided the Tribunal with copies of the visa applicant’s Academic Transcripts.  The transcript shows that the visa applicant has been actively participating in her Economics Degree since that time.  The transcript also shows that the visa applicant has repeated the eight subjects she failed in 2016.

3. The Tribunal has considered the information from the academic staff at RU. Based on this information, the Tribunal accepts that the applicant’s 10-week internship in South Korea should not be considered as a gap in studies or weighed against the applicant in any way because it was related to her studies and indeed recommended by RU.  The Tribunal notes that the visa applicant did not cease her studies at RU while participating in the internship. Rather, the visa applicant remained enrolled and did her best to keep studying through this period. While this presented a challenging timetable for the visa applicant, it does not indicate that the visa applicant ceased studying or take take time off to engage in other activities unrelated to her studies.

4. The Tribunal has considered the visa applicant’s updated Academic Transcript.  Based on what is recorded on that transcript, the Tribunal is satisfied that the visa applicant has been actively engaged in full-time study at RU since December 2016 and notwithstanding the visa applicant failed most of the subjects she undertook in 2016, she has actively taken steps to repeat those subjects in subsequent semesters while also undertaking other subjects relevant to her degree. 

5. Having considered all of the information individually and cumulatively, the Tribunal is satisfied that the visa applicant meets the requirements of cl.101.213(1)(c) at the time of application and continues to be met at the time of decision.

   Dependent child

6. 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.

7. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

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

9. The visa applicant claims that since 2016 after she commenced full-time study at RU that she has been wholly or substantially reliant on her father for financial support to meet her basic needs for food, clothing and shelter. 

10. The Tribunal accepts that the visa applicant is wholly or substantially reliant on her father for financial support to meet her basic needs for food, clothing and shelter because the visa applicant has provided verifiable evidence such as money transfers and bank statements that cover the period immediately before the time of application and the time of application and at the time of decision.  Based on this evidence, the Tribunal is satisfied that the visa applicant’s reliance on the review applicant is greater than any reliance by the visa applicant on any other person, or source of support, for financial support to meet her basic needs.

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

    CONCLUSION

12. For the reasons given above, the Tribunal is satisfied that the requirements of cl.101.211 are met.

13. For the reasons given above, the Tribunal is satisfied that the requirements of cl.101.213 are met at the time of application and continue to be met at the time of application and continue to be met at the time of decision.

14. For the reasons given above, the Tribunal is satisfied that the requirements of cl.101.221 are 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

16. 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.101.211 of Schedule 2 to the Regulations;

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    Peter Smith
    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 or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.

    …