LAM (Migration)

[2018] AATA 2026

LAM (Migration) [2018] AATA 2026 (5 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Hung Lam

VISA APPLICANT:  Ms Le Tran Tran

CASE NUMBER:  1701081

DIBP REFERENCE(S):  OSF2016/039598

MEMBER:Helena Claringbold

DATE:5 June 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 05 June 2018 at 12:24pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 101 (Child) – Over 18 years old – Full time study – 3 year gap in studies – Not a ‘reasonable time’ – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 101.213, 101.221

CASES
Sok v MIMIA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 30 June 2016, Ms Le Tran Tran, the visa applicant applied for a Child (Migrant) (Class AH) visa.  The application was made on the basis of her relationship with her mother, Ms Thi Hung Lam, the sponsor and review applicant.

2. On 7 December 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant satisfied cl.101.213(1) of Schedule 2 to the Migration Regulations 1994 (the Regulations) under the Migration Act 1958 (the Act). This is a review of the delegate’s decision.

3. 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).

4. On 12 April 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department of Immigration and Border Protection’s (the Department) case file and the Tribunal’s case file and the evidence provided at the Tribunal hearing.

   ISSUE

7. The issue in this case is whether the visa applicant was undertaking full-time study at the time of application and time of decision and therefore satisfies cl.101.213(1) and cl.101.221(2).

   CLAIMS AND FINDINGS

   Additional criteria for applicants over 18

8. At the time of application the visa applicant was over 18 years old, therefore additional requirements relating to relationships, work and study must be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

   Full-time study (or incapacitated for work)

9. At the time of application, the visa applicant must have, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification: cl.101.213(1)(c). However, 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). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

10. 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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

    CLAIMS AND FINDINGS

    Is the visa applicant incapacitated for work?

11. There is no evidence before the Tribunal that at the time of application or this decision, the applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant undertaking full-time study?

12. Prior to and at the Tribunal hearing information has been provided in support of the visa application as follows.

13. The sponsor was born in 1973, in Ho Chi Minh City. On 15 March 1998, she entered Australia.  She is married and employed. She has two children, Nathan, who was born in 2001 and Tina, who was born in 2007, both live with her. She has eight siblings living in Vietnam.

14. The visa applicant was born in 1993, in Ho Chi Minh City, Vietnam. She declared that her father is Tran Quy Vinh and his whereabouts is unknown and that her mother and two siblings live in Australia.

15. Information provided as part of the visa application, records that the visa applicant’s father and step-brother have the same residential address as the visa applicant.  The applicant told the Tribunal that although her address is recorded as the same as her father’s, she has not lived with him.  She stated that since she was a child she lived with her paternal grand-parents and an aunt. 

16. High school records dated 10 May 2011, record that the visa applicant was eligible to take the graduation exam. The visa applicant told the Tribunal that she completed high school at the end of July 2011.

17. A letter dated 21 December 2015 and 12 September 2016, from Tay Nam College of Economics and Technology (TNCOET), Ho Chi Minh City stated that the applicant is confirmed as a student in the first and second year of study in accountancy.  The visa applicant and the sponsor told the Tribunal that the visa applicant began studies at TNCOET in April 2015 and finished those studies in October 2017.

18. Other evidence from the visa applicant and sponsor is that the visa applicant studies both English and Chinese for between nine to 12 hours weekly. The sponsor stated that the English study took place in 2014 and 2015.  She thought the study was for two terms or a year.  Ultimately, there is no evidence before the Tribunal that either the English of Chinese languages study were a full-time course of study.

19. The visa applicant, sponsor and the sponsor’s migration agent stated that the visa applicant did not undertake full-time study from February 2012 until April 2015 because her grandfather was unwell and the visa applicant looked after him. Another claim for the visa applicant not undertaking full-time study is that her grandfather had reserved views and didn’t want the visa applicant to study.

20. On 7 November 2016, the visa applicant gave evidence to a Departmental officer that after her graduation from high school she studied Biological Technology for half a year.  She stated that she quit the course of study and stayed home for two years to prepare for her university entrance exams.  She claimed to have passed the entrance exam into Saigon University in 2013. However didn’t study because she had to look after her grandfather. The visa applicant confirmed this information at the Tribunal hearing.

21. The Tribunal put information to the sponsor under the relevant provision.  The sponsor requested and was granted additional time to respond.  The information is as follows.

22. The visa applicant provided evidence to the Tribunal that since she was a child she has lived with her paternal grandparents and aunt. Her paternal grandparents have three daughters and three sons who live in Vietnam.  Two of the daughters and the three sons are married.  The paternal grandparents have ten grandchildren.  Additionally, the visa applicant visited her father in hospital in March 2018.  At other times the visa applicant’s father visited the visa applicant at her grandparent’s home fortnightly or a few times a month.  This information was put to the sponsor because it was inconsistent with her evidence that the visa applicant had to look after her grandfather and that the visa applicant’s father’s whereabouts was unknown.

23. The sponsor’s migration agent responded and stated that the visa applicant’s grandfather had a medical condition which caused severe impairments of his ability to attend to the practical aspects of daily life since 2011 until his death in 2014. The grandfather required direct assistance that could be reasonably provided by the visa applicant who continued to live at the same address and was unemployed.  The grandfather needed almost constant supervision with medication, eating and food preparation, general hygiene and mobility. The grandfather’s two daughter and two sons live at their own residences and work full-time to provide financially for themselves. The grandfather’s other daughter, Ha who resides at the same address as her father found it difficult to provide any long-term assistance because of their commitments to full-time employment.  Accordingly, it is not difficult to find that while the grandfather’s children could provide some assistance outside their work hours they could not reasonably provide all the assistance that the grandfather required, which was satisfied by the visa applicant. 

24. The Tribunal considered the evidence individually and as a whole.  It is satisfied that the visa applicant was a full-time student until February 2012 and that she began full-time study again in 2015.  It accepts that the visa applicant’s grandfather suffered from the conditions as claimed and that he died in April 2014.  Even after taking into account the visa applicant’s grandfather’s children’s responsibilities, the Tribunal is not satisfied that care for the visa applicant’s grandfather could not have been provided to him collectively, by his other family members, who lived with him, by his other family members, living in Vietnam and by other services in Vietnam.  Neither is it satisfied that the visa applicant’s grandfather prevented the visa applicant undertaking full-time study. The evidence provided by the sponsor and the visa applicant is that after completing high school and while living with her grandfather, the visa applicant began full-time study but ‘quit’ study to remain at home to prepare for university exams.  Other evidence is that, while she continued to live with her grandfather, she studied for and passed the entrance exams to Saigon University in 2013. 

25. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the visa applicant undertook full-time study from February 2012 until 2015. For the reasons above the Tribunal does not accept, the migration agent’s argument that the visa applicant’s lack of full-time study was due to the care she provided her grandfather and the ‘break in full-time study’ should be considered reasonable. The Tribunal is not satisfied that the three year period between the visa applicant finishing high school and commencing full-time study is a ‘reasonable time’ for the purposes of cl.101.213(1)(c) of Schedule 2 to the Regulations.

26. The Tribunal, therefore is not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had 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).

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

28. 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

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

    Helena Claringbold
    Member