Kame (Migration)

[2020] AATA 4217

Kame (Migration) [2020] AATA 4217 (4 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Vaishali Kame

VISA APPLICANT:  Miss Shruti Kolhatkar

CASE NUMBER:  1823822

HOME AFFAIRS REFERENCE(S):          2016/010699

MEMBER:Hugh Sanderson

DATE:4 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 4 August 2020 at 12:40pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child of the sponsor – visa applicant over 18 years – full-time course of study at time of decision – providing regular support to the visa applicant – work experience mandatory for chosen further courses – application for a work visa in New Zealand – two year break in studies – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 5, 65, 351
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 24 July 2018 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 20 December 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.101.213 at the time of the application and cl.101.221 at the time of the decision was not met because the delegate was not satisfied that the visa applicant continued to be undertaking a full-time course of study.

   Background

4. The visa applicant is a citizen of India and is currently 28 years old. At the time of the application, she was 24 years and 9 months old. She was sponsored for the application by the review applicant who is her mother. Her mother first came to Australia in 2008 and was granted a Subclass 189 visa in 2015. She became an Australian citizen on 26 June 2018.

5. In her application, the visa applicant stated that she completed her secondary schooling in India in 2012. She then completed a Bachelor of Arts that the University of Mumbai, completing that course on 14 January 2016. She applied for and was accepted into the University of Canterbury in Christchurch, New Zealand, to complete a Bachelor of Arts (Psychology) with honours. This course was stated to commence on 1 February 2016 and due to be completed on 1 December 2016. The visa applicant provided a copy of her enrolment details with the University of Canterbury which showed her courses would be completed by 13 November 2016.

6. When applying for the visa, the applicant’s agent provided submissions in support of the application dated 28 November 2016. In the submissions provided, it was stated that the visa applicant anticipated to complete her study at the University of Canterbury in December 2016.

7. The visa applicant was interviewed by an officer from the Department on 4 July 2018. The visa applicant made the following claims during that interview:

   ·She was not currently enrolled in any course of study and not undertaking any course of study;

   ·She had completed her degree at the University of Canterbury gaining a Bachelor of Psychology with honours in December 2016;

   ·She was not undertaking any full-time study but was not working full-time as she was awaiting her application to obtain temporary residence in New Zealand by applying for an Open Job visa which was applied for in May 2018;

   ·She intended to do a Master’s degree, but could not describe any course of study or research or any college which she had contacted to undertake that course or provide any details of any offer of enrolment;

   ·She continues to be supported by her mother as she only had permission to work part‑time; and

   ·If her visa is granted to her in New Zealand, she will start looking for full‑time employment.

8. The delegate who considered the application noted the following issues:

   ·The visa applicant was over the age of 18 at the time of the application and therefore was required to show that she was undertaking a full-time course of study;

   ·This requirement must be met both at the time of the application and at the time of the decision;

   ·The information provided by the visa applicant was that she completed her last course of study in December 2016 and had not been undertaking any further course of study; and

   ·There was no information which would indicate the visa applicant is incapacitated for any reason.

9. Taking into account these matters, the delegate found that the applicant did not meet, at the time of the application, the criteria in cl.101.213 and did not continue to meet the criteria at the time of the decision. Accordingly, the applicant did not meet the criteria in cl.101.221 and refused the application.

   Information to the Tribunal

10. The review applicant provided a statement to the Tribunal where she set out the following:

    ·The review applicant had a difficult life in India due to the poor marriage she had with the visa applicant’s father and she had to provide all the support for her daughter;

    ·The review applicant has been separated from her daughter for a long time as she came to Australia to be able to provide her proper support and has continued to do so since she arrived in Australia;

    ·The Department’s interview of the visa applicant was done without any prior arrangement and at a time when the visa applicant was not expecting any call from the Department;

    ·The visa applicant had stated clearly that she was not undertaking any Master’s course as Master’s courses for international students in New Zealand were not available until February 2019;

    ·The visa applicant has always been financially dependent upon the review applicant and the visa applicant has never been engaged in full-time employment;

    ·The refusal of the visa had adversely affected the review applicant’s mental and emotional wellbeing;

    ·Both the review applicant and visa applicant would make significant contributions to the Australian community; and

    ·The visa applicant had applied to study in Australia at a number of educational institutions, however she had been refused the visa on the basis that she did not meet the GTE (genuine temporary entrant) requirement which was very unfair.

11. The review applicant provided a further statement where she made the following claims:

    ·After completing a Bachelor of Arts from the University of Canterbury in New Zealand in December 2016, the visa applicant was exploring other studies, however she discovered that most universities had limited options to offer international students;

    ·The visa applicant decided to enrol in a Master of Social Work but was advised that to gain entry it was imperative she gain some work experience;

    ·The visa applicant commenced employment on a casual basis in a non‑profit organisation with an intention to gain work experience that would lead to entry into higher education once enrolment was open for international students;

    ·The visa applicant was granted a visa to remain in New Zealand on the basis of her work with the non-profit organisation;

    ·The visa applicant was unfairly dismissed from her employment and her visa was then refused in April 2018;

    ·The visa applicant appealed this decision, however the Minister declined to intervene and she was required to leave New Zealand;

    ·On 31 July 2018, the visa applicant returned to India and lived with the review applicant’s parents;

    ·The visa applicant became depressed and in November 2018 when she found out her biological father, who she had not seen since she was 18 months old, committed suicide, this exacerbated her mental health;

    ·As there were limited mental health services in Mumbai, the visa applicant relied upon the review applicant and her grandparents for support;

    ·The visa applicant made multiple applications to study in Australia, however these were refused on the basis that she had been previously refused a permanent visa in Australia;

    ·The visa applicant gradually improved to a position where she could study and she applied to study in Canada;

    ·The visa applicant is now studying in Canada; and

    ·The visa applicant has always been financially dependent upon the review applicant.

12. The review applicant provided further documents including notices of refusal to the visa applicant to study in Australia, bank statements and enrolment details in Canada. Details of the visa applicant’s income while she was working in New Zealand were not provided.

13. The review applicant appeared by telephone before the Tribunal on 30 July 2020 to give evidence and present arguments. The Tribunal had asked that the visa applicant be available to give evidence, however the review applicant said that the visa applicant would not give evidence to the Tribunal at the hearing.

14. The review applicant said the visa applicant’s last course of study in New Zealand was her Bachelor of Psychology which was completed on 1 December 2016. She said that she did not commence any other course of study until she started the Child and Youth Studies at the Mount St Vincent University in Halifax in Canada.

15. The review applicant said the visa applicant applied for a work visa in New Zealand on 5 February 2018. She said that her daughter had wanted to enrol in a Master of Social Work, however this was not available for international students in New Zealand and she was told that she should get some work experience. She said that she was only working casually 10 hours a week and was otherwise engaged in voluntary work and travelling around New Zealand. She said that her daughter was dismissed from her employer because she hurt her back at work and then was late turning up at work and was then dismissed. She said her daughter appealed against this dismissal, but her appeal was dismissed and she never got her job back.

16. The review applicant said her daughter applied for another work visa but this was refused and an appeal against that refusal was dismissed. Her daughter then returned to India in July 2018 and lived with the review applicant’s parents. She decided that she wanted to continue her studies and applied for a further student visa in New Zealand in December 2018. This was refused by the New Zealand authorities in February 2019.

17. At the same time, the review applicant’s daughter made applications to study in Australia, however all those applications were refused. The review applicant claimed that her daughter did not work and was financially dependent upon her over this period. She said that she did not apply to study any courses in India. She said her daughter then applied to study in Canada and commenced her course there in July 2019. This is a two-year course.

18. The review applicant said that when her daughter was in India, she was very depressed because she had been unsuccessful in her applications to remain in New Zealand. She said that she found out her father had committed suicide by a friend contacting her through social media. She said that her daughter was very upset by this. She said that her daughter had only seen her father on two brief occasions since the review applicant left her husband when her daughter was only 18 months old. She said that her daughter was 10 years and 12 years when she had seen her father briefly and otherwise had no contact with her father.

19. The review applicant said that apart from what she and her parents can say, there is no evidence that the visa applicant was suffering from any mental health issues. She said that because it is shameful in India to suffer from mental health issues, there is no opportunity to get treatment there. The Tribunal noted that it was not plausible that the visa applicant was so incapacitated due to any mental health issues when she was applying for visas to enter New Zealand, Australia and Canada with plans to continue her studies. The review applicant claimed that she was able to do this because she got the support of herself and her parents.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for applicants over 18

21. 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). As the visa applicant was 24 years old at the time of the application, she is required to meet these criteria.

    Full-time study (or incapacitated for work)

22. The Tribunal has first considered the study requirements.

23. 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).

24. 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).

25. 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.

    Time of application criteria

26. The visa applicant completed high school in Mumbai in 2012. She was then enrolled in a Bachelor of Arts degree at the University of Mumbai, completing that degree on 14 January 2016. She was then studying at the University of Canterbury in Christchurch, New Zealand, to complete a Bachelor of Arts (Psychology) which she completed on 1 December 2016.

27. There is no evidence that the visa applicant was enrolled in any other course of study until she was granted the equivalent of a student visa to study in Canada on 4 June 2019. The review applicant provided receipts for payments to Mount St Vincent University in Canada dated May 2019.

28. It was claimed the visa applicant was planning to undertake a Master’s course in New Zealand after she completed her study at the University of Canterbury on 1 December 2016. It was claimed she did not start any course as there were no courses available for international students and she had been advised to obtain some work experience before undertaking her further study. There is, however, no evidence to support this claim. There is no correspondence with any university or other education provider or advisor to indicate any discussions or proposal for further study. There is no indication that the visa applicant made any attempt to enrol or even make enquiries about her ability to undertake any further study in New Zealand at that time. As referred to in the Department’s decision, a copy of which the review applicant provided to the Tribunal, when interviewed the visa applicant did not indicate that she was enrolled in any course of study or was able to provide any details of any college or university she had contacted to seek to be enrolled in any course of study after the completion of her study at the University of Canterbury on 1 December 2016.

29. After the visa applicant completed her course of study at the University of Canterbury, she did not apply for a further student visa to remain in New Zealand, instead applying for a Job Search visa. She was employed by Hohepa, a disability service provider, from 10 August 2017 until she was dismissed on 19 February 2018. The visa applicant did not provide copies of her work hours or evidence of her pay over the period that she was employed by Hohepa. The review applicant claimed that the visa applicant was only working 10 hours a week, however there is nothing to support this claim. There is nothing to indicate that over the time that she was employed by Hohepa, she was engaged in any study or had attempted to enrol in any course of study.

30. Based on the information provided by the review applicant as to the communication with the New Zealand immigration authorities, it appears that in March 2018 the visa applicant applied for a further work visa in New Zealand. There is nothing to indicate that she applied for a student visa or any right to continue any studies in New Zealand. There is nothing to indicate that when the visa applicant held her previous work visa in New Zealand that the number of hours she could work was restricted. The subsequent work visa application was refused by the New Zealand authorities on 26 March 2018 and an appeal against that decision was finalised on 11 July 2018 when the appeal was dismissed. The visa applicant then left New Zealand, returning to India where she remained living with her grandparents and apparently did not undertake any further course of study or seek any gainful employment.

31. The only time the visa applicant applied for a further student visa to be able to study in New Zealand was in December 2018, after the Department had issued the decision to refuse the visa applicant the Child visa on the basis that she was not undertaking any course of study. That application to study in New Zealand was made two years after she had completed her study at the University of Canterbury. The application to study in New Zealand by the visa applicant was refused by the New Zealand authorities.

32. The Tribunal finds that at the time of the application, the visa applicant was not undertaking any full-time course of study at an educational institution leading to the award of professional, trade or vocational qualification. The Tribunal finds that the applicant completed her studies at the University of Canterbury on 1 December 2016 and then took steps to gain employment in New Zealand by applying for a Job Search visa and, ultimately, finding employment with Hohepa. The Tribunal does not accept that after the applicant completed her study at the University of Canterbury that she took any steps or had any intention to continue her studies but instead was taking steps to gain full-time employment in New Zealand.

33. The Tribunal finds that as the applicant was not undertaking any full-time course of study at the time she made her application, she does not meet the criteria in cl.101.213(1)(c).

1. There is nothing to indicate that at this time, the applicant was incapacitated for work because of the loss of any bodily or mental functions. She was applying for a Job Search visa and obtained employment after she was granted that visa. She had recently completed her course at the University of Canterbury. There is no information before the Tribunal that the applicant was, at that time, consulting any medical practitioner due to any mental health or any other physical incapacity. Accordingly, the exception in cl.101.213(2) does not apply.

   Time of decision criteria

2. Even if it is accepted that the visa applicant was undertaking a full-time course of study at the time of the application and met the time of application criteria, the Tribunal does not accept that at the time of this decision the applicant had, since turning 18, or within 6 months or a reasonable time after completing Year 12, been undertaking a full-time course of study.

3. As indicated above, the applicant completed her studies at the University of Canterbury on 1 December 2016. She only commenced study again at the Mount St Vincent University in Canada in July 2019. This is a break in study of more than two and a half years.

4. It was argued that this break in study was reasonable on the basis that the visa applicant was only working because she required practical experience to be able to continue her study to obtain a Master’s degree. The Tribunal does not accept this.

5. As indicated above, there is no information before the Tribunal of any attempts made by the visa applicant for the period between December 2016 and December 2018 to enrol in any educational institution in New Zealand or elsewhere or any correspondence between the visa applicant and any educational institution discussing any requirements to enrol in a Master’s course. It appears any attempt to enrol in further studies or obtain a student visa in any country was only taken after the Department had refused the application on the basis that the applicant was not enrolled in any course of study.

6. There is no information before the Tribunal of any attempt made by the visa applicant to enrol in any course of study upon her return to India. Although the review applicant claimed that it was not possible for the visa applicant to continue any studies in India, the Tribunal does not accept this. She had previously completed a course at the University of Mumbai and there is nothing to indicate that she would not have been able to obtain enrolment in further studies in India if she genuinely did intend to obtain a Master’s degree or continue her studies.

7. The visa applicant also applied to various educational institutions in Australia at that time, however these applications were refused.

8. The review applicant claimed that over this period, the visa applicant was incapacitated due to suffering from depression. It was claimed that this was caused due to her being refused a visa to study or work in New Zealand and the fact that she had been told her biological father had committed suicide. The Tribunal does not accept that the visa applicant was suffering from any form of mental health issue to such an extent that her mental functions meant that she was incapacitated for work.

9. The review applicant stated that she separated from her husband when the visa applicant was only 18 months old. Since then, the visa applicant had only seen her father on two occasions when she was 10 and 12 years old. Her father played no part in her life and provided her no support. In those circumstances, it is difficult to accept that the visa applicant would have been so affected by learning of the death of her father from a friend using social media that she would have been incapacitated for any reason. As she has provided no credible independent information to substantiate this claim, the Tribunal does not accept that the visa applicant was so affected by the news of the death of her father that this would have incapacitated her for any period.

10. There is no independent credible information to support any of the claims made by the review applicant that the visa applicant was incapacitated for any reason. There is nothing to indicate the visa applicant sought any treatment in India for any mental health issue or any other issues. The review applicant claimed that the support from herself and her parents was the only treatment the visa applicant had over this period. She claimed that it was not possible to obtain any medical assistance for any mental health issues in India due to the social stigma attached.

11. The Tribunal does not accept that if the visa applicant was suffering from any mental health issues which so adversely affected her that she was incapacitated for work that she would not have obtained some professional medical assistance. The Tribunal does not accept that simply being upset about being refused visas to New Zealand and Australia would have caused the visa applicant to be incapacitated for work. Over this period, the visa applicant was applying for visas to study in both Australia and New Zealand. The visa applicant applied for a visa to study in Canada which, ultimately, was successful. The Tribunal does not accept that if the visa applicant was suffering from any mental health issue which incapacitated her for work that she would have been able to make the necessary applications to study in Australia, New Zealand and Canada. That she was applying to study in these countries and was able to eventually be successful in one of those applications indicates that she was not incapacitated for work for any mental health reason or any other reason. The Tribunal does not accept that if the visa applicant were suffering from any mental health issue that she would not have been able to obtain professional help in Mumbai, regardless of any social stigma that may attach to people with a mental health issue in India. This is particularly so where the review applicant had qualifications in social work and psychology, as did the visa applicant.

12. The Tribunal finds that the period from 1 December 2016 until August 2019 when the applicant was not undertaking a full-time course of study can be considered a reasonable time for not undertaking a course of study. In particular, the Tribunal finds that the period from 1 December 2016 until 18 December 2018 cannot be considered a reasonable period for the applicant to not be undertaking a course of study. She was engaged in employment and applied for visas to be able to remain in New Zealand on the basis that she would be in paid employment. She did not make any application to study in New Zealand or in any other country and did not enrol in any course of study over that period.

13. Accordingly, the Tribunal finds that at the time of this decision, the visa applicant has not, within a reasonable time of turning 18 or 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 vocal occasional qualification.

14. Accordingly, cl.101.213(1)(c) is not met at the time of decision.

15. For the reasons above, cl.101.213 is not met at the time of application. Further, the Tribunal finds that cl.101.213 is not met at the time of this decision. Accordingly, cl.101.221(2)(b) is not met.

16. 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

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

    Hugh Sanderson
    Member