Chen (Migration)

[2018] AATA 1169

Chen (Migration) [2018] AATA 1169 (19 March 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yao Chen

CASE NUMBER:  1702247

DIBP REFERENCE(S):  CLF2016/39970

MEMBER:Helena Claringbold

DATE OF DECISION:  19 March 2018

DATE CORRIGENDUM

SIGNED:4 May 2018

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:  The date 19 March 2017 should be replaced with the date 19 March 2018.  

Helena Claringbold
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yao Chen

CASE NUMBER:  1702247

DIBP REFERENCE(S):  CLF2016/39970

MEMBER:Helena Claringbold

DATE:19 March 2017

PLACE OF DECISION:  Sydney

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

Statement made on 19 March 2018 at 1:32pm

CATCHWORDS

Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Father and Step-mother settled in Australia – Began study in the EELS course– Withdrew from TAFE EELS course – Enrolled and withdrew from English courses – Tribunal does not accept that the courses were full-time courses – Applicant previously held a Subclass 445 and abided by the conditions of that visa – Applicant does not satisfy cl.802.214(1)(c)

LEGISLATION
Migration Regulations 1994 Schedule 2 cls 802.214, 802.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 30 June 2016, Mr Yao Chen, the applicant applied for a Child (Residence) (Class BT) visa. The application was based on his dependent child relationship with Lilong Chen, the sponsor.

2. On 23 January 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The applicant did not satisfy the delegate that at the time of application he was a full-time student. As a result the applicant did not satisfy cl.802.214(1)(c), cl.802.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under Migration Act 1958 (the Act).

3. 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).

4. On 1 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from the applicant and the applicant’s father and step-mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department’s file and the Tribunal’s file and the evidence provided at the Tribunal hearing.

   ISSUE

7. The issue in this case is whether the visa applicant was undertaking full-time study at the time of application and at the time of this decision, and if not, whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1993, in Dongan Town, Fuqing, Fujian, China. His father Lilong Chen and Ms Ying Yue Long, his step-mother, live in Australia.  His mother lives in China.  He has a sister who lives in Japan and another sister living in Ecuador. He also has a half-brother and two step siblings living in Australia. On 21 January 2016, he entered Australia as the holder of a Subclass 445 visa.

9. The sponsor was born in 1969 in Fujian, China.  In 1996, he entered Australian and has lived in Australia since that time.  In February 2013, he lodged a partner visa application sponsored by Ms Long. 

   CLAIMS AND FINDINGS

   Additional criteria for applicants over 18

10. At the time of application the applicant was 22 years old. Therefore, 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 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Full-time study (or incapacitated for work)?

11. At the time of application, the applicant must have, since turning 18, or within six 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) of Schedule 2 to the Regulations. 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) of Schedule 2 to the Regulations.. This requirement must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Is the visa applicant incapacitated for work?

12. There is no evidence before the Tribunal that the at the time of application or this decision, the applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant undertaking full-time study?

13. The Tribunal considered the evidence individually and as a whole.  After considering the medical information for 2013/2014, it is satisfied that the applicant was a full time student until January 2016.

14. The applicant enrolled to study Elementary English Language Skills (EELS) at TAFE NSW, St George, prior to the time of application on 30 June 2016.  A letter from TAFE NSW, St George, dated 1 June 2016, records that the EELS course began on 18 July 2016 and ended on 30 November 2016.  It stated that the timetable for the course is Monday and Wednesday from 9.30am to 1pm.

15. The applicant told the Tribunal that he began study in the EELS course in August 2016 and withdrew from the course in October 2016.  He said that the timetable for the course was from Monday to Friday (inclusive) from 9.30am to 3pm. The Tribunal discussed this information with the applicant as it was inconsistent with his previous evidence that he provided and as detailed in the TAFE NSW, St George letter.  The applicant said that the timetable in the TAFE NSW letter was for the beginning of the EELS course but the timetable changed.  When the Tribunal asked the applicant why he had not provided independent evidence of his changed timetable and his attendance, he said that there was no attendance sheet or records and that he just attended.  While the Tribunal may accept that the applicant was undertaking study in English on a Monday and a Wednesday from 9.30am to 1pm, it does not accept that the applicant attended for the longer hours as he claimed because he has not provided any independent evidence to support his claim.  The applicant’s step-mother told the Tribunal that at the time the applicant arrived in Australia her child was three years old and she was busy.  She stated that because of this she didn’t get the applicant to enrol in full-time study.  She said that she thought he could progressively enrol in full-time study.

16. The applicant gave evidence that he began another English course at La Lingua Language School in October 2016 and withdrew from that course in November 2016.  He provided a confirmation of enrolment at the school, for a non AQF award course beginning on 17 October 2016 and finishing on 9 December 2016. He also provided other documents including a letter of offer detailing periods of enrolment from October 2016 to December 2016.

17. Other evidence is that in November 2016, the applicant began study at the Sydney International Business School (SIBC) in a Certificate III and IV in Business and Diploma of Leadership and Management.  A letter from SIBC dated 11 November 2016 stated that the applicant is enrolled and a full-time student in a three diploma courses and he would begin his courses on 14 November 2016.  Additionally, the applicant provided a printout of scheduled payments to SIBC for 2017. The Tribunal asked the applicant about attendance and academic records for this course. He told the Tribunal that he completed the Certificate III, but is yet to be issued the Certificate and will go onto continue to study at Business School SIBC in Certificate III and IV diploma.  The applicant asked whether he should obtain attendance and academic information from the school.  The Tribunal did not request this information because it was not relevant to its decision.

18. As detailed above the Tribunal is satisfied that the applicant was a full time student until January 2016.  It also accepts that in November 2016 the applicant was undertaking a full-time course of study at the SIBC for a Certificate III. 

19. There is no evidence that the applicant undertook any study from January 2016 until he began the EELs course on 18 July 2016 and he withdrew from the course in October 2016. He then began the La Lingua study in October 2016 and withdrew from that course in November 2016.  The Tribunal does not accept that the EELS course of study or the course at La Lingua Language School were full-time courses of study at an educational institution leading to the award of a professional, trade or vocational qualification.  The EELs course is a non-certificate study course and the La Lingua Language School course was a non AQF award course.  This led the Tribunal not to be satisfied that from January 2016 to November 2016, the applicant was undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

    Other considerations

20. The sponsor and the applicant’s step-mother stated that the applicant previously held a Subclass 445 and abided by the conditions of that visa.  In addition, they stated that the applicant undertaking full-time study was not a requirement for that visa.  The applicant stated that he didn’t understand why the Subclass 445 he held ceased.

21. The applicant’s migration agent told the Tribunal that the Australian Embassy in Guangzhou erred when they granted the applicant a Subclass 445. In a written submission to the Department of Immigration and Border Protection (DIAC) dated 15 February 2016, she stated ‘When Mr Chen was finally granted a Subclass 445, his father had already been granted a Subclass 801’. 

22. An email from DIAC to the applicant’s migration agent dated 29 February 2016 stated that there was no scope to add the applicant to the sponsor’s 801 visa unless there was jurisdictional error in the grant of the Subclass 801 visa (sic). 

23. The Tribunal explained to the sponsor, the applicant’s step-mother, the applicant and the applicant’s migration agent that, it didn’t have jurisdiction in the matter of the Subclass 445 visa. The Tribunal stated that its jurisdiction was limited to the review of the refusal of the Subclass 802 Child Residence visa.

24. The applicant provided medical information about his psychological health for 2013/2014. He stated that although he enrolled to study in October 2013 at the University of South China, he didn’t attend the university because of his psychological health.  The applicant told the Tribunal that he was not taking medication.  He said that the last time he received any treatment was recorded in the medical information he provided.  

25. After considering the evidence individually and as a whole, the Tribunal accepts that the applicant was undertaking full-time study until January 2016 and that he commenced full time study again in November 2016. The Tribunal is not satisfied that from January 2016 until he commenced study in November 2016 that the applicant was undertaking full-time study. The Tribunal is not satisfied that at the time of application, the applicant, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Therefore the applicant does not satisfy cl.802.214(1)(c) of Schedule 2 to the Regulations.

26. As the Tribunal has determined that the applicant does not satisfy cl.802.214(1)(c) of Schedule 2 to the Regulations, it has not gone onto consider the other criteria for the grant of the visa.

27. Accordingly, cl.802.214(1)(c) of Schedule 2 to the Regulations is not met at the time of application, and does not continue to be met at the time of decision: cl.802.221(2)(b) of the Regulations.

28. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met.

    DECISION

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

    Helena Claringbold
    Member