DO (Migration)

[2018] AATA 3316

DO (Migration) [2018] AATA 3316 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANTS:  Mr Quy Phong Do
Ms Thuy Anh Thu Nguyen

VISA APPLICANT:  Miss Cao Ky Duyen Do

CASE NUMBER:  1710582

HOME AFFAIRS REFERENCE(S):           2016039776

MEMBER:David Barker

DATE:4 July 2018

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 04 July 2018 at 9:42am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Whether the visa applicant was undertaking a full-time course of study at the time of application – Where applicant stopped studying based on misleading advice – Where the applicant undertook alternate studies during the interim – Applicant was studying at the time of applicant – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 September 2016. 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). The delegate refused to grant the visa on the basis that cl.101.213 and cl.101.221 was not met because the visa applicant did not satisfy the criteria to be regarded as a dependent child as she has not, since she turned 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.

4. The visa applicant’s father (the review applicant) appeared before the Tribunal on 19 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the mother and younger sister of the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicants were represented in relation to the review by their registered migration agent.

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

   Background

7. The review applicant is a national of Vietnam who came to Australia in [2008]. He was accompanied by his wife, the mother of the visa applicant. There are three children from their marriage, the youngest of which was sponsored to come to Australia in 2017. The visa applicant and her elder brother remain in Vietnam, where they reside with their maternal grandmother. The visa applicant is currently 24 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, provides the following information:

   • The visa applicant turned 18 years in 2012 and was 22 years old at the time of application. No claims have been made that the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions.
   • The visa applicant submitted an untranslated confirmation of studies issued by Saigon University, dated 22 February 2016, which states she is a full-time student in Archives for the academic years 2012 to 2015.  A further confirmation of studies, dated 16 September 2016 states that the applicant was studying full-time (further study) in her fifth year with the faculty of Library (Office) for the academic years 2012 to 2015;
   • On 24 March 2017, the Department received the following documents: a copy of the visa applicant's high school graduation certificate which shows that she graduated in June 2012, the applicant's academic transcript, dated 20 March 2017, issued by Saigon University, a confirmation of study, dated 17 March 2017, issued by Saigon University and another Curriculum Vitae, dated 6 March 2017, which states that from 18 years of age until now, the visa applicant was a student at Saigon University;

   ·On 29 March 2017, the Department wrote to Saigon University requesting that they verify the visa applicant's studies. A reply from the university, dated 7 April 2017, was received on 13 April 2017. The letter stated that the visa applicant is a full-time student for academic years 2012 to 2015 (with a maximum completion year of 2018).

   However, that the applicant had not yet graduated as she had not yet completed the program.

   • The Department spoke with the visa applicant on 20 April 2017. The visa applicant stated that she had not yet graduated from Saigon University, as she owed 2 to 3 subjects and had not attended the university since August 2016, as she did not enroll to study the outstanding subjects. Since she has ceased attending university, the visa applicant states she has self-studied English, then studied English firstly with Viet My Language Centre and then with VATC and now she is self-studying again. The applicant stated that on 6 February 2017, she started studying a three month course in Japanese.

9. Prior to the hearing, the Tribunal received documents from the applicant including:

   ·Written submissions from the representative;

   ·Medical records regarding the visa applicant;

   ·Copies of financial remittances from the review applicant to the maternal grandmother;

   ·Evidence regarding the applicant’s enrolment at Hutech University and Saigon University.

10. The Tribunal gave the review applicant time following the hearing to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matter.

11. On 4 May 2018, the Tribunal received an email from the review applicant’s representative which stated:

    At hearing, the Visa Applicant claimed that she had been advised by administration at Saigon University to not take further units during the time that she had waited for her graduation eligibility to be assessed. The submissions made relied on this information to explain the break that the Visa Applicant had taken in her studies.

    The Visa Applicant has advised that, following the hearing, she had attended Saigon University’s administration offices to seeks some confirmation of the advice she had received or an official document from the university outlining the guidelines that led to the advice the Visa Applicant had received. However, the Visa Applicant explains that the university’s administration had advised her that no such confirmation or clarification was possible, as the advice she had received was not based on official university policy, but rather the independent advice of the staff the Visa Applicant had spoken to. As such, there is no official documentation setting out the advice, and the staff member was not prepared to sign an confirmation that they had given this advice.

    We understand the difficulty in assessing the veracity of the Visa Applicant’s claims given the circumstances, but we submit that these circumstances are entirely beyond the Visa Applicant’s control. In good faith, she had followed advice from the university administration staff, which turned out to not be official university policy. The Visa Applicant has ultimately been adversely affected by this advice, but her only intentions were to follow what she had been told by university staff. Although the decision to pause her study was her own, it was based on advice she received from the university staff.

    In any event, we respectfully submit that the evidence that has been provided—including oral evidence provided at hearing—demonstrates a clear level of dependence that the Visa Applicant has on her parents. We wish to reiterate that the most pertinent question is whether the Visa Applicant is in fact a dependent. We respectfully submit that the evidence of the Visa Applicant’s study history, as well as money transfers from her mother in Australia back to Vietnam answers this question in favour of grant of visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant, satisfies the criterion in cl.101.213.  This requires consideration of whether the visa applicant was undertaking full time study at the time of application and at the time of this decision.

13. The Tribunal has considered the evidence contained in the Departmental and Tribunal files and as well the oral evidence provided by the review applicant, visa applicant and her mother during the hearing. The Tribunal noted that the review applicants and the visa applicant gave their evidence to the tribunal in a straight forward manner, without embellishment and is satisfied weight can be accorded to their evidence.

    Additional criteria for applicants over 18

14. 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).

15. The applicant turned 18 in April 2012.  The application was made in September 2016.  She is therefore required to meet the additional criteria.

    What is the visa applicant’s relationship status and history?

16. 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).

17. There is no evidence before the tribunal to demonstrate the visa applicant is engaged or has at any stage been married or had a de facto partner.  The evidence provided to the tribunal during the hearing was that she is single and resides in the home of her maternal grandmother, along with her elder brother.  The tribunal has no reason to doubt the genuine of this evidence.

    Is the visa applicant engaged in full-time work?

18. 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).

19. The evidence provided to the tribunal during the hearing was that the visa applicant has no paid employment. There is no evidence before the tribunal to demonstrate this is not the case.

    Was the visa applicant a full-time student at the time of application?

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).

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]-[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).

22. 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.

    Is the visa applicant incapacitated for work?

23. There is no evidence before the Tribunal that the visa applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant undertaking full-time study?

24. The applicant turned 18 in April 2018 and it was not contended that she had commenced tertiary study prior to that date.

25. A question for the Tribunal to consider is whether the time between the visa applicant finishing the equivalent of year 12 in June 2012 and commencing full time study at Saigon university in October 2012 is ‘reasonable time’. 

26. The tribunal has reviewed the documents provided with the visa and review applications, including the visa applicant's high school graduation certificate which shows that she graduated from secondary school in Vietnam in June 2012.  The Tribunal has also reviewed documents attesting to the visa applicant commencing full time study at Saigon University in the 2012 academic year.  The visa applicant has indicated she commenced study in a Library (Database Management) degree in the Library faculty at Saigon University in October 2012 and the tribunal accepts this claim. On the basis of these findings, the Tribunal is satisfied that the time between the visa applicant finishing the equivalent of year 12 in June 2012 and commencing further study in October 2012 is a ‘reasonable time’.

    Was the applicant undertaking a full-time course of study at the time of application?

27. A further question for the Tribunal to consider is whether at the time of the visa application, the visa applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

28. The available documentary evidence shows and the tribunal accepts the visa applicant studied at Saigon University for the academic years 2012 to 2015.  The applicant has previously told the Department and the Tribunal accepts that she ceased her studies at Saigon University in August 2016. Submissions provided by the review applicant’s representative and by the visa applicant during the hearing provided consistent information with respect to the following points:

    ·In August 2016, Saigon University was assessing the applicant’s eligibility to graduate from her degree course and advised her that her grades in some subjects were not high enough, including a subject which required a certain level of proficiency in the English language, which she had not at that time attained;

    ·The applicant claims that she had been advised by administration at Saigon University to not take further units of study during the time that she was waiting for her graduation eligibility to be assessed.  She has sought to get verification from Saigon University that she was given this advice, but has not met with success, as it was informal advice from a staff member, rather than official university policy;

    ·The applicant sought to improve her English language skills through self study and enrolling in an English language course at the Viet My Language Centre;

    ·the applicant recommenced study at Saigon University in the undergraduate library degree in or around April 2017 and has also, in 2017, commenced full time study in a Diploma of Hospitality Management at Hutech University in Ho Chi Minh City.

29. On the basis of the available evidence, the tribunal accepts there is a period of around seven months, between August 2016 and May 2017, in which the applicant was not studying full time at Saigon University. This encompasses the time she applied for the visa in September 2016.

30. The Tribunal accepts the applicant's decision to not maintain her enrolment at Saigon University was due to her acting on advice received from a staff member at the university to not enrol in additional units of study whilst her eligibility to graduate was being assessed.  Whilst this may not reflect official university policy, the Tribunal accepts the applicant took it as such as it was given by someone she deemed was in a position to advise her correctly.  The Tribunal is satisfied the applicant has at all times wished to complete the Library degree at Saigon University.  The Tribunal is also satisfied the applicant required treatment for a medical condition, including a three week hospital admission in March 2017, which impacted the date on which she resumed her studies at Saigon University.  The tribunal accepts the applicant has during 2017 undertaken part time study at Saigon University to complete the required additional subjects to meet qualification criteria associated with the library degree and has also commenced full time study in an associate degree in Hotel Management at Hutech University in Ho Chi Minh City.  The tribunal has reviewed the documentation regarding the applicant’s enrolments and accepts that she remains enrolled at both of these education institutions in the 2018 academic year.

31. The Tribunal is satisfied that the temporary interruptions to the visa applicant undertaking study were due her acting on advice received from a trusted source at the educational institution where she was studying. While the visa applicant was not actively undertaking full-time studies from in or around August 2016 to in or around may 2017, she did in the interim undertake study which was aimed at assisting her meet a level of English proficiency required to meet qualification criteria in her initial degree at Saigon university. She has subsequently resumed part time study in additional units of study at that institution and commenced full time study in a further Diploma course at another university in her home town in Vietnam. 

32. In all the circumstances of this case the Tribunal has formed the view that the period in which the visa applicant was not undertaking study leading to her original qualification was a reasonable period.

33. Furthermore, as there is no evidence before the Tribunal that the visa applicant is engaged to be married or has a spouse or de facto partner or has ever had a spouse or de facto partner. Additionally, there is no evidence before the Tribunal that the visa applicant is engaged in full-time work. Therefore, the visa applicant meets cl.101.213(1)(a)(i), cl.101.213(1)(a)(ii), cl.101.213(1)(a)(iii) and cl.101.213(1)(a)(b) of Schedule 2 to the Regulations.

34. The Tribunal is satisfied that the visa applicant had been undertaking full-time study since turning 18 or within six months (or a reasonable time) after completing the equivalent of year 12 in the Australian school system, at an educational institution leading to the award of a professional, trade or vocational qualification. 

35. This leads the Tribunal to conclude that at the time of application and at the time of decision the visa applicant was undertaking full time study since turning 18 or within six months (or a reasonable time) after completing the equivalent of year 12 in the Australian school system, at an educational institution leading to the award of a professional, trade or vocational qualification.  Accordingly, cl.101.213(1)(c) is met at the time of application and continues to be met at the time of decision.

1. Accordingly, cl.101.213 of Schedule 2 to the Regulations is met at the time of application. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) of Schedule 2 to the Regulations is met at the time of decision.

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

   DECISION

3. The Tribunal remits the applications 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.

   David Barker
   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 who is engaged to be married or has a spouse or de facto partner), being a 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 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.

   …