Chen (Migration)

[2022] AATA 127

Chen (Migration) [2022] AATA 127 (19 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Yuanqiong Chen

VISA APPLICANT:  Mr Honghao Li

REPRESENTATIVE:  Ms Esther Yu (MARN: 9802211)

CASE NUMBER:  1904969

HOME AFFAIRS REFERENCE(S):          OSF2017/019194

MEMBER:Margie Bourke

DATE:19 January 2022

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

·cl 101.221 of Schedule 2 to the Regulations.

Statement made on 19 January 2022 at 12:20pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child over 18 – main source of financial support – applicant’s part-time work while studying and casual part-time work since – review applicant’s monthly transfers to applicant – full-time study within a reasonable time after completing high school – review applicant’s financial difficulties prevented applicant studying for one year – status of study at open university – applicant’s study is full-time – evidence of current enrolment – applicant now turned 25 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03, 1.05A, Schedule 2, cls 101.211(1)(a)(ii), (b), 101.213(1)(c)(i)(A), 101.221(2)(a)(ii), (b)

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 10 January 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 22 November 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 (Cth) (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 the visa applicant did not meet the requirements of cl 101.213(1)(c) at the time of application, and did not continue to meet the requirements of either cl.101.211 or cl.101.213(1)(c) at the time of decision, and therefore did not meet the requirements of cl.101.221. 

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the visa applicant and the nature of the review. The Tribunal had regard to the fact the hearing would not involve an extensive number of documents to be put to the applicant during the hearing by the Tribunal. The Tribunal considered that if the hearing was conducted by video, this would allow the review applicant and the visa applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to properly assess the evidence before it. The Tribunal considered the restrictions on the availability of in-person hearings as a result of the pandemic. For all these reasons the Tribunal considered this was an appropriate matter for the hearing to be conducted by way of video.

6. The review applicant appeared before the Tribunal by video on 9 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant's spouse who attended the hearing by video with the review applicant. The Tribunal also received oral evidence from the visa applicant who attended the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

7. The Tribunal received submissions from the review applicant prior to the hearing, and by request after the hearing.

8. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing by video with the review applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

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).

    Dependent child

11. 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 reg 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.

12. 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].

13. There is no finding in the Departments decision record dated 10 January 2019 in relation to whether the visa applicant meets the requirements of cl.101.211 at the time of application. In the absence of any conclusion that the visa applicant does not satisfy the requirements of cl.101.211 at the time of application, in the Department’s decision record, the Tribunal assumes that the delegate was satisfied that the visa applicant met these requirements. The delegate recorded that based on the information available at the time of decision the visa applicant did not continue to meet the criteria described in cl.101.211, and this was one of the reasons the visa applicant did not meet the requirements of cl.101.221. For completeness, the Tribunal has considered the evidence in relation to whether the visa applicant meets the requirements of cl.101.211 at both the time of application and at the time of decision.

14. Based on the notarial birth certificate, which records the date of birth of the visa applicant and the identities of his parents, I am satisfied that the visa applicant is the son of the review applicant, and that the visa applicant was born in October 1994. I am satisfied therefore that the visa applicant is the child of the review applicant and at the time of application, 22 November 2017, was aged 23 years. I am satisfied the review applicant was the holder of a subclass 100 visa at the time of application and therefore is an Australian permanent resident visa holder. I am satisfied based on the evidence before me, that at the time of application the visa applicant was not engaged, and did not have a spouse or partner.

15. There is no evidence before the Tribunal that the visa applicant is incapacitated for work due to the partial or total loss of bodily or mental functions. Therefore the Tribunal finds the visa applicant does not meet the requirements for a dependent child within the meaning of r.1.03(b)(ii).

16. I have considered the circumstances of the visa applicant, and the information in relation to the financial support provided by the review applicant to the visa applicant. I am satisfied based on the evidence before me that the visa applicant’s parents separated in 2005. I am satisfied that these are applicant resided with his father after the separation. I am satisfied that the visa applicant’s father has been declared missing since 2010. I am satisfied the visa applicant resided with his paternal grandmother after his father went missing. I am satisfied that the visa applicant returned to reside with his mother after his paternal grandmother died in 2012. I am satisfied that the review applicant has financially provided for the visa applicant by way of bank transfers each month since his father disappeared in 2010. I am satisfied that the review applicant has resided in Australia since 2014. Based on the evidence before me, I am satisfied that after the disappearance of the visa applicant’s father, the review applicant has been the main source of financial support for the visa applicant. Based on the oral and written evidence, including evidence of the regular bank transfers, I am satisfied that the review applicant has been the main source of financial support for the visa applicant since 2010.

17. I am satisfied that the visa applicant had part time work during his study years and that after he graduated from his marketing course in 2019 he looked for employment. I am satisfied that the visa applicant was only able to find casual part-time work of 10 hours per month for an interior design company in 2019. I am satisfied the visa applicant still substantially relied on the financial support provided by his mother, the review applicant at this time.

18. I am satisfied that the review applicant has been the main source of financial support for the visa applicant in the relevant period prior to the time of application, and prior to the time the time of decision, for the purposes of assessment as to whether the visa applicant meets the requirements of r.1.05A.  In making my assessment as to whether the visa applicant is dependent upon the review applicant within the meaning of r.1.05A, I have considered “a substantial period” to be 12 months.

19. I am satisfied that at the time of application the visa applicant was dependent upon the review applicant and had been for a substantial period immediately before the time of application, wholly or substantially reliant upon the review applicant for financial support to meet his basic needs for food, clothing and shelter. Further I am satisfied that the visa applicant’s reliance upon the review applicant, was greater than his reliance on any other person, or source of support, financial support to meet his basic needs for food, clothing or shelter. I am further satisfied that at the time of this decision the visa applicant is dependent upon the review applicant, and has been for a substantial period immediately before the time of this decision, wholly or substantially reliant on the review applicant for financial support to meet his basic needs for food, clothing and shelter. Further I am satisfied that the visa applicant’s reliance on the review applicant at the time of decision is greater than his reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing or shelter.

20. I am satisfied that the visa applicant is financially dependent upon his mother, the review applicant, within the meaning of r.1.05A, at both the time of application and at the time of decision, and therefore is a dependent child within the meaning of r.1.03.

21. For the above reasons I am satisfied that the visa applicant is a dependent child of an Australian permanent resident and therefore meets the requirements of cl.101.211(1)(a)(ii). I am satisfied that the visa applicant continues to meet these requirements at the time of decision.

22. I am satisfied that the visa applicant at the time of application had not turned 25 years and therefore meets the requirements of cl.101.211(1)(b). The Tribunal finds that the requirements of subclause (2) do not apply in these circumstances as there is no evidence that the visa applicant is incapacitated within the meaning of r.1.03(b)(ii). I am satisfied that the visa applicant does not meet this criterion at the time of decision, because he has turned 25 years of age.

23. I am satisfied that the visa applicant is the child of the holder of a permanent visa at the time of application and therefore meets the requirements of cl.101.211(1)(c)(i)(A). I am satisfied that the visa applicant continues to meet this requirement at the time of decision.

24. Accordingly, cl 101.211(1)(a) is met at the time of application, and continues to be met at the time of decision. Cl 101.211(1)(b) is met at the time of application, and does not continue to be met at the time of decision because the visa applicant has turned 25.  Cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision. At the time of decision the visa applicant is a person who had turned 18 at the time of application and does not continue to satisfy the criterion of cl.101.211 only because these applicant has turned 25. Therefore I am satisfied that the visa applicant meets the requirements of cl.101.221(a)(ii) at the time of decision.

    Conclusion about dependent child criteria

25. For the reasons above, the visa applicant satisfies the criteria in cl 101.211 and cl 101.221(2)(a).

    Criteria for applicants over 18

26. If, at the time of application, the visa applicant has turned 18, they need 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

27. 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).

28. Based on the written and oral evidence before me I am satisfied that the visa applicant is not and has never been engaged to be married, and is not and has never had a spouse or de facto partner. Accordingly, the visa applicant meets the requirements of cl 101.213(1)(a) at the time of application, and continues to meet these requirements at the time of decision.

    Not engaged in full-time work

29. 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).

30. Based on the written and oral evidence before me I am satisfied that the visa applicant has never been engaged in full-time work. Accordingly, the visa applicant meets the requirements of cl 101.213(1)(b) at the time of application, and continues to meet these requirements at the time of decision.

    Full-time study (or incapacitated for work)

31. 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).

32. 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).

33. 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.

34. As stated above there is no evidence before the Tribunal that the visa applicant is incapacitated for work by the total or partial loss of bodily or mental functions. Therefore the Tribunal is not satisfied that the visa applicant is a dependent child within the meaning of r.1.03(b)(ii), and the visa applicant must meet the requirements of cl.101.213(1)(c).

35. I am satisfied that the academic year in China commences in September and ends in July. I am satisfied based on the evidence before me that the visa applicant attended the Guangzhou Huadu Vocational School of Polytechnic from September 2012 to July 2015. I am satisfied that when the visa applicant graduated on 1 July 2015, he had completed the equivalent of year 12 in the Australian school system.

36. I am satisfied that the applicant did not study in the next academic year. I accept that this was due to financial difficulties experienced by his mother, the review applicant, and the financial hardship experienced by the review applicant meant she could not afford to meet the visa applicant’s study costs for the academic year 2015 to 2016. I am satisfied that the review applicant qualified as an aged care worker and obtained employment in 2016 and due to her improved financial position was able to assist the visa applicant to enrol in study in September 2016.

37. I am satisfied that the visa applicant took one year break from study after completing his secondary schooling in 2015, before enrolling in further education in 2016. I am satisfied that the reason for this break in study was substantially for financial reasons. I am satisfied that the break in study between July 2015 and September 2016, is a “reasonable time” between the applicant completing the equivalent of year 12 in the Australian school system and undertaking a full-time course of study at an educational institution. In reaching this finding I have considered and applied the principles in the judgement in Sok v MIMIA [2005] FMCA 190.

38. I am satisfied that the visa applicant studied at the Radio and Television University from 1 September 2016 to 1 July 2019 to complete a business management course with a major in marketing. In the Department’s decision record, the delegate recorded that this course was an “open education” course and that the Ministry of Education of the People’s Republic of China website noted that open education is not defined as full-time study. The Tribunal could not find any information on the current Ministry of Education website which specifically refers to open education as full-time or part-time study ( MOE/). The Tribunal has also considered the Open University of China LinkedIn page, and the Open University of China website, and the Tribunal notes that the Open University of China is listed as an affiliated institution on the Ministry of Education website. The Tribunal has considered the China Country Education Profile which describes the Radio and Television Universities as having been rebranded as open universities.

39. The term open education relates to access of learning and flexibility of learning. The Open University of China LinkedIn page refers to the network of open universities which includes a satellite TV network, computer network and a network of open universities which have a full-time and part-time faculty. The Tribunal accepts based on the China Country Education Profile ( that Radio and Television universities provide two and three year post secondary level programs (which may require 3 to 4 years study if undertaken part-time).  

1. After considering the information accessed by the Tribunal, I accept the submission of the review applicant’s representative, and the evidence of the visa applicant that the course undertaken by the visa applicant at the Radio and Television University was a full-time course of study.

2. I am satisfied that after completing the marketing degree the visa applicant attempted to obtain employment in the marketing field but was unable to obtain employment other than part-time work of 10 hours per month at an interior design firm. The visa applicant stated in the hearing that he realised he needed to continue study to obtain a qualification to combine with the marketing qualification, which would enable him to obtain full-time work. The visa applicant stated that he was interested in the interior design, so he enrolled at the Guangzhou Huaxia Vocational College in a full-time interior design course in 2019.

3. Based on the academic transcripts provided by the visa applicant, I am satisfied that the visa applicant has studied a full-time diploma course with a major in architectural interior design, and completed semester one and semester two in the academic year 2019 to 2020 and the academic year 2020 to 2021. The visa applicant gave evidence that he is currently studying semester one in the third year of this course.

4. The visa applicant provided a student certificate dated 3 December 2021, which records that the visa applicant is a current student of the Guangdong Huaxia senior technical school. The review applicant stated that the difference in the name of the educational institution given in the evidence to that on the certificate, related to the fact that Guangdong is the name of the province, and Guangzhou is the name of the capital city in the area. The certificate did not have letterhead on it and in the hearing I indicated that due to the different name of the educational institution and the lack of heading or more formal identification of the document, I could not rely on this certificate as evidence of the visa applicant’s current enrolment.

5. After the hearing the visa applicant provided his academic transcripts for the completed two years up to July 2021, his student ID card, and translated enrolment record. Based on the evidence of the visa applicant, the academic transcript recording completed subjects up to the last completed semester and the other supporting documents, I am satisfied that the visa applicant is currently undertaking a full-time course of study at an educational institution.

6. I am satisfied that the visa applicant completed a diploma course in marketing, and because he was unable to obtain full-time employment after graduating in this course, the visa applicant proceeded to study a full-time course in interior design. I am satisfied that the visa applicant continued to study to achieve the award of a professional, trade or vocational qualification in both marketing and interior design as a combined qualification for a career.

7. For the above reasons I am satisfied that the visa applicant has 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. Further I am satisfied that the visa applicant was undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification at both the time of application and the time of decision.

8. Therefore, I am satisfied that the visa applicant met the requirements of cl.101.213(1)(c) at the time of application and continues to meet these requirements at the time of decision.

9. For all the above reasons the Tribunal is satisfied that the visa applicant meets the requirements of cl.101.213(1)(a), (b) and (c) at the time of application, and continues to meet all these requirements at the time of decision.

   Conclusion on criteria for applicants over 18

10. For the reasons above, the visa applicant satisfies the criteria in cl 101.213 and cl.101.221(2)(b).

11. Accordingly, the Tribunal finds that the visa applicant meets the requirements of cl.101.211, cl.101.213 and cl.101.221.

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

    DECISION

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

    ·cl 101.221 of Schedule 2 to the Regulations.

    Margie Bourke
    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.

    …