Nomrawee (Migration)

[2020] AATA 212

Nomrawee (Migration) [2020] AATA 212 (5 February 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Miss Itthinan Nomrawee

VISA APPLICANT:  Mr Sarawut Inthichan

CASE NUMBER:  1833807

HOME AFFAIRS REFERENCE(S):           OSF2018/002721

MEMBER:  Brendan Darcy

DATE OF ORAL DECISION & TIME:       5 February 2020 at 3.23pm

DATE OF WRITTEN REASONS:              6 February 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision not to grant the

visa applicant a Child (Migrant) (Class AH) visa.

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – criteria for applicants over 18 – full-time study requirement – compelling or compassionate reasons – reasonableness of study gap between secondary and post-secondary education – no provision for waiver of requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 101.213

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 7 November 2018 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 7 August 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 (the Regulations). Relevantly to this case, they include cl.101.213 regarding visa applicants if they had turned 18 at the time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) - requiring that the applicant has, since turning 18, or within 6 months or a reasonable time after 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 – was not met.

5. The review applicant (the sponsor) appeared before the Tribunal on 5 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sponsor, Michael Hunter. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The review applicant was represented in relation to the review.

7. At the end of the hearing at 3.23pm on 5 February 2020, the Tribunal proceeded to affirm the decision not to grant the Class AH Subclass 101 Child visa to the visa applicant.

8. Below are the written reasons on which the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. For the issues for review by the Tribunal in this case, the relevant criteria relates to Part 101 of Scheduled 2 of the Regulations which prescribed the time of application and the time of decision criteria for a Subclass 101 visa is met.

10. The Tribunal notes that the visa applicant, a Thai national, was born on 31 January 1995 and this application for a Subclass 101 visa on 7 August 2018 was made when the visa applicant was aged 23.

11. The sponsor or review applicant in this matter is a citizen of Thailand who is also a permanent resident of Australia since September 2014. At the scheduled hearing, she claimed to have two biological sons and no daughters to a man who abandoned her when her children were young. She also claimed to remain married to the sponsoring partner of her permanent residency visa, Mr Michael Hunter. Mr Hunter was also the authorised recipient and appointed representative in this matter under review.

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1. The delegate noted that the applicant had enrolled and was studying at Withayalay Technology Toi-et in Thailand with the commencement date of 22 May 2018 and an estimated date of completion as June 2020.

2. The documentary evidence also supports that the applicant’s date of graduation from secondary education was 10 May 2013.

3. The review applicant applied to have this refusal decision reviewed by the Tribunal on 18 November 2018 with the decision notification forwarded at a later date.

4. Since the review has been lodged, a number of other documents have been submitted to the Tribunal including untranslated bank statements, medical information, and evidence of the visa applicant’s study progress.

5. When the review applicant responded to the hearing invitation, she did not nominate the visa applicant as a witness. However, her husband provided oral testimony as well as presented arguments as to the reason this review application should be set aside.

   Criteria for applicants over 18

6. 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

7. 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).

8. During the scheduled hearing, the review applicant and the witness claimed that the visa applicant has never been engaged to be or is or was married or that he has a de facto spouse, either at the time of application or at any time since.

9. With no evidence to the contrary, cl.101.213(1)(a) is accordingly met. For the same reasons, the Tribunal finds that it continues to be met at the time of decision.

   Not engaged in full-time work

10. 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).

11. The Tribunal is satisfied that the visa applicant based on the evidence before it, had not been working at the time of application. That is not to say that there was a period of time prior to the date of application and the date of enrolment in post-secondary education in which the visa applicant did not engage in full time work.

12. 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)

13. 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

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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).

1. 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).

2. 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.

3. There is no suggestion in these claims that the visa applicant had been or is incapacitated for work because of loss of bodily or mental functions or full time studies at the time of application or at the time of this decision. There is also no suggestion that the applicant had not enrolled and began full time study in post-secondary education - to become a qualified mechanic – for a vocational purpose at the time of application

4. However the overwhelming documentary and oral evidence is that at the time of application, the applicant had not undertaken full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12. By the review applicant’s own admission – both in a written statement to the Department in August 2018 and during the hearing, is that when the visa applicant left school his natural reaction was to be employed and that he had been fully employed (initially as a mechanic’s apprentice) since that time except for visiting Australia during which he re-bonded with the sponsor.

5. In this review matter it is not contended that the applicant did not have a five year gap between the visa applicant completing his secondary education to the equivalent of year 12 in Australia’s education system and enrolling in full time studies in an educational institution for professional, trade or vocational qualifications.

6. During the hearing, the review applicant and witness provided various reasons for the Tribunal to consider that they had compelling or compassionate reasons or that the significant amount of time between the visa applicant’s secondary and post-secondary education on a full time basis was reasonable. These included:

   ·The review applicant was abandoned by her husband when her two children were young and that she worked hard and travelled a lot during their formative years;

   ·There was financial hardship and health problems among the review applicant’s family back home in Thailand;

   ·The need to pay down a mortgage back in Thailand after the sponsor came to Australia;

   ·The review applicant has many hours of sadness, undue stress and many sleepless nights;

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·The review applicant has been sending remittances back to her family for the mortgage and her son’s education (numerous supportive bank statements were submitted);

·The review applicant’s husband, aged 69, suffers from atrial fibrillation and had experienced a stroke which is supported by medical information provided by medical professionals;

·Only a small percent of Thailand’s poor have the benefit of continuous study up to the age of 23 and that unemployment is high in that country;

·The visa applicant is of good character with no tattoos and will make an excellent citizen; and

·The migration law is unfair and the regulation is discriminatory when all that is wanted is family unification not fragmentation.

1. Some of this hardship evidence was undermined by the review applicant claiming that the visa applicant did not enrol earlier for full time coursework leading to a trade or qualification because he decided that he was not ready until he was 23 years of age. The review applicant also admitted that she had not considered whether her son was eligible for a student loan and feared a guarantor was required but stated her son would not have wanted to do that.

2. Nonetheless there is no doubt there is a strong thread of credibility about these hardship reasons and no evidence to the contrary that the visa applicant is a person of good character. They supported by the submitted documentary evidence. As explained in the hearing, there are however no compelling or compassionate provisions to consider waiving regulation 101.213(1) or 101.221, and therefore found little relevance in this evidence. The review applicant and witness felt there was unfairness in the regulations in this regard as the bond between the review applicant and the visa applicant was genuine and deep.

3. The review applicant and the witness had not engaged a registered migration agent for advice and assistance at any stage since this application had been lodged with the Department in 2018, including this review application. Nor has any student or other visa been lodged in association with the visa application. A written submission to the Tribunal indicates the applicants received advice from an online Thai visa forum. As explained in the hearing, the visa applicant may have other visa options and it is recommended that they seek professional migration advice and assistance.

4. Most significantly in this matter is that there is no evidence and no strong arguments that the visa applicant’s significant five year period of time between second and post-secondary education had not been unreasonable at the time of application. During that period of time the visa applicant had been working on a full time basis except for those short periods of time he was visiting his mother residing in Australia on visitor visas. The relevant regulation regarding ‘a reasonable amount of time after completing the equivalent of year 12 in the Australian school system’ is intended to accommodate a period longer than 6 months. The term ‘reasonable time’ applies to realistic breaks in study prior to post-secondary studies on a full time and more or less continuous basis. In this matter the significant break between studies amounted to five years. This significant period entailed full time work with no obvious or urgent commitment to continuous or realistically delayed post-secondary education in an educational institution. The facts of this matter strongly denote the visa applicant was not wholly or substantially dependent on the sponsor as a full time student in the period between his secondary education and post-secondary education.

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1. It is in this sense, the Tribunal accordingly finds the significant period of time between the visa applicant’s secondary and post-secondary education not to be reasonable at the time of application, as required by cl.101.213(1)(c).

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

   Conclusion on criteria for applicants over 18

3. For the reasons above, cl.101.213(1)(c) is not met at the time of application.

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

5. 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

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

   Brendan Darcy
   Member

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