Nguyen (Migration)

[2021] AATA 1330

Nguyen (Migration) [2021] AATA 1330 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi On Nguyen

VISA APPLICANT:  Mr Le Minh Cuong Nguyen

CASE NUMBER:  2005651

HOME AFFAIRS REFERENCE(S):          2019007287 OSF2019/007287

MEMBER:Justin Meyer

DATE:19 March 2021

PLACE OF DECISION:  Melbourne

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 19 March 2021 at 3:15pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – ‘dependent child’ – applicants over 18 – full-time study requirement – continual satisfaction of requirement at the time of decision – time between finishing bachelor’s degree and starting master’s degree – master’s entrance examination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; 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 on 17 January 2020 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 25 February 2019. 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 101.221(2)(b).

4. The delegate refused to grant the visa on the basis that cl 101.221(2)(b) was not met because the applicant was found not to be undertaking full time study at the time of decision.

5. The review applicant (sponsor) appeared before the Tribunal on 16 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Le Minh Cuong Nguyen, the visa applicant who is the review applicant's (sponsor’s) son. 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. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant meets cl 101.221(2)(b).

   Background

9. The visa applicant is 23 years old (he was born on 20 September 20, 1997 in Vietnam). He was 21 at the time of his visa application.

10. As outlined in the delegate’s decision record of 16 January 2020, the visa applicant submitted his secondary school records which showed that he finished final examinations in 2015 and his Da Lat University records that showed his enrolment was from 2015 to 2019 in the faculty of biotechnology. There are transcripts and fee receipts confirming this, as was noted by the delegate.

11. In the questionnaire for dependent children of 9 November 2019, the visa applicant stated that he was waiting to sit for the university entrance examination for a Bachelor of Mechanics degree at Ho Chi Minh City University of Technology and Education

12. The applicant was interviewed by the department’s case officer on 22 November 2019 where he confirmed those details, and that the entrance exams would take place May to July 2020

13. The delegate found that the applicant was engaged in full time studies at the time of lodgement and met cl 101.213(1)(c), but was not satisfied that at the time of decision the applicant was studying full time and thus did not meet cl 101.221(2)(b).

14. This was a case of an applicant who had turned 18 at the time of application and he need to continue to satisfy the criterion in clause 101.213 at the time of decision.

15. There are other ‘time of application’ and ‘time of decision’ criteria in these provisions but the delegate either raised no issue with them or made no finding on them. They are:

    ·was not engaged to be married;

    ·does not have a spouse or de facto partner; and

    ·has never had a spouse or de facto partner; and the applicant is not engaged in full-time work

16. The Tribunal addresses each of the relevant criteria as follows.

    Dependent child criteria

17. 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).’

18. The visa applicant is 23 years old (he was born on 20 September 20, 1997 in Vietnam). He was 21 at the time of his visa application.

    Dependent child

19. 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 reg 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.

20. 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].

21. The Tribunal finds after questioning the visa applicant, and the review applicant (sponsor) and examining the interview record of the department, I find that the visa applicant receives money transfers from his mother and has no other source of income. There is evidence of such payments being made on file. He wholly relies on his parent for financial support to meet basic needs. He is not and never has been be engaged or partnered, and I note there is no suggestion that this is the case.

22. Accordingly, cl 101.211(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

23. 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).

24. From identification evidence I conclude that the applicant was under 25 at the time of application.

25. Accordingly, cl 101.211(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Child-parent relationship

26. At the time of application, the visa applicant must be a child (other than adopted child) or 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).

27. The Tribunal finds after questioning the applicant and examining the interview record and records of the department, the visa applicant was adopted by the review applicant (sponsor) in Vietnam before she became an Australian citizen. The Tribunal notes that the review applicant (sponsor) declared that she was adoptive mother of the visa applicant in her UF309 visa application of 28 November 2012.

28. Accordingly, cl 101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

29. For the reasons above, the criteria in cl 101.211 and cl 101.221(2)(a) are met.

    Criteria for applicants over 18

30. 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

31. 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).

32. I accept that the visa applicant never has been engaged to be married, and never had a spouse or de facto partner. This is from consistent evidence and there is nothing before me to suggest otherwise.

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

    Not engaged in full-time work

34. 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).

35. I accept that the visa applicant never has not at any stage engaged in fulltime work. This is from consistent evidence and there is nothing before me to suggest otherwise. Accordingly, cl 101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

36. 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).

37. 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).

38. 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.

39. The visa applicant’s oral evidence was that after finishing his bachelor’s degree (June 2019) he prepared for his master’s degree, which began in early December 2020. The master’s degree is in biology at the same institution as the bachelor’s degree. Da Lat University. The applicant said that he is some three months into the master’s degree at the time of the hearing.

40. The visa applicant told the department in his interview of 22 November 2019 that he had not yet graduated on his bachelor’s course as he had only submitted in around July to August a TOIEC certificate. A TOEIC Certificate of Achievement is an acknowledgement of English proficiency.

41. In his interview of 22 November 2019 he said that he was not studying however and was staying home waiting for his university graduation. He was planning to study mechanics and the entry exam for his new course would be held in May to July 2020. He needed time to learn and prepare for another university entry exam. He was informally studying mathematics, physics and chemistry (“studying myself” as he put it).

42. In the hearing the applicant said that to get into the master’s course he need to pass an entrance examination and this was a two-day examination. To the Tribunal this appeared to be a high bar to entry and would require serious study and preparation possibly taking weeks if not months. There is written confirmation of this master’s entrance examination and course on file.

43. To the Tribunal’s mind it is reasonable that there is a lag between finishing a bachelor’s degree and starting master’s degree in a similar field at the same university. There were English tests to be completed and a very involved entrance examination to study for and pass. Brushing up on weaker areas was done in the meantime.

44. The applicant could not have technically be called an enrolled student at the time between completing the bachelor’s degree and beginning the master’s degree but the necessary preparations would explain this and the Tribunal is satisfied that he is a full time student now.

45. 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.

46. The Tribunal accepts that the visa applicant was studying within six months of turning 18. There is institutional evidence to this effect to support his claim. There has been a study gap but this is not prolonged and explicable in the circumstances, there has been informal study  and the institution has not changed. The courts have found that there is no requirement for an applicant to have been ‘continuously involved’ in study from the time of commencement of their studies and up until the time of decision, the visa applicant must, at the time of decision, be undertaking a full-time course. He is doing so at present.

47. 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.

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

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

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

    DECISION

51. 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.

    Justin Meyer
    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.

    …