Klug (Migration)

[2020] AATA 5163

Klug (Migration) [2020] AATA 5163 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Geoffrey Klug

VISA APPLICANT:  Mr Tanakorn Srinathamontree

CASE NUMBER:  1805044

HOME AFFAIRS REFERENCE(S):          2016011839 OSF2016/011839

MEMBER:David Crawshay

DATE:28 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 28 August 2020 at 1:45pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – wholly or substantially reliant on the sponsor for financial support – dependent child of the sponsor – visa applicant over 18 years – requisite full-time study – full-time work – gap in financial support – visa applicant’s intermittent study pattern – visa applicant in a relationship – visa applicant renting his own apartment – decision under review affirmed   

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 101.211, 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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 28 December 2017 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 Mr Tanakorn Srinathamontree, 26, who is a citizen of Thailand. The visa applicant applied for the visa on 15 September 2016. His sponsor is Mr Geoffrey Klug, 77, the review applicant, who is the visa applicant’s step-father by virtue of being married to his mother, Ms Punyaphat Klug. 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213, which comprises criteria that must be satisfied by visa applicants who are 18 or older at the time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met. The delegate was not satisfied based on the available information that the visa applicant had, 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 the relevant study as required by cl.101.213(1)(c).

5. The review applicant appeared before the Tribunal on 22 July 2020 to give evidence and present arguments. The Tribunal also received evidence from the visa applicant in Thailand, as well as from the visa applicant’s mother and from a Mr Tanadchai Akarasriprapai, a friend of the visa applicant’s mother and the authorised recipient. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this means, having regard to the nature of this matter and the individual circumstances of the parties, including the fact that there was no information covered by certificates and no readily identifiable issues of credibility. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by this means, especially as the visa applicant has been overseas during the visa and review application stages – a period of almost four years. The Tribunal is satisfied that the parties were given a fair opportunity to give evidence and present arguments.

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

   EVIDENCE AT HEARING

8. The Tribunal heard firstly from the review applicant, who said that he met the visa applicant and his mother while in Thailand. He said that he invited the visa applicant’s mother to Australia and she subsequently travelled here on a visitor’s visa to stay with him in Tasmania. The visa applicant’s mother confirmed that this occurred in around late-2012, and that she and the review applicant married in around January 2013. She confirmed that she moved to Australia permanently in around October 2013. The review applicant told the Tribunal that she left the visa applicant with her aunt when she moved.

9. The review applicant said that the visa applicant dropped out of his studies for a time in 2013 because he was “confused”. The review applicant said that this confusion was caused, in part, by the review applicant “taking” his mother away. The review applicant invited him to visit Tasmania which he did, and the stay in Tasmania helped the visa applicant. The review applicant said that he told the visa applicant that he could come to Australia to stay, but he would need to study first.

10. The review applicant said that, after this visit, the visa applicant enrolled in a course. However, this was cut short as the review applicant and the visa applicant’s mother were in a state of financial stress over a sale of their restaurant business and a transition to a new food truck business, and they were not able to provide the necessary money to fund his study. The review applicant told the Tribunal that the visa applicant began working a part-time job with his aunt and uncle to do with chickens that are supplied for cockfighting.

11. The review applicant said that, more recently, the visa applicant has been enrolled in a course that is due to finish at the end of 2020.

12. The Tribunal then heard from the visa applicant’s mother, who told it that the visa applicant stopped studying in December 2013 and came to Australia in January 2014. When asked by the Tribunal why the visa applicant ceased these studies, the visa applicant’s mother said that he was confused and was not sure if he liked the course in which he was enrolled at that point – a computer course. She said that she told him he needed to find out what he was interested in, and after seeing his mother working in her restaurant in Australia, he decided that he wanted to work in services in a hotel or in hospitality and recommenced his studies.

13. The visa applicant’s mother told the Tribunal that her son then stopped studying in around the middle of 2016 when she and the review applicant began to experience financial troubles relating to their business. She said that he was able to recommence his studies again because her financial position was more comfortable. The Tribunal put it to the visa applicant’s mother that her son recommenced studies in January 2018 based on the evidence submitted, and she agreed. She said that the reason for his not studying during the period from mid-2016 to January 2018 was because she could not support him through that period.

14. The Tribunal proceeded to interview the visa applicant. It asked him about the reasons for not studying between the end of his computer course in October 2013 and enrolling in the subsequent course. He replied that, while he was undertaking the computer course, he realised that it was not for him. He said that his mother asked him to come to Australia for three months to discover what he really wanted. He said that at the time he was very young and alone and was confused.

15. The Tribunal asked the visa applicant about the reasons for not studying during the second gap in between a Bachelor of Arts in communications and his current course. He said that he had studied the communications course for about a year (but was not able to remember fully) and stopped because his mother was experiencing financial hardship and so he needed to find a job to support himself. He confirmed that his job was delivering roosters and that it was a hard job that involved long hours – from 7:00am to 7:00pm.

16. The Tribunal asked the visa applicant if he currently has a partner, and he confirmed that he did. He said that they are not married but are just beginning, “just talking”. The Tribunal asked for how long he had been in this relationship and he replied two years, at which point the Tribunal questioned whether they would still just “be talking” to each other. He said that they still want to get to know each other and are still not sure. The Tribunal asked whether the visa applicant’s partner stays at his apartment, to which he replied that she does sometimes but not often. He said that as they are working and she works from her home, they do not get to see each other often. The Tribunal asked whether he and his partner are committed to each other, to which he replied not really and that he still needs to decide. The Tribunal asked the visa applicant about past relationships and he said that he had never been married, engaged or in a de-facto relationship.

17. The Tribunal then returned to the review applicant and put two pieces of adverse information to him for his comment pursuant to s.359AA of the Act, being information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that was under review.

18. The first of these pieces of information was that the visa applicant revealed during questioning that he had a partner. The Tribunal told the review applicant that this was relevant as it may have indicated that the visa applicant was currently in a de-facto relationship. The Tribunal noted the requirement that the visa applicant not be in a de-facto relationship among other things. It told him that the consequences of this information being relied upon may be that it forms the view that the visa applicant does not meet the requisite child visa criteria. It told him that it may mean the visa applicant is refused the visa he applied for.

19. The review applicant told the Tribunal that the visa applicant does a lot of studying. He said that the visa applicant does not “chase women” and is not a womaniser. He said that during the times he has visited the visa applicant in Thailand, he has observed that the visa applicant has never been in a relationship that has had any obligations. The review applicant said that, when he would go out with the visa applicant and his current partner, the visa applicant would drop her off afterwards before going home separately to his apartment. He said that at other times the visa applicant would not take his partner out at all. He said that, while the visa applicant and his partner probably have sex, they do not live together. He also said that they have different friendship circles and they just “buddy up” when they go somewhere. He said that they do not share money and the visa applicant’s mother has never sent money for a gift to give to her. He said that there is no acknowledgment from her parents that the relationship will amount to anything as the visa applicant does not have a job.

20. The second of these pieces of information was that the Tribunal became aware during questioning that the job in which the visa applicant was employed in or around 2016 and 2017 was akin to full-time work, noting the visa applicant’s answer that he would work from 7:00am to 7:00pm. The Tribunal told the review applicant that this was relevant as it may have indicated that the visa applicant was in full-time work. The Tribunal noted the requirement that the visa applicant not be in full-time work among other things. It told him that the consequences of this information being relied upon may be that it forms the view that the visa applicant does not meet the requisite child visa criteria. It told him that it may mean the visa applicant is refused the visa he applied for.

21. The review applicant told the Tribunal that the job is not really a job. He said that he went to stay with the visa applicant’s aunt and uncle in October 2019 and observed that the visa applicant hangs out there when he’s not studying. He says the visa applicant is not working but gets called upon to deliver animals to people. He said that the visa applicant was not “tied to the job” and was not paid as a worker but comes and goes as a friend. The visa applicant’s mother said that the visa applicant was helping out the family and was not doing it for the company. The review applicant characterised it as the visa applicant helping out his aunt and uncle and doing a favour to his uncle by getting on the scooter and doing deliveries instead of the uncle. The review applicant said that the visa applicant was not receiving a regular income, but his aunt and uncle would buy him some lunch or give him a bottle of cordial. The Tribunal asked the review applicant whether the visa applicant was making more of it than what it was, and he agreed. The visa applicant’s mother told the Tribunal that she said to her son to do whatever his aunt told him to do. In response, the Tribunal at this point put it to the review applicant that it thought the whole point of the visa applicant working in that role was to support himself. The visa applicant’s mother at this point told the Tribunal that her younger sister (the visa applicant’s aunt) was helping her out by looking after the visa applicant and providing financial support while she was struggling in Australia. The visa applicant’s mother replied that he was renting an apartment. The review applicant said that the visa applicant is a good boy and goes to stay with them rather than muck around in the city with his mates and enjoys doing the work and delivering the chickens on the scooter. He said that the aunt and uncle live about 30 minutes away from his apartment. At this point the Tribunal showed a letter from the visa applicant dated 17 November 2017 (refer Department folio 131) that was titled “Employment Explanation Letter” which said that the visa applicant received a daily salary of 500 baht. The visa applicant’s mother said that when he applied for the visa, he wanted to prove that he was working during the break in studies.

22. The Tribunal heard from Mr Akarasriprapai, who briefly went through the visa applicant’s study history. He said that he asked the visa applicant why he left study in October 2013 and the visa applicant said that he was confused and did not know what he wanted to study and spoke to his family. After that, he decided that he wanted to study, but the problem was that at that point it was the middle of the term and he would have to wait for the beginning of the next semester.

23. Mr Akarasriprapai said that the visa applicant’s purpose has been to study and that he has been doing so for the last six years. He said that the visa applicant told him that when he worked for his aunt and uncle it was a “bad world” in his life – hard work, little pay and sometimes no food.

24. Following the hearing on 13 August 2020, and in accordance with s.359A of the Act, the Tribunal sent an adverse information letter to the review applicant through his authorised recipient. The information the subject of the letter related to the claim made by the visa applicant and the visa applicant’s mother that the visa applicant ceased study in around mid-2016 because payments made to him by his mother and the review applicant had ceased.

25. The letter relevantly stated as follows:

    …

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of this information are as follows:

    ·At the hearing on 22 July 2020, the visa applicant said that he studied his business communications course at Sripatum University for “around a year”, having begun this course in August 2014, but stopped because his mother, your wife, was experiencing financial hardship so he needed a job to support himself;

    ·A statement of results (refer to Appendix A) issued in February 2017 shows that the visa applicant completed first, second and summer semesters of the business communications course in the 2014 academic year but no other semesters;

    ·At the hearing, your wife said that the visa applicant ceased studying the business communications course in around the middle of 2016 because she was experiencing financial troubles relating to her business and had to stop her financial support to him; and

    ·Statements from the bank account of Wilailuck Chatanui (refer to Appendix B) show deposits of certain amounts into the bank account and then withdrawals of similar amounts from it. These suggest that the visa applicant had been receiving the following amounts (through Wilailuck Chatanui) with descriptions that included the words “[redacted]”, “GEOFFREY”, “PUNYAPHAT” and “KLUG”:

    o฿10,964.50 on 08/07/58 (or 8 July 2015 in the Gregorian Calendar);

    o฿9,900 on 27/10/58 (27 October 2015 GC);

    o฿14,764.40 on 07/03/59 (7 March 2016 GC);

    o฿14,006.50 on 07/04/59 (7 April 2016 GC);

    o฿16,530.25 on 03/05/59 (3 May 2016 GC);

    o฿23,860 on 01/06/59 (1 June 2016 GC);

    o฿98,620 on 29/06/59 (29 June 2016 GC).

    The Tribunal notes that you live at an address in [Redacted] Road. Based on this and your first and last names as well as your wife’s first name, the Tribunal reasonably believes these payments were made by you and/or your wife. It also believes that they were intended for the visa applicant.

    The information is relevant to the review because it suggests the following:

    ·the visa applicant finished studying the business communications course in the middle of 2015 after completing one year and did not continue studying that course;

    ·at that time, in the middle of 2015, it appears he was being financially supported by either or both of you and your wife; and

    ·the visa applicant did not finish studying the business communication course in the middle of 2016 when your wife was experiencing financial troubles as had been claimed at hearing.

    The information is relevant because it suggests that the reason for the visa applicant ceasing study did not relate to your wife’s financial troubles and the withdrawal of financial support to him. This information is relevant because it suggests that the visa applicant chose not to study for a whole year between finishing the 2014 academic year in mid-2015 and when financial support to him was withdrawn in mid-2016. This information is relevant because it suggests that there was a gap in the studies that is not able to be explained by reference to a lack of money.

    If the Tribunal relies on this information in making its decision it may find that, without more information, the visa applicant’s conduct during the period from when he completed the equivalent of year 12 to now (including the above period) characterised as whole does not warrant the conclusion that he has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. It may find that the visa applicant does not satisfy cl.101.213(1)(c) or cl.101.211(2)(b).

    This would be the reason, or a part of the reason, for affirming the decision under review.

    …

    [emphasis in original]

26. The review applicant was given 14 days in which to provide his comment or response to this information.

27. On 24 August 2020, the review applicant responded to the above letter in the following terms:

    I am writing this email to explain about money transfer during 8 July 2015 till 29 June 2016 as shown in the previous email that you sent to me on 13 Aug 2020.

    This evident (sic) was so complicated and I try to explain you very (sic) detail as much as I could to make you understand what happened on that period. Firstly, I made a commitment to my wife after she got marriage (sic) and moved to live with me in Tasmania ,about took (sic) care her family by transferring money to her parents and her son (visa applicant) every month( 500a$). As you can see that money transfer on 8/7/15. The transfer money does not pass through her son directly. She transfers to her sister and allows her to allocate funds to parents or her son. Before 10/9/2015, I was living by running second hand shop but business was slow down and I could not effort (sic) to keep my promise as you could see in money transfer on 27/10/2015. I could not transfer every month that means all the expenses that my wife needed to pay in Thailand would go through her sister. This evidence affected her son education so she suggested her son to drop study for a year and went to work with mum sister for earning some money to living and saving for return to study in 2017. Her son stopped studying on 11/8/2015. During the second-hand shop business decline, my wife and I were looking for the new business but we hadn't had enough money to invest so we flighted (sic) to Thailand and sold her property then brought money to buy the fish and ship (sic) shop. In the starting business, the business can make some money as we expected so I could transfer money to my wife sister on 7/3/2016,7/4/16,3/5/16,1/6/16 as shown. Unfortunately, my wife was (sic) lack of management skill combined with staff was cheated about cash that caused business running without sufficient cash flow. The attachment about profit and lost (sic) on 30 June2016 shown that revenue Was $188999 per 9 months and profit before taxes was $35175 but this profit had not deducted the GST yet that was $6300 per quarter and staff wages that was huge amount too. On that situation, we thought about selling food business again. Back to visa applicant who was Iived (sic) in Bangkok with his friend sharing rental cost together. After stopped studying, he went to work with my wife sister and earned some money for pay bills. I have attach some cost of living to show how much expenses he needs to pay every month.

    Rental 12000 baht /2 =8000 baht

    Internet 700 baht

    Telephone 480 baht

    Electric 900 /2= 450 baht

    Total estimatedly (sic) 9630 baht that not include food, drink, transport, others.

    I reckon the cost of living should go up to 15000 baht a month. This is just for living , not for study.

    The education cost document that I have attached to you also show how cost it is. As you can see the education fee is around 65000 -70000 baht per year that is not include summer course, books, transport, stationary and much more.

    These informations (sic) that I explain to you because I would like you to understand how tough the visa applicant did. If We could not transfer money to him or my wife parents, my wife sister had to take responsibility. So that why I made a decision on that time (29/6/16) to withdraw my second-hand shop cash flow (4000$) which I standby for running business to pay off some debts that occurred from visa applicant and my wife parents during the period that I could not effort to transfer money to them.

    Lastly, we talked about selling food business and luckily we sold on Nov2016. So we got money back and discussed with visa applicant to continue studying in 2017. We started the food van on 2018 and business is going very well that has brought our life pass through the tough time periods until now and can support both visa applicant and my wife parents since then. I would like to update you about my health. I am diagnosed [with Medical Condition 1] and appointneted (sic) to operation at [a named health service] on [a day in] August 2020. I am not sure how long can I live and how well after operation. Hopefully, I can get my wife son come to live in here and help my wife take care business and my health too. Please feel free to ask any information you would like to hear. I am very appreciated. Thank you very much.

1. A second email was sent from the review applicant around five minutes after the first email which simply stated “So sorry. There is not [Medical Condition 1]. There is [a different but related Condition 2].”

2. A third email followed which attached a number of documents in Thai and English. Some of these documents comprised utility bills, presumably for the apartment where the visa applicant resided, but there was also a lease agreement for the apartment as well as receipts from the visa applicant’s current university course.

3. The Tribunal has doubts about the authorship of these emails. The sentence structure, constant grammatical errors and phrases used are not consistent with what the Tribunal observed from the review applicant at hearing. The fact that the author of the response had to correct details of the very serious medical condition the review applicant suffered from casts further doubt. Nevertheless, the Tribunal notes that the emails were sent from the personal email address of the review applicant. It notes that the s.359A letter was sent to this email address as well as to the email address of the review applicant’s authorised recipient. In these circumstances, the Tribunal is satisfied that the emails that formed the response were sent on the review applicant’s behalf, if not by him, after he had received the s.359A letter and been put on notice of the information contained within it. In that regard, the Tribunal considers that it is entitled to rely upon the contents of the emails.

4. The Tribunal distils from the response that the financial situation of the review applicant and the visa applicant’s mother is more complex than what had been divulged by them at hearing. The author of the response emails claims that the financial problems occurred in mid-2015 as a result of slow business at the second-hand shop the review applicant previously ran, and that he was unable to maintain his monthly money transfers of $500, instead providing payments intermittently. The author claims that as a result of this, the visa applicant’s mother suggested he stop studying, which he did in August 2015. The author claims that the visa applicant began working for his aunt in order to pay for expenses, including rent, utilities and others.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in this case is whether the visa applicant satisfies the criteria in relation to visa applicants who are 18 years or over: cl.101.213 and cl.101.221(2)(b).

   Criteria for applicants over 18

6. If, at the time of application, a visa applicant has turned 18, he or she needs 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).

   Relationship status and history

7. 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).

8. The visa applicant told the Tribunal that he currently has a partner but he does not consider himself to be in a de-facto relationship with her. As above, this information was put to the review applicant under s.359AA for comment or response and a response was given by him to the effect that he did not think the visa applicant and his partner were in such a relationship given the broadly casual nature of their relationship. The Tribunal has considered the response given by the review applicant and agrees that even though the visa applicant is in a relationship, this relationship is casual and not redolent of a de facto relationship. The evidence in front of it does not suggest that the visa applicant is or has ever been in a de-facto relationship. There is also no evidence to demonstrate that the visa applicant has ever been married, or has been engaged to be married at the time of application and at the time of this decision.

9. Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of this decision.

   Not engaged in full-time work

10. 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).

11. Written evidence submitted before hearing and the visa applicant’s oral testimony at hearing suggested to the Tribunal that he was engaged in full-time work during a period in or around 2016 and 2017. As above, information divulged by the visa applicant during the Tribunal’s questioning was put to the review applicant under s.359AA for his comment or response. The response from the review applicant and from the visa applicant’s mother is detailed above and the Tribunal has had regard to it. The Tribunal notes the assertion of the review applicant that the visa applicant was helping out his aunt and uncle, that he was not paid a salary but was given food and drink, and that he was not “tied” to the job. However, the Tribunal prefers and gives more weight to evidence such as the “Employment Explanation Letter” written by the visa applicant and the visa applicant’s testimony at hearing. This evidence demonstrates that the visa applicant was employed in a full-time capacity, working between 7:00am and 7:00pm, and was receiving a salary. While the Tribunal notes the claim of the visa applicant’s mother that the “Employment Explanation Letter” was provided in order to prove that the visa applicant had been working during periods where he was not studying, it questions to what extent her claim deals with the Tribunal’s concerns. The Tribunal notes the claims of the review applicant that the visa applicant may have made more of the job than what it really was. However, the Tribunal prefers and gives more weight to evidence from the visa applicant that at the time financial support had been withdrawn he needed to find a job to support himself. This strongly suggests that the job was a source of financial support that enabled the visa applicant to carry on his life.

12. As to when the visa applicant commenced this full-time work, the Tribunal has had regard to evidence such as the Employment Explanation Letter. This letter stated that the visa applicant began working in October 2016. However, it has also considered other evidence including in response to the s.359A letter. This response included claims that the visa applicant ceased studying in August 2015 and that he began working for his aunt after having stopped studying. The Tribunal prefers and gives more weight to the evidence given by or on behalf of the review applicant in his response to the Tribunal’s s.359A letter.

13. Based on the above, the Tribunal finds that the visa applicant was undertaking full-time work for a considerable period that began in the middle of 2015, when he had ceased studying a Bachelor of Arts in communications, and finished in around late-2017. Therefore, the Tribunal is not satisfied that the visa applicant was not undertaking full-time work at the time of application – being 15 September 2016.

14. Clause101.213(1)(b) is not met at the time of application.

    Full-time study (or incapacitated for work)

15. 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).

16. 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). No evidence has been submitted that the visa applicant is incapacitated in this way.

17. 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.

18. The delegate was concerned about a gap between studies taken by the visa applicant from 9 October 2013, when he ceased studying at Siam Business Administration Technical College, and 18 August 2014, when he began studying at Sripatum University. In response to a letter from the Department requesting more information on this gap in studies, the visa applicant explained that he prepared documents for a visa application to visit his mother in Australia in November 2013. He claimed he then travelled to Australia in January 2014. He claimed he then prepared documents for an application to continue studying at Sripatum University, and submitted to an entrance exam and orientation. Even after having considered this explanation from the visa applicant about the gap in studies (which spanned a period of more-than 10 months), the delegate found that there remained a six-month gap to April 2014 when the visa applicant enrolled in his new course, during which time he travelled for holiday purposes and did not continue full-time studies. Based on this evidence, the delegate was not satisfied that the visa applicant had, 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 the relevant full-time study.

19. On 12 June 2020, the Tribunal sent a generic information letter to the review applicant seeking evidence of study undertaken by the visa applicant, including study undertaken up to now and any current and ongoing study. On 23 June 2020, the review applicant’s authorised recipient sent a number of documents to the Tribunal, comprising various documents in relation to a course undertaken by the visa applicant at Sripatum University from January 2018, two identification cards from Sripatum University, and an accompanying email from the review applicant’s authorised recipient which sought to explain a further gap in the visa applicant’s studies.

20. Having considered this evidence along with other evidence on the Department and Tribunal files and oral evidence given by the parties and their witnesses at hearing, the Tribunal makes the following findings.

21. The Tribunal finds that the visa applicant began undertaking the requisite full-time study within six months after completing the equivalent of year 12 or turning 18. The visa applicant studied at a junior high school until around May 2010. The visa applicant then began studying for a vocational certificate at Siam Business Administration Technical College in May 2010. It was during this course that he turned 18 on 18 July 2012. The visa applicant completed this course in April 2013 and he embarked on another course of study at the same institution in May 2013 for a higher vocational certificate. The Tribunal considers that the visa applicant completed the equivalent of year 12 in the Australian school system in April 2013 when he completed the vocational certificate. The Tribunal considers that the visa applicant began his “post-school” studies a month later in May 2013 when he began the higher vocational course.

22. Having accepted that the visa applicant began undertaking the requisite full-time study within the relevant period, the question now become whether, characterised as a whole, the visa applicant’s conduct in the period up until now warrants the conclusion that he has been undertaking relevant study: Hussein v MIBP [2017] FCCA 3247, [111]. In doing so, the Tribunal must have regard to all relevant circumstances including the nature and duration of the gaps and any explanation for the gaps: Hussein, [114].

23. In this regard, the Tribunal has identified two gaps in the visa applicant’s study. The first was the gap between 8 October 2013 and April 2014, comprising around six months. The former of these dates is when the visa applicant ceased studying his higher vocational certificate ion computing at Siam Business Administration Technical College; the latter is when the visa applicant claims to have begun applying for enrolment in a communications course at Sripatum University.

24. The Tribunal asked the parties and the visa applicant’s mother whether there were any reasons for this gap in studies. The answer from all three was that the visa applicant was confused. The review applicant said that this confusion was caused, in part, by the visa applicant’s mother leaving him to go with the review applicant to Australia. The visa applicant himself said that he was very young and alone at the time, and he did not think that the higher vocational course in computing was for him. The visa applicant’s mother also told the Tribunal that at that time the visa applicant was not sure if he liked the computer course. All three confirmed that the visa applicant travelled to Australia to visit his mother and the review applicant in Tasmania. The visa applicant said that this experience made him realise the importance of English. The visa applicant’s mother said that he told her of his interest in having a job in hospitality or services. She said that he would watch her working in her restaurant business in Tasmania.

25. The Tribunal has considered the evidence in front of it in relation to this first gap in the visa applicant’s study. It accepts that the visa applicant ceased studying the higher vocational certificate course in computing in October 2013. It accepts that he had feelings of confusion at the time that were brought about by a combination of loneliness and disillusionment at the course of study. It accepts that he went to Australia on a tourist visa for around three months from January-to-March 2014. It accepts that during this visit he was inspired to enrol in courses to do with services and hospitality. It accepts that he began the process of enrolling in a course in communications in around April 2014.

26. However, it does not accept that, in ceasing study in October 2013 and taking a break until he eventually began studying another course in August 2014, the visa applicant’s conduct during this period warrants the conclusion that he has been undertaking the relevant study. The visa applicant was not studying for a period of 10 months during which time for at least three months he was not doing anything in Thailand, having quit study because he was “confused”. By the visa applicant’s own evidence, he only resolved to continue studying during his stay in Tasmania in 2014. The submission of Mr Akarasriprapai that the visa applicant could not transfer to a new course until August 2014 because before then the universities were in the middle of study semesters may have had an effect on his ability to enrol once he had made the decision to return to study. However, the Tribunal does not accept that this was the reason for the visa applicant not seeking to continue his studies in another form after having ceased the higher vocational certificate course in October 2013. The better view is that he did not seriously contemplate further study until early-2014 at the earliest, and did not enrol until April 2014.

27. The second of these gaps was between when the visa applicant ceased studying the communications course at Sripatum University and when he enrolled in the hospitality course he is currently undertaking at the same university.

28. The clear evidence from the parties and witnesses was that this gap in studies was brought about by financial troubles which resulted in the visa applicant’s mother scaling back the financial support given to her son. As a result of this, the visa applicant gave up studying his communications course at Sripatum University. The evidence from the parties and witnesses also demonstrated that he went back to study in early-2018 after financial support had resumed.

29. During this gap in studies, the visa applicant worked at a business owned by his aunt and uncle where he claimed to transport chickens for use in cockfighting. The Tribunal has already found that it was a full-time job which commenced in around the middle of 2015 after the visa applicant had stopped studying the communications course.

30. The Tribunal has considered the evidence in front of it in relation to this second gap in the visa applicant’s study, including information contained in the response to the Tribunal’s s.359A letter. It accepts that the visa applicant ceased studying in mid-2015. It accepts that he ceased studying at this point because his mother and the review applicant had scaled back the financial support they had been providing to him. It accepts that, while further money transfers were made beyond mid-2015, these were of an ad hoc nature and were not regular enough to allow him to continue to pay for his studies. It accepts that the visa applicant went back to study another course in early-2018 after the financial support recommenced. It accepts that, during the gap in studies, he worked at the business owned by his aunt and uncle. It accepts, for the reasons given in paragraph ‎38, that this job was undertaken by the visa applicant in order to support himself, that it was for a salary, and that it involved full-time hours. It accepts that this job provided the necessary funds to maintain the visa applicant’s life in Bangkok, albeit without studying.

31. The Tribunal is satisfied that this gap in studies is not such that it would lead to a conclusion that the visa applicant was not undertaking the appropriate study during the period of the gap. Although the gap in studies spans a considerable period, it was brought about by reasons that the Tribunal considers were beyond the control of the visa applicant, being the withdrawal of money transfers from his mother and the review applicant, both of whom he relied upon.

32. The Tribunal has considered the relevant circumstances in relation to the gaps in study individually and in their totality. It has had regard to the nature of these gaps, as well as their duration. It has heard the explanations given by the parties and the witnesses for these gaps. Following careful consideration, and after having sought evidence in relation to the gaps, it is not satisfied that the visa applicant’s conduct warrants the conclusion that he has been undertaking relevant study during the period up until this decision.

33. The Tribunal therefore finds that the visa applicant was not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification during the period between October 2013 (when he ceased studying the computer course at Siam Business Administration Technical College) and April 2014 (when he claims to have applied for enrolment at Sripatum University in communications). It is not satisfied that the visa applicant had, 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.

1. Accordingly, cl.101.213(1)(c) is not met and continues not to be met at the time of this decision.

   CONCLUSION

2. The Tribunal has considered the relevant evidence given to it and has had regard to the testimony of the parties and their witness at hearing. All parties to the matter presented to the Tribunal in a sympathetic way. The review applicant was emotional when telling the Tribunal of his desire to see his wife reunited with her son and to help him out. The visa applicant gave straightforward answers to the questions asked by the Tribunal. His mother’s concern for his wellbeing was palpable. They were unrepresented but were guided by their authorised recipient who was a kindly friend and neighbour. Being of Thai background, he was able to offer the Tribunal some context of Thai culture. The circumstances faced by the visa applicant, his mother and the review applicant are difficult, and are put into sharper focus because of the [serious] health situation of the review applicant.

3. However, these circumstances to the extent that they are compelling are not able to displace the terms of the legislation. While the Tribunal finds that the visa applicant commenced undertaking requisite study within six months of completing the equivalent of year 12 in the Australian school system, it is not satisfied that he had been undertaking the requisite study thereafter. It is also not satisfied that he was not engaged in full-time work at the time of application.

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

   DECISION

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

   David Crawshay
   Member