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

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).
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).
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.
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.
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
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CHONG (Migration)

Details

AGLC: CHONG (Migration) [2017] AATA 116
Case: [2017] AATA 116
Decision Date: 19 January 2017

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, Subclass 101, made by a Malaysian national. The review applicant, the visa applicant's mother, resided in Australia as a permanent resident. The core of the dispute revolved around whether the visa applicant, who was over 18 years of age, met the criteria for the visa, particularly concerning his study and employment history since turning 18, and the consistency of evidence provided regarding his relationship status and financial support. The decision was made by the Tribunal.

The Tribunal was required to determine if the visa applicant satisfied the requirements of clause 101.213 of the Migration Regulations 1994, which pertains to applicants over 18 years of age who have not undertaken full-time study since turning 18. This involved assessing whether periods of employment and internship, as claimed by the applicant, constituted full-time study or if they were genuine periods of work. Additionally, the Tribunal had to consider any contradictions in the evidence presented regarding the applicant's relationship status and the nature and extent of financial support provided by his mother.

The Tribunal affirmed the decision not to grant the visa. It found that the visa applicant, who was 25 years old, had not met the criteria for the Subclass 101 visa. The evidence presented regarding his post-secondary education and subsequent employment or internships was inconsistent and did not demonstrate that he had undertaken full-time study since turning 18. Furthermore, there were discrepancies in the information provided about his relationship status and the financial support he received. Consequently, the Tribunal concluded that the applicant had not satisfied the requirements of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEEvidence before the Department 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. 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. 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 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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