CHAN (MIGRATION)

[2018] AATA 737

CHAN (MIGRATION) [2018] AATA 737 (14 MARCH 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wai Kuen Chan

CASE NUMBER:  1604611

DIBP REFERENCE(S):  CLF2016/4291

MEMBER:Kira Raif

DATE:14 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 March 2018 at 11:02am

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Requirement to be undertaking studies leading to a qualification – Significant break in studies – Applicant studying course not leading to qualification

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 802.212, 802.214, 802.221(2)(b)

CASES
Huynh v MIMA [2006] FCAFC 122
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 on 24 March 2016 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 to the Department of Immigration for the visa on 19 January 2016. The delegate refused to grant the visa on the basis that cl.802.212 was not met because the delegate was not satisfied the applicant was a dependent child of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 7 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother and her partner. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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). 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.802.212 and cl. 802.214.

5. The criterion in cl.802.212 essentially requires that at the time of application, the applicant is a ‘dependent child’ of an eligible person, and is under 25 years of age or incapacitated for work. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the applicant has turned 18 (or if already 18, only because the applicant has turned 25): cl.802.221(1) or (2)(a).

6. 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].

7. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

8. 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). 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 loss of bodily or mental functions: cl.802.214(2). This requirement must continue to be met at the time of decision: cl.802.221(2)(b).

9. 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]. 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: Sok v MIMIA [2005] FMCA 190 at [28].

   Is the applicant a dependent child?

10. The applicant provided to the Tribunal a copy of the primary decision record.

11. The applicant was born in March 1995 and was over the age of 18 at the time he made the application for the visa. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

12. The applicant claims in his application that he has been financially dependent on his mother. Declarations from the applicant and his mother had been provided with the application although the delegate notes in the primary decision that the applicant failed to provide evidence of financial transfers. The delegate also noted that the applicant’s father and siblings reside in Hong Kong, so that the applicant may have been dependent on his father for shelter and not on the sponsor.

13. The applicant provided a detailed submission to the Tribunal on 6 March 2018, less than 24 hours before the hearing and close to two years after his application for review was made. No satisfactory explanation has been offered by the applicant’s representative for the late submission of documents, nor for the representative’s decision not to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The applicant was represented by Global Migration Services.

14. The applicant submits that he entered Australia in November 2015 after completing secondary education in Hong Kong. He enrolled in an intensive English course from February 2016, which was the start of the academic year. With respect to financial support, the applicant claims that he is reliant on his mother, who provides financial support in the form of cash and their previous agent did not advise of the need to provide bank records but they have now been able to locate some bank statements. The applicant states that he was living in Hong Kong in a property owned by his mother and did not have to pay for accommodation. His father confirms in his statutory declaration that the child had been reliant on the mother for food, clothes, accommodation, tuition and other expenses.

15. The applicant submitted to the Tribunal various bank statements and evidence of money transfers dating back to 2010. The applicant’s evidence to the Tribunal is that he has very little contact with his father – who has remarried and has another family – and receives no financial support from him. The applicant claims that his mother has been supporting him from childhood and since she migrated to Australia, she had been sending money to a friend who was helping her look after him and this is consistent with the evidence of transfers. The Tribunal accepts, having regard to the documentary evidence, as well as the written and oral submissions, that the applicant’s mother has been providing financial support to him and has been the sole source of such support. The Tribunal accepts that such funds were used to pay for the applicant’s food and clothing and the Tribunal also accepts that the applicant lived at accommodation owned by his mother and evidence relating to the purchase of the property has been provided to the Tribunal. The Tribunal is satisfied that the applicant was wholly or substantially reliant on the mother for financial support to meet his basic needs for food, shelter and clothing. The Tribunal accepts the applicant’s reliance on his mother was greater than his reliance on any other source and such reliance existed for a reasonable period before application was made and continues to exist. The Tribunal accepts the applicant was a dependent child of the sponsor when the application was made and continues to be a dependent child of the sponsor at the time of this decision.

    Does the applicant meet the study requirements?

16. With respect to his study, the applicant claims in his written submission to the Tribunal that he completed secondary education in July 2014 but because his exam result was poor, he was not able to proceed with tertiary education. Over the following two months before the commencement of the academic year, he tried to enrol in another secondary school but he was not successful. He decided to study at home with a tutor but later found out that the tutor did not meet his expectations and he joined study groups arranged by the government. He maintained such study between October 2013 and March 2015 when he received news that his mother was ill and his mother also suggested that he should come to Australia. In oral evidence the applicant told the Tribunal that his tuition in Hong Kong was arranged on a full-time basis and he attended at least four days a week.

17. In April 2015 the applicant entered Australia for two months and upon return to Hong Kong he decided not to continue with the course preparing him for examinations but instead prepare for studying in Australia. From May 2015 to February 2016 he prepared for coming to Australia and had to take a nine month study break between completing study in Hong Kong and commencing study in Australia. His preparation included sourcing and packing English text books, leaning materials in videos, tec. He left Hong Kong in November 2015. Since February 2016 had been undertaking an English course. 

18. The Tribunal considers the evidence relating to the applicant’s study problematic. The Tribunal accepts that the applicant may have failed the entrance examinations in Hong Kong and that may have affected his ability to proceed with tertiary study. The applicant also claims he could not enrol in another secondary course. However, he has not satisfied the Tribunal that other study was not available to the applicant, such as a trade qualification, for example, or other form of formal study. The applicant’s oral evidence to the Tribunal is that because his academic results were poor, he could not enrol into a good college and he did not want to enrol in a course which would not be useful to him, so he decided to repeat the test and study for it through tutoring. That is, the applicant’s evidence is not that he could not enrol in any formal study in that period but rather that he considered the study he could enrol in unhelpful. In the Tribunal’s view, that is not sufficient. It is not sufficient to state that the applicant wanted to do a particular course or study at a particular institution and was unwilling to do any other course. The Tribunal is of the view that since completing secondary schooling, the applicant did have the opportunity to enrol in a full-time course leading to a formal qualification and there were no good reasons for his failure to do so other than his unwillingness.

19. The applicant claims that for six months between May and October 2015 he was preparing for study in Australia, looking for a course, enrolling and preparing the books, etc. Again, the Tribunal finds that evidence unconvincing as the Tribunal does not consider firstly that such preparations required six months and, more significantly, the Tribunal does not accept that while such preparations were taking place, the applicant was unable to engage in formal study. The applicant told the Tribunal that courses normally start from July or August, so he returned to Hong Kong in time to enrol, but he was still deciding what to do and whether to come to Australia. Again, the applicant’s evidence indicates that he was able to enrol but for a variety of reasons made the decision not to. The Tribunal does not accept there were good reasons for the applicant not engaged in any study in that period.

20. The Tribunal finds that the applicant completed secondary studies in July 2014. He re-commenced full-time English course in January 2016 although that course does not lead to a formal qualification. The Tribunal acknowledges that during some of that period the applicant did engage in activities that were relevant to study, including tuition and the Tribunal also acknowledges that the current English course may be considered to be a prerequisite to further study. The Tribunal is also prepared to accept that without successful exam results in Hong Kong, the applicant could not enrol in a course of his choice. However, the Tribunal has formed the view that the applicant did have other study options and was able to pursue formal study after completing secondary schooling, even if he believed such study to be unhelpful. For that reason, the Tribunal considers the activities the applicant did undertake since completing secondary schooling, even though some of these involved informal study, to be unhelpful and insufficient for the purpose of this provision.

21. The Tribunal finds that the applicant has not engaged in formal full-time study leading to a formal qualification since he completed high school in 2014.

22. With respect to his current study, the applicant’s written submission to the Tribunal indicates the course was completed in February 2018, however in oral evidence the applicant informed the Tribunal that he continues with his studies. In his post-hearing submission the applicant claims that having completed the course in February, he decided to carry on with his studies to improve his English and will finish the course in March 2018. It appears that the applicant’s decision to continue with his English study was based on his ongoing visa application and the fact that the visa application has not yet been decided but nevertheless, the Tribunal accepts that the applicant continues to be enrolled in an English course at the time of this decision.

23. The applicant claims in his submission of 12 March 2018 that he could not enrol in any other course while holding a Bridging visa. The Tribunal does not accept that evidence. The applicant has not presented any evidence of having approached any other institution and of having been denied enrolment. The Tribunal is mindful that if the applicant’s bridging visa allows him to study (which is presumably the case if he was able to undertake the English course for the past 88 weeks), then it would have equally enabled the applicant to enrol in any other study and while the applicant argues that institutions prefer students to hold substantive visas, the Tribunal does not accept that this would necessarily be the case where students are full-fee paying students with no study restrictions on their visas. In particular, the Tribunal does not accept the applicant’s argument that education providers distinguish between temporary visas and other visas for the purpose of enrolling students, provided his current visa allows him to study. The applicant argues that he was not legally allowed to enrol as a holder of a bridging visa because it is only a temporary visa but that argument has no basis in law. A student visa is also a temporary visa and does not preclude study. Either the applicant’s bridging visa has a condition that precludes him from study or it does not and the nature of the visa itself does not prevent the applicant from engaging in study. In the absence of any evidence of the applicant approaching any other institution or of the applicant being denied access to any other institution, the Tribunal does not accept the applicant could not have enrolled in any course other than an English course.

24. Insofar as the applicant claims that he must complete the English course as a prerequisite to further study, the applicant’s evidence to the Tribunal is that he has never done an English test, which could be an alternative means of him gaining entry to another course. That is, it is entirely possible that the applicant could have pursued study other than English, which would have led to a formal qualification. Further, the applicant’s English course was completed in February 2018 and the Tribunal is not satisfied that his ongoing study is necessary (other than to his visa) or could be considered as a prerequisite to entering another course. That is, at the time of this decision, the applicant is not enrolled in a course leading to a formal qualification for the purpose of cl. 802.221

25. The applicant also appears to suggest in his submission of 12 March 2018 that the same situation arose in Hong Kong after he completed secondary schooling. It is unclear what the applicant refers to, since he was not limited by any visa issues in Hong Kong and there would be no visa restrictions on his study. Again, the applicant has not presented any probative evidence of having approached educational institutions in Hong Kong and of having been denied enrolment for any reason. As noted above, the Tribunal does not accept the applicant’s claim that he was unable to undertake a full-time course of study leading to a professional qualification while in Hong Kong, even if he could not enter the course of his choice.

26. Overall, the Tribunal is not satisfied that the applicant has been undertaking full-time study leading to a qualification, since turning 18 or within 6 months (or a reasonable time) after completing year 12. There is no evidence that the applicant was, at the time of making the application, incapacitated for work due to the loss of bodily or mental functions. Accordingly, cl.802.214(1)(c) is not met at the time of application. Further, the Tribunal is not satisfied the applicant continues to meet that requirement at the time of decision for the purpose of cl. 802.221.

27. The applicant is sponsored by his biological mother and there is no suggestion that he is an orphan relative. The Tribunal is not satisfied the applicant meets the criteria for the grant of the Subclass 837 visa.

    Conclusion

28. 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

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

    Kira Raif
    Senior Member