Bui (Migration)

[2020] AATA 2886

Bui (Migration) [2020] AATA 2886 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Kim Huyen Bui

VISA APPLICANT:  Mr Huyen Anh Nguyen

CASE NUMBER:  1720867

HOME AFFAIRS REFERENCE(S):          OSF2016/039610

MEMBER:Helen Kroger

DATE:27 May 2020

PLACE OF DECISION:  Melbourne

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.101.213(1)(c) of Schedule 2 to the Regulations; and

Statement made on 27 May 2020 at 2:04pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – visa applicant deferred Bachelor studies – financial and emotional difficulties – evidence provided – reasonable full-time study period – credible evidence –decision under review remitted

LEGISLATION

Migration Act 1958, ss 65

Migration Regulations 1994, Schedule 2, cl 101.213

CASES
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 Immigration and Border Protection on 25 July 2017 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 12 July 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 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(1)(c).

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

5. The review applicant appeared before the Tribunal on 25 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and Mr Van Bui. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. The Tribunal was provided a copy of the decision record for the purpose of its consideration.

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

   ISSUE

9. The issue in this case is whether the visa applicant (the ‘applicant’) has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system: cl.101.213(1)(c).

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 of those activities and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].

11. The Tribunal found the review applicant’s oral evidence at hearing to be candid, spontaneous and consistent, and therefore, both credible and reliable.

12. The Tribunal is satisfied from all the evidence before it that the applicant and her mother (the review applicant) always intended for the applicant to undertake full-time study as quickly as possible after the applicant completed the “…equivalent of Year 12….”.   The Tribunal is satisfied that the applicant enrolled in a Bachelor in Travel and Tourism Management at Lotus University immediately following the conclusion of an Australian Year 12 equivalent in 2013. The Tribunal has had regard to the various submissions in relation to her enrolment at the Viet-Australia International English School when she deferred her Bachelor studies in 2015. The Tribunal found the applicant’s explanation of this period of time to be candid and honest, submitting that she studied part time during this period, due to the financial and emotional difficulties she encountered as a result of her mother’s personal circumstances. Both the review applicant and applicant were persuasive in their account of their emotional closeness and the direct and indirect effect of the review applicant’s marriage difficulties, the domestic violence she suffered, the consequential effect on her ability to financially support the applicant’s tuition fees and the applicant’s attempts to remain enrolled, though not necessarily with the prospect of a formal qualification, so that she could return to the Bachelor course upon the resolution of the domestic circumstances (consistent with the requirements of cl.101.213(1)(c)). The Tribunal has given regard to the medical documentation from the Quoc Nam Clinic of Medical Psychology and Psychiatry attesting to the applicant’s mental health at the relevant time along with the claims in relation to her stressed and anxious state of mind, directly impacting on her ability to study. The Tribunal accepts this medical evidence at face value, and places some determinative weight on it given the nature of the consistent and persuasive oral evidence provided during the hearing.

13. In regards to the period taken by the applicant to undertake full-time study (leading to the award of a professional, trade or vocational qualification), the Tribunal is satisfied that in the circumstances of this particular case, the period was reasonable because the steps the review applicant and applicant himself took were all consistently geared toward helping the applicant ensure his English was at such a level that allowed him to successfully gain entry into such a course that would fulfil the requirement contained in cl.101.213(1)(c).

14. Accordingly, based on all the evidence, the Tribunal finds that the applicant has (given he had already turned 18 at the time of application) within a reasonable time after completing the equivalent of year 12 in the Australia 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.

15. For the reasons above, the Tribunal is satisfied that cl.101.213(1)(c) is met at the time of application.

16. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    Helen Kroger
    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.

    …