Le (Migration)

[2025] ARTA 403

LE (MIGRATION) [2025] ARTA 403 (4 MARCH 2025)

DECISION AND  

REASONS FOR DECISION

Applicant:Ms Thi Tu Le

Visa Applicant:  Mr Phan Anh Khoa Le

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2317224

Tribunal:Kira Raif

Place:Sydney

Date:4 March 2025

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

Statement made on 04 March 2025 at 2:21pm

CATCHWORDS  

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – applicant was over the age of 18 – not satisfied the visa applicant had been undertaking a full-time course of study – study requirement not met – Tribunal has not been necessarily to consider the application of PIC 4020 – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 101.213, 101.221, 101.223

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

STATEMENT OF 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 9 November 2017 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 is a national of Vietnam, born in March 1994. He made the application for the visa on 10 December 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 101.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because the delegate was not satisfied the visa applicant met Public Interest Criterion (PIC) 4020. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. In May 2019 the Tribunal (differently constituted) affirmed the decision under review. The review applicant sought judicial review and the matter has been remitted to the Tribunal for reconsideration.

4. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

5. The review applicant appeared before the Tribunal on 3 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Procedural history

6. On 4 December 2024 the Tribunal wrote to the review applicant inviting her to attend the hearing on 4 February 2025. On the morning of 4 February 2025, the Tribunal received a request from the review applicant, through her representative, to postpone the hearing. The review applicant stated that she had travelled to Vietnam to be with her son, who required her emotional support in advance of the hearing, and to celebrate the Lunar New Year.

7. The Tribunal considers this to be an odd decision by the review applicant to travel overseas at the time of her scheduled hearing. While the Tribunal acknowledges that the hearing coincides with the Lunar New Year, the Tribunal is also mindful that the applicant has been given two months’ notice of the hearing date and had ample time to make arrangements to support her son and to prepare for the hearing. The review applicant wrote to the Tribunal in January 2024 requesting the review process to be expedited. Even if the review applicant did make the decision to travel overseas rather than to attend the Tribunal hearing, the Tribunal is of the view that she (and her representative) had ample time to inform the Tribunal of the review applicant’s unavailability other than on the morning of the hearing date.

8. In a subsequent correspondence of 4 February 2025, the applicant’s representative explained that the review applicant made arrangements to travel overseas a long time ago and considered postponing her travel to attend the Tribunal hearing but decided not to do so. The representative explains that the review applicant could not take leave from work at any other period and also that the visa applicant needed her support. None of this explains why the information about the review applicant’s unavailability was provided to the Tribunal by the review applicant’s representative less than 24 hours before the hearing.

9. Despite its reservations, the Tribunal has decided to postpone the hearing to enable the visa applicant’s attendance.

10. The review applicant’s representative provided a written submission and a large volume of documents to the Tribunal on the morning of 4 March 2025, merely an hour before the rescheduled hearing was due to commence. Additional documents were presented to the Tribunal during the hearing. The written submissions fail to offer any reasonable explanation for such a late submission of evidence.  

    Relevant law

11. 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 101.213. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

12. Another issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl 101.223.

    Primary decision

13. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant made the application in December 2015. In March 2016 the visa applicant submitted in support of the application a Petition of Adoption, dated 20 December 1997, issued by the local Peoples Committee. The Petition for Adoption was certified with the stamp of the People’s Committee showing the abbreviation for Thi Xa Cai Lay town. The delegate notes that Thi Xa Cai Lay was only established as a town from December 2013 and previously (and at the time of the Adoption Petition) the stamp should have read Huyen Cai Lay. The delegate found that this inconsistency indicated that the Petition for Adoption was not stamped in 1997. The delegate also noted that investigations confirmed that while the Adoption Document was signed by Mr Nguyen, he listed himself as a chairman but at the time of the Petition he was the vice-chairman.

14. The delegate wrote to the visa applicant requesting further evidence of adoption. The visa applicant and sponsor claimed, in response, that there were no legal documents relating to child adoption available in 1997 so the adoption was written by the child’s biological parents on paper and notarised by the local People’s Committee. The visa applicant provided a statement from the local People’s Committee, issued in February 2016, confirming the Petition for Adoption was still valid and adoption was recorded with the local authorities and a statement from the local leader confirming the 1997 adoption was true.

15. The delegate notes that according to the relevant laws at the time, the adoption is recognised by the local People’s Committee. However, it is stated that the current civil registrar of the local People Committee verbally confirmed in July 2016 that there was no record of the applicant’s adoption recorded on the file. The Local Committee provided confirmation certificate by the Chairman in August 2016 stating that the applicant’s adoption by the sponsor was genuine but the People’s Committee had no record of this on their files.

16. The delegate invited the visa applicant’s comments on the suspected fact that the Petition of Adoption issued in December 1997 and the Certification by the People’s Committee issued in February 2016 were not genuine documents. In response, the visa applicant claimed that his parents approached the local People’s Committee in December 1997 to witness the adoption and they were told to make an application. The vice-chairman had signed the document but the seal was not affixed at the time. The visa applicant explained that before he lodged the application, his mother travelled to the People’s Committee and the stamp was affixed to assist with the visa application process. The visa applicant explains that the seal showing Thi Xa Cai Lay was used because it was affixed late to the document. The visa applicant presented a number of statements in support of these claims, including a statement from the vice-chairman of the People’s committee Mr Nguyen.

17. The delegate found that the petition of Adoption dated 29 December 1997 did not have the seal of the People’s Committee at the time the document was written but it was instead stamped after December 2013. The delegate noted that a legal document must be signed and have a seal affixed to be legally valid and since the seal was affixed at a later date, and not as part of the official procedures, the delegate found the seal was affixed by a person without authority to do so. The delegate was not satisfied the seal of the People’s Committee was affixed legally or according to official procedure. The delegate concluded that the Petition of Adoption is a bogus document.

18. The delegate rejected the explanation by Mr Nguyen that he incorrectly listed his position as Chairman, rather than Vice-Chairman because the was busy with work. 

19. The delegate noted that the certification from the People’s Committee confirmed that the Adoption Petition was valid, however, the previous verbal advice from the civil registrar of the People’s Committee indicated that the adoption was not recorded, supporting the finding that the Adoption Petition was false or misleading. 

    Evidence to the first Tribunal

20. The following is a brief summary of evidence that was before the previous Tribunal. The review applicant informed the previous Tribunal that Mr Nguyen was the vice-chairman of the People’s committee and had signed the adoption document. The seal was not available at the time and could not be affixed. The visa applicant’s parents were asked to return later to have the seal affixed but had not done so. When the visa applicant prepared to make the visa application, they had approached Mr Nguyen who agreed to affix the overdue seal. The visa applicant stated that the adoption was voluntary between siblings and there was no written document, so the authority had indicated that there was no evidence of registration of the adoption.

21. The review applicant provided to the previous Tribunal a number of documents including a legal opinion and articles concerning legal adoption requirements.

22. The Tribunal did not consider it plausible that the visa applicant’s parents did not return to the office to have the seal affixed. The Tribunal did not accept that the adoption was issued in 1997 and ultimately found that the Adoption document purportedly issued in December 1997 was a bogus document.

23. The delegate also noted that while the visa applicant provided a statement confirming the adoption was valid, the oral advice from the Commune indicated there was no evidence of adoption. It was concluded that the information provided in the certification issued in February 2016 contained false or misleading information. 

    Study requirement

24. At the time of application, the 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).

25. 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 802.214(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.

26. 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.

27. The Tribunal wrote to the review applicant on 26 November 2024 requesting her to provide evidence of the visa applicant study and dependence.

28. There is no evidence before the Tribunal to indicate, and the visa applicant does not claim, that he was, at the time of application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal acknowledges the script for certain medication that the review applicant presented to the Tribunal. That document refers to the visa applicant’s diagnoses of ‘psychological stress / sleep disorder’. It does not make any reference to the visa applicant’s incapacity for work due to total or partial loss of bodily or mental function. It does not suggest what, if any, investigation had been carried out of the visa applicant’s capacity and whether any such investigation may have been carried out by a qualified person such as a health professional. It does not address, in any way, the issue of the visa applicant’s incapacity, nor does it address the visa applicant’s actual engagement in employment. The Tribunal also notes that this document is dated 2017 and does not address the visa applicant’s circumstances at the time of application in 2015.

29. On the evidence before it, the Tribunal is not satisfied the visa applicant was incapacitated for work due to the total or partial loss of bodily or mental functions at the time of application. The review applicant does not claim that the visa applicant was so incapacitated. As the applicant was over the age of 18 when the application was made, the Tribunal finds that the applicant must meet the requirements of cl. 101.213(1)(c).

30. In his submission to the Tribunal received on 4 March 2025 the review applicant refers to the visa applicant’s past and present study. The review applicant states that the visa applicant completed high school in 2015 and sat the university exams twice before being admitted to an Information Systems course at university. The review applicant states that the visa applicant did not complete university due to ‘psychological shock and sleep disorder’ resulting from visa refusal. As his condition improved in 2019, the visa applicant enrolled in university in 2019. The review applicant states that in 2020, due to Covid, the visa applicant engaged in self-study at home but the first Tribunal decision had a negative impact on his confidence, resulting in suspension of university study. In 2021 the visa applicant engaged in another course (apprenticeship) which did not lead to a formal qualification and he enrolled in a Diploma of Hospitality Management from October 2023, graduating in October 2024. In December 2024 he enrolled in a Hotel Management course which he is presently undertaking. 

31. The review applicant provided to the Tribunal evidence of the visa applicant’s past study and present enrolment, as well as evidence relating to his financial dependence. The review applicant also presented a prescription issued in November 2017 which refers to the visa applicant’s diagnosis of ‘psychological stress / sleep disorder’. The review applicant also presented a statement from the visa applicant outlining the nature of adoption.

32. In oral evidence the review applicant spoke about the financial support she provides to her son, stating that he lives with his biological parents and she has been sending money to support his accommodation, food, tuition fees and daily expenses. With respect to the visa applicant’s study, the following information has been provided on the primary visa application form and in oral evidence:

    -5/12               secondary schooling

    The visa applicant stated he enrolled in college but could not recall any details.
    09/13 – 10/17             Open University, Bachelor of Information Systems
    10/21 – 01/23             apprenticeship in Mechanical Engineering
    10/23 – 12/24             Diploma of Hospitality
    12/24 – current          Hotel Management

33. When asked about the visa applicant’s study after completion of secondary schooling, the review applicant told the Tribunal that between May 2012 and September 2013 the visa applicant stayed at home and was researching which school to enrol in and what subjects to do. The Tribunal does not consider that this process should reasonably take 15 months. In the written submission the review applicant claims the visa applicant had to re-take the university entrance exams twice in that period (it seems that she could not recall that fact in oral evidence). However, there is no documentary evidence before the Tribunal to support the claim that the visa applicant was required to retake the university entrance exams between May 2012 and September 2013. There is no evidence to indicate that between May 2012 and September 2013 the visa applicant engaged in any self-study or any other formal or informal study for the purpose of the undertaking the university entrance exam. Importantly, there is no evidence before the Tribunal to indicate that in that period the visa applicant was not able to engage in any other study, even if he did have to repeat the university entrance exams to be able to enter a university.

34. The review applicant presented to the Tribunal a certificate of enrolment from the Open University indicating the visa applicant was enrolled on a full-time basis from Semester 1 of 2013-14 until the end of Semester 2 of 2017. The review applicant told the Tribunal that the course was probably a three-year course, as most courses in Vietnam are, and could not explain why the visa applicant had not completed that course in the four academic years of his enrolment at Open University between 2013 and 2017. The review applicant then said that once the visa application was made, the visa applicant had ‘paused’ the course but he did not tell her the details and she did not know for how long. The representative claims that in that period, the visa applicant had developed mental health issues as a result of the visa refusal which affected his study.

35. Other than the statement of enrolment, there is no documentary evidence before the Tribunal concerning the visa applicant’s engagement in study – such as, for example, academic transcripts, attendance sheets, copies of examinations or other assessments, etc. On the evidence before it, even if the Tribunal accepts that the visa applicant was enrolled at the Open University between 2013 and 2017 on a full-time basis, as the statement from the University indicates, the Tribunal is not satisfied that in that period, the visa applicant had continuously engaged in full-time study, given that he had not completed the course in the four-year period and given the absence of evidence indicating his engagement in studies. The review applicant’s evidence is that the visa applicant had ‘paused’ his study while at Open University and in the Tribunal’s view, the visa applicant had either ‘paused’ his university study or had not engaged in such study after enrolling at the university.

1. The review applicant could not explain what study the visa applicant engaged in after leaving the Open University, stating that he probably stayed at home. She later stated that between 2017 and 2021 the visa applicant was stressed and could not study and he was also affected by Covid. The review applicant said that her son did register to study at the college level but had to sit the exams at the start of the year. The Tribunal does not accept that it would have taken the visa applicant four years to sit the relevant entrance exams and await the results before he could enter formal study. The Tribunal also does not accept that there were no other courses available to the visa applicant in that four-year period between October 2017 and October 2021.

2. The review applicant told the Tribunal that the Mechanical Engineering course that the visa applicant completed between 2021 and 2013 was like an apprenticeship. The course did not require payment and the visa applicant was not paid. The course did not lead to a formal qualification and was only done to enable the visa applicant to get new skills that he might use in Australia. as the course did not lead to a formal qualification, that study cannot be counted for the purpose of cl. 101.213.

3. The review applicant told the Tribunal that after completing the engineering apprenticeship around January 2023, her son stayed at home and ‘rested’ and waited to enrol in a new course, which he did in late 2023 and he has been studying since that time. The review applicant suggested that the visa applicant had to wait for the new intake and for the course commencement. Again, the Tribunal does not accept that there was no other study available to the visa applicant in that period, even if he did have to wait for a particular course to start until late 2023. The Tribunal does not accept there were other issues which would have prevented the visa applicant from continuous study in 2023. The Tribunal is not satisfied that the visa applicant was not able to engage in formal study, or other activities related to study.

4. The review applicant initially claimed that the visa applicant is young and wanted to ‘play’ but later said that he was affected by the visa refusal and was ‘sad’ by the separation and could not study. The review applicant states she told her son that if he cannot study, he should rest and find a course which he liked. As noted above, the claim that the visa applicant was unable to study due to the effect the visa refusal has had on him is entirely unsupported by probative medical evidence. There are no contemporaneous medical records indicating the visa applicant sought help or treatment. The Tribunal does not consider the medication prescription to be probative evidence of the visa applicant’s inability to engage in study as that document does not address the visa applicant’s study capacity, nor outlines the effect of medication as a form of treatment.

5. For the purpose of the study requirements, the Tribunal finds that there were the following significant gaps in the visa applicant’s study: from May 2012 to September 2013 and from October 2017 to October 2021 (with the Mechanical engineering course not leading to formal qualifications but an activity that is relevant to study, to take the interpretation that is most beneficial to the visa applicant).

6. The Tribunal does not accept that in these period the visa applicant was unable to enrol in study due to the taking of entrance exams because there is no evidence relating to the visa applicant having to take (or failing) such exams and because there is no evidence that the entrance exams were prerequisites to the visa applicant’s ability to engage in some form of study. That is, the Tribunal is not satisfied the visa applicant was unable to engage in other study even if he could not pass the entrance exams and enrol at the university level.

7. Even if the apprenticeship course is considered relevant to study and counted for the purpose of cl. 101.213, there are still significant gaps in the applicant’s study, including a four-year period between October 2017 and October 2021, which have not been explained to the satisfaction of the Tribunal.

8. The Tribunal has considered the claim that the visa applicant was upset by the visa process and separation from his mother, which had affected his ability to study. That claim is not supported by probative evidence as a statement that the visa applicant has been prescribed some medication does not establish his inability to engage in studies. There is also insufficient evidence to indicate that the visa applicant could not study during Covid (noting that a significant gap occurred before Covid in 2017-2019 and some break in studies occurred after Covid). The visa applicant’s evidence to the Tribunal is that between 2017 and 2021 he engaged in employment ‘in a lot of places’ and in the Tribunal’s view, his ability to do so does not support the claim that the visa applicant was too unwell to engage in any study.

9. On the limited evidence before it, the Tribunal is not satisfied 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. The Tribunal is not satisfied the visa applicant meets cl 101.213 (1)(c) (noting the break in studies between May 2012 and September 2013) and that he continues to meet that for the purpose of cl. 101.213 (noting the break between October 2017 and October 2021). The Tribunal is not satisfied the visa applicant meets cl.101.213(1)(c) and cl. 101.221.

10. The visa applicant was over the age of 18 when the application was made and he does not meet the definition of the term ‘orphan relative’ and also the requirements of cl. 102.211.

11. The review applicant told the Tribunal that the visa applicant will continue with his studies once he comes to Australia and will become a useful and contributing member of the society. She refers to her own health issues and states that she needs the support of the visa applicant. The Tribunal acknowledges that evidence but has no discretion to recommend the grant of the visa in circumstances where the Tribunal has found that the visa applicant does not meet the visa requirements.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

12. The primary decision was based on the finding that the visa applicant did not meet PIC 4020 and that provision was the focus of the first Tribunal decision. For the reasons set out above, the Tribunal has formed the view that the visa applicant does not meet another provision for the grant of the visa and the Tribunal has decided to affirm the decision under review. As such, it has not been necessarily to consider the application of PIC 4020.

13. In determining not to make a finding in relation to PIC 4020 the Tribunal has decided that the visa applicant would not be disadvantaged as the exclusion period, which commenced at the time of the primary decision,[1] has now expired.

    [1] See Josan v MIBP [2016] FCCA 493 at [58].

    Conclusion

14. On the basis of the above, the visa applicant does not satisfy cl. 101.213 and cl. 101.221.

    DECISION

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

    Date(s) of hearing  4 March 2025    

    Representative for the Applicant:           Ms Tam Thi Thanh Tran