Ho (Migration)

[2021] AATA 558

Ho (Migration) [2021] AATA 558 (2 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dac Tiem Ho

VISA APPLICANT:  Mr Dac Thanh Huy Ho

CASE NUMBER:  2006944

DIBP REFERENCE(S):  OSF2018/009703

MEMBER:Nicholas McGowan

DATE:2 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant the Subclass 101 visa.

Statement made 9:54am on 2 February 2021

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study requirement – non-appearance before the Tribunal – academic transcripts and certifications – study gaps – reasonableness of ‘gaps’ – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213, 101.221

WRITTEN STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 February 2020 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 December 2018.

3. The review applicant applied to this Tribunal for a review of the delegate’s refusal decision on 9 April 2020.

4. The review applicant provided this Tribunal with a copy of the delegate’s refusal Decision record dated 21 February 2020.

5. As this Tribunal was unable to make a favourable decision on the information before it alone, the Tribunal invited the review applicant to a hearing into the review, scheduled for 1 February 2021.

6. On the day of the scheduled hearing the review applicant’s representative emailed the Tribunal to advise the review applicant intended to withdraw his application for review and declined to appear before the Tribunal. The Tribunal conveyed the hearing, provided an interpreter for the purposes of the hearing, though the hearing did not present as invited. Notwithstanding the review applicant’s intention, as communicated to this Tribunal, at the time of this decision no formal withdrawal had been received.

7. In the circumstances outlined above, the Tribunal has proceeded to make a decision on the matter without further delay.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the requirements for a Child (Migrant) (Class AH) Subclass 101) visa are met.

9. Under migration law, an application is made for a class of visa and each application must be considered against the criteria for all subclasses within that visa class. There are three (3) subclasses of visa in the class in which the visa applicant applied. In this matter the visa applicant has indicated he meets the criteria for the grant of a Child (Subclass 101) visa.

10. There is no claim, or evidence before the Tribunal, which would lead to a favourable decision in respect to the vis applicant satisfying the criteria for the grant of either the Adoption (Subclass 102) visa, or the Orphan Relative (Subclass 117) visa.

    RELEVANT LAW

11. Clause 101.213 in Schedule 2 of the Regulations requires that, at time of application:

    (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
    (c) 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)(c) 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.

    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:
    (b) has turned 18 and:
    (ii) is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

12. Clause 101.221 requires at time of decision:

    (2) In the case of an applicant who had turned 18 at the time of application:
    (b) the applicant continues to satisfy the criterion in clause 101.213.

    CONSIDERATION OF EVIDENCE AND ARGUMENT(S)

13. The following evidence is (also) outlined the Decision record dated 21 February 2020, a copy of which the Tribunal has observed (above) was provide by the review applicant to this Tribunal as part of this review:

    ·Curriculum Vitae (CV) for the visa applicant (dated and signed 22 October 2018) in which he claims he studied at Hue Star School from 2011 until 2014; and then studied from 2018-2020 at Ninh Binh Vocational College of Mechanical Implements.

    ·A Questionnaire for Dependent Children (signed and dated 18 September 2019) wherein the visa applicant claims that he is currently studying his second year at by Ninh Binh Mechanical College on a full-time basis.

    ·Senior High School record that shows that the visa applicant studied Year 12 during the 2013 to 2014 academic year.

    ·A Senior High School Diploma (dated 25 September 2014).

    ·

    Documents issued by Hue Tourism Vocational College including:

    
    

    Certification (dated 16 October 2015) confirming that the visa applicant was enrolled in a food preparation course from 2015 to 2018;

    
    

    Academic transcripts (dated 21 October 2018) for the school years of 2015 to 2016 and 2016 to 2017.

    ·

    Documents issued by Ninh Binh Vocational College of Mechanical Implements including:

    
    

    Student card;

    
    

    Certification (dated 20 June 2018) stating the visa applicant had not been disciplined since commencing his studies in March 2018;

    
    

    Academic transcripts (dated 27 June 2018) which show that the visa applicant had completed semester 1.

    
    

    Certification (dated 12 September 2019) confirming that the visa applicant is studying Industrial Electricity on a full-time basis from March 2018 to March 2020;

    
    

    Academic transcripts (dated 12 September 2019) which show the visa applicant had completed Semester 3 on the date of issue.

14. The Tribunal has considered the visa applicant was interviewed by Departmental officers on 25 November 2019 and provided the following information about his study history (which is also detailed in the refusal Decision record dated 21 February 2020):

    “The visa applicant graduated high school around June 2014 and after graduating, the applicant stayed at home and waited before entering Hue College.

    The visa applicant commenced studies in cooking at Hue Tourism Vocational College in July 2015 however 3 to 4 months after commencing his studies, he ruptured a ligament in his leg and ceased his studies while he recovered from an operation and treatment at Hue Hospital. He stated that he recovered around 5 months after his operation.

    When asked why he provided an academic transcript from Hue College showing that he had studied from 2015 to 2017, he stated that he did not know as he stopped studying at Hue College after 3 to 4 months.

    He stated that he resumed his studies in July 2018, commencing his current course in Industrial Electricity at Ninh Binh College.

    When asked what he did from 2016 to July 2018 after recovering from his ligament rupture, the applicant stated that he stayed at his brother's home; that he did not studying and stayed at home.

    On 12 December 2019, the applicant was provided with 28 days to provide comment on suspected ‘non-genuine’ information supplied to the department and to specify whether he believed there were any circumstances to justify the waiver of Public Interest Criteria 4020. Given that at interview, the applicant stated he only studies for 3 to 4 months at Hue College and then ceased his studies due to an injury, the suspected non-genuine information was the academic transcript submitted for the academic years of 2015 to 2016 and 2016 to 2017, issued by Hue College on 21 November 2018. 10. A response was received from the applicant on 11 January 2020 and included the following:

    A letter of explanation from the applicant, dated 10 January 2020.

    A Certification, issued by Hue Tourism Vocational College on 9 January 2020, confirming that the applicant was enrolled and studying a food preparation course from September 2015 to May 2017.

    In his letter of explanation, the applicant stated that he wished to reaffirm that he completed subjects in the training program in culinary arts at Hue Tourism College from 2015 to 2017. He stated that at interview when asked about his academic status, he answered that after the admission of some months, he paused his studies for a short time but then resumed and completed his studies after that. He also stated that did not say at interview that he only studies for some months and then completely ceased his studies as stated in the natural justice letter.”

    ASSESSMENT

15. No further documentary evidence or argument has been provided by the review applicant in respect to this review. As the review applicant has also declined to appear before the Tribunal at a scheduled hearing, the Tribunal must make a decision in the matter based on all the evidence and arguments provided previously (as outlined above).

16. It is evident to the Tribunal that the visa applicant, consistent with his own evidence, had two breaks in his studies from the time he graduated high school in mid-2014:

    
    
    

    - The first between the period when he ended high school, and then commenced his study at Hue Tourism School in September 2015.

    
    
    

    - The second, when the visa applicant ended his studies in May 2017 then commenced study again in June 2018 (at the Ninh Binh Vocational College of Mechanical Implements).

17. The Tribunal has considered whether policy allows for such breaks. Policy allows a ‘gap’ in studies where the visa applicant has commenced post-secondary studies within 6 months (or a reasonable time after) completing high school. In this matter the visa applicant had a break in his studies for more than 12 months (between graduating from high school and his post-secondary studies at He Tourism School.

18. The Tribunal has not been satisfied that the period of the ‘gap’ was in this matter ‘reasonable’ for the purposes of satisfying the requirement as stipulated.  It follows that based on the circumstances as outlined above, the Tribunal finds the visa applicant has not satisfied the Tribunal that since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australia school system, the visa applicant 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 visa applicant does not satisfy clause 101.213(1)(c) as required for the grant of the Subclass 101 visa.

    DECISION

19. Given all the above the visa applicant does not satisfy clause 101.213(1)(c), and therefore does not satisfy clause 101.221 in Schedule 2 of the Regulations.

20. As the visa applicant does not satisfy clause 101.221, the visa applicant does not satisfy the criteria for the grant of the Subclass 101 visa.

21. As the Tribunal has found the visa applicant does not satisfy clause 101.221, it is not necessary for the Tribunal to consider the other criteria for this subclass of visa.

22. The Tribunal affirms the decision under review as the visa applicant does not satisfy the criteria for the grant of the visa under law as outlined above.