Do (Migration)

[2019] AATA 1519

Do (Migration) [2019] AATA 1519 (27 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr QUY  PHONG DO

VISA APPLICANT:  Mr QUOC  MINH DO

CASE NUMBER:  1710581

HOME AFFAIRS REFERENCE(S):           2016039777

MEMBER:Russell Matheson

DATE:27 February 2019

PLACE OF DECISION:  Sydney

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.101.213 of Schedule 2 to the Regulations; and

·Cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 27 February 2019 at 8:32am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – applicant meets the study requirements at the time of application and at the time of decision – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359AA

Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

CASES

Hussain v MIBP [2017] FCCA 3247

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 Immigration and Border Protection on 24 April 2017 to refuse to grant the visa applicant (applicant) a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Vietnam born in August 1992. He applied to the Department of Immigration for the visa on 26 September 2016. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the delegate was not satisfied the applicant met the study requirements. The review applicant (sponsor) seeks review of the delegate’s decision.

3. The sponsor appeared before the Tribunal on 24 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and the applicant’s mother. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The sponsor was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   Relevant law

6. 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).

7. 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.

8. Relevantly, 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.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).

   Does the applicant meet the study requirement?

9. The applicant was born in August 1992 and the Tribunal finds that he has turned 18 by the time the application was made. There is no evidence before the Tribunal that the applicant was, at the time of making, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

10. The sponsor applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

11. The applicant provided the following information relating to his study.  He provided a copy of his Curriculum Vitae (folio D38) which contains the following:

    ·From 15 to 18 years he studied at Thanh loc high School.

    ·From 18 years he was studying at Hong Duc Medical and Pharmaceutical College.

    ·Confirmation of study, dated 27 September 2016, issued by Hong Duc Medical and Pharmaceutical College (folio D41) which states the applicant was studying Pharmacy full-time for the academic years 2016 to 2019.

    ·A copy of the applicant’s high school graduation certificate which shows the applicant graduated in June 2010 (folio D56).

    ·The applicant’s academic transcript, dated 20 March 2017, issued by Hong Duc Medical and Pharmaceutical College (folio D58).

    ·A confirmation of study, dated 14 March 2017, issued by Hong Duc Medical and Pharmaceutical College (folio D61).

    ·Graduation Certificate from Nguyen Tat Thanh University for English Studies, dated 8 May 2013.

    ·Graduation Certificate from Nong Lam University for English Studies, dated 12 October 2017.

    ·Confirmation the applicant was studying a full-time diploma/intermediate course majoring in Chinese at Saigon College of Arts, Culture and Tourism for the period from 9 September 2017 to 9 September 2020.

12. In oral evidence to the Tribunal, the sponsor had very little knowledge of the applicant’s schooling or studies. The sponsor told the Tribunal that the applicant had finished high school in 2014 or 2015. The sponsor further stated that the applicant had studied medicine and pharmacy at Nguyen Tat Thanh University. The sponsor told the tribunal that he takes little interest in the applicant’s studies because he is too busy at work and that his wife tells him that the applicant does this and that and that he generally is not into the applicant’s studies. He further stated that he heard from his wife that the applicant had studied pharmacy and that he had to improve his English to continue his pharmaceutical course. The sponsor also stated that he did not know how often the applicant attended his language courses or when he started the courses or finished them. The sponsor told the tribunal that he only knows what his wife tells him. The sponsor told the Tribunal that he has not seen his son for 10 years. Based on the evidence provided by the sponsor the tribunal finds the sponsor has little knowledge of the applicants study.

    Section 359AA

13. The Tribunal is mindful that the sponsor’s evidence was vague at times and he displayed little knowledge or interest in the applicant’s studies during the hearing on a number of occasions and this led Tribunal to question the applicant and sponsor’s credibility. These were discussed with the sponsor in accordance with s.359AA of the Act. The Tribunal informed the applicant that it wished to put new information that it would consider being the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information to the applicant and invited the applicant to comment on or to respond to the information. The Tribunal told the applicant that he may respond to the information orally or in writing. The applicant was also informed that he may seek additional time to comment on or respond to the information. The applicant requested additional time to respond in writing. The sponsor was granted 14 days to respond by 7 June, 2018.

14. In accordance with s.359AA the Tribunal put to the sponsor that he had little knowledge of the applicant’s schooling and post high school studies. The Tribunal put to the sponsor that he had said that the applicant had finished high school in 2014 or 2015 when he had in fact actually finished high school in June 2010. That the sponsor had also told the Tribunal that the applicant had studied pharmacy at Nguyen Tat Thanh University when in fact he had studied English there and not Pharmacy.

15. The sponsor responded through his agent in writing on 8 June 2018 stating that the applicant discusses his education with his mother and siblings much more than himself and felt the pressure of the hearing and had mistaken his oldest son for his youngest daughter who had finished high school in 2015. He further stated that he had given incorrect evidence due to his high anxiety and state of mind during the hearing.

16. The Tribunal accepts that the sponsor displayed had a high degree of anxiety during the hearing and at times was confused when giving evidence and finds his explanation plausible.

17. The applicant told the Tribunal that he finished high school in June 2010. He further stated that he studied English full-time from 2010 to 2013 at Nguyen Tat Thanh University. The Tribunal questioned the applicant in relation to his attendance during the course of his study at the university. The applicant stated that he attended the English course sometimes in the morning or afternoon and that it depended on the timetable.  He further stated that it was the teacher’s responsibility to keep attendance records and that all he had to do was attend on a regular basis. The tribunal asked the applicant why he had told the Department he was studying a short term English course in May 2013. The applicant responded that the short term course was an additional course that he was studying in the evening. He further stated that he had no records of attendance for the evening course that he attended.

18. The applicant’s evidence is that he also studied English full-time at Nong Lam University for the period from 2013 to 2017. Tribunal questioned the applicant in relation to his attendance during the course of his study at the university. The applicant stated he has no attendance records or timetables and that it is the responsibility of the student to attend the course and the teacher keeps the records of attendance.

19. The Tribunal questioned the applicant as to what he was currently studying. The applicant responded that he is studying Chinese at the Saigon College of Arts, Culture and Tourism from 2017 to 2020. The Tribunal asked the applicant if he had receipts for payment of all the courses that he had attended from 2010 to 2017. The applicant said that he had some receipts. The Tribunal requested the applicant to produce the payment receipts for his studies within 14 days for that period.  

20. The applicant told the tribunal that he had been studying English full-time from 2010 to 2017. The Tribunal asked how proficient he was in English. The applicant told the Tribunal that he can speak, read and write English but his understanding of English was limited.

21. The applicant told the Tribunal that he had started a pharmaceutical course in September 2016 and that he stopped attending the pharmaceutical course in April 2017 to focus on his English studies at Long Nam University. The applicant further stated that he had previously enrolled in the pharmaceutical course in 2014 at Hong Duc Medical and Pharmaceutical College but did not attend because it clashed with his timetable studying English at Long Nam University. The Tribunal asked the applicant if he had deferred his pharmaceutical studies at Hong Duc Medical and Pharmaceutical College from April 2017. The applicants responded that the school did not accept his request for deferment and that is why he is studying English and Chinese. The Tribunal asked the Tribunal what benefit he would obtain from the language courses that he is studying. The applicant said that he would be educated to become a teacher or interpreter. The applicant told the Tribunal he had not made any enquires in relation to future employment.

22. The Tribunal asked the applicant if he would resume study in the pharmaceutical course. The applicant is response said that once he regains confidence in his language skills and he feels confident in English and Chinse languages he will return to the pharmaceutical course.

23. At the conclusion of the Tribunal hearing, the applicant was requested to provide evidence in the form of receipts for payments made either by the applicant or the sponsor for fees and tuition for the applicant’s study at any of the institutions at which the applicant claimed to have studied.  The applicant provided receipts to the Tribunal on 8 June 2018 for the payment of fees dated:

    ·     24 August 2010 at Nguyen Tat Thanh College of VND3,250,000;

    ·     13 July 2011 at Nguyen Tat Thanh University of VND2,263,800;

    ·     3 October 2011 at Nguyen Tat Thanh University  of VND4,136,000;

    ·     12 March 2012 at Nguyen Tat Thanh University of VND3,995,000;

    ·     6 July 2012 at Nguyen Tat Thanh University of VND3,005,000;

    ·     25 February 2013 at Nguyen Tat Thanh University of VND360,000.

24. The Tribunal, when considering the evidence provided, accepts the applicant completed his secondary studies and commenced full-time study in an English course at Nguyen Tat Thanh University which he completed in 2013. The Tribunal accepts that the applicant enrolled in a pharmaceutical course in September 2013 at Hong Duc Medical and Pharmaceutical College and ceased his studies in early 2014. The applicant recommenced his studies in pharmacy in September 2016 at Hong Duc Medical and Pharmaceutical College in September 2016 and due to the fact the applicant was not proficient in the English language to continue the pharmaceutical course, he attended Lon Nam University and completed his English course in 2017.  The applicant has provided evidence that he is now studying Chinese full-time at Saigon College of Arts, Culture and Tourism for the period from 9 September 2017 to 9 September 2020. The Tribunal accepts that the applicant has taken breaks in his study of his pharmaceutical degree to study relevant supplementary courses in English and Chinese to reach the proficiency required to complete his pharmaceutical degree and that he has the intention to complete his pharmaceutical degree.

    Criteria for applicants over 18

25. If, at the time of application, the 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).

    Applicant under 25 or incapacitated for work

26. At the time of application, the applicant must not have turned 25. 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 total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2).

27. Based on the visa applicant’s date of birth, the tribunal is satisfied that at the time of application, the applicant had not turned 25 years.

28. Accordingly, cl.101.211(1)(b) is met at the time of application.

    Relationship status and history

29. At the time of application, the 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).

30. There is no evidence before the Tribunal indicating the applicant is engaged to be married, nor is there any evidence that he has ever had a spouse or de facto partner.

31. Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

32. At the time of application, the 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).

33. The evidence before the Tribunal does not suggest that the applicant was, or has been engaged, in full time work.

34. Accordingly, cl.101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

35. 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.101.213(1)(c).

36. 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).

37. 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 applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

38. The Tribunal, when considering the evidence provided accepts the applicant completed his secondary studies and commenced full-time study in an English course at Nguyen Tat Thanh University which he completed in 2013. The Tribunal is satisfied that the applicant commenced a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification in September 2013 and recommenced his studies in Pharmacy in September 2016. Based on the evidence provided the Tribunal accepts that the applicant has taken breaks in his study of his pharmacy degree for the purpose of studying  supplementary courses  in English and Chinese at alternative institutions to reach the proficiency required to complete his pharmaceutical degree and that he has the intention to complete his pharmaceutical degree in the future. The Tribunal is satisfied the applicant has been undertaking full-time study at the time the visa application was made (26 September 2016), and also since he turned 18 or within six months or a ‘reasonable time’ after completing the equivalent of year 12 in the Australian system.

39. For the above reasons, the Tribunal is satisfied that the applicant has since turning 18 years, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, has 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 meets the requirements of cl.101.213(1)(c) at the time of application and at the time of decision.

40. For the reasons above, as the applicant meets the requirements of cl.101.213(a), (b) and (c), cl.101.213 is met at the time of application.

41. Further, at the time of decision, the applicant continues to meet the requirements of cl.101.213. Accordingly, the applicant meets the requirements of cl.101.221(2)(b).

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

43. 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.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221(2)(b) of Schedule 2 to the Regulations.

    Russell Matheson
    Member