Kamlangram (Migration)

[2021] AATA 1651

Kamlangram (Migration) [2021] AATA 1651 (14 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Surachet Kamlangram

Mr Surachat Kuruthanang

Mr Surasak Kamlangram

CASE NUMBER:  1829285, 1829284, 1829286

HOME AFFAIRS REFERENCE(S):          CLF2018/4653, CLF2018/4656, CLF2018/4651

MEMBER:Margie Bourke

DATE:14 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 14 April 2021 at 6:51pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – visa applicant over 18 years – full-time study – no family support in Thailand – gap in studies – limited evidence of tertiary studies in Thailand – financial hardship – referral for Ministerial Intervention – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 351, 362, 368
Migration Regulations 1994, Schedule 2, cls 802.214, 802.221; r 1.03

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. These are applications for review of three decisions made by a delegate of the Minister for Home Affairs on 17 September 2018 to refuse to grant the applicants a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 18 January 2018. At the time of applications, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.214.

4. The delegate refused to grant the visa on the basis that each of the three applicants did not satisfy the requirements of cl.802.214(1)(c) and/or cl.802.214(2) because the delegate was not satisfied that the applicant’s were enrolled in or participating in a full-time course of study at the time of application, and therefore did not meet cl.802.214(1)(c), and further the delegate was not satisfied the applicants were incapacitated and therefore did not meet the requirements of cl.802.214(2).

5. The Tribunal had regard to its objective is to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the applicants and the nature of the reviews. The Tribunal considered that the conduct of the hearings by video would give the applicants a fair opportunity to give evidence and present arguments and would allow the hearing to be conducted fairly and effectively. The Tribunal considered that the conduct of the hearing by video would enable the Tribunal to properly assess the credibility of the applicants and their witnesses. The Tribunal further considered that the reviews did not require a large quantity of documents to be put to the applicants by the Tribunal.  The Tribunal considered that the circumstances of the applicants, particularly their age, were such that unnecessary delay should be avoided. The circumstances caused by the covid-19 pandemic had restricted the opportunity for in-person hearings conducted by the Tribunal. In all these circumstances the Tribunal considered it was appropriate that the hearing in all three reviews should be conducted by video. For these reasons the Tribunal determined that it was appropriate that the applicants be invited to attend the hearings by video. The Tribunal did not receive any objection to the hearings proceeding by way of video from any of the applicants or their representative.

6. The Tribunal considered that the three reviews involved an application for a visa in the same visa subclass, and the decision of the Department to refuse the applications for the visa was based on a decision that the visa applicants did not meet the same criteria of the same subclause. The Tribunal also noted that the three visa applicants are siblings, and shared the same biological mother. Further all three applicants were represented by the same representative. In these circumstances the Tribunal considered it was appropriate to conduct the three reviews as a combined hearing, subject to the consent of the review applicants. The Tribunal invited the applicants to consider the reviews being conducted as a combined hearing. The applicants consented to the matter being conducted as a combined hearing.

7. The hearing invitation was sent to the applicants on 16 February 2021. The Tribunal received a request that the hearing time be altered to accommodate the time difference in Western Australia. The Tribunal acceded to this request and altered the start time of the hearing.

8. The Tribunal received a request for disclosure pursuant to Freedom of Information Act on Sunday, 7 March 2021. In discussion with Tribunal staff this request was changed to a request for disclosure pursuant to s.362A of the Act. Full disclosure was provided to the representative in relation to all three applicants on 9 March 2021, which was one week before the hearing.

9. The Tribunal sent a reminder on 12 March 2021 to the representative that all written submissions were required to be provided to the Tribunal in accordance with Article 6.11 of the covid-19 Special Measures Practice Directions at least seven days prior to the scheduled hearing, and no submissions had been received. Subsequently submissions were provided to the tribunal on 15 March 2021 and the tribunal accepted late submissions in relation to the combined hearing.

10. The visa applicants attended the hearing together, and sat together throughout the hearing. The applicants, their mother, stepfather and representative all remained in the hearing and heard all the evidence in relation to all three applicants. The issues in relation to the three applicants are similar. There is no concern of privacy in recording the issues that were discussed in the hearing and the decisions to be made by the Tribunal in relation to the three applicants. For these reasons, the Tribunal has considered that it is more convenient, it is simpler and it is appropriate to record its decision in relation to all three applicants in this one decision record. In some parts of this decision record there will be paragraphs applicable to individual applicants as appropriate. Pursuant to the requirements of s.368 of the Act, the reasons and findings in relation to each applicant are set out individually, in relation to the criteria which is the basis of the refusal in the delegate’s decision. The Tribunal makes general findings that the three applicants all meet the relevant criteria based on the same evidence, in relation to cl.802.214(1)(a) and (b) which are not the basis for the Department refusals, but were issues briefly discussed in the hearing for the sake of completeness.

11. The applicants appeared before the Tribunal by video on 16 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the three applicants mother and their stepfather, who attended the hearing by video with the three applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

12. The applicant was represented in relation to the review by his registered migration agent. The applicants’ representative also attended the hearing by video, and was in the same room and appeared on the same device as the three applicants.

13. The Tribunal noted that the audio quality of the video hearing was reliable and good. The visual quality was reliable but as all the parties attended on one device, it was not possible for the three applicants, the representative and the two witnesses to appear on the screen together. The screen size in which the applicants attended did not allow the representative and the two witnesses, the applicants’ mother and stepfather to all be visible on the screen to the Tribunal at the same time with the applicants. The Tribunal arranged that the three applicants were always on the screen during the hearing, and the representative was usually visible to the Tribunal during the hearing, and the three applicants’ mother and their stepfather were in the screen when they gave their evidence. The Tribunal accepts that the two witnesses remained in the room and heard all the evidence although they were not always able to be seen by the Tribunal during the balance of the hearing.

14. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria for applicants over 18

15. If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b).

    Relationship status and history

16. At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl.802.214(1)(a). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

17. Based on the evidence at the hearing, which is consistent with the findings of the delegate in the Department decision records, I am satisfied that the three applicants have not been engaged to be married and have not had a spouse or de facto partner at the time of application or at the time of decision. I am therefore satisfied that all three applicants meet the requirements of cl.802.214(1)(a) at the time of application and continue to meet these requirements at the time of decision.

    Not engaged in full-time work

18. At the time of application, the applicant must not be engaged in full-time work: cl.802.214(1)(b). This must continue to be the case at the time of this decision: cl.802.221(2)(b).

19. Based on the evidence at the hearing, which is consistent with the findings of the delegate in the Department decision records, I am satisfied that the three applicants have not been engaged in full-time work at the time of application or up until the time of this decision. I am therefore satisfied that all three applicants meet the requirements of cl.802.214(1)(b) at the time of application and continue to meet these requirements at the time of decision.

    Full-time study (or incapacitated for work)

20. At the time of application, the 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.802.214(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.802.214(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.802.214(2).

22. Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(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 before the tribunal that any of the three applicants were incapacitated for work because of partial or total loss of bodily or mental functions. There is no medical or other report provided to the tribunal in support of a claim that any of the three applicants were incapacitated within the meaning of r.1.03(b)(ii). There were no submissions made by the representative that any of the three applicants were incapacitated for the purpose of meeting the requirements of cl.802.214(2). I am satisfied that the three visa applicants do not meet the requirements of cl.802.214(2), and therefore the requirements of cl.802.214(1)(c) apply to all three applicants.

24. I will consider whether the three applicants meet the requirements of cl.802.214(1)(c) individually in the next part of this decision record. However in relation to all three visa applicants I am satisfied as to the following, based on the oral evidence of the applicants at the hearing. All three visa applicants arrived in Australia on 15 November 2017 as the holder of visitor visas. All three visa applicants applied for the subclass 802 visa which is the subject of this review, on 18 January 2018, and in all three applications the applicant ticked that the box in the application form to record that they were not currently studying.

25. All three visa applicants did not commence study in Australia until 18 October 2018, when they commenced a general English course at the Perth College of Business and Technology. I accept that when the applicants were giving evidence they referred to a letter of confirmation in relation to Surachat Kuruthanang which records that he commenced a general English beginner course on 18 October 2018, and the completion date was 4 September 2019. This record incorrectly records that the course ran for 14 weeks. The evidence of the three applicants during the combined hearing sometimes included the evidence that they studied this course for 14 weeks, when the correct information appears to be that the course was conducted over a period of 42 weeks.

26. The evidence of the three applicants’ stepfather was it was difficult to obtain information or records from Thailand in relation to the three applicants academic achievements. The three applicants’ stepfather stated that it was difficult to get certificates due to the element of corruption meaning the colleges demanded lots of money for certificates, and the applicants’ fathers or the applicants themselves had not obtained the certificates when they had completed courses or left colleges or schools. He gave evidence that he had travelled to Thailand in an attempt to try and obtain certificates but was unable to do so.

27. The evidence of the three applicants’ mother was that she wanted her sons with her here, she wanted them to study and that they did not have support in Thailand. She stated she wants the three applicants to be here to study, the middle son wants to be a chef, and she wants to support them to obtain a better future.

28. The representative submitted that due to a language barrier the stepfather had difficulty obtaining certificates confirming the academic achievements of the applicants in Thailand. The representative submitted that the applicants’ different fathers had not kept records, and it was almost impossible in some cases where the fees have not been paid at colleges to obtain records of academic achievements.

29. I accept based on the evidence before me that attempts were made to obtain evidence that the applicants had undertaken further study in Thailand. I accept that there is no evidence before me that any of the three applicants had achieved any certificate or completed any study or course in Thailand after completing the equivalent of their year 12 study, and prior to travelling to Australia in November 2017.

30. The applicants provided the Tribunal with an email to the Department requesting an extension of time to provide evidence before the decisions were made.  The Department decisions were made before the applicants had provided any further evidence to the Department. The Tribunal received post hearing submissions from the applicants.  The representative added that the applicants would require an extension of time for their stepfather to return to Thailand to obtain further documents as evidence of their study in Thailand. I accept the evidence that it had been impossible for the stepfather to obtain academic records or certificates from the applicants fathers. However I am satisfied on the written and oral evidence before me that all three applicants completed their secondary school in Thailand as claimed. I am satisfied that it had been impossible for the stepfather to obtain certificates of completion for the fathers of the applicants in relation to post secondary study, but I accept the evidence of the applicants that they did not receive certificates for the studies that were undertaken.  I am satisfied that it had been impossible for the stepfather to afford to purchase certificates from education institutions where the course had been previously completed, and where fees may also be outstanding.  In the circumstances, the Tribunal proceeded on the basis the applicants had undertaken study in Thailand, and it was not practicable for evidence to be produced in relation to that study.  Accordingly, the Tribunal did not request the applicants provide further documents from Thailand, and therefore did not provide the extension of time for the applicants to provide further documents from Thailand.

31. The applicants arrived in Australia in November 2017, and commenced a general English course at the Perth College of Business and Technology in October 2018. The evidence of the three applicants’ stepfather is that they were unable to enrol in an English course until October 2018. I accept that the academic year commences in February, or March, in Australia. I accept that if applications for enrolments are not made by February or March, a student may miss the start of an academic year. However the applicants were able to enrol in the English course commencing 18 October 2018, which indicates that students were able in 2018 to commence studying these English courses at times not commensurate with the start of the academic year, or tertiary semester dates. The evidence that the applicants commenced an English course on 18 October 2018 suggests that these courses are available for students to commence study at times other than at the beginning of the academic year, or at the beginning of semesters. The Tribunal does not accept the explanation that the applicants did not commence study until 18 October 2018 because they missed the beginning of the academic year and no other courses were available.

32. The tribunal also discussed that in Australia, the restrictions the applicants claimed prevented them from obtaining certificates of completion, or academic transcripts did not apply; the applicants did not claim that there was a level of corruption claiming exhorbitant fees for certificates of courses completed by the applicants, and there were no family members withholding the academic records or certificates from the applicants. Educational institutions in Australia should provide records of enrolment, course completion and payment of fees to the applicants.

33. The Tribunal discussed at the hearing the limits of the evidence in relation to the three applicants as to whether they met the criteria in cl.802.214(1)(c). The representative requested time to be able to provide further information to the Tribunal, and this request was granted. The Tribunal has considered the information provided by the representative in relation to the three applicants, both prior to and after the hearing.

    Surachat Kuruthanang

1. Surachat Kuruthanang is the eldest of the three applicants, having been born in 1994. He was aged 23 when the application for the visa was made in 2018, and was aged 27 at the time of the hearing. The tribunal is satisfied that he completed the equivalent of year 12 in the Australian secondary school system in March 2011.

2. In the hearing this applicant stated that after completing secondary school in Thailand he studied a sport training course for four years at Rung Aroon College. He stated he completed the course, but did not get a certificate, and could not go back to Thailand in March 2020 to get the award. The applicant stated that he forgot to pay and certificates would not be provided until payment of fees was made. The Tribunal discussed that usually it required the certificates of completed study to be provided to it as confirmation of study that had been completed by an applicant after finishing secondary school. However, in the circumstances of this review, the Tribunal accepts based on the oral evidence before it, that within six months or a reasonable time after completing secondary school, the applicant undertook a four year course in sport training at Rung Aroon College, from approximately 2012 to 2016.

3. Surachat Kuruthanang told the tribunal that he had undertaken study in Australia, including English level I and level II, which he had studied in 2018 and 2019. He stated he stayed at home until October 2018 studying English online, but online courses do not provide certificates upon completion. He stated that he did not continue studying in 2020 when covid-19 prevented studying at the college.

4. Before the hearing the tribunal had been provided with a certificate from the Perth College of Business and Technology that confirmed the applicant had successfully completed a general English beginner course which started 18 October 2018 and was completed on 4 September 2019. This is the certificate that incorrectly records the course duration is 14 weeks. This document is dated 16 March 2020. Attached to this document was a certificate of completion also dated 16 March 2020, and a record of academic achievement which records that Surachat Kuruthanang had completed elementary part one in elementary part two of the general English beginner course. This record also indicates that although the completion date was 4 September 2019, the end date of the confirmation of enrolment was 5 May 2020. However, the certificate of completion dated 16 March 2020 records the general English course was completed by the applicant on 4 September 2019. I am satisfied that the applicant completed the course on 4 September 2019.

5. The other documents provided in relation to this applicant include a letter of offer dated 27 September 2018 for the general English beginner course. As the tribunal has been provided with a certificate that this course was completed, the tribunal accepts that this letter of offer was accepted and the applicant completed the general English beginner course. The tribunal was also provided in relation to this applicant with a letter of offer dated 25 March 2019 for certificate III in Wall and Floor Tiling, and a letter of offer dated 12 August 2019 for a general English – ELICOS course. The two letters of offer have not been accompanied by any further attachments; there is no certificate of completion or record of academic achievement provided to the tribunal in relation to these courses. There is no oral evidence before the tribunal that this applicant completed either the general English ELICOS course or the Wall and Floor Tiling certificate III course. The tribunal is not satisfied that these letters of offer are evidence that the applicant is undertaken these courses of study. The tribunal was also provided with a general information publication in relation to certificate III Wall and Floor Tiling. This is not evidence that the applicant undertook study of the course.

6. The tribunal has been provided with confirmation after the hearing that the applicant is currently enrolled as a part-time student in 2021 studying English at TAFE in Perth. The tribunal accepts that Surachat Kuruthanang is currently studying English part-time.

7. Based on the evidence at the hearing, and the documentary evidence provided to the tribunal, I am satisfied that Surachat Kuruthanang studied English from 18 October 2018 until 4 September 2019, and is currently studying English part-time in 2021.

   Surachet Kamlangram

8. Surachet Kamlangram is the second eldest of the three applicants, having been born in 1997. I am satisfied that he was aged 20 at the time of application for the visa, and was 23 years at the time of the hearing. I am satisfied that this applicant completed the equivalent of year 12 in the Australian secondary school system in March 2016 in Thailand.

9. This applicant stated that after completing secondary school he studied an English course in Thailand to prepare himself to come to Australia. He stated he did not obtain a certificate for his studies in Thailand.

10. I am satisfied that within six months or a reasonable time of completing secondary school, the applicant undertook an English course as a preparatory course to a full time course of study in Australia.

11. In the hearing Surachet Kamlangram stated that he has completed level I, II and III of English courses at the Perth College of Business and Technology.  He stated that he commenced in October 2018 and transferred to TAFE in 2020. He stated initially he studied this one semester course face-to-face and then moved online when required. This applicant stated that he studies English as he hopes to be able to achieve the ability to communicate better and to watch and understand the news. In answer to a question from the Tribunal as to whether he hoped to be able to obtain a professional, trade or vocational qualification by studying English, this applicant stated that he hoped to be able to undertake a TAFE course in the future. He stated he is currently undertaking an IELTS course through a website based in Thailand so he will qualify for a TAFE course in the future.

12. In the documents provided in relation to Surachet Kamlangram, the Tribunal received a certificate of confirmation from the Perth College of Business and Technology, dated 16 March 2020 which confirmed that he had completed a general English beginner to intermediate course over 42 weeks from 18 October 2018 to 6 September 2019. The Tribunal also received a certificate of completion that the applicant had fulfilled the requirements of a general English beginner to intermediate course, and a record of academic achievement which recorded the applicant had completed as part of the course, elementary part one and two, intermediate part one and two, and pre-intermediate part one and two.

13. Other documents received by the Tribunal in relation to Surachet Kamlangram include a letter of offer dated 27 September 2018 for the general English course. As the Tribunal has received the certificate that the course was completed, the Tribunal is satisfied that the applicant accepted the offer and completed this course. Other documents provided to the Tribunal in relation to this applicant include a letter of offer dated 12 August 2019 from the Perth College of Business and Technology for general English – ELICOS, certificate III in commercial cookery, certificate IV in commercial cookery and a diploma of hospitality management. There is no evidence that the applicant accepted these letters of offer or commenced studying in any of these courses. The Tribunal also received publications of general information in the certificate III commercial cookery courses. This is not evidence that the applicant undertook study of these courses.

14. The Tribunal also received confirmation that Surachet Kamlangram was enrolled at TAFE for a certificate III course for one semester in written and spoken English from 3 February 2020 to 26 June 2020. The document provided to the Tribunal indicated that the course included 80 hours of instruction, but the tribunal accepts the evidence of the applicant that a student could the study further hours in this course if they chose. There was no certificate of completion provided to the Tribunal for this certificate III course, but the tribunal accepts the evidence that the applicant was enrolled and undertook study in this course in the first half of 2020. The tribunal accepts the applicant’s evidence that the course was initially conducted in-person, and then was changed to online because of the covid-19 pandemic.

15. There is no documentary evidence before the Tribunal that the applicant is currently enrolled at the TAFE or currently studying English in 2021.

16. Based on the information provided at the oral evidence of the hearing and the documents provided to the Tribunal, the Tribunal accepts that Surachet Kamlangram studied and completed six units of general English beginner to intermediate from 18 October 2018 to 6 September 2019, and then studied one semester in the first half of 2020 in written and spoken English certificate III.

    Surasak Kamlangram

17. Surasak Kamlangram is the youngest of the three applicants and was born in 1999. The Tribunal is satisfied that he was aged 18 at the time of application, and was 21 years at the time of the hearing. The Tribunal accepts that this applicant completed the equivalent of year 12 in the Australian secondary school system in March 2017.

18. This applicant stated that between March 2017, after completing a secondary school in November 2017 when he left Thailand he studied English online on the Internet, but was not provided any certificates.

19. I am satisfied that within six months of completing secondary school, the applicant undertook study of an English course as a preparatory course to full time study in Australia.

20. Surasak Kamlangram stated that he studied English level I and II and started level III. In Australia  He stated that he commenced studying at the Perth College of Business and Technology in October 2018. He stated that after arriving in Australia in November 2017 and prior to commencing study at the college in October 2018 he did some self starting English online, but did not obtain any certificates for this study. He stated he was studying at the Perth College at the beginning of the covid-19 pandemic, and ceased study.

21. The applicant stated that he is currently studying general English at TAFE.

22. The Tribunal was provided with an email from the finance manager of the Perth College of Business and Technology dated 2 March 2021, which advised that the student Surasak Kamlangram has an outstanding balance of in excess of $1900, and this balance must be paid before he gets his certificates from the college. In relation to this applicant the Tribunal has not been provided with any certificate that he completed his general English course, or met the requirements of the course or has been provided with any record of academic achievement of the applicant. I accept based on the email, that the applicant attended the College and undertook the general English course. The Tribunal does not have any evidence that the course was completed. The Tribunal was provided with a confirmation of enrolment for the applicant in the general English beginner to intermediate course commencing 18 October 2018.

23. The Tribunal was also provided with a letter of offer to Surasak Kamlangram  from the Perth College of Business and Technology to study general English – ELICOS, certificate III commercial cookery, certificate IV commercial cookery and diploma of hospitality management. This is not evidence that the applicant undertook any of these courses or studied any of these courses.

24. The Tribunal was provided with confirmation that the applicant is currently enrolled in TAFE and commence study on 1 February 2021 in an English course that is due to be completed on 25 June 2021. The letter of confirmation stated the applicant was enrolled in one unit for the semester, but was required to complete seven units to complete the course. I am satisfied that as he is enrolled and studying only one unit, that the evidence is that the applicant is currently studying part-time.

25. The Tribunal is satisfied that Surasak Kamlangram commenced study in a general English course at the Perth College on 18 October 2018. The Tribunal accepts that complete payment for this course has not been made, and consequently there is no confirmation that the course was completed. The Tribunal is not satisfied based on the lack of documentary evidence before it, as to what units in the general English course have been completed. The Tribunal accepts that this applicant did study general English at the college for the 12 month period, involving the 42 week study period, with his brothers from 18 October 2018 until the first week of September 2019. The Tribunal is satisfied that this applicant is also currently enrolled at TAFE in a one semester English course, and is studying one unit of the course so is studying part time.

    Conclusions in relation to the three applicants meeting the criteria for cl.802.214(1)(c)

26. The Tribunal is satisfied based on the information provided that all three applicants have completed their secondary schooling, and have completed the equivalent of year 12 in the Australian school system.

27. The Tribunal has considered the evidence of the applicants’ stepfather, in relation to the difficulties obtaining evidence of the three applicants’ post secondary schooling studies in Thailand. The Tribunal notes that both Surasak Kamlangram and Surachet Kamlangram stated in their evidence that they did not obtain certificates for study completed after their secondary schooling. The evidence of Surachat Kuruthanang is that he did not receive certificate or the award for his four year study of sport training. I accept that there is currently no evidence available in support of the study undertaken in Thailand by any of the applicants. I have accepted that the applicants studied in Thailand as they claimed.

28. The Tribunal is satisfied that the applicants’ oral evidence of the courses they studied in person at the actual colleges in Australia is consistent with the documentary evidence they provided to the tribunal in relation to the courses of study they undertook and completed, and are currently undertaking.

29. I have considered the oral and written evidence in relation to the study undertaken in Australia since the three applicants arrived in November 2017. The Tribunal is not provided with the name of the courses, the name of the educational institution providing the courses, the duration of the courses, the description of the courses, the title of the courses or the academic achievement consequent upon completing the courses. In these circumstances, I do not accept that oral evidence that applicants have been doing online or Internet courses for which they do not provide details, and for which they do not receive a certificate of completion or achievement is sufficient evidence that applicants have been undertaking full-time courses of study at an educational institution that satisfies the requirements ofcl.802.214(1)(c).

    Surachat Kuruthanang

30. I am satisfied that Surachat Kuruthanang studied general English between 18 October 2018 and 4 September 2019, and successfully completed two units of English. I am satisfied that he studied the 42 weeks of the course. I am also satisfied based on the evidence before me that he is currently enrolled at TAFE, and has been studying English part-time since February 2021.  I am not satisfied that this applicant was undertaking a course of study from November 2017 until 18 October 2018. I am not satisfied that this applicant was undertaking a course of study from 4 September 2019 until February 2021. I am not satisfied that this applicant is currently enrolled in a full-time course of study at an educational institution.  I am satisfied that this applicant turned 18 in 2012, and completed his secondary schooling in March 2011, and studied a four year sport training course in Thailand, and has been in Australia since November 2017.  The documentary evidence of his study at an educational institution is limited to the English course from 18 October 2018 to 4 September 2019 and his current enrolment to part-time study since February 2021. Based on the total evidence before me, I am not satisfied that this applicant has 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. For this reason I am not satisfied that Surachat Kuruthanang meets the requirements of cl.802.214(1)(c). Further, I am not satisfied that this applicant meets this requirement at the time of decision, and does not meet the requirements of cl.802.221(2)(b).

    Surachet Kamlangram

31. I am satisfied that Surachet Kamlangram studied general English, and completed six units of beginner and intermediate English between 18 October 2018 and 4 September 2019. I am satisfied that he studied full-time during the 42 weeks of this course. I am also satisfied that he continued to study and enrolled at TAFE from 3 February 2020 to 26 June 2020 undertaking a certificate III course in written and spoken English. I am satisfied that Surachet Kamlangram turned 18 in 2015, completed his secondary schooling in 2016, undertook English studies in Thailand within six months or a reasonable time of completing his secondary school and he has been in Australia since November 2017.  I am not satisfied that this applicant was undertaking a full time course of study from November 2017, until 18 October 2018. I am not satisfied that this applicant was undertaking a full time course of study from June 2020 until the present time. I am not satisfied that Surachet Kamlangram has since turning 18 and within six months or a reasonable time of completing the equivalent of year 12 in the Australian school system, has been undertaking a full time course of study leading to the award of a professional, trade or vocational qualification.

32. There is no documentary evidence before the Tribunal that this applicant is currently enrolled or currently studying any course at an educational institution. The Tribunal received submissions from the representative in relation to the applicant’s academic achievements, enrolments, letters of offer and information about courses. The Tribunal did not receive any confirmation of the current enrolment in relation to Surachet Kamangram. The applicant’s evidence in the hearing was that he was currently studying an IELTS course from a website in Thailand, but no information or document was provided to the Tribunal to confirm this. I accept that to undertake a course of study in Australia, there are English requirements that need to be satisfied by the student. This applicant has achieved beginner and intermediate English course requirements, and undertaken written and spoken English certificate III. I accept that he has plans to study commercial cookery with the goal of becoming a chef. However at the time of hearing I am not satisfied that he is currently studying a full-time course of study, or is engaged in a full-time course of study.  Based on the evidence before me I am not satisfied that at the time of decision Surachet Kamlangram is undertaking a full-time course of study at an educational institution. To meet the requirements of this provision, case law requires that an applicant must be currently studying.

33. Based on the evidence before me, I am not satisfied that since turning 18 years, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, Surachet Kamlangram has been undertaking a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.  Further I am not satisfied that Surachet Kamlangram could continue to meet the requirements of cl.802.214(1)(c) at the time of decision as he is not currently undertaking a full time course of study. For this reason, Surachet Kamlangram does not meet the requirements of cl.802.214(1)(c) or cl.802.221(2)(b).

    Surasak Kamlangram

1. I am satisfied that Surasak Kamlangram studied general English from 18 October 2018 until the first week of September 2019. I am satisfied that he studied the 42 week period of the course. I am satisfied based on the evidence before me that he is currently enrolled in one unit of general English at TAFE, and has been enrolled and studying part-time since 1 February 2021. I am not satisfied that this applicant was undertaking a course of study from November 2017 until 18 October 2018. I am not satisfied that this applicant was undertaking a course of study from the first week of September 2019 until 1 February 2021. I am not satisfied that this applicant is currently undertaking a full-time course of study at an educational institution.  I am satisfied that this applicant turned 18 in 2017, and completed his secondary schooling in March 2017, and has been in Australia since November 2017.  I find his participation in courses of study is limited to a 42 week course from 18 October 2018 until the first week of September 2019, and a part time course commencing 1 February 2021. Based on the evidence before me, I am not satisfied that Surasak Kamlangram has 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. For this reason I am not satisfied that Surasak Kamlangram meets the requirements of cl.802.214(1)(c). Further, I am not satisfied that this applicant meets this requirement at the time of decision, and therefore does not meet the requirements of cl.802.221(2)(b).

2. For the above reasons I am not satisfied that the three applicants meet the requirements of either cl.802.214(1)(c) and cl.802.221(2)(b).

3. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

   DECISION

4. The Tribunal affirms the decisions not to grant the applicants Child (Residence) (Class BT) visas.

   Ministerial Intervention

5. I discussed with the applicants and their representative at the hearing whether they wished to apply for ministerial intervention if the decisions of the Department were affirmed by the Tribunal. Although the representative subsequently provided a submission to the Tribunal requesting the matters be remitted to the Department, in the hearing the representative indicated that on behalf of the applicants an application to request ministerial intervention was made. The Tribunal endorses such an application.

6. The Tribunal accepts the applicants have all undertaken and completed courses of English. The Tribunal recognises that the applicants spoke English in the hearing, and although an interpreter was engaged, the applicants regularly answered questions without the use of the interpreter. This indicates to the Tribunal that the applicants have been diligent and constant in their studies and achieved a relatively sufficient degree of the English language. The tribunal recognises that the applicants’ studies were interrupted by the covid-19 pandemic which impacted students and closed universities across Australia. The Tribunal also accepts that the applicants’ studies were affected by financial difficulties restricting their mother and stepfather, and their ability to meet the educational costs of the three applicants. The Tribunal accepts that the financial costs for the education of three overseas students are significant.  The Tribunal also recognises that the applicants’ aspirations to enrol in and study a course that would lead to a qualification was limited by the initial obligation to first obtain the necessary language proficiency, and the evidence presented to the Tribunal was that the applicants had made enquiries about relevant courses. The Tribunal also accepts that if the visas are not granted that this will have a negative and lasting impact on their mother, who now resides in Australia.

7. The Tribunal recommends to the Department that these matters may be appropriate for referral to the Minister for assessment for the exercise of the discretion under s.351 of the Act.  The inability of the applicants to meet the criteria was impacted by the covid-19 pandemic, and linguistic and financial constraints, which the applicants endeavoured to overcome.  The Tribunal considers that the applicants have compelling reasons for seeking ministerial intervention, which may fall within the Minister’s guidelines.

   Margie Bourke
   Member