Han (Migration)

[2017] AATA 250

Han (Migration) [2017] AATA 250 (15 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tielin Han

VISA APPLICANT:  Mr Feng Han

CASE NUMBER:  1513406

DIBP REFERENCE(S):  OSF2015/047966

MEMBER:Mary Urquhart

DATE:15 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 15 February 2017 at 2:51pm

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) –Dependency test – Educational requirements – Full time study after high school – Length of break in study unreasonable – No corroborating evidence

LEGISLATION

Migration Act 1958

, ss 65, 359(A)

Migration Regulations 1994

, Schedule 2, cl 101.213, cl 101.221, r 1.05A

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 28 August 2015 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 27 May 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 delegate refused to grant the visa on the basis that cl.101.221 and cl.101.213 were not met. The delegate did not accept that Mr Han met the dependency test in r.1.05A.  Furthermore the delegate did not accept that Mr Han met the educational requirements in cl.101.213.

4. The review applicant appeared before the Tribunal on 17 January 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Xiniei Qiu and Mr Feng Han by telephone from the People’s Republic of China.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent.

7. Post Hearing

8. On 24 January 2017 the Tribunal wrote to the review applicant inviting him to comment on and respond to the following information in writing. The Tribunal received a response on 2 February 2017. Further reference to the response is set out below.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether Mr Feng Han satisfies the various financial dependency and educational requirements for the visa.

    Educational requirements

11. The visa applicant was born on 19 November 1990 and turned 18 on 19 November 2008.  The visa application was lodged on 18 August 2011, when he was 20 years old.  As he was over 18 at the time of the visa application he must satisfy educational requirements set out in cl.101.213:

    (1)     If the applicant has turned 18:

    (a)     the applicant:

    (i)     is not engaged to be married; and

    (ii)     does not have a spouse or de facto partner; and

    (iii)     has never had a spouse or de facto partner; and

    (b)     the applicant is not engaged in full-time work; and

    subject to subclause (2), the applicant has, 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.

    (2)     Paragraph (1) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b) (ii) of the definition of dependent child.

12. Clause 101.213 also needs to be continued to be satisfied at the time of the decision (cl.101.221 (2) (b)).

13. There being no evidence to the contrary the Tribunal accepts that the visa applicant is not engaged, or married or in a de facto relationship.  The Tribunal also accepts that at the time of the visa application and time of decision he was not engaged in full time work.

14. Therefore the Tribunal accepts that cl.101.213 (1) (a) and (b) are satisfied. 

15. There is no evidence that cl.101.213 (2) is applicable in this case.     

16. Based on the combination of the evidence obtained at the hearing and on the forms and documents lodged with the department, the Tribunal makes the following findings concerning the visa applicant’s studies.  

17. At the hearing evidence was given by the review applicant and the applicant that the visa applicant attended Shenyang Guangquan High School until June 2008 completing all courses of study to qualify him for a certificate of completion which was collected from the school by his mother, according to the review applicant’s evidence, and by either his mother or father according to the visa applicant, in June 2009.

18. Evidence was given that the applicant first came to Australia accompanied by the review applicant who came on a Guardian visa. The applicant enrolled at Meridian International school studying there between October 2008 and February 2009 when he had an accident spilling hot oil on himself whilst cooking. The evidence given is that he was, as a result of the accident, unable to return to his studies and he returned to China.

19. The Tribunal notes that some black and white photographs were submitted which claim to show the burns to his face and a burn on his upper thigh. There is photo which claims to have been taken 2 months later for comparison.

20. The photographs do not appear to be official medical documents. Whilst the Tribunal accepts that the applicant spilt hot oil on himself resulting in burns it finds the medical evidence regarding his burns is somewhat inconsistent with the claims made by the review applicant regarding them.

21. The Tribunal  notes there is medical evidence in a hospital hand written note dated 18 February 2009 which records, inter alia, the following points in summary:

    ·     Burns were superficial

    ·     Now healing well

    ·     Eyes clear

    ·     Eating and drinking well

    ·     Wanting to go back to China to be with parents

    ·     OK to travel back

    ·     Advised to seek medical attention if concerned.

22. The review applicant gave evidence that the applicant had such bad scabs as to be unable to attend school. He claims the applicant was handed a letter from the hospital which suggested that he rest and recover for at least 6 months. The evidence is that he handed the letter to the school when seeking deferment. No copy of the letter was submitted. It is of some concern that no medical evidence is available to corroborate the claim that the applicant was unfit for studies for 6 months.

23. The witness Mr Qiu gave evidence that after the hot oil accident the applicant spent one night in hospital, returned home (to premises they shared) and again attended school. The review applicant sought to correct Mr Qiu’s evidence claiming the applicant only attended school to obtain 6 months leave as suggested to him by Sunshine Hospital; it was the reason he went to back to the school he said.

24. The Tribunal has significant concerns that in a personal statement by the visa applicant dated August 2015 he makes no mention of the oil spill accident or of serious injuries requiring him to rest for 6 months.

25. As a result of concerns the Tribunal wrote to the review applicant under 359(A) of the Act inviting comment in the following terms:

    ·     At the hearing before the Tribunal  on 17 January 2017 you gave sworn evidence that your son Mr Feng Han, the visa applicant studied English at the Meridian International School commencing on 13 October 2008 until 14 February 2009 when he had an accident spilling hot oil on himself. You claimed he could not return to school because of the severity of his burns including swelling and scabs. You gave evidence that he was given a letter by the Sunshine Hospital which required him to rest for 6 months before resuming his studies. You were unable to produce such letter or a copy of the letter.

    ·     This evidence is inconsistent with other evidence and information before the Tribunal.

    ·     In 2011-2012 you made a successful application for a 309 Spouse visa. Mr Feng Han sought to be included as your dependent child in that application. Mr Feng Han’s application (OSF2011/025991) was refused. In the Form 47A details were provided of Mr Feng Han’s education history including that:

    He studied English at Meridian International School Melbourne from 1 December 2009 until 6 November 2009

    And

    That he was studying Senior Middle School at “Oxford College” in Melbourne from 1 December 2009 until 10 August 2010”.

    ·     The visa applicant provided a personal statement which is dated 7 August 2015. In his statement he makes no mention of his accident with hot oil in February 2009 or of such accident being a reason to rest for 6 months on medical advice. In his statement he claims he enrolled at Meridian International in January 2009 and implies he attended until 9 November 2009 when the school closed down. He states he “was in shock” at the closure. He claims he applied for other schools but “was unsuccessful in obtaining a suitable offer”.

    ·     A housemate of the visa applicant, Mr Qiu, gave sworn evidence that he also attended Meridian International; he accompanied the applicant to hospital after the hot oil spill; he gave evidence the applicant remained in Hospital overnight. He gave evidence that the applicant returned to school before he went back to China. He said he was not sure why Mr Feng Han went back to China”.

    ·     He gave evidence that when Meridian International went into liquidation he found another school. He gave evidence Mr Feng Han was aware of his ongoing studies.

26. The review applicant responded, in summary, as follows.

27. At point 1 of the response the review applicant reiterates his evidence that he did not keep a copy of the letter he claims his son was given by a doctor discharging him from hospital following an overnight stay for treatment for burns from an oil spill. He claims as the letter was given to the school and the school collapsed it is impossible for him to get any copy.

28. No reference is made to any steps to contact the doctor or hospital to support the claim his son was advised to “rest for six months” based on hospital records.

29. The Tribunal accepts the visa applicant obtained leave for 3 months from school. The Tribunal has considered the evidence at the hearing that in regard to the letter granting a 3 month deferment the applicant did not notice the deferment was only for 3 months not six.

30. However given no independent evidence to support reasons for this, the Tribunal is not satisfied that the leave was given because of injuries as claimed. The reason may have been other; for example that the visa applicant was homesick or worried about his divorcing parents.

31. This is not pure conjecture as there is a doctor’s note in evidence that the visa applicant wished to return to China.

32. At point 2 the review applicant refers to his own successful application for a 309 visa which included his son who was unsuccessful. He states that he did not know English and just signed the forms and was unaware of the contents in the forms; he states all he could do was trust his agent. The Tribunal does not accept this explanation.

33. The Tribunal notes that in the Form 47a in relation to the visa applicant’s father’s 309 spouse application, it was clearly stated, inter alia, that the applicant was studying Senior Middle School at Oxford College in Melbourne from 1 December 2009 until 10 August 2010.

34. Applicants for visas to Australia sign declarations as to the truth of the contents of documentation they rely upon. There is an obligation to know what is being signed and for it to be the truth.

35. The Tribunal does not accept the explanation for wrong information about the visa applicant studying at Oxford College previously given in that application.

36. At point 3 the review applicant refers to the visa applicant’s statement made 7 August 2015 where he makes no reference made to the hot oil accident or injuries. The review applicant explains that his former agent prepared the document and his son just signed it. The Tribunal has considered all the evidence in this regard. The Tribunal finds the omission and the explanation for it unsatisfactory.

37. At points 5 and 6 the review applicant refers to the evidence of the witness Mr Qiu. After careful consideration the Tribunal is not persuaded to ignore or discount Mr Qiu’s evidence and gives weight to the fact that he and the visa applicant were housemates at the relevant time.

38. The review applicant claims in his response that after his son the visa applicant returned to China” he never stopped studying until today. The Tribunal has taken this claim into consideration.

39. The Tribunal records that it accepts that in November 2009 the Meridian International School closed down however the Tribunal is not satisfied that at the time of the closure the visa applicant was studying at Meridian.  

40. The Tribunal is unable to be satisfied that the break in the applicant’s study can be considered reasonable.

41. The Tribunal does not accept that all avenues were followed up by the visa applicant to enrol in other schools or that he was unaware of what he needed to do to enrol. The Tribunal does not accept the explanation that he was waiting for refunds, or that his father, helping him, was computer illiterate or that English was a barrier to finding another school. The Tribunal does not accept that agents engaged to assist were to blame, or that the break can be explained as reasonable due to the accident with hot oil.

42. Having considered all the evidence singularly and cumulatively the Tribunal is not satisfied that since turning 18 or within 6 months or a reasonable period of time since the completion of high school, the applicant has been in full time study and accordingly finds he does not meet cl.101.213 (1) (c) of Schedule 2 of the Regulations at the time of application.

43. Accordingly, cl.101.213 (1) (c) is not met at the time of application, and does not continue to be met at the time of decision.

44. 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

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

    Mary Urquhart
    Member