Huang (Migration)

[2021] AATA 5446

Huang (Migration) [2021] AATA 5446 (7 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ruiling Huang

VISA APPLICANT:  Mr Weijun Chen

CASE NUMBER:  1903040

HOME AFFAIRS REFERENCE(S):          OSF2017/019147

MEMBER:Christine Kannis

DATE:7 December 2021

PLACE OF DECISION:  Perth

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

Statement made on 07 December 2021 at 7:10am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicant over 18– applicant has not enrolled in a further course of study – no evidence of current enrolment was provided – visa applicant is currently studying part-time and is working full-time – cl.101.213 does not continue to be met at the time of decision – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

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 Home Affairs on 6 December 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 23 August 2017. 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 comprises criteria that must be satisfied by visa applicants who are 18 or older at the time of application.

3. The visa was refused on the basis that cl 101.213 or cl 101.221 were not met because the delegate was not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, 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.

4. A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.

5. The review applicant appeared before the Tribunal on 23 November 2021 to give evidence and present arguments. 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 her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made.

9. The issue in this case is whether the visa applicant has fulfilled the criteria relating to full‑time study under cl 101.213(1)(c) at the time of application and at the time of this decision.

   Criteria for applicants over 18

10. 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).

11. The applicant’s passport indicates his date of birth is 15 April 1995 and therefore he was aged 22 at the time of application.

    Relationship status and history

12. 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).

13. The visa applicant claimed to not have been married and to not have (or ever have had) a spouse or de facto partner. The review applicant confirmed this information at the hearing. As these matters have not been contested by the delegate, and there is no evidence or claim before this Tribunal that the visa applicant has somehow provided false or misleading evidence in regard to these aspects, the Tribunal accepts the visa applicant’s claims at face value.

14. Given the above, the Tribunal finds cl 101.213(1)(a) is met at the time of application and continues to be met at the time of decision.

    Not engaged in full-time work

15. At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b).

16. At the time of application, the visa applicant claimed not to have been engaged in full‑time work. The evidence before the Tribunal is that the visa applicant worked part-time as a Teaching Assistant from December 2013 to February 2015 and that he had two other part‑time jobs, at a café from June 2013 to July 2013 and at C-Store from September 2013 to July 2014.

17. At hearing, the review applicant confirmed that at that time of application, the visa applicant had not worked on a full-time basis. As this matter has not been contested by the delegate, and there is no evidence or claim before this Tribunal that the visa applicant has somehow provided false or misleading evidence in regard to this aspect, the Tribunal accepts the visa applicant’s claims at face value.

18. Given the above, the Tribunal finds cl 101.213(1)(b) is met at the time of application.

19. The review applicant told the Tribunal that the visa applicant is currently working on a full‑time basis (see paragraph 37 below) and therefore cl 101.213(1)(b) does not continue to be met at the time of decision.

    Full-time study (or incapacitated for work)

20. At the time of application, the visa applicant must have, since turning 18, or within six 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.

23. There is no evidence, and no claims were made, that the visa applicant was incapacitated for work because of loss of bodily or mental functions, and therefore cl 101.213(2) does not apply in the present case.

24. In the Form 47CH dated 15 August 2017, the visa applicant indicated that he commenced his secondary education at South China Agriculture University on 1 September 2013 and completed it on 10 June 2014. He provided consistent information in a Form 80 dated 6 July 2017. Further, the Department was provided with the following documents:

    ·Global Assessment Certificate dated 17 July 2014 issued by the GAC International Foundation Center of South China Agricultural University; and

    • GAC Academic Transcript dated 17 July 2014 showing the visa applicant completed Level 1 on 6 December 2013, Level 2 on 7 March 2014 and Level 3 on 30 June 2014.

25. At the hearing, the review applicant told the Tribunal that the visa applicant completed his secondary education in June 2014.

26. The Tribunal notes that the visa applicant also provided the Department with a Certificate dated 14 April 2014 certifying that he was issued a Diploma by Guangdong Panyu High School on 15 July 2013. The delegate noted that at the time of graduation, the visa applicant was 18. The Tribunal accepts the written and oral evidence and finds that the visa applicant completed the equivalent of Year 12 in the Australian school system in June 2014.

27. The review applicant told the Tribunal that when her partner died in August 2014, the visa applicant travelled to Australia and stayed with her from August 2014 until he returned to China in October 2014.

28. In the Form 47CH, the visa applicant indicated he was currently studying a post‑secondary course of study for a bachelor’s degree at Jinan University and that he commenced that course on 1 July 2015. He stated the estimated date of completion was 10 July 2019. In contrast to this, the Tribunal was provided with a certified translated Certificate dated 5 July 2017 which stated that the visa applicant had been enrolled as a student majoring in Finance at Education College at Jinan University from March 2016. The Certificate stated that the course is a three-year program, that he has completed two years of study and is expected to graduate in January 2019.

29. The Tribunal put the inconsistency in relation to the visa applicant’s commencement date at Jinan University to the review applicant. She said he was undertaking study to prepare for university entrance exams in the period from September 2015 to February 2016. A certified translated statement dated 8 January 2019 from Guangzhou Oriental Standard Education Center was provided prior to the hearing. The document stated that the visa applicant had been studying during the period from September 2015 to March 2015 in preparation for exams. At the hearing, the review applicant’s representative advised that the reference to March 2015 was a “typo” and that the correct date on the original document was March 2016.

30. Regarding the reason the Form 47CH and Form 80 incorrectly indicated that the visa applicant commenced study at Jinan University in September 2015, the review applicant initially told the Tribunal that as a result of her partner’s death, she did not have the time or energy to ensure that accurate information was provided in the forms. When the Tribunal pointed out that her partner had died three years prior to lodging the forms, she said at that time she was running a coffee shop and was very busy and so she delegated the job of completing the forms to her migration agent.

31. The Tribunal noted that the statement dated 8 January 2019 from Guangzhou Oriental Standard Education Center was not on an official letterhead however it is prepared to accept the review applicant’s evidence that the visa applicant was engaged in full-time study in preparation for university exams. She said this study commenced in September 2015 however she also acknowledged that the visa applicant did not depart Australia until October 2015. Accordingly, the Tribunal finds that this study commenced in October 2015.

32. The Tribunal pointed out that the evidence was that the visa applicant completed secondary studies in June 2014 and was issued with a Graduation Certificate in July 2014. As noted, the Tribunal accepts that from October 2015, the visa applicant was engaged in study in preparation for university entrance exams. The Tribunal asked the review applicant the reason for the gap in study from July 2014 to October 2015. She said the visa applicant spent time with her in Australia after her partner’s death, and when he returned to China in October 2014 he applied for a Subclass 573 visa. She said he did not undertake any study whilst awaiting the outcome of the visa application. She said in April 2015 he was notified that the Subclass 573 visa was refused and so she told him to find a preparation for university course. As noted, he commenced that study in October 2015.

33. The review applicant told the Tribunal that the reason the visa applicant did not study when he returned to China in October 2014 was that they did not expect it would be difficult to be granted a Subclass 573 visa and did not expect the refusal decision. The Tribunal pointed out that when making an application for a visa, the outcome is generally a grant of a visa or a refusal decision, with both outcomes possible. The review applicant did not provide an explanation for the delay in commencing study after the refusal decision in April 2015 until October 2015 however in a Personal Statement provided prior to the hearing, she said he could not be signed up immediately after the refusal because the start of the school year was in September 2015. No documentary evidence to substantiate this contention was provided and the Tribunal notes that documents provided to the Department and the Tribunal indicate that the visa applicant’s study has commenced in certain courses in the month of July.

34. The review applicant told the Tribunal that the visa applicant completed his study at Jinan University in 2019. Prior to the hearing, the review applicant provided the Tribunal with a Graduation Certificate dated 30 December 2019 issued by Jinan University certifying that the visa applicant completed the Higher Education Self-Study Examination for the Bachelor of Financial Management.

35. In the Form 80, the visa applicant indicated that from July 2017 to July 2020 he was studying at Golden Finance Education and was enrolled in an Association of Chartered Certified Accountants (ACCA) course. The following documents were provided to the Department and the Tribunal:

    ·Invoice dated 1 August 2017 issued by the ACCA indicating payment was made for three products described as Exemption F1, F2 and F3.

    • Invoice dated 18 August 2017 issued by the ACCA indicating payment was made for Initial Registration – ACCA Qualification.
    • Certificate dated 8 September 2017 issued by Golden Finance certifying that the visa applicant had been studying the Elite F of the ACCA program in July 2017 and that it is a three-year program leading to the Certificate of the ACCA.

    ·ACCA Certificate dated 7 February 2018 certifying that the visa applicant achieved a provisional result in the Computer Based Examination Corporate and Business Law held at Gaodun Finance.

    • Invoice dated 3 November 2021 issued by the ACCA indicating payment was made for product described as Exam Entry Fees.

36. The review applicant told the Tribunal that the visa applicant commenced study in the ACCA course in July 2017 however due to the pressure of studying at both Jinan University and the ACCA course, he paused his study in the ACCA course for a year. She said he has completed 70% of the course. The Tribunal noted that no evidence of current enrolment was provided prior to the hearing.

37. The Tribunal asked the review applicant about the visa applicant’s current study. She said he was studying online so that he can sit exams in March 2022. She said he expects to complete the course in 2022. Noting that the review applicant’s evidence was that the visa applicant is studying online, the Tribunal asked her whether he is currently studying on a full‑time basis or part-time basis. In response, she said he is working and teaching students English and his study is part-time only. In response to the Tribunal asking whether his employment is full-time or part-time, she said he works on a full-time basis. The Tribunal asked the review applicant to confirm that her evidence was that the visa applicant is currently studying part-time and is working full-time

38. , which she did.

39. Following the hearing, the review applicant’s representative provided a translated Certificate dated 24 November 2021 from Golden Finance Guangzhou Campus which certified that the visa applicant commenced the three-year Elite F ACCA program in July 2017 and that he had passed all examinations for the qualification of Advanced Diploma in Accounting and Business. The Certificate stated that the visa applicant then studied the two-year Elite P ACCA program from July 2019 and that he suspended the program from August 2019 to August 2020. The Certificate stated that the program is predicted to be finished by July 2022.

40. Following the hearing, a letter dated 24 November 2021 from the Director of Customer Service was provided. The letter was not on an official letterhead however at the bottom of the page was “ACCA Connect” and telephone, email, website and postal address in the United Kingdom details were provided. The letter confirmed that the visa applicant is registered as a student with ACCA on 1 August 2017 and is currently an active student of the ACCA.

41. The review applicant told the Tribunal that she wants to live with her two sons and have her family unit united. The visa applicant is her older son, and she has a younger son, aged 11, living with her in Australia.

42. The Tribunal records that it attempted to contact the visa applicant by telephone a number of times but was unsuccessful. These attempts were made using a landline and a mobile telephone to call the visa applicant on the mobile telephone number provided (and confirmed during the hearing). The calls made on the landline were answered with a message referring to restrictions. The representative advised that Telecom in China restricts some incoming calls. Consequently, attempts to make calls using a mobile telephone were made however these calls were not answered. The review applicant told the Tribunal that the visa applicant was aware of the hearing. The Tribunal was satisfied that it had made sufficient attempts to contact the visa applicant and was not able to speak to him.

43. The Tribunal has found that the visa applicant commenced undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification in October 2015. This was the preparation for university entrance exams. He completed the equivalent of Year 12 in the Australian school system in June 2014 and therefore he did not undertake the requisite study within six months. The question before the Tribunal is whether the requisite study was commenced within a ‘reasonable time’ for cl 101.213(1)(c).

44. As noted, there is a gap in the visa applicant’s study from July 2014 to October 2015. The Tribunal accepts the review applicant’s evidence concerning the reasons for this gap, including that the visa applicant spent two months in Australia after her partner died, that he did not undertake study whilst awaiting the outcome of his application for a Subclass 573 visa because he had an expectation that the visa would be granted, and that the school year in China commenced in September.

45. The Tribunal has considered the relevant circumstances in relation to the gap in study individually and in their totality. It has had regard to the duration of the gap and has heard the explanations given by the review applicant for the gap however it does not accept that, in ceasing study in June 2014 when he completed the equivalent of Year 12 in the Australian school system and not commencing the requisite study until October 2015, the visa applicant commenced this study within a reasonable time. Accordingly, the Tribunal finds that the visa applicant does not meet the time of application criteria in cl 101.213(1)(c).

1. The Tribunal has also considered the circumstances of the visa applicant at the time of this decision. Case law authorities, binding on the Tribunal, squarely address the time of decision study requirement. Hussain v MIBP makes clear that while there is no requirement for an applicant to have been ‘continuously involved’ in study from the time of commencement of their studies and up until the time of decision, the visa applicant must, at the time of decision, be undertaking a full-time course. In Opoku-Ware v MIBP, the Court held that the provision does not permit an end to the study within the decisional time frame and considered that the phrase ‘has been undertaking’ in cl 101.213(1)(c) describes an action that has already commenced and remains ongoing. It stated that there are no words present in this provision to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of full-time studies, that has recently stopped. Further, the Court considered that the verb ‘continues’ in cl 101.221(2)(b) is written in the present tense and requires that the applicant is still undertaking studies at the time of the decision in respect of the visa.

2. The review applicant’s clear evidence to the Tribunal was that the visa applicant is currently employed on a full-time basis and is studying on a part-time basis. She gave this evidence in a forthright and spontaneous manner, and when asked she confirmed the correctness of the evidence to the Tribunal. From this response, the Tribunal concludes that the visa applicant does not meet or continue to meet the criteria in cl 101.213(1)(c) at the time of the decision.

3. For completeness, the Tribunal accepts the review applicant’s evidence that the visa applicant is currently employed on a full-time basis and therefore finds he does not continue to meet cl 101.213(1)(b) at the time of decision.

4. Accordingly, the Tribunal finds that the visa applicant does not meet or continue to meet the criteria in cl 101.213(1)(b) and (c) at the time of the decision and therefore does not meet the criteria in cl 101.221(2)(b).

5. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced, nor any evidence provided, in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

   DECISION

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

   Christine Kannis
   Member