Luong (Migration)

[2020] AATA 2334

Luong (Migration) [2020] AATA 2334 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Nga Luong

VISA APPLICANT:  Ms Hoang Kim Ngoc Nguyen

CASE NUMBER:  1709811

HOME AFFAIRS REFERENCE(S):          OSF2016/038797

MEMBER:David Crawshay

DATE:9 April 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 April 2020 at 11:40am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study requirement – ‘reasonable time’ – reason for various study gaps – compassionate circumstances – passing of family members – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cls 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
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 Immigration and Border Protection on 20 April 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 October 2016. 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 (the Regulations). Relevantly to this case, they include cl.101.213.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the visa applicant had not been studying full-time since turning 18, and had not been studying at an educational institution leading to the award of a professional, trade or vocational qualification.

5. The review applicant appeared before the Tribunal on 20 February 2020 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.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   EVIDENCE AT HEARING AND POST-HEARING

8. The Tribunal told the review applicant that it was seeking to make a decision on the criteria for applicants over 18 under cl.101.213(1)(c) and cl.101.221(2)(b). It noted that the review applicant had provided evidence and submissions relating to dependency, but told her that it would not be having regard to that evidence at hearing except where it also related to the criteria for applicants over 18.

9. It asked the review applicant if the visa applicant was incapacitated for work. She replied that the visa applicant was not incapacitated.

10. It asked the review applicant if the visa applicant was engaged in full-time work. She replied that the visa applicant was not so engaged.

11. It asked the review applicant if the visa applicant was married, in a de facto relationship or engaged. She replied that the visa applicant was not.

12. The review applicant told the Tribunal that after the visa applicant graduated from high school in 2011, she attempted to do a course to become a diplomat, but she did not get the marks. The review applicant said that the visa applicant then studied English at the North American International English School. The review applicant said that she did not know how many hours of tuition the visa applicant had per week. When it was put to her that the course ran from January 2012 to July 2013, the review applicant said that that timeline sounded right.

13. The review applicant told the Tribunal that the visa applicant engaged in a training course in barista work/bartending run through a private educational institution, Quang Tan Hao.

14. The Tribunal noted that a certificate for the course (refer Tribunal folio 80) had the words “Course term 2013-2014” handwritten on it. It asked the review applicant to explain what study was undertaken by the visa applicant from 2015 to March 2016, the latter date being the date the visa applicant purportedly began studying a basic Vietnamese cuisine course at Saigontourist Hospitality College (Saigontourist). The review applicant said that the visa applicant’s training for the barista course was not supposed to finish in 2014, but the visa applicant’s uncle died in late-February 2015 and she was very distressed and sad about it. The review applicant told the Tribunal that she flew to Vietnam in late-December 2015 to encourage the visa applicant to study at Saigontourist.

15. It was put to the review applicant that 10 months seemed a long time to be grieving a death, and she replied that the visa applicant was suffering stress. The Tribunal asked the review applicant why she did not come over earlier if she knew her daughter was suffering stress. The review applicant replied that she called the visa applicant very often, and that she promised the visa applicant she would come back but kept on delaying that trip. The Tribunal asked the review applicant if there was anything that demonstrated to her that the visa applicant could not study for those 10 months. She replied that, when she asked the visa applicant, she disclosed to her that she was distressed by the details of her uncle’s death. The Tribunal asked if there was any other reason for her not studying for that long. The review applicant said that she did not push the visa applicant very hard to find out.

16. The Tribunal asked the review applicant what the visa applicant was doing between March 2017, when the visa applicant finished a cake-making course at Saigontourist, and January 2018, when the visa applicant commenced a bartending course at Saigontourist. The review applicant replied that she heard from the visa applicant that she was doing an English for Conversation course and a business administration course, but the review applicant was not sure if the visa applicant enrolled in those courses or not.

17. The Tribunal asked the review applicant what the visa applicant was doing at the moment. The review applicant told the Tribunal that the visa applicant’s father just passed away recently, and that she took a break from her studies at Saigontourist. She said that she had been doing a bartending course at Saigontourist from January 2018 to January 2019, but she was not doing anything since then. The Tribunal asked the review applicant the reason for this break. The review applicant replied that the visa applicant’s father became sick in March 2019 and died in May 2019. When asked if there was any other reason, the review applicant said there was not.

18. The Tribunal then questioned the visa applicant.

19. The Tribunal asked the visa applicant what she was doing at the moment, and she replied that she is studying an advanced bartending course at Saigontourist and has been doing so for one month. She said that she is currently studying part-time for two-to-three hours-a-day, three days-a-week. She said that she will be finished the course in three months.

20. The Tribunal asked the visa applicant whether she had any evidence of this study. She replied that she had enrolled. The Tribunal put it to her that she would have evidence. She replied that she had just begun the course and had not sent the evidence over to Australia.

21. The Tribunal asked the visa applicant to state the last course she studied before her current course. She replied that she was studying a basic bartending course which was part-time and ran from January 2018 to January 2019.

22. The visa applicant was asked what she did in between these two courses. She first said that she stayed home and did her own study. She said she practised what she learnt, tossing a bottle and mixing alcohol. The Tribunal asked her if there was any other reason why she was not studying during that period. She replied that her father passed away in May 2019. She was asked what effect this had on her, and she replied that she grieved deeply and did not have the mood to go to school. She was asked how long she grieved for, and she replied that she was grieving until the new year – or around six months.

23. The visa applicant was asked what she was studying before the bartending course which began in January 2018. She said that she was doing a bakery course from Saigontourist which finished in March 2017. The Tribunal asked the visa applicant what she was doing between March 2017 and January 2018. The visa applicant asked to be given a second to think before taking a significant pause. She told the Tribunal that she was doing work experience. When asked where this work experience took place, she said that it took place through Saigontourist, who she claims operated a small bakery shop selling products to restaurants. She said that she was engaged four-to-five days-a-week for three-to-four hours-a-day.

24. The visa applicant was asked when and where she trained as a barista, and she replied that it was at Quang Tan Hoa from March 2013 to May 2014.

25. She was asked what she did after completing that course, to which she replied that she was doing work experience with Quang Tan Hoa from May or June 2014 until January 2015. When asked if there was any evidence of this work experience, she said there was not any evidence. She said that it has been a long time ago and that when people do work experience, “they consider that we do it for our own knowledge”.

26. The Tribunal asked her how anyone would know that she had done work experience. She replied that she has been doing work experience with her friend. The Tribunal asked her how a prospective employer would know that she had done work experience. She replied that a prospective employer would receive a letter of reference from Saigontourist.

27. The Tribunal asked her what she did from January 2015 until March 2016. She replied that she stayed home and her uncle passed away in February 2015. She was asked what kind of effect his death had on her, to which she replied that her uncle loved her the most, worked for her mum, and picked her up from school. She said it made her very sad. The Tribunal asked her how long the grieving process was. She replied that it took about a year.

28. The visa applicant told the Tribunal that she began studying again around March 2016 at Saigontourist part-time for three hours-a-day, five-days-a-week doing a cookery course. She had a similar number of hours in her next subject at Saigontourist, an advanced Asian cuisine course, which ran from September 2016 to December 2016. She said that she attended her bakery subject at Saigontourist for three hours-a-day, three days-a-week.

29. The representative asked the Tribunal to question the visa applicant on what constituted a full-time load for a course in Vietnam, and the Tribunal asked her that question. She replied that she did not know about what constituted a full-time load in other courses. The Tribunal asked the visa applicant whether she had friends at university that might be able to answer that question. She replied that she had no knowledge.

30. The Tribunal then questioned a Ms Thi Kim Dung Nguyen, one of the visa applicant’s paternal aunts and with whom she purportedly lives. Ms Nguyen told the Tribunal that the visa applicant has lived with her since when the review applicant went to Australia in 2013.

31. Ms Nguyen was asked what the visa applicant was currently doing. Ms Nguyen replied that the visa applicant is currently studying at Saigontourist. Ms Nguyen was asked when this latest course started. She replied that the visa applicant had been doing a number of courses at Saigontourist, and the last one was from 2018 to 2019.

32. The Tribunal asked Ms Nguyen what the visa applicant did between 2019 and now. Ms Nguyen said that the visa applicant’s father passed away and then she stayed home for a while. Ms Nguyen said that, when the visa applicant was at home, she was undertaking practice or work experience a couple of days-a-week and she would help Ms Nguyen with cooking and housework.

33. The Tribunal lastly sought submissions from the representative of the review applicant. He stated that he believed the criteria had been satisfied. He said that there were exceptional circumstances for the gaps in between study, being the death of an uncle with whom the visa applicant was very close, and the death of her father. He said that it would be very difficult for a person living on her own to overcome the losses of these two people. He submitted that exceptional circumstances appear to be intended by cl.101.312(1)(c) (and the reference to “reasonable time”) to allow exceptional circumstances to be considered. He said that the courses of study that had been undertaken by the visa applicant were relevant for her to obtain qualifications.

34. The representative repeated this submission in his written submissions that were provided post-hearing:

    The relevant regulation is embedded with the words: “or a reasonable time after completing the equivalent of year 12 in the Australian school system”. It is submitted that those words were intended to allow considerations of the reasons or circumstances of the visa applicant as to why the strict time frame is not met. [emphasis in original]

35. Although not pointed out to the representative at the hearing, the Tribunal notes that the concept of “reasonable time” pertains specifically to the period between completion of year 12 or its equivalent and the first course of study. However, the Tribunal also notes that, as a practical matter, exceptional circumstances may be considered as surrounding circumstances by the Tribunal when having regard to the nature and duration of a gap and any explanation for it. Indeed, the deaths of the visa applicant’s uncle and father have been considered by the Tribunal in this way (see below).

36. The representative submitted at hearing that, as an alternative, the cl.101.213 should be disregarded as being invalid due to inconsistency with the main provision under the same regulation – being the definition of “dependent child” under r.1.03. The representative submitted that where there are conflicting intentions under different provisions of the same regulation, which was claimed to exist here, it should be resolved by coming to a harmonious outcome to eliminate the difference. It follows that the main provision is contained within r.1.03 and should override cl.101.213.

37. The representative expanded upon this argument in written submissions that were provided post-hearing:

    Regulation 1.01.213(1)(c) [sic] has been intended to determine who would be a dependent child after turning 18 years of age. This Regulation introduced a pre-condition of continuous full-time study upon turning 18 years of age in order for one to be qualified as an independent child of another. In considering the meaning of Dependent Child and Dependent under Regulation 1.03[1], which is contended to be the main and leading Regulation, in the Huynh[2] decision the Court clearly set out that “it is not the case that the child must have a lack of choice before he or she can be said to be wholly or substantially dependent or reliant on the parent for the relevant financial support” and “the question which the Regulations require to be addressed is in our opinion simply whether the child is, as a matter of fact, relying for support, rather than, having to rely for support.”

    The Court in Huynh pointed out that “Conflicting statutory provisions should be reconciled so far as is possible” and that “a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals”. The Court in Huynh also quotes “reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provisions, and which must give way to the other” …

    [1] The definition of “dependent” is contained in r.1.05A.

    [2] Huynh v MIMIA [2006] FCAFC 122.

38. The representative said that the definition of dependent child is the leading regulation and must be considered as the overriding regulation. Clause 101.213 should therefore be deemed as invalid. In this way, a harmonious outcome would be reached.

39. The representative’s submission appears to the Tribunal to be a legal argument concerned with statutory construction – and certainly not related to merits review. In that regard, it appears inappropriate for the Tribunal to engage with it. The Tribunal has proceeded along the lines that the clause in question – cl.101.213 – is valid. If the representative wishes to ventilate this argument, then this would need to wait for judicial review (if such proceedings were brought). So much was said to the representative at hearing.

    COMBINED S.359A/S.359(2) LETTER AND OTHER INFORMATION

40. At hearing, the representative sought the Tribunal’s permission to provide written submissions on the above legal argument and the matter more generally, and this permission was granted and a due date of 5 March 2020 was set. The Tribunal indicated to the representative at hearing that this due date would most likely be extended given that it was intending to seek further evidence from the review applicant.

41. As foreshadowed, it was necessary for the Tribunal to send a combined s.359A/s.359(2) letter to the review applicant in order to seek her comments on or response to adverse information given at hearing, as well as provide information and documents in relation to the visa applicant’s claims of study and work experience. This letter was sent on 10 March 2020 and set a due date of 24 March 2020 for response.

42. On 24 March 2020, the representative sought an extension of time of 14 days for provision of the necessary information in relation to the combined letter and the legal argument. The Tribunal granted the extension, and a revised due date of 7 April 2020 was set.

    CONSIDERATION OF CLAIMS AND EVIDENCE

43. That being the case, the issue in this matter is whether the visa applicant satisfied the criteria for applicants over 18 at the time of application and continues to satisfy those criteria at the time of this decision.

    Criteria for applicants over 18

44. 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).

45. Clause 101.213 states as follows:

    (1)   If the applicant has turned 18:

    (a)the applicant:

    (i)is not engaged to be married; and

    (ii)does not have a spouse or de facto partner; and

    (iii)has never had a spouse or de facto partner; and

    (b)the applicant is not engaged in full‑time work; and

    (c)subject to subclause (2), the 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.

    (2)   Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

    Full-time study (or incapacitated for work)

46. 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).

47. 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).

1. 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.

2. The review applicant told the Tribunal that the visa applicant has not been incapacitated for work due to the loss of bodily or mental functions. Therefore, the exception in cl.101.213(2) does not apply.

3. The Tribunal considered several issues in relation to the visa applicant’s claimed studies from the time that she graduated from high school in Vietnam until now.

4. The first of these issues relates to the gap between completing high school and commencing study of an English course at North American International English School. Based on the evidence submitted, the Tribunal accepts that the visa applicant completed high school in June 2011. It also accepts that she commenced an English course through North American International English School in January 2012. The gap between when the visa applicant completed high school and began studying an English course at North American International English School was a period of approximately six-to-seven months.

5. The Tribunal accepts that the visa applicant began studying the English course a reasonable time after completing the equivalent of year 12 in the Australian school system for the purposes of cl.101.213(1)(c).

6. The second of these issues relates to the gap in the visa applicant’s studies between completing a barista training course at Quang Tan Hoa and commencing a basic Vietnamese cuisine course at Saigontourist. The Tribunal accepts for present purposes that the visa applicant undertook the barista training course at Quang Tan Hoa and this course ended in May 2014. It accepts that the visa applicant commenced studying a basic Vietnamese cuisine course at Saigontourist in March 2016. This means that there was a gap of approximately 22 months in her studies. During this time, the visa applicant claims to have undertaken work experience at Quang Tan Hoa from May or June 2014 until January 2015 – a period of around seven or eight months. She then claims to have mourned the loss of her uncle from February 2015 until she began studying a Basic Vietnamese Cuisine course at Saigontourist in March 2016 – a period of around 13 months.

7. At hearing, the Tribunal asked the visa applicant if she had any evidence of this work experience, to which she replied that she did not. The Tribunal asked her why this was the case, and she replied that it was a long time ago and that people are expected to do work experience for their own knowledge.

8. The Tribunal sent a s.359(2) letter to the review applicant requesting the name and contact details of the person who supervised the visa applicant’s work experience at Quang Tan Hoa. The purpose for requesting these details was to confirm the visa applicant’s participation in this work experience. However, as at the date of this decision, no such information has been received in spite of the Tribunal’s request. Apart from evidence from the visa applicant herself, there is no evidence of the work experience. The Tribunal is not satisfied that the visa applicant undertook work experience from May or June 2014 to when her uncle died in February 2015. The Tribunal accepts that the visa applicant was mourning the loss of her uncle and that this affected her ability to study for at least some of the time.

9. The third issue relates to the gap in the visa applicant’s studies between completing a basic European cake course at Saigontourist in March 2017 and commencing a bartending course at Saigontourist in January 2018. The Tribunal accepts that the visa applicant undertook both courses. The gap between these courses was almost 10 months. During this time, the visa applicant claims to have undertaken work experience with a bakery run by Saigontourist for which she was not paid in cash.

10. The Tribunal had concerns in relation to the visa applicant’s claim of work experience. At hearing, the visa applicant took a significant pause before telling the Tribunal that she had undertaken this work experience. The fact of the work experience taking place was also not mentioned by the review applicant when she was asked about the visa applicant’s study in the period in question, although the Tribunal notes that the review applicant appeared to be unsure of what the visa applicant was doing at that time.

11. In light of these concerns, the Tribunal sent a s.359(2) letter to the review applicant requesting the name and contact details of the person who supervised the visa applicant’s work experience at the bakery operated by Saigontourist. The purpose for requesting these details was to confirm the visa applicant’s participation in this work experience. However, as at the date of this decision, no such information has been received in spite of the Tribunal’s request. Apart from evidence from the visa applicant herself, there is no evidence of the work experience.

12. The Tribunal considers that its concerns have not been addressed by the review applicant, either through her response to the s.359(2) letter or by other evidence. The Tribunal is not satisfied that the visa applicant undertook work experience from March 2017 to January 2018.

13. The fourth issue relates to the gap between completing the bartending course at Saigontourist in January 2019 and commencing another bartending course at Saigontourist in December 2019. As above, the Tribunal accepts that the visa applicant undertook the first-named course. As below, the Tribunal accepts that the visa applicant has commenced the second-named course.

14. The gap between the courses is a period of approximately 11 months. During this time, the visa applicant claims to have initially stayed at home to do her own study. She said she practised what she had learnt in her course, tossing bottles and mixing alcohol. She claims to have then mourned the death of her father from May 2019 until December 2019.

15. These claims appeared to be inconsistent with what was claimed by Ms Thi Kim Dung Nguyen, the aunt with whom the visa applicant claims to live. Ms Nguyen told the Tribunal that after the visa applicant finished her bartending course, she stayed at home for a while and when at home, she was undertaking practice or work experience a couple of days-a-week. The relevant part of the hearing audio is extracted by the Tribunal below:

    Tribunal: When did she start her last, I suppose, her last subject, her latest subject?

    Ms Nguyen: (translated) She’s doing a number of courses in Saigontourist, and the last one as far as I know was from year 2018 and 2019.

    Tribunal: And what did she do between that and today, and now?

    Ms Nguyen: (translated) Her father passed away and then she stayed at home for a while.

    Tribunal: So what was she doing when she stayed at home?

    Ms Nguyen: (translated) She only stayed home. She didn’t work.

    Tribunal: How would she pass the time?

    Ms Nguyen: (translated) She been practise or work experience a couple of days-a-week, and when she comes back she helps me with cooking and doing the housework.

16. The Tribunal considered the information given by the visa applicant’s aunt to be adverse given that it suggested the visa applicant was well enough during her claimed period of mourning to be able to undertake practice or work experience. It sent a s.359A letter to the review applicant which relevantly stated as follows:

    The particulars of the information are as follows:

    ·When the Tribunal asked the visa applicant at hearing what she did during the period between the course which ended in January 2019 and the course which started in January 2020,[3] she first said that she stayed home and did her own study. She said she practised what she learnt, tossing a bottle and mixing alcohol. The Tribunal asked her if there was any other reason why she was not studying during that period. She replied that her father passed away in May 2019. The Tribunal asked her what effect this had on her, and she replied that she grieved deeply and did not have the mood to go to school. The Tribunal asked her how long she grieved for, and she replied that she was grieving until the New Year – or around six months.

    ·When the Tribunal asked Ms Thi Kim Dung Nguyen at hearing what the visa applicant did during that period, she replied that the visa applicant’s father passed away and then she stayed home for a while. Ms Nguyen said that, when the visa applicant was at home, she was undertaking practice or work experience a couple of days-a-week and she would help Ms Nguyen with cooking and housework.

    The Tribunal notes that Ms Nguyen claims the visa applicant undertook practice or work experience for two days-a-week at a time when the visa applicant claims she did not “have the mood to go to school”.

    This information is relevant to the review because it suggests that the visa applicant was not unable to study during that period, or during part of that period.

    If the Tribunal relies on this information in making its decision, it may not be satisfied that the visa applicant’s conduct during that period was appropriately characterised as having been undertaking a full-time course of study, having regard to all the relevant circumstances including the nature and duration of the gap in study and any explanation for such a gap.

    If the Tribunal is not satisfied that the visa applicant has, 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.

    It may find that the visa applicant does not satisfy cl.101.221(2)(b).

    This would be a reason, or a part of the reason, for affirming the decision under review.

    [3] This date is based on verbal evidence given by the visa applicant at hearing where she told the Tribunal that she began a bartending course “last month”. Given that the hearing was in February 2020, the Tribunal deduced that the course began in January 2020, and not December 2019 as provided for by later evidence submitted on behalf of the review applicant.

17. The review applicant, through her representative, sent submissions to the Tribunal on 7 April 2020. These submissions make reference to the extent of the visa applicant’s mourning over the death of her father, and in that regard offer a response to the adverse information above. They relevantly provide as follows:

    Unfortunately, the visa applicant had to go through two major episodes of mourning for the deaths of her loved ones during her vocational training courses, which affected her ability to maintain her continuous studies. The deaths of her late uncle and late father undeniably gave rise to compassionate reasons. It is contended that there are no set rules or scientific evidence to determine how long one is mentally and psychologically affected by the death of their loved ones, especially in the current matter where the visa applicant’s closest source of mental support, namely her mother, is not within with [sic] her reach. However, she has never given up and let go of her passion. She is now still currently enrolled and undertaking her vocational training (see attached document of her current course). The applicant’s passion towards her chosen courses of vocational training, as evidenced from her own practical training at home, is contended to support the reasonableness of the time frame that the applicant had to take to overcome the mental and psychological impacts of the loss of her late uncle and father upon her. Had it not been necessary the applicant would have resumed her studies sooner as such courses have always been there to allow her to pursue her passion.

18. The Tribunal has had regard to the above submission. It accepts that the death of the visa applicant’s father gives rise to compassionate reasons. It accepts that the mental and psychological effects of a death of a loved one is very difficult to quantify. It accepts that such effects may be made more profound by the absence of the visa applicant’s mother. The Tribunal acknowledges that the grieving process is different for different people, and it does not deny that the visa applicant grieved for the loss of her father. However, it considers that the review applicant, through her representative, has not adequately addressed adverse information put to her which tended, in the Tribunal’s eyes, to suggest that she was not unable to study. This information included evidence from her aunt that the visa applicant was able to undertake practice or work experience for a couple of days-a-week during that time. The Tribunal is not satisfied that the visa applicant was unable to undertake studies for at least some of the period she claims to have been grieving for the loss of her father.

19. Having considered the above evidence, the question for the Tribunal is whether, characterised as a whole, the visa applicant’s conduct in the period which includes the three gaps warrants the conclusion that she has been undertaking relevant study.[4] In doing so, the Tribunal must have regard to all relevant circumstances including the nature and duration of the gaps and any explanation for the gaps.[5]

    [4] Hussein v MIBP [2017] FCCA 3247, [111] (Judge Barnes).

    [5] Ibid [114].

20. The Tribunal has considered the relevant circumstances in relation to the gaps in study, which are significant individually and in their totality. It has had regard to the nature of these gaps, as well as their duration. It has heard the explanations given by the parties for these gaps. Following careful consideration, and after having sought evidence in relation to the gaps, it finds that the visa applicant was not undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification between May 2014 (when she completed a barista course at Quang Tan Hoa) and January 2015 (when she began grieving for the loss of her uncle) or between 18 March 2017 (when she completed a basic European cake course at Saigontourist) and January 2018 (when she commenced a bartending course at Saigontourist). Furthermore, it is not satisfied that the visa applicant was undertaking the relevant study from January 2019 to May 2019, and for at least some of the period from May 2019 to January 2020 when she claims to have been unable to study due to mourning the loss of her father.

21. The final issue relates to the visa applicant’s claim to be currently studying a bartending course at Saigontourist, a course she claims to have commenced in December 2019. This claim was advanced by the visa applicant at hearing but no other evidence was presented to the Tribunal before or at hearing in respect of it. The review applicant did not mention this course when asked what the visa applicant was currently doing, despite having been given an express opportunity to do so. Instead, she said that the visa applicant had not been doing anything since her first bartending course ended in January 2019.

22. In light of this, the Tribunal sent a s.359(2) letter to the review applicant requesting confirmation of the visa applicant’s current enrolment. In response, the review applicant submitted a document titled “Certificate” and dated 27 February 2020 from Saigontourist, stating that the visa applicant was currently studying a three-month bartending class there which began in mid-December 2019. The Tribunal accepts that the visa applicant is currently studying.

    CONCLUSION

23. The Tribunal has considered the relevant evidence given to it and has had regard to the testimony of the parties and their witness at hearing. The Tribunal finds that the visa applicant did commence study within a reasonable period after the completion of the equivalent of year 12 in the Australian school system. However, the Tribunal is not satisfied that other gaps in her claimed study were such that, characterised as a whole, her conduct warrants the conclusion that she has been undertaking relevant study during that period.

24. Based on this evidence, the Tribunal is not satisfied that the visa applicant had, 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 at the time of application.

25. Accordingly, cl.101.213(1)(c) is not met, and does not continue to be met at the time of decision.

26. For the reasons above, cl.101.213 is not met at the time of application.

27. At the time of decision, cl.101.213 does not continue to be met. Accordingly, cl.101.221(2)(b) is not met.

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.

    David Crawshay
    Member