CHONG (Migration)

[2017] AATA 116

CHONG (Migration) [2017] AATA 116 (19 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Gaik Gnoh CHONG

VISA APPLICANT:  Mr Kai Yaw TAN

CASE NUMBER:  1606446

DIBP REFERENCE(S):  OSF2015041941

MEMBER:Meena Sripathy

DATE:19 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2017 at 1:21pm

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 – cl 101.213 – Applicant over 18 years – Not undertaken full time study since turning 18 – Periods of employment and internship – Contradicting evidence about relationship status

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2 cl 101.213, cl 101.221

CASES

Sok v MIMIA [2005] FMCA 190

MIAC v Henschel [2013] FCCA 584

Wake v MIAC [2010] FMCA 272

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 15 April 2016 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 to the Department of Immigration for the visa on 20 January 2015. 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 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work and study.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(b) and (c) were not met because the applicant was found to have engaged in full time work and had not, since turning 18, been undertaking a full time course of study.  The delegate’s findings were based on an interview conducted on 27 April 2015, notes of which are contained on the Departmental file.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

6. The visa applicant is a 25 year old, single, Malaysian national.  His parents are divorced and his mother, the review applicant resides in Australia.  He has one younger sibling.  In his application form he indicates he attended S.M.K.L. High School between 2004 and 2008, and undertook a post secondary course at TOC Automative College from 13 February 2012 to 25 July 2014.  He indicates that his mother, the review applicant provides financial support of 7200 Malaysian ringgit per week from April 2013 to date.  In her sponsorship form, the review applicant indicates she is an Australian permanent resident and the natural mother of the visa applicant. The following documents were submitted in support of the application: visa applicant’s birth certificate, single certificate, documents evidencing visa applicant’s educational qualifications, rental receipts, evidence of review applicant’s employment including payslips and tax assessments, evidence of financial transfers from the review applicant to the visa applicant.  A cover letter enclosing the supporting documents indicates that the visa applicant is enrolling at university and evidence of enrolment will be submitted in due course.

7. A Form 80 was submitted to the Department by the visa applicant on 27 March 2015.  In this Form 80, he indicates he also completed a Mechanical Course from May 2008 - May 2009, and refers to employment doing auto repairs at Chong Mechanic S.D.N.B.H.D. between August 2009 and April 2010.

8. On 24 July 2015 the visa applicant was interviewed by an officer of the department.  A record of this interview is included in the Department file.  During the interview he confirmed that he previously came to Australia in 2009 and stayed until 2012.  He claims he did not know he overstayed his visa because his mother told him she was taking care of it.  He did not study in Australia in this period because it was too expensive.  He did not work in Australia.  In response to a question of whether he has been employed in Malaysia he said he did an internship from July 2013 to October 2013 and again from February 2012 to July 2014.  He received a salary of RM 850/month and worked from 9am to 6pm.  In response to a question of whether he had ever been married/engaged he replied yes, he was with his girlfriend for one year.  He lives with his maternal aunt since high school.  His mother supports him financially sending AUD$ 750 per month which he uses for car, food and clothes.

   Evidence before the Tribunal

9. On 30 December 2016 the review applicant submitted to the Tribunal the following documents in support of the application: a letter from Mr Choong Beng Yeow dated 30 November 2016 stating that he is from Petronas Service Centre Choong Motor. Despark College Penang sent the student Kai Yaw Tan for work experience to his workshop from 2009 to 2010 and he paid him an allowance of RM480/month.  He returned to college from 2012 to 2014 and was sent back to his workshop in this period. The hours of his workshop are 9am-7pm and the applicant was required to stay more than 4 hours each day.  He was paid an allowance of RM850/month.

10. The review applicant appeared before the Tribunal on 19 January 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant’s registered migration agent did not attend the hearing. Relevant evidence provided at the hearing is included in the discussion below.

11. The issue in this case is whether the visa applicant meets cl.101.213.

    Additional criteria for applicants over 18

12. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Relationship status

13. 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).

14. According to documents on the Departmental file, in the context of a decision to cancel a visa on 11 August 2014, the applicant claimed he was registered to marry his girlfriend in Malaysia.  At the hearing the review applicant told the Tribunal the visa applicant is single, has never been married or had a de facto partner and is not engaged to be married. She said he has not had a girlfriend since he was in high school when she was still in Malaysia.  When the information from the department file was put to her for comment she said he may have misunderstood the question because he was never engaged to be married.  She reiterated that as far as she knows he has never been engaged.  She referred to the single status certificate provided with the application.

15. Although the review applicant’s evidence regarding the visa applicant’s relationship history appears to contradict his own evidence to the Department given at an interview, the Tribunal accepts there is no evidence to indicate he is married or has a de facto or is engaged to be married as at the time of this visa application (20 January 2015) or time of decision. 

16. Accordingly, it accepts that  cl.101.213(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Not engaged in full-time work

17. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b).

18. In his forms submitted to the Department and interview the visa applicant provided information about work performed for remuneration in August 2009 to April 2010 and again between 2012 and 2014.  The review applicant provided a statement from Choong Beng Yeow of Petronas Service Centre Choong Motor confirming that the visa applicant did work experience in his workshop between 2009 and 2010 and again from 2012 to 2014. In her oral evidence at the hearing the review applicant reiterated that this was work experience only and should not be considered full time work. 

19. Having regard to the periods of employment and that he received remuneration for it, the Tribunal considers that the applicant has engaged in work, within the meaning of that term under migration law, in the above mentioned periods.  However, on the available evidence, it accepts he was not engaged in this work at the time of application and there is no evidence to indicate he is engaged in full time work now.   Accordingly, the Tribunal finds cl.101.213(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

20. 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). 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.101.213(2). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

21. 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].

22. The applicant is required to have been undertaking full-time study at the time the visa application was made, and also to have been undertaking full time study from one of the above alternative points in time.[1] 

    [1] In MIAC v Henschel [2013] FCCA 584 (Judge Lindsay, 11 June 2013), the Court saw nothing ambiguous about the requirements of the legislation, considering that “…[e]ither the applicant [had], since turning 18, been undertaking a full-time course of study…or he [had], 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 [7]. In this case, the Court found that the Tribubal overlooked the requirements of cl.802.214 of whether the applicant was at the releant time undertaking a fulltime course of study as described in the Regulations, at [10]. The subsidiary enquiry was whether the study had been undertaken within the appropriate temporal limits at [11].

23. Information on the application forms indicate that the visa applicant completed a mechanical course at Despark Auto Academy from May 2008 to May 2009 and a Diploma course at T.O.C. Automotive College from February 2012 to July 2014.  A copy of his diploma from T.O.C. Automotive College was provided to the Department.  At the hearing the review applicant confirmed this study history. When asked if he had undertaken any other study leading to the award of a professional, trade or vocational qualification, she said she asked him to take English classes to prepare him to come to Australia. However, there is no mention of English or any other courses in the application forms, and no evidence of this has been provided to the Department or Tribunal.  The Tribunal explained to the review applicant that the requirement is for the applicant to be undertaking a full time course of education that leads to the award of a professional, trade or vocational qualification, at time of application and the evidence before it suggests he was not undertaking such a course in January 2015 or at any time since.  It is also a requirement that he continue to be undertaking a full time course of education at time of decision. In response the review applicant stated that her lawyer told her about the requirement for study, and she thought that his completion of the Diploma course would be enough to meet the requirement.  She asked him to study English because she believed that this would be useful for when he came to Australia as she has herself has found it very difficult to live and work in Australia without proficient English.  She pleaded with the Tribunal to take into consideration the visa applicant’s completed Diploma course and that he has continued to study English.  

24. The Tribunal has carefully considered the review applicant’s oral evidence and arguments.  While she told the Tribunal she asked the visa applicant to study English, the visa application form and Form 80 submitted to the Department contain no details of any study subsequent to the Diploma in 2014, and no documentary evidence of any other study is before the Department or Tribunal.  In any event, as the Tribunal discussed with the applicant during the hearing, the requirement in cl. 101.213((1)(c) is that the applicant be undertaking, at time of application, a full time course leading to the award of a professional, trade or vocational qualification. There is no evidence before the Tribunal that the visa applicant was undertaking any course at time of application, let alone a full time course leading to the award of a professional, trade or vocational qualification.  Furthermore, on the evidence before it, the visa applicant has not been undertaking full time study since (in the sense of continuously from[2]) turning 18 – which was in November 2009. As he does not meet the requirement of undertaking full time study at time of application, the consideration of whether he commenced such study within a ‘reasonable time’ does not arise.   

    [2] The meaning of ‘since’ was considered in Wake v MIAC and has been interpreted to mean ‘continuously from’ the event of turning 18: Wake v MIAC [2010] FMCA 272 (Smith FM, 29 April 2010) at [25]-[26]. The Court held that this interpretation was from the ordinary meaning of the word having regard to the language and immediate legislative context

25. Accordingly, cl.101.213(1)(c) is not met at the time of application or at the time of decision.

26. There is no evidence before the Tribunal to suggest the applicant was or is incapacitated for work because of loss of bodily or mental functions and accordingly the Tribunal finds that cl.101.213(2) does not apply. 

27. For the reasons above, cl.101.213 is not met at the time of application.  Accordingly, cl.101.221(2)(b) is also not met.

28. Given these conclusions, it is not necessary for the Tribunal to consider whether the visa applicant is financially dependent on the review applicant as required for cl. 101.211.  However it acknowledges that the review applicant has provided a substantial amount of evidence of regular financial support she has been sending the visa applicant since at least 2013, and she also told the Tribunal at the hearing that he is now residing, on his own, in a unit she purchased in Malaysia since the application was made. 

29. However notwithstanding this, for the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

30. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Meena Sripathy
    Member