Le (Migration)

[2020] AATA 5336

Le (Migration) [2020] AATA 5336 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Cao Minh Le

VISA APPLICANT:  Mr Cao Ky Vy Le

CASE NUMBER:  1811583

HOME AFFAIRS REFERENCE(S):          2017019601 OSF2017/019601

MEMBER:Peter Smith

DATE:13 October 2020

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.101.211 of Schedule 2 to the Regulations;

·     cl.101.213 of Schedule 2 to the Regulations; and

·     cl.101.221 of Schedule 2 to the Regulations.

Statement made on 13 October 2020 at 11:16am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent child of a permanent visa holder – applicant over 18 years – relationship status – full-time studies – gap in studies – decision under review remitted           

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 1.03, 1.05; Schedule 2, cls 101.211, 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122

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 (the Minister) on 28 February 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) (Subclass 101) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Cao Ky Vy Le (the visa applicant), a citizen of the Socialist Republic of Vietnam, made a valid application to the Minister on 2 June 2017 for the grant of a Child (Migrant) (Class AH) visa in which he claimed to be the dependent child of the holder of a permanent visa holder, namely his father and sponsor (the review applicant), Mr Cao Minh Le.  The review applicant completed the relevant approved sponsorship form on 27 May 2017. His sponsorship form was also lodged with the Department of Home Affairs (the Department) at the same time as the visa applicant lodged his visa application.

3. At the time of application, item 1108 of Schedule 1 to the Migration Regulations 1994 (the Regulations) provided for the grant of a Child (Migrant) (Class AH) visa. At the time of application, the Child (Migrant) (Class AH) visa contained three subclasses: 101 (Child), 102 (Adoption) and 117 (Orphan Relative): item 1108(4). In the present case, the visa applicant only makes claims against the criteria for a Subclass 101 (Child) visa.

4. At the time of application, Part 101 of Schedule 2 to the Regulations set out the criteria for the grant of a Subclass 101 (Child) visa. The visa applicant must meet each of the criterion otherwise he will not be granted the visa. The primary criteria must be satisfied by at least one member of a family unit.  The other members of the family unit (if any) who are applicants for a Subclass 101 (Child) visa need satisfy only the secondary criteria.

5. The delegate decided to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa because she was not satisfied that at the time of application, the visa applicant had 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, a requirement that the visa applicant must meet under cl.101.213(1)(c) at the time of application and continue to meet at the time of decision.

6. An application to review the delegate’s decision was made to the Tribunal by the review applicant on 23 March 2018.  The review applicant attached to his application for review a copy of the delegate’s Decision Record dated 28 February 2018.

   THE TRIBUNAL HEARING

7. The review applicant appeared before the Tribunal for a telephone hearing on 15 September 2020 to give evidence and present arguments in relation to the issues relating to the decision under review. 

8. The Tribunal was not able to complete taking evidence from the review applicant at the hearing or start taking evidence from the visa applicant because the Tribunal ran out of time and because the interpreter was not able to stay beyond the time that had been scheduled, the Tribunal had to adjourn the matter to 24 September 2020 .  However, it was not necessary for the Tribunal to resume the hearing on 24 September 2020 because it received further information that was favourable to the review applicant’s case.

9. The hearing was conducted with the assistance of an interpreter in the English and Vietnamese languages who also appeared by telephone from a location away from the Tribunal.

10. The review applicant was represented in relation to the review by his authorized representative and authorized recipient, a registered migration agent.  The representative also appeared by telephone from her office.

11. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    PROCEDURAL FAIRNESS OBLIGATIONS – ADVERSE INFORMATION

12. In accordance with its statutory obligations, on 30 August 2020, the Tribunal, pursuant to the provisions of s.359A of the Act, gave the review applicant clear particulars of information it considered would be, subject to any comments or response made by him, be the reason or a part of the reason, for affirming the decision under review. 

13. In its letter the Tribunal informed the review applicant the information it considered would be, subject to any comments or response made by him, be the reason or a part of the reason, for affirming the decision under review consisted of two non-disclosure certificates made by a delegate of the Minister pursuant to ss.375A and 376 of the Act, on 9 March 2018 and 22 September 2017, respectively.  The Tribunal informed the review applicant that attached to both certificates were four documents (folios 79 to 80 and folios 86 to 87) the delegate determined should not be disclosed on the basis that disclosure of the documents would be contrary to the public interest as they provide details about how the Department undertakes investigative functions in respect of the question of ‘dependency’. 

14. The Tribunal informed the review applicant that the information was materially relevant to the question of whether the visa applicant satisfies the requirements of cl.101.213(1)(c) of Schedule 2 to the Regulations.

15. The Tribunal informed the review applicant that it had considered the question of whether both certificates were valid.  The Tribunal informed the review applicant that the Tribunal had determined that both certificates were valid because they had been signed and dated by the delegate. The Tribunal provided the review applicant with a copy of both certificates, however as both certificates identified the delegate’s name, it was determined by the Tribunal that for privacy reasons, the name of the delegate should be redacted from both certificates.  The review applicant was invited to comment on the validity of both certificates. 

16. The Tribunal informed the review applicant that it had considered the four documents identified by the delegate as folios 79 to 80 and folios 86 to 87.  In respect of folios 79 to 80 the Tribunal informed the review applicant that as both documents were in a foreign language, the Tribunal was unable to make an assessment of whether those documents were materially relevant to the issue on review and/or whether those documents were adverse or favourable to the applicant’s case.  The Tribunal informed the review applicant that it was not possible for the Tribunal to determine the question of whether disclosure of the documents would be contrary to the public interest because the documents were in a foreign language. In the circumstances, the Tribunal determined that folios 79 to 80 should be disclosed to the review applicant.  The review applicant was informed that he may wish to have folios 79 to 80 translated to English by an accredited translator and provide them to the Tribunal for consideration. 

17. In respect of folios 86 to 87, the Tribunal informed the review applicant that the information contained interview notes made by the delegate on 4 August 2017 when she interviewed the visa applicant in respect of his visa application.  The Tribunal informed the review applicant that the delegate had determined that folios 86 to 87 should not be disclosed on the basis that disclosure of the documents would be contrary to the public interest as they provide details about how the Department undertakes investigative functions in respect of ‘dependency’.  The Tribunal informed the review applicant that it had considered the question of whether the disclosure of folios 86 to 87 would be contrary to public interest. The Tribunal determined that it would not be contrary to the public interest to disclose the documents because folios 86 to 87 contained answers the visa applicant gave at his interview on 4 August 2017 which were materially relevant to the question for the Tribunal to determine on the review under cl.101.213(1)(c).  The Tribunal provided the review applicant with copies of folios 86 to 87 however as the documents identified the names of persons employed at the Department, the Tribunal had determined for privacy reasons, to redact the names of all employees of the Department.

18. The Tribunal informed the review applicant subject to his comments or response, the Tribunal may rely on the information.  The Tribunal informed the review applicant that if the Tribunal did rely on the information it may be the reason or part of the reason for affirming the decision under review.  The Tribunal informed the review applicant that the consequences of the Tribunal relying on the information meant that the visa applicant may not be granted the visa.

19. A response to the Tribunal’s letter of 30 August 2020 was received on 8 September 2020 including a statement from the visa applicant with an explanation to the matters raised by the delegate and his answers given to the delegate at the interview. 

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. In the present case, the question for the Tribunal to determine is whether at the time of application and at the time of this decision, the visa applicant is a dependent child of a an Australian citizen, permanent visa holder, or eligible New Zealand citizen: cl.101.211(1)(a), and whether the visa applicant meets the additional criteria in respect of a child who has turned 18 at the time of application.

21. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

22. In conducting this review, the Tribunal has had regard to the information and evidence the review applicant has provided to the Tribunal, and the information and evidence contained on the Department’s file, which the Department has provided to the Tribunal for the purposes of this review.

    Dependent child

23. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

24. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

25. There is no evidence before the Tribunal that the visa applicant is wholly or substantially reliant on his father for financial support because the visa applicant is incapacitated for work due to the total or partial loss of bodily or mental functions.

26. The visa applicant claims to have been for a substantial period immediately before the date of application, wholly or substantially reliant on his father for financial support to meet his basic needs for food, clothing and shelter.  The visa applicant also claims that his reliance on his father is greater than any reliance by the visa applicant on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter.

27. The review applicant has provided financial records to show that his son is dependent on him for financial support and has been for a substantial period immediately before the date of application. 

28. There is no evidence before the Tribunal that the visa applicant has received support from any other person or relies on support from another source. 

29. The Tribunal has considered the financial records it has received from the review applicant.  Based on those records, the Tribunal is satisfied that the visa applicant has been for a substantial period immediately before the date of application, wholly or substantially reliant on his father for financial support to meet his basic needs for food, clothing and shelter

30. Accordingly, the Tribunal is satisfied that the requirements of cl.101.211(1)(a) are met at the time of application, and continues to be met at the time of decision.

    Applicant under 25

31. At the time of application, the visa applicant must not have turned 25. 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 total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2).

32. The visa applicant claims that he was born in Vietnam on 8 September 1994.  The Tribunal accepts that the visa applicant was born in Vietnam on 8 September 1994 because there is a translated copy of his official Birth Certificate on the Department’s file which relevantly provides that the visa applicant was born in Vietnam on 8 September 1994.  On this evidence, the Tribunal is satisfied that at the time of application (i.e. 2 June 2017), the visa applicant had turned 18. 

33. Accordingly, the Tribunal is satisfied that the requirements of cl.101.211 are met at the time of application.

34. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a). 

35. The requirement of cl.101.221 is not met at the time of decision but this is only because the visa applicant has turned 25.

    Child-parent relationship

36. At the time of application, the visa applicant must be a child (other than an adopted child) or a specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl.101.211(1)(c). 

37. In the present case, the visa applicant claims to be a child of his father, the review applicant.  According to departmental records, the review applicant was granted an Australian permanent visa on 31 January 2017. On this evidence, the Tribunal is satisfied that the review applicant is the holder of an holder of an Australian permanent visa and was the holder of this visa at the time of application.  The Tribunal accepts that the visa applicant is a child of his father because there is a translated copy of the sponsor’s Family Household Registration Book on the Department’s file which provides that the visa applicant is his child. 

38. Accordingly, the Tribunal is satisfied that the requirements of cl.101.211(1)(c) are met at the time of application.

    Criteria for applicants over 18

39. As the visa applicant turned 18 at the time of application, the visa applicant must also 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).

    and historyRelationship status

40. 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).

41. There is no evidence before the Tribunal that at the time of application and at the time of decision, the visa applicant is engaged to be married or that he has had or ever had a spouse or de facto partner.  In the absence of any evidence to the contrary, the Tribunal accepts that at the time of application and at the time of decision, the visa applicant is not engaged to be married or that he has had or ever had a spouse or de facto partner.

42. Accordingly, the Tribunal is satisfied that the requirements of cl.101.213(1)(a) are met at the time of application and continues to be met at the time of decision.

    Not engaged in full-time work

43. 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).

44. There is no evidence before the Tribunal that at the time of application and at the time of decision, the visa applicant is engaged in full-time work. In the absence of any evidence to the contrary, the Tribunal accepts that at the time of application and at the time of decision, the visa applicant is not engaged in full-time work.

45. Accordingly, the Tribunal is satisfied that the requirements of cl.101.213(1)(b) are met at the time of application and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

46. 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).

47. Clause 101.213(1)(c) 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).

48. 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.

1. The visa applicant claims that on 22 August 2012 he completed his secondary schooling at Hong Dug High School in Ho Chi Minh City, Vietnam.  The Tribunal accepts that the visa applicant completed his secondary schooling at Hong Dug High School because this is confirmed by the translated copy of the visa applicant’s official High School Certificate.  On this evidence, the Tribunal is satisfied that the visa applicant completed his secondary schooling on 22 August 2012.

2. The Tribunal has considered the question of whether the visa applicant’s secondary schooling is the equivalent of year 12 in the Australian school system.  The High School Certificate on the Department’s file does not with respect contain much detail about the nature of the visa applicant’s secondary schooling or the subjects he undertook, however given that the visa applicant gained admission into an undergraduate course in a University following completion of his schooling, the Tribunal is satisfied in the circumstances of this case that the visa applicant’s secondary schooling is the equivalent of year 12 in the Australian school system. 

3. The visa applicant claims that in 2012 he commenced a full-time course of study at Nguyen Tat Thanh University (NTTU).  The visa applicant claims that he commenced studying a Bachelor of Business Management (Marketing Major).  The Tribunal accepts that the visa applicant commenced full-time studies at NTTU in a BM in 2012 because this is supported by the translated copies of the visa applicant’s Academic Transcripts and from the date the visa applicant commenced full-time study the Tribunal accepts that the visa applicant actively engaged in his studies without interruption up to and including February 2015.

4. However, official records obtained from NTTU show that the visa applicant had enrolled in two subjects in 2015 but did not attend classes or lectures in the period between March 2015 to June 2015.  The records show that the visa applicant did not enrol in any subjects between June and September 2015.  The records show that from October 2015 to October 2016, the visa applicant enrolled in several subjects however he did not actively engage in any study during this period.  In respect of his results for the academic years 2012 to 2016, the records state that the visa applicant was not eligible to continue with his studies.

5. In respect of the visa applicant’s studies for the academic years 2016 to 2020, the university states that the visa applicant re-enrolled in 2016 and commenced studying on 30 September 2016.  The records show that the visa applicant has been studying continuously since 30 September 2016 up to and including the present.  The results also show that the University permitted the visa applicant to transfer his results from the academic years 2012 to 2016 to his current studies.

6. The visa applicant was interviewed by the delegate on 4 August 2017.  When asked by the delegate why he ceased his studies with NTTU in September 2015, the visa applicant stated that he felt stressed after his father and sister migrated to Australia, so he dropped out of the course.  When asked by the delegate if he was hospitalised or saw a doctor during this time, the visa applicant stated that he ‘just consulted a private doctor’ two to three times. The visa applicant also confirmed that he ceased studying from September 2015 to March or April 2016 and that in July 2016, he re-enrolled at NTTU again.  He stated that when he was not studying, he stayed at home and seldom went out. The applicant stated that when his father travelled back to Vietnam, he asked the applicant to study again.

7. In her decision, the delegate states that she put to the visa applicant at the interview the information about his studies The information received by the department about the applicant’s studies, his nonattendance and his break in studies at NTTU was put to the applicant. The applicant agreed that all of the information received by the department was correct. When asked what he did between February 2015 and October 2016 when he did not attend university, the applicant stated that he was lazy regarding his studies and he played games at internet shops.

8. In his statement to the Tribunal, the visa applicant says that his father and sister went to Australia for a holiday in September 2014.  He says that his father married his new wife during this visit and decided to remain in Australia.  The visa applicant said that during this period he felt lonely and sad because he had always had his father around to look after him.  He says that his father maintained contact with him during this period which helped him overcome his feeling of loneliness and sadness.  The visa applicant says that he tried his best to continue studying until 30 December 2014 which was the last day before the university vacation started.  He says that his father returned to Vietnam after December 2014 however on 4 March 2015 his father and sister permanently migrated to Australia. 
   The visa applicant says that he felt he had been left behind and could not bring himself to
   do anything. 

9. In his evidence, the review applicant said that he and his daughter permanently migrated to Australia on 4 March 2015.  He said that after he and his daughter migrated to Australia his son became desperate and despondent and lost interest in his studies.  He said that his son felt that he had no one and that no one loved him anymore and that his father had abandoned him.  The review applicant said that while he was in Australia, he maintained contact with his son and when he visited Vietnam, he spent time with him.

10. The review applicant said that his son went to see a doctor.  He said that the doctor diagnosed his son with depression.  The review applicant said that his son continued to see his doctor for treatment.  The review applicant provided the Tribunal with a letter from the visa applicant’s doctor who confirms that the visa applicant was diagnosed with depression and that he sought treatment from his clinic.

11. The Tribunal accepts that the review applicant travelled to Australia in September 2014 and returned to Vietnam in February 2015 because this is recorded on the review applicant’s Movement Records.  The Tribunal accepts that the review applicant migrated to Australia in March 2015. 

12. The Tribunal accepts that the visa applicant suffered from depression and sought treatment for his condition from a medical practitioner.  The Tribunal recognizes that it is plausible that a young person would be adversely affected by his or her parent and sibling moving to another country without him.  While not claiming to have any medical expertise, it appears to the Tribunal that what the visa applicant told the delegate is consistent with someone having depression.  The Tribunal accepts that the visa applicant likely suffered from depression from the date his father left Australia as this is when he started to disengage with his studies.  The Tribunal accepts that the visa applicant’s depression was most likely the cause of him disengaging with his studies and that this is a reasonable explanation as to why he ceased studying in the relevant period.

13. In the circumstances, notwithstanding his disengagement from studies in the relevant period the Tribunal is satisfied at the time of application that the visa 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 qualification: cl.101.213(1)(c).

14. The review applicant has provided official information from the NTTU which shows that the visa applicant is still study.  Based on this evidence, the Tribunal is satisfied that the visa applicant is still studying his undergraduate course at the time of decision.

15. The Tribunal has considered the question of whether the undergraduate course the visa applicant undertaking is at an educational institution that will lead to the award of a professional, trade or vocational qualification.  NTTU is a university.  It offers undergraduate courses.  The Tribunal has searched for similar courses undertaken by the visa applicant at the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).  CRICOS lists similar courses at a number of Australian universities.  The Tribunal is satisfied based on the information on the CRICOS that the course undertaken by the visa applicant will lead to the award of a professional, trade or vocational qualification.

16. Accordingly, the Tribunal is satisfied that the requirements of cl.101.213(1)(c) are met at the time of application and at the time of decision.

    CONCLUSION

17. For the reasons above, cl.101.213 is met at the time of application.

18. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

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

    DECISION

20. 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.101.211 of Schedule 2 to the Regulations;

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    Peter Smith
    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.

    …