Lee (Migration)

[2020] AATA 5462

Lee (Migration) [2020] AATA 5462 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kin Pui Lee

CASE NUMBER:  1709799

DIBP REFERENCE(S):  CLF2016/44890

MEMBER:Nicholas McGowan

DATE:21 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the Child (Residence) (Class BT) Subclass 802 visa.

Statement made on 21 July 2020 at 1:18pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – applicant over 18 not undertaking full-study at time of application or since – studying English at home with sister – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338, 347, 356, 360, 366

Migration Regulations 1994 (Cth), Schedule 2, cl 802.214

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

REVIEW

1. On 28 July 2016 the applicant applied or a Child (Residence) (Class BT) Child Subclass 802 visa under s.65 of the Migration Act 1958 (the Act).

2. On 5 May 2017 a delegate of the Minister for Immigration made a decision to refuse to grant the visa applicant the Subclass 802 visa.

3. The same day, 5 May 2017, the applicant appealed the Minister’s refusal decision to this Tribunal.

4. This is a de novo review of the above refusal decision.

5. On 12 May 2017 the applicant provided the Tribunal with a copy of the refusal decision dated 5 May 2017. The applicant also provided (on 12 May 2017) a statement from his step-father in support of his application (a near identical statement was also provided to the department previously and is present on the Department’s case file CLF2016/44890).

6. The applicant was born on [date]. The evidence of the applicant’s age can be found at folios 31-33 on the Department case file CLF2016/44890 which include a copy of his Hong Kong Special Administrative Region PRC passport, and Hong Kong permanent identity card.

7. At the time the applicant applied for the visa he was 18 years, 3 months of age.

8. In this case, the Minister (his delegate) found the applicant was not enrolled in full-time study at the time of application, and therefore failed to meet the requirement spelt-out under clause 802.214(1)(c) of the Act.

9. Prior to commencing the formal review into this matter, the Tribunal, having consideration of the requirements under the Act, finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act, and that the applicant has made a valid application for review under s.347 of the Act.

10. Relevantly to point 9 above, clause 802.214(1)(c) requires the applicant, since turning 18 (or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

11. The Tribunal notes, clause 802.214 is a time of application requirement, meaning the applicant must fulfil this requirement at the time he applied of the visa, namely 28 July 2016.

12. In the applicant’s application form for the visa (Form 47CH) found at folios 1-18 on the Department’s case file CLF2016/44890 and dated 12 July 2016, the applicant  declares at question number 39 the answer “No”. The question is:

    Is the child currently undertaking a post-secondary course of study leading to a trade, vocational or professional qualification (this does not include single subject courses, hobby type courses or other general interest courses of a short duration)?

13. The applicant declared his “student status details” in response to the previous question (question number 38) where the applicant indicated he attended the Methodist Lee Wai Lee College in Tsuen Wan, Hong Kong from September 2010 until 2011.

14. No additional educational history (or record) has been provided, to the Department, or to the Tribunal as part of this review.

15. The Tribunal notes the applicant’s step-father states in his statement (provided to the department and the Tribunal) that around the time of application the applicant was studying English at home every day with his sister in an effort by the family to prepare him for a trade school in the “near future”. While the Tribunal accepts this evidence at face value, it is evident that sibling teaching does not fulfil the requirements outlined in clause 802.214(1)(c).

16. On 29 June 2020 the Tribunal wrote to the applicant and invited him to appear before a public hearing to provide evidence and present arguments. A previous invitation issued on 5 March 2020 for a public hearing scheduled for 31 March 2020 was postponed at the applicant’s request because of the SARS-CoV-2 pandemic.

17. The applicant was invited to attend a hearing because the Tribunal had considered the material before it and had been unable to make a favourable decision on that information alone. Under Section 360 of the Migration Act an applicant must be invited to appear before this Tribunal, except in limited circumstances which are not applicable in this matter.

18. A public hearing to consider and review the refusal of the visa applications was conducted on Tuesday 21 July 2020 in Melbourne. Because of the SARS-CoV-2 epidemic, and government restrictions presently in force, the Tribunal conducted this hearing via telephone. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1).

19. Consistent with the Migration Act 1958: s.356(3), the Tribunal conducted the hearing without opening it to the public. The Tribunal has this authority as it formed the viewed it is in the public interest to hold these matters in private, because of the heightened risk of transmission of the SARS-CoV-2 virus at this time, and direct the evidence be given in private; though noting this written statement and decision are public and may be published.

20. For the purpose of the review, the applicant has nominated his step-father, Mr Albert Li, as his representative. A translator was provided by the Tribunal during the hearing held 21 July 2020. The applicant, his mother, and step-father, each provided oral evidence at that hearing.

21. During the hearing held 21 July 2020, the applicant confirmed he was not studying at the time of application. The applicant stated he has not completed any full-time study since the time of application. The applicant’s step-father declined the opportunity to provide any oral evidence. The applicant’s mother outlined the circumstances which led to the delay in her brining her son to Australia from Hong Kong. The applicant’s mother also explained the applicant had experienced difficulty studying in Australia because of his lack of English.

22. As the applicant’s evidence is he has not studied at the ‘time of application’ or any period since, the Tribunal finds the applicant has not satisfied clause 802.214(1)(c) as specified. As there is no evidence or claim by the applicant he meets the alternate clause: 802.214(2), the effect of his not satisfying clause 802.214(1)(c) means the applicant also cannot satisfy clauses 802.2141(a) and (b).

23. It follows that given the evidence and findings above, the applicant has not satisfied clause 802.214 in Schedule of the Regulations. In these circumstances the Tribunal has no alternative but to affirm the decision under review.

24. The Tribunal affirms the decision not to grant the Child (Residence) (Class BT) Subclass 802 visa.