Nguyen (Migration)

[2018] AATA 4632

Nguyen (Migration) [2018] AATA 4632 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Trung Luong Nguyen

VISA APPLICANT:  Mr Trung Nghia Nguyen

CASE NUMBER:  1716834

HOME AFFAIRS REFERENCE(S):           OSF2017/019605

MEMBER:Helena Claringbold

DATE:13 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 August 2018 at 12:02pm

CATCHWORDS

MIGRATION – Child (Residence) (Class AH) visa – Subclass 101 (Child) visa – applicants over 18 – Criteria relating to study specified not met – study at AMATC was not full-time study  – decision under review affirmed

LEGISLATION

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. On 27 March 2017, Mr Trung Nghia Nguyen, the visa applicant, applied for a Child (Migrant) (Class AH) visa.  The application was made based on his relationship with his father, Mr Trung Luong Nguyen, the sponsor and review applicant.

2. On 5 July 2017, a decision made by a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met cl101.213 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).  This is a review of the delegate’s decision.

3. 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).

4. On 25 July 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Trung Luong Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The sponsor was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department of Immigration and Border Protection’s (the Department) case file and the Tribunal’s case file and the evidence provided at the Tribunal hearing.

   ISSUE

8. The Tribunal understands that at the time of application, the visa applicant was undertaking full-time study. The issue for the Tribunal is whether he had been undertaking full time study since turning 18 or within six months or a reasonable time after completing the equivalent of Year 12.

   BACKGROUND ON THE EVIDENCE

9. The sponsor was born in 1970.  On 4 July 2011, he applied for a partner visa.  On 22 November 2016, the partner visa was granted.

10. The visa applicant was born in 1994 in Hanoi, Vietnam.  His father, one sibling and two step-siblings live in Australia.  His mother, Ms Mac Thi Quyen, lives in Vietnam.

    CLAIMS AND FINDINGS

    Criteria for applicants over 18

11. At the time of application the visa applicant was 22 years old. Therefore, there are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.101.213 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Full-time study (or incapacitated for work)

12. At the time of application, the visa applicant must have been, 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).

13. The criterion requires the course to be a full-time course. Part-time studies are not acceptable.

14. This provision appears to contemplate a single full-time course of study at a particular institution (such as the type that offers 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 the purposes of 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).

15. 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.

16. There is no evidence or claim that the applicant was or, is incapacitated for work because of loss of bodily or mental functions.

17. The visa applicant completed high school in June 2012 and graduated August 2012. In September 2012, the visa applicant turned 18.

18. Prior to the Tribunal hearing the visa applicant claimed that from February 2012 to May 2013, he participated in the first and second semesters of a training programme at the Arena Multimedia Art Training Centre (AMATC) and as detailed in the delegate’s decision record, this study lasted for four to five months and was not full-time study. 

19. At the Tribunal hearing the visa applicant, the sponsor and the sponsor’s migration agent argued that from February 2012 to June 2012, the visa applicant was in high school and he also studied part-time at AMATC.  They claimed that from June 2012 to May 2013, the visa applicant undertook full-time study at AMATC. 

20. The Tribunal put the following information to the sponsor under the relevant provision as follows. The visa applicant provided evidence to the Tribunal that, the study he undertook at AMATC study was not for a bachelor degree. He stated that to gain a qualification that would permit a person to work in media or for an architect, the full-time course of study was for two years. He told the Tribunal that he ceased undertaking study at AMATC in May 2013, in order to begin study at Danang University. This information was put to the sponsor as it was inconsistent with his evidence that the visa applicant obtained a qualification from AMATC and this would permit the visa applicant to find work in a media agency. He also stated that the course of study was similar to a trade course or a TAFE course. The Tribunal told the sponsor that the information provided by the visa applicant about his study at AMATC, informed the Tribunal that, the visa applicant did not undertake a full-time course of study at AMATC. The sponsor responded and stated that during the Department’s interview the visa applicant said full-time, including some part-time study.  He stated that from June to September every year students prepare for university entry exams and this is why the visa applicant stopped studying at AMATC.  The Tribunal does not accept that the AMATC study undertaken by the visa applicant was full-time. On the visa applicant’s evidence, the AMATC full-time course of study leading to a qualification lasted for two years. Whereas, the visa applicant claimed to have begun fulltime study with AMATC in June 2012 and to have stopped this full-time study after approximately 11 months later, in May 2013.  The Tribunal does not accept that the visa applicant in undertaking 11 months of a 24-months course of study at AMATC was undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

21. In the 2013 to 2018 academic years, the visa applicant was enrolled as a full-time student at Danang Architecture University of a Bachelor in Architecture degree. In September 2013, the visa applicant began studying at the university.  As detailed in the delegate’s decision record, the Department sought verification of the visa applicant’s study with the university. The university stated that, the visa applicant was asked to leave the university in December 2014 because he had taken leave without permission. However, the delegate recorded in the decision record that, the visa applicant’s previous evidence is that he began studying at Danang University in September 2013 and stopped studying in March 2014. 

22. The other evidence is that from January 2015 to July 2015, the visa applicant studied English for International Communication (EIC) full-time at Elink Vietnam English Language Academy. The sponsor told the Tribunal that the English study emphasised listening and speaking and reading and writing. The Tribunal does not accept this English study as the visa applicant undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. 

23. Other evidence is that the visa applicant is enrolled in the 2015 to 2020 academic years at Danang Architecture University in a Bachelor of Architecture degree. The Tribunal was told that the visa applicant began study at Danang University in September 2015 and that he completed each academic year and continues to be a current student at the university. The visa applicant stated that he had one or two subjects to complete to finish the third year of the degree. The Tribunal is not satisfied that the time between the visa applicant completing high school and beginning study at Danang University in September 2015 is a reasonable time.

24. The Tribunal considered the evidence individually and as a whole.  It is satisfied that the visa applicant was a full-time student until June 2012.  Following this, he undertook study at AMATC. In September 2013, he started studying at the Danang University. I understand that during his study at Danang University and following this study, there have been a number of breaks in his study until in September 2015, he recommenced study at Danang University and he has been undertaking full-time study since then. The Tribunal is not satisfied that the time between the visa applicant completing high school in June 2012 and beginning study at Danang University in September 2013 or in September 2015 is a reasonable time.

25. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the visa applicant’s study at AMATC was full-time study. It is not satisfied that the time period between the visa applicant completing high school in June 2012 and beginning study at the Danang University in September 2013 or in September 2015 is a reasonable time.

26. The Tribunal, therefore is not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of Year 12 in the Australian school system, the visa applicant had 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) of Schedule 2 to the Regulations.

27. Accordingly, cl.101.213(1)(c) of Schedule 2 to the Regulations is not met at the time of application, and continues not to be met at the time of decision.

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.

    DECISION

29. The Tribunal affirms the decisions not to grant the visa applicants a Child (Migrant) (Class AH) visas.

    Helena Claringbold
    Member