Jin (Migration) - [2025] ARTA 138

JIN (MIGRATION) [2025] ARTA 138 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Linxiao Jin
Visa Applicant:  Mr Yuan Yao
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2106448

Tribunal:Moira Brophy
Place:Sydney
Date: 3 February 2025
Decision:The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Statement made on 03 February 2025 at 9:29am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – applicant aged over 18 – requirement not to be in paid employment and studying full-time at times of application and decision – condition met at time of application, but applicant in paid employment since degree course completed and condition not met at time of decision – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(b), (c), 101.221(2)(b)
CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 March 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) Subclass 101 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 11 February 2019. The delegate refused to grant the visa on the basis that while the delegate was satisfied the applicant met clause 101.213 at the time of application, they had not provided evidence that they continued to study full time until the time the delegate made their decision, and so were not able to meet clause 101.221.
The review applicant appeared before the Tribunal on 24 January 2025 by way of a video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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
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).
According to documents provided to the department and the Tribunal the applicant was born on 10 April 1998. At the time the application was lodged on11 February 2019 the applicant was aged over 18.
Relationship status and history
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).
The Tribunal is satisfied the visa applicant is not and has never been married. 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. Accordingly, cl 101.213(1)(a) is met. It continues to be met at the time of decision.
Not engaged in full-time work
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).
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.
Documents provided to the tribunal by the applicant included a statement from Tianjin Zhonglei Construction & Engineering Pty Ltd dated 23 December 2024 to the effect that the applicant was an employee of the company and that he had been recruited by their company in March 2021.
The Tribunal discussed this at the time of hearing and the review applicant confirmed at the time of hearing that the applicant was currently in paid employment. Accordingly, cl 101.213(1)(b) is met at time of application but it is not met at the time of decision.
Full-time study (or incapacitated for work)
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).
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).
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.
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.
In the Form 47CH dated 1 October 2022, the visa applicant indicated that he completed his secondary education at Tianjiin No 50 Secondary School on 30 June 2016. He then commenced a Bachelor of Project Management (full time) at the School of Civil Engineering of Inner Mongolia University of Technology in September 2016 and completed those studies in July 2020.
At the time of hearing, the Tribunal discussed these matters with the review applicant. She stated that her son had intended to study further after he completed his bachelor’s degree and had enrolled in post graduate studies but had then been offered an employment opportunity which he had taken. He continues to be employed as was evidenced by a letter from his employer provided to the Tribunal.
There was no evidence the visa applicant had studied since he graduated from university. The Tribunal discussed this issue with the review applicant at the time of hearing and it was her evidence that had the application been processed in a timely manner her son would have been able to meet the requirements for the visa. She submitted that her continued separation from her son was because of the departments failure to progress the application in a timely manner. Her health was poor, and she needed her son to be able to join her in Australia.
The Tribunal has found that the visa applicant has not engaged in full-time study leading to specified qualifications since completing his university studies in July 2020.
Therefore, on the basis of the evidence and these authorities, the Tribunal finds the visa applicant is not currently studying and therefore does not continue to meet the requirement in cl.101.213(1)(c) at the time of decision.
For the reasons above, cl.101.213 is met at the time of application, but, at the time of decision, cl.101.213 does not continue to be met. Accordingly, cl.101.221(2)(b) is not met.
As a result of the above findings, it is not necessary to consider the dependency criteria in cl. 101.211 and cl.101.221(2)(a).
For these reasons, the criteria for the grant of a Subclass 101 visa are not met.
No claims have been advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117), and on the evidence before it the Tribunal finds the applicant does not meet the criteria for the grant of a visa under either of these subclasses.
In these circumstances, the Tribunal has no option but to affirm the decision under review.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
Date of hearing: 24 January 2025
Representative for the Applicant: n/a