Kemthong (Migration)

[2018] AATA 5806

Kemthong (Migration) [2018] AATA 5806 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Somjinda Kemthong

VISA APPLICANT:  Miss Jenjira Chanpo

CASE NUMBER:  1619304

HOME AFFAIRS REFERENCE(S):           OSF2016/011375

MEMBER:Kira Raif

DATE:6 December 2018

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 06 December 2018 at 3:43pm

CATCHWORDS
MIGRATION – Child (Migrant)(Class AH) visa – Subclass 101 (Child) –  study requirements – not undertaking full-time course of study leading to award of a professional, trade or vocational qualifications – not a dependent child at time of application – 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 Immigration and Border Protection on 16 November 2016 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 is a national of Thailand, born in January 1998. She applied for the visa on 23 May 2016. The delegate refused to grant the visa on the basis that cl.101.221 was not met because the delegate was not satisfied the applicant was undertaking study at the time of the primary decision. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 6 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner. The review applicant initially requested the Tribunal to take evidence from the visa applicant but subsequently agreed that it was not necessary for the Tribunal to do so because her evidence would be the same as the review applicant’s evidence and that evidence has been accepted.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. 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).

6. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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).

7. 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).

8. 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).

9. 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.

   Does the applicant meet the study requirement?

10. The visa applicant was born in January 1998 and the Tribunal finds that she had turned 18 by the time the application was made. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

11. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant stated on the application form that she had completed Chanthaburi Technical College in March 2016 and has not undertaken any study since then. The visa applicant stated in her interview with the delegate that she has not done any further studies but intends to study in Australia.

12. In January 2018 the review applicant provided to the Tribunal a receipt for the payment of university fees for the visa applicant. The review applicant provided additional evidence to the Tribunal in November 2018. This includes evidence of payment of tuition fees in semesters 1 and 2 of 2017 and a Statement of Student Status dated 12 November 2018 confirming that the visa applicant is a student of Business Administration at Rambhai Barni Rajbhat University.

13. In oral evidence to the Tribunal the review applicant stated that her daughter applied to enter university around March 2017 and may have started the course a little later. She is in the second year of the university course and would finish in two years. The review applicant said her daughter completed high school when she was 17 years old, although the application form indicates that the secondary schooling was completed in March 2016.

14. The Tribunal finds on the basis of the review applicant’s evidence, that visa applicant completed high school in 2015 and turned 18 in January 2016. She has not done any study until about March 2017 when she commenced her university course. The period in which the applicant was not engaged in any study is around 12 months from the time the visa applicant completed secondary schooling or turned 18 and to the time she commenced her university study.

15. The review applicant explained to the Tribunal that in that period, the visa applicant was arranging her migration papers and applying for the passport and preparing her visa application and also waiting for the visa grant. The review applicant states that the embassy told them not to do anything before the visa was granted. Her daughter was also looking after her grandparents.

16. The Tribunal acknowledges that the visa application process may appear to be complex but the Tribunal is not satisfied that the visa applicant would have been incapable of arranging the visa paperwork at the same time as engaging in studies. Despite any perceived complexity of the process, the Tribunal does not accept that the need for the visa applicant to gather documents and arrange a passport would have prevented her from engaging in studies. The Tribunal also notes that the application for the visa was made in May 2016 and by that time most or all of the visa papers would have been prepared and provided to Immigration. There is no reason why the visa applicant could not engage in studies from that time, even if she believed she could not do it earlier.

17. In relation to the care arrangements, the review applicant confirmed that the visa applicant presently cares for her grandparents after school. That indicates that she is capable of combining her carer responsibilities and her study responsibilities. The Tribunal is of the view that she could have engaged in studies at an earlier date despite her carer responsibilities.

18. The review applicant’s partner told the Tribunal that the visa applicant could only enrol in a course on a particular date and that is why she had to wait for a year. That may be the case but the Tribunal does not accept that the visa applicant could not enrol on the specified date in 2016. Further, she could have engaged in study other than at the university level. Mr Lyons said the reason she did not enrol in a course in 2016 was because they were expecting the visa to be processed quicker. He also said that the visa applicant was looking after her grandparents day and night to relieve her brother.

19. The review applicant suggested that her daughter was told not to do anything by the embassy before the visa was granted. While that advice may have related to forming any links to Australia, the Tribunal does not accept that such advice related to the applicant engaging in studies, as the ongoing study is one of the requirements for visa grant.

20. There was a significant gap in the applicant’s study from early 2016 until about March 2017. The Tribunal has formed the view that the visa applicant did not engage in study since turning 18 or completing secondary schooling because she was waiting to travel to Australia. Having applied for the visa, the visa applicant was expecting to obtain the Australian visa and did not want to commence the course which she may have been unable to complete. The Tribunal does not accept that any other reason, or a combination of reasons affected her ability to study.

21. The Tribunal finds that the applicant did not engage in any study from the time she turned 18 or from the time she completed secondary schooling until at least March 2017. Having regard to the applicant’s overall study, the Tribunal is not satisfied that the applicant has, since turning 18 or within 6 months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualifications. There is no evidence to indicate that the visa applicant, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. She does not satisfy the criterion in cl. 101.213.

22. There is no evidence that the visa applicant is an adopted child of the sponsor or that she is an orphan relative of the sponsor. The Tribunal is not satisfied that she meets key criteria for the grant of the other visas in Class AH.

    Conclusion

23. 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

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

    Kira Raif
    Senior Member