Nguyen (Migration)

[2021] AATA 3832

Nguyen (Migration) [2021] AATA 3832 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Lai Nguyen

VISA APPLICANT:  Ms Truc Ly Nguyen

CASE NUMBER:  1835488

HOME AFFAIRS REFERENCE(S):          2018/009542 OSF2018/009542

MEMBER:M. Edgoose

DATE:20 September 2021

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 20 September 2021 at 11:51am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – part-time English studies between degrees – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, 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 Home Affairs on 26 October 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 12 January 2018. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 101.213 and cl 101.221.

4. The delegate refused to grant the visa on the basis that cl 101.213 and cl 102.221was not met.

5. The review applicant appeared before the Tribunal on 20 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Truc Ly Nguyen 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 representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

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

   Relationship status and history

9. 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).

10. The visa applicant confirmed at hearing that she is not engaged to be married and does not have and never has had a spouse or de facto partner.

11. Accordingly, cl 101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

12. 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).

13. The visa applicant informed the Tribunal at hearing that she is not engaged in any form of work as she is a full-time student. Accordingly, cl 101.213(1)(b) is met. It continues be met at the time of decision.

    Full-time study (or incapacitated for work)

14. 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).

15. 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).

16. 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.

17. The Tribunal notes that the visa applicant completed her secondary schooling on 15 December 2011 at Luong Van Chang High School for gifted students in Phu Yen. According to the delegate’s decision from October 2011 until August 2012 the visa applicant was a student at the College of Foreign Economic Relation in Ho Chi Minh City and from August 20121 until July 2017, she was a student at Banking University in Ho Chi Minh City. At the time of the delegate completing its refusal decision the visa applicant had been enrolled at the University of Economic in Ho Chi Minh City since October 2017 however she was not enrolled in a full-time course of study but was waiting for a night course to commence and was studying English and staying at home. The visa applicant informed the Department that she only received a certificate of completion for the supplementary course that she had studied from 30 October 2017 to 20 December 2017, a period of 2 months and that it was not a full-time course of study.

18. The Tribunal has given regard to the submissions made on 14 September 2021 by the applicant’s representative. However, the evidence submitted to the Tribunal did not stated that the visa applicant is enrolled in a full-time course of study at time of this decision. One of the translated submissions stated that the applicant’s most recent enrolment commenced on 16 August 2021 and ended on 18 September 2021. The applicant also submitted a copy of her course timetable from 16 August 2021 and ended on 18 September 2021. The Tribunal noted that the only day highlighted on this timetable was Mondays. At hearing the Tribunal informed the visa applicant that the Tribunal was not satisfied that she was studying a fulltime course based on the evidence provided. At hearing the visa applicant requested further time to make further submissions. The Tribunal informed the visa applicant that the Tribunal would not be granting her further time to make further submissions.

19. The Tribunal noted that at time of this decision the visa applicant was 28 years 8 months and 5 days of age.

20. The review applicant said to the Tribunal that to the best of her knowledge her daughter, the visa applicant, has been studying since 2011 and has completed a number of courses. The review applicant confirmed that the visa applicant had completed a Banking and Finance course and an English course. The review applicant informed the Tribunal that the visa applicant then wanted to study a further course in the Beauty field. The review applicant has encouraged her daughter to follow her dreams in a field that she likes and to study in Economic Management. The review applicant was not able to clarify at hearing if her daughter was currently studying a full-time course of study. Based on the oral evidence from the review applicant the Tribunal is not satisfied that the visa applicant is currently studying full-time course of study at time of this decision.

21. Therefore, the Tribunal is not satisfied the visa applicant is enrolled in a full-time course of study at time of this decision.

22. Accordingly, cl 101.213(1)(c) is not met.

23. There is no evidence before the Tribunal that the visa applicant was incapacitated for work because of loss of bodily or mental functions at the time of application. Therefore cl 101.213(2) does not apply.

24. For the reasons above, cl 101.213 is not met at the time of application and does not continue to be met at time of decision. Accordingly, cl 101.221(2)(b) is not met.

25. 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

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

    M. Edgoose
    Member