Chan (Migration)

[2021] AATA 1128

Chan (Migration) [2021] AATA 1128 (16 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Brendan Jun Wei Chan

CASE NUMBER:  1933423

HOME AFFAIRS REFERENCE(S):          CLF2018/363876

MEMBER:Stephen Conwell

DATE:16 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 16 April 2021 at 7:03pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – child over 18 – full-time study within reasonable time after completing equivalent of Australian year 12 – gap year, study difficulty and change of  course – COVID-19 pandemic and difficulty of online study – self-study and part-time work at time of decision – comparison of education systems and standards in home country and Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 802.214(1)(c), 802.221(2)(b)

CASE
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Reyes v MIAC [2007] FMCA 1721
Sok v MIMA [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 21 November 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 December 2018. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.214(1)(c). It provides that, at the time of application, the 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.802.214(1)(c).

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl. 802.214 because the delegate was not satisfied the applicant was engaged in studies full-time in accordance with cl.802.214(1)(c).

5. The delegate also considered clause 802.214(2), which states that the study clause will not apply to an applicant over the age of 18 years who is incapacitated for work due to the total or partial loss of their bodily or mental functions. As the applicant made no claims of his incapacity the delegate found that he did not meet clause 802.214(2).

6. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

7. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

8. The applicant participated in the hearing by telephone on 15 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and  sponsor, Ms Mei Heng Chin. 

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

   Background

10. The applicant is a 21 year old citizen of Malaysia. At the time he lodged his application he was 19 years of age. He is sponsored by his mother.

11. The decision record set out the applicant’s study history in some detail, which at hearing, the applicant confirmed to be accurate. The relevant aspects of his study history are summarised below:

    ·the applicant’s  Secondary Education Certificate from Temby International School Malaysia, records that he completed his secondary education in June 2016;

    ·the applicant took a ‘gap year’ between October 2016 – September 2017 to work part-time in the family business a few days a week. During this period he also travelled around Malaysia on short trips and had an extended holiday in Taiwan;

    ·in February 2018 he enrolled in a Diploma of Leadership and Management at the Australian Academy of Commerce (AAC), commencing the course on 9 April 2018;

    ·he completed two semesters at AAC but found the course to be too challenging for his ability. He made enquiries about changing courses;

    ·in October 2018 he withdrew from AAC and changed his enrolment to a Certificate IV unit of Leadership and Management at Times Academy, commencing this course on 8 October 2018. He was enrolled in this course at the time he lodged his application for the Child (Subclass 802) visa

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for applicants over 18

12. If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

    Relationship status and history

13. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

14. The applicant told the Tribunal that he had never been engaged, married or in a de facto partner in a relationship.  Based on the evidence the Tribunal is satisfied that at the time of the application, the applicant was not engaged to be married, did not have a spouse or de facto partner, and had never had a spouse or de facto partner. Accordingly, he met the requirements of cl.802.214(1)(a) at the time of application. The Tribunal is satisfied that the applicant continues to meet this requirement at the time of decision.

    Not engaged in full-time work

15. At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

16. The Tribunal accepts the evidence that the applicant was not engaged in full-time work at the time of application. At hearing the applicant told the Tribunal that he has been working part-time for 20 hours per week, since April 2020 and he continues to do so. Accordingly, the Tribunal accepts that he is not currently engaged in full-time work and cl.802.214(1)(b) is met at the time of this decision.

    Full-time study (or incapacitated for work)

17. At the time of application, the 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.802.214(1)(c).

18. 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.802.214(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.802.214(2).

19. Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(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.

20. The Tribunal has considered the applicant’s study history. At the hearing the applicant agreed that he completed his secondary studies at Temby International School, Malaysia in June 2016; he confirmed both in the written submission and at hearing that this study was considered the equivalent of Year 10 by Australian standards.

21. The applicant has argued, both in written submission and in oral testimony that Australian educational institutions accept a Certificate IV qualification as the equivalent of Year 12 completion for the purpose of entry into Diploma courses. The applicant claims that because he was enrolled in a Certificate IV unit of Leadership and Management at the time of his application, he therefore satisfies cl.802.214(1)(c). The following paragraph in his submission dated 31 March 2021 summarises the argument:

    At the point when the applicant left for Australia, he only completed year 11 of IGCSE (which is equivalent to Year 10 in the Australian School System – attached TAFE INTERNATIONAL EQUIVALENT ACADEMIC ENTRY REQUIREMENTS).  So, in order for the applicant to complete the equivalent of Year 12, he had to enrol in Certificate IV.  Upon completion of Cert IV only then can the applicant be considered to have completed the equivalent of Year 12 in the Australian education system. At no point before completing the Cert IV did the applicant hold an education equivalent to Australian Year 12.

22. The Tribunal has assessed the application against both limbs of cl.802.214(1)(c).

    Since turning 18

23. The evidence shows that the applicant turned 18 in May 2017, in the midst of his ‘gap year’ when he worked part-time and undertook some travel. He commenced full-time study some 11 months later in April 2018. He completed two semesters of a Diploma of Leadership and Management before changing the course and the college to enrol in a Certificate IV in Leadership and Management at Times Academy in October 2018. He claims to have completed three semesters at the Times Academy but stopped studying due to the emergence of the COVID-19 pandemic in March last year. In response to the Tribunal’s question whether his course was offered on-line to students, he replied that this was an option however he found on-line study to be difficult and he therefore ceased his studies last year. The applicant confirmed that he has continued to work part-time, 20 hours per week; whilst he undertakes ‘self-study’; he confirmed that he is not currently formally enrolled in study.

24. The study gap of 11 months between the applicant turning 18 and his commencement of full-time study leads the Tribunal to conclude that since turning 18, he has not been undertaking full-time study and therefore the first limb of cl.802.214(1)(c) is not met.

25. The Tribunal finds that since completing his secondary education in June 2016, the applicant undertook a ‘gap year’ of travel and part-time work.  Since commencing full-time study  in April 2018, he appears to have completed approximately two years of study, or possibly two and a half years. Even if it may be said that the applicant was engaged in study until 2020, he has not done so since that time. Having considered the entire period, the Tribunal is not satisfied that, when viewed holistically, the applicant’s conduct since 2018 supports the conclusion that he has been undertaking study such that he satisfies cl.802.214(1)(c).

    Equivalent of year 12 Australian school system

26. Whether a course is the equivalent of Year 12 in the Australian school system is a question of fact for the Tribunal to determine: Reyes v MIAC [2007] FMCA 1721 at [16]. Ordinarily this would require the Tribunal to compare an applicant’s overseas studies against the Australian school system. Here however, the claim being made is that that the applicant’s completion of a Certificate IV vocational educational course in Australia is the equivalent of his having completed Year 12 studies. The evidence submitted in support of this claim pertains to the entry requirements of certain educational institutions which permit entry into a Diploma level or Advanced Diploma level course where an applicant has completed either a Certificate IV qualification or Year 12 in Australia. It is from this line of reasoning that the applicant claims his Certificate IV qualification is therefore the equivalent of Year 12 in Australia.

27. The Tribunal has considered this argument. However it is the Tribunal’s view that the only equivalence between a Certificate IV qualification and Year 12 studies is that they are both accepted by some Australian educational institutions as an entry requirement for a Diploma level course. It is the Tribunal’s view that this does not mean they are equivalent for the purposes of cl.802.214(1)(c). No evidence was submitted to satisfy the Tribunal that a Certificate IV in Leadership and Management would offer the same width of educational terrain or seek to bring about the same learning outcomes as the Year 12 Australian curriculum.

28. At hearing the Tribunal observed that the applicant was able to enrol in his first Diploma course in April 2018 without having either a Year 12 qualification or a Certificate IV. The Tribunal noted that whilst there appeared to be a great deal of uniformity in the entry requirements of Australian institutions, such matters as entry criteria remained within the purview of individual institutions, as the applicant’s enrolment at AAC in April 2018 confirms.  

29. The Tribunal does not accept the argument that the applicant’s completion of a Certificate IV course is sufficient to satisfy cl.802.214(1)(c). At hearing the applicant stated that he ceased his diploma studies at the onset of the COVID-19 pandemic early last year. He chose not to continue his studies on-line, as was made available to students. He has not engaged in formal studies since that time and he is not engaged in any study at the time of this decision. The Tribunal does not accept that his claim to be engaging in ‘self-study’ satisfies cl.802.214(1)(c).  The applicant and his mother explained that the reason he has not studied since the end of 2019 is because he finds on-line teaching to be too challenging for him. However, no evidence was presented in support of this claim. In an age where so much teaching services, and indeed most other forms of human interaction, are offered on-line, the Tribunal is not prepared to give any weight to such a claim in the absence of credible evidence.

30. The Tribunal is also of the view that cl. 802.221 requires an applicant to be engaged in studies at the time of this decision. The applicant is not engaged in studies. The Tribunal is not satisfied the applicant meets cl. 802.221. Having made that finding, it is not necessary to consider whether the applicant is dependent on his mother.

31. The Tribunal is not satisfied that cl.802.214(1)(c) continues to be met at the time of decision and the applicant does not meet cl. 802.221.

32. The applicant confirmed that he is in good health and he is not incapacitated for work due to the total or partial loss of his bodily or mental functions. There is no evidence of his incapacity for work due to the total or partial loss of his bodily or mental functions.

33. The applicant is sponsored by his mother and there is no evidence suggest that she is incapacitated and unable to care for the applicant. The applicant was also over the age of 18 when the application was made. The applicant does not meet the definition of ‘orphan relative’ and the requirements for the grant of that visa.

34. The Tribunal is not satisfied that cl.802.214(1)(c) continues to be met at the time of decision and the applicant does not meet cl. 802.221.

    Conclusion

35. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

36. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Stephen Conwell
    Member