Lawson (Migration)

[2021] AATA 3594

Lawson (Migration) [2021] AATA 3594 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Duncan Lawson

VISA APPLICANT:  Miss Rujira Wichianchai

CASE NUMBER:  1911720

HOME AFFAIRS REFERENCE(S):          2018002809 OSF2018/002809

MEMBER:Moira Brophy

DATE:31 August 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

· cl.101.213(1)(c) of Schedule 2 to the Regulations; and

· cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 31 August 2021 at 9:56am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa –applicant is over the age of 18 years –studies were ongoing –  reasonable full-time study period –she continued to be a full time student at time of decision – credible evidence –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.05, Schedule 2, cls 101.213, 101.221

CASES
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 March 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 18 December 2018. 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.221(2)(b) which requires that an adult child, that is, who has turned 18, be a full-time student at the time of decision.

4. The delegate in a decision dated 4 March 2019 refused to grant the visa on the basis that cl 101.213(1)(c) was not met because the visa applicant had turned 18 and there was insufficient evidence to show she had been continuously studying since she completed her university studies in 2016.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s 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 telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant gave evidence to the Tribunal at a teleconference on 24 August 2021. The Tribunal also received oral evidence from the visa applicant Miss Rujira Wichianchai and the mother of the visa applicant Ms Artittaya Klinchuen. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

8. The visa applicant (the applicant) is a 27-year-old female. She is a citizen of Thailand. Her mother lives in Australia with her stepfather and stepbrother. She has another brother residing in Thailand.

9. The applicant’s mother, Ms Artittaya Klinchuen was sponsored to Australia on a Partner visa by Mr Duncan Lawson, the review applicant (the sponsor) in the present application. She arrived in Australia on 12 February 2012 and became an Australian citizen on 6 June 2018.

10. The applicant first made application for an 802 visa on 23 March 2017. On 28 March 2018 the delegate found the applicant was not able to meet cl 802.214(1)(c) because the delegate was not satisfied the applicant was enrolled in and participating in full-time study at the time of application and further the applicant had not demonstrated she had been in continuous full-time study since turning 18. The applicant claims to have not been advised of the decision of the delegate to refuse her application. She departed Australia on a flight to Singapore on 16 April 2018 on a Bridging B (Class WB) (Subclass 020) visa. She was refused entry to Singapore without explanation and sent to Thailand. On 20 April 2018 she returned to Australia. The sponsor and the applicant contacted the department and asked if there was an explanation for being prevented entry to Singapore or any problems with the applicant’s visa. The department informed that there were not any problems identified with the applicant’s visa and that this was a matter for the Singapore government. The applicant was informed her visa was still processing and she should be patient and wait. Had the applicant been informed her application had been refused three weeks prior she may have been able to submit an application for review of the decision made on 28 March 2018.

11. On 10 August 2018 the sponsor contacted the department and was advised the application had been refused on 28 March 2018. Subsequent to this advice the applicant and sponsor met with the department and were advised the applicant was currently without a valid visa. A Bridging Visa E was granted on 14 August 2018 for the applicant to depart Australia. On the advice of a migration agent on 5 September 2018 the applicant lodged an application for an Australia Child (Residence) (Class BT) (Subclass 802) visa.

12. On 13 November 2018 the applicant was advised the application had been refused under s 48 of the Act.

13. On 25 November 2018 the applicant returned to Thailand and the present application was lodged on 18 December 2018.

14. At the time of application, the applicant stated she was financially supported by her mother and stepfather. While living in Thailand her mother and stepfather provided her accommodation, tuition fees and living expenses. Corroborative evidence by way of bank statements was provided. At the time of application, the applicant stated she had not been in paid employment at any time since she completed her secondary schooling.

15. On 3 February 2020 the Tribunal wrote to the sponsor and requested that evidence be provided of the applicant’s continuous study since the visa application was lodged.

16. Prior to hearing the applicant provided to the Tribunal proof of enrolment and transcripts of studies at Le Cordon Bleu Dusit in Bangkok studying a Diplome de Patisserie.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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).

18. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations. Relevantly to this case, they include cl 101.213 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work and study.

19. The delegate refused to grant the visa on the basis that cl 101.213(1)(c) was not met because there was no evidence that the applicant had maintained continuous study from the time she completed her university studies in 2016 and prior to her study at the time of decision at Le Cordon Bleu.

20. The issues in this case are whether the applicant meets cl 101.213 and cl 101.221.

    Criteria for applicants over 18

21. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

    Relationship status and history

22. 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).

23. The Tribunal accepts the evidence of the sponsor and the applicant that the applicant is not married, engaged to be married or in a de facto relationship now, and was not at time of application. There is no information before the Tribunal to contradict this, and no reason to not accept their evidence. Accordingly, cl 101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

24. 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).

25. The Tribunal accepts, on the evidence of the sponsor and the applicant, and evidence of regular remittances provided by the sponsor, that the applicant is not, and has never, been engaged in full-time work. Accordingly, cl 101.213(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

26. 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).

27. 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).

28. The Tribunal observes no claims have been made, and there is no evidence to suggest the applicant was incapacitated for work due to the loss of bodily or mental functions, and therefore cl 101.213(2) is not met in the present case.

29. 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 (Hussain). The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416 (Opoku-Ware). These cases are discussed further below.

30. In the material before the delegate, including the application form and Form 80 subsequently provided, evidence was provided that the applicant was undertaking a course of study at the time of decision (4 March 2019). The information provided was that she had completed her secondary schooling at Mathayom Wat Dusitaram School from 1 September 2009 until 28 March 2012. She attended the University of Thailand and completed a Bachelor of Business Administration in the period from 25 June 2012 to 7 July 2016. Her degree was conferred at Graduation on 15 September 2016. Academic transcripts were provided. The applicant provided evidence of having studied English at the Perth International College of English (PICE) in the period from 16 May 2016 to 10 June 2016, from 13 February 2017 to 24 March 2017 and from 5 June 2017 to 30 June 2017. On 25 November 2018 the applicant commenced studies at Le Cordon Bleu Dusit in Bangkok studying a Diplome de Patisserie. Transcripts and proof of enrolment were provided prior to hearing.

31. The applicant submits that because she is now studying, she can meet the requisite criteria.

32. The Tribunal discussed the applicant’s study history with the sponsor and the applicant during the hearing.

33. Significantly and relevantly for this review, the evidence before the Tribunal is that since completing her bachelor’s degree in July 2016 with the award being conferred in September 2016, the applicant had not continued to study on a full-time basis. The applicant gave evidence of her studies being interrupted by her providing care to her family in Thailand during her grandfather’s illness and to her family in Australia during a period when her mother needed support because of her mental health. The mental health of the applicant’s mother was adversely impacted by the death of her father and by the ongoing separation from her daughter. The oral evidence of the parties was corroborated by medical evidence provided by the applicant.

34. Case law authorities, binding on the Tribunal, squarely address the continuing to study requirement. In Opoku-Ware, the Court held that the provision does not permit an end to the study within the decisional time frame, and considered that the phrase ‘has been undertaking’ in cl 101.213(1)(c) describes an action that has already commenced and remains ongoing. It stated that there are no words present in this provision to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of full-time studies, that has recently stopped. Further, the Court considered that the verb ‘continues’ in cl 101.221(2)(b) is written in the present tense and requires that the applicant is still undertaking studies at the time of the decision in respect of the visa. In Hussain, Judge Barnes observed that the Court in Opoku-Ware was addressing the need for the study to remain ongoing, in the sense of not having ceased, at the time of decision, and held that Opoku-Ware did not stand for the proposition that continuous involvement in study, without a pause, is required.

35. Neither the sponsor nor the applicant made any submissions addressing the above authorities or suggested an alternative construction.

36. While the Tribunal is mindful of the difficulties for both the sponsor and the applicant in continuing to be separated and the implications for them and their extended family of their continuing to be geographically separated there is no dispute that the applicant was not continuously studying in the period from September 2016 to December 2018. As discussed above the Tribunal accepts the evidence as to the reasons for these study breaks.

37. The Tribunal was mindful the facts in this case were similar to those in the case of Hussain. In that matter the Tribunal accepted the visa applicants’ claims and found they met cl 101.213(1)(c). However the Tribunal was of the view that cl 101.221(2)(b) required that the visa applicants must have been ‘undertaking study’ from the time of the application to the time of decision and because they were not continuously studying from the time they commenced their courses they did not meet the criterion. The Tribunal took this approach on the basis that the words ‘has been undertaking’ study in cl 101.213(1)(c) ‘implied a continuous requirement’, and because the language of the criteria in cl 101.213(1)(c) and cl 101.221(2)(b) had been held not to permit an end to the study within the decisional time frame in Opoku-Ware. The Tribunal concluded the visa applicants did not continue to meet cl 101.213(1)(c) at the time of decision and therefore did not meet cl 101.221(2)(b). The applicant contended the Tribunal had erred in taking the view that the criteria in cl 101.213(1)(c), including when read with cl 101.221(2)(b), could be satisfied only if study were ‘continuous’ from the time study commenced up to the time of decision.

38. The Court held the Tribunal misconstrued and misapplied cl 101.213(1)(c) when read with cl 101.221(2)(b) as requiring the visa applicants to have been ‘continuously involved’ in study from the time of commencement referred to in cl 101.213(1)(c) up to the time of decision. The Tribunal should have looked at that period and asked whether, characterised as a whole, the visa applicants had been undertaking relevant study in that period. This would involve examining what the visa applicants had been doing in that interval, including, the nature and duration of a gap in study and any explanation for such a gap and to the fact that, of its nature, the activity of study is intermittent.

39. Therefore, on the basis of the evidence and these authorities, the Tribunal finds that while the visa applicant was studying at the time of application and although she was not continuously enrolled during the period in between, applying the test as set out in Hussain her studies were ongoing

40. and therefore she does continue to meet the requirement in cl 101.213(1)(c) at the time of decision.

41. The Tribunal was especially mindful of the history of this matter as set out above. The Tribunal was impressed by the sponsor and the applicant at the time of hearing and the genuine attempts they had made to understand and comply with the requirements of the visa they had applied for. The Tribunal appreciates the difficulties and trauma suffered because of the continued separation of the applicant and her mother.

42. For the reasons above, the Tribunal is satisfied cl 101.213(1)(c) is met at the time of application and that at the time of decision cl 101.221(2)(b) is met.

43. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

44. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.213(1)(c) of Schedule 2 to the Regulations; and

    ·cl 101.221(2)(b) of Schedule 2 to the Regulations.

    Moira Brophy
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.

    1.05A Dependent

    (1)         Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …