Pham (Migration)

[2020] AATA 5452

Pham (Migration) [2020] AATA 5452 (5 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Kim Tuyen Pham

VISA APPLICANT:  Ms Thi Thu Ha Pham

CASE NUMBER:  1827632 (OSF2017/019739)

MEMBER:Nicholas McGowan

DATE:5 November 2020

PLACE OF DECISION:  Sydney

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

Statement made 5 November 2020 at 1:32pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) sponsor – visa applicant over 18 years – full-time course of study – gap in studies – studies leading to the award of a professional, trade or vocational qualification – decision under review affirmed     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.221; r 1.03

WRITTEN STATEMENT OF DECISION AND REASONS

REVIEW

1. This is a review of a decision made by a delegate of the Minister for Home Affairs on 26 July 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, who was born 21 May 1993, applied for the visa on 5 July 2017. It follows, the visa applicant was aged 24 years 1 month at the time she applied for the visa.

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, claim or evidence has been provided in respect of any other subclass other than the Subclass 101 (Child) visa.

4. The review applicant, who was an Australian permanent resident at the time of the visa applicant’s application, appeared before the Tribunal on Thursday 5 November 2020 to give evidence and present arguments. The review applicant’s husband, and daughter (the visa applicant), also provided oral evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   Relevant law

5. Clause 101.211 in Schedule 2 of the Regulations requires that, at time of application:

   (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.

6. ‘Dependent child’ is defined in r.1.03 of the Regulations:

   1.03     Definition

   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.

7. Paragraph 1(a) of clause 101.221 requires that, at time of decision, the applicant continues to satisfy the criterion in clause 101.211.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. There is no claim that the visa applicant is incapacitated for work due to the total or partial loss of her bodily or mental functions. It follows, the visa applicant is not a ‘dependent child’ within the meaning of subparagraph (b)(ii). Accordingly, subclause 101.211(2) does not apply in this matter. It follows, the visa applicant must satisfy subclause 101.211(1).

9. In an interview conducted 9 October 2017 between a Departmental officer and the visa applicant - referred to in the Department’s Decision record (a copy of which the review applicant has provided this Tribunal as part of this review), the visa applicant advised she graduated from high school in July 2011. Following graduation, the visa applicant said she then studied at Hanoi General Intermediate School until January 2013. When asked whether she studied between January 2013 and September 2014, the visa applicant told the Departmental Officer she could not remember exactly what she did during this period.

10. In support of the visa applicant’s application, the following evidence was provided to the Department in consideration of the requirements of clause 101.211(1)(c):

    ·     Phu Tho Vocational Training College confirmation of studies, dated 19 July 2016, stating that the visa applicant was a student for the academic years of 2014 to 2017.

    ·     Academic transcript dated 19 July 2016, a student card issued by Phu Tho Vocational Training College dated 19 July 2016 (OSF2017/019739 folio 65).

    ·     Three tuition fee payment receipts dated 15 April 2014, 9 June 2014 and 9 July 2015 (OSF2017/019739 folios 56-62).

11. Later, on 29 August 2017, the additional evidence was provided to the Department in consideration of the requirements of clause 101.211(1)(c):

    ·     A copy of the visa applicant’s curriculum vitae (CV), dated 11 August 2017, stating that from 2008 to 2001, the applicant attended Hal Ba Trung High School, from 2011 to 2013, she attended Hanoi General College, and from 2014 to 2017, she was a student at Phu Tho Vocational Training College (OSF2017/019739 folio 105).

    ·     Confirmation of studies, issued by Phu Tho Vocational Training College, dated 10 August 2017, for the academic years 2014 to 2017 (OSF2017/019739 folio 117) including academic transcript issued by Phu Tho Vocational Training College, dated 24 August 2017 (OSF2017/019739 folio 114). A further tuition fee receipt, dated 9 December 2016, and a tuition fee receipt, issued by Phu Tho Vocational Training College, for Terms 5 and 6, dated 9 December 2016 (OSF2017/019739 folio 111).

12. Following the Departmental interview (discussed above), the case officer emailed the visa applicant’s representative on 9 October 2017, and requested the following:

    ·     A certified copy of the applicant's high school graduation certificate.

    ·     Evidence of the applicant's previous post-school studies including her graduation certificate (if available) and academic transcripts.

    ·     Certified copies of the applicant's studies between 2013 and 2014.

    ·     Certified copies of the applicant's academic transcripts for the 2016-2017 academic year.

    ·     Confirmation that the applicant is currently enrolled and is studying, a list of the subjects the applicant is currently enrolled in and a confirmation that the applicant is enrolled either as a full-time or part-time student.

13. The visa applicant provided to the Department the following information, in response to the Department’s email (discussed above):

    ·     A high school diploma, dated 22 September 2011, for final exam taken on 2 June 2011 (OSF2017/019739 folio 166).

    ·     Hal Ba Trung High School records dated 16 September 2008 for the years 2008 to 2011 (OSF2017/019739 folio 158).

    ·     An Intermediate Diploma Certificate issued by Hanoi General College, dated 12 December 2013, confirming the visa applicant studied from December 2011 to December 2013 (OSF2017/019739 folio 149).

    ·     A Confirmation issued by Hanoi General College, dated 16 December 2014, which confirms that the applicant completed an intermediate professional education program between December 2011 and December 2013 (OSF2017/019739 folio 141).

    ·     Academic transcripts issued by Hanoi General College, dated 12 December 2013 for studies from 2011 to 2013 (OSF2017/019739 folio 136).

    ·     Untranslated tuition fee receipts, issued by Phu Tho Vocational Training College for modules owed, both dated 20 October 2017 (OSF2017/019739 folios 129 and 130).

    Hearing into the review

14. During the hearing the Tribunal outlined the requirements under the Act, and discussed with the review applicant specifically the Minister’s delegate’s finding that the visa applicant was not satisfied 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 between December 2013 and September 2014.

15. The review applicant told the Tribunal it was a long time ago, but she believes there was no time when she did not study. The Tribunal pointed out to the applicant that based on information they have provided, the visa applicant appears to have a gap in her studies between late-December 2013 and around September 2014 (allowing for some days, perhaps a small number of weeks, either side for end of terms and breaks).

16. The review applicant’s husband told the Tribunal, the visa applicant was studying, and he believe perhaps some of the documentation has gone missing. The Tribunal asked the review applicant, whether she could recall or provide information to the Tribunal of any study the visa applicant undertook between (approximately) December 2013 and September 2014. The review applicant said that because it was a long time ago, the Tribunal should check these matters with the visa applicant.

17. The Tribunal asked the visa applicant whether she could provide information in respect to the study she was undertaking in the period between December 2013 and September 2014. The visa applicant told the Tribunal that between the period ending December 2013 until May 2014 she was studying at an educational centre at Hal Ba Trung district. And from May until September 2014, it was the school break (holidays). The Tribunal asked what the nature of the visa applicant’s study was at that ‘centre’. The visa applicant told the Tribunal she studied year 12 there. The Tribunal brought to the visa applicant’s attention the documentation already provided by her in respect to her high school diploma, dated 22 September 2011, for final exam taken on 2 June 2011 (OSF2017/019739 folio 166), and the Hal Ba Trung High School (diploma) records dated 16 September 2008 for the years 2008 to 2011 (OSF2017/019739 folio 158). The visa applicant then told the Tribunal about a party she’d attended where she drank some alcohol while attending college in 2015/2016. When the visa applicant woke-up the next morning, she noticed a lot of changes in her body, and didn’t have her period. As these matters do not pertain to the period between December 2013 and September 2014, notwithstanding these matters are relevant for later considerations. The visa applicant explained that these matters are relevant to her because this period caused her to have depression and she finds it hard to recall past events.

18. The review applicant told the Tribunal she wished for her family to be back together in Australia. The Tribunal explained it is for the review applicant to provide the evidence and argument the visa applicant satisfies the applicable criteria for the grant of the visa.

    Analysis

19. The review applicant’s evidence at the hearing was that she cannot recall what her daughter was doing, in terms of study, between December 2013 and September 2014, though she maintains her daughter has studied continuously.

20. The visa applicant told the Tribunal she was studying ‘year 12’ during December 2013 and September 2014, though this runs contrary the documentary evidence she has provided as part of her visa application - which clearly shows the visa applicant’s final exam for high school was taken on 2 June 2011, and high school diploma issued 22 September 2011. While the Tribunal appreciates the difficulty the visa and review applicants have in recalling the specific studies undertaken by the visa applicant previously, the onus is with them to satisfy the criteria for the grant of the visa.

21. While three receipts - referred to above - dated 15 April 2014, 9 June 2014 and 9 July 2015 (OSF2017/019739 folios 56-62) have been provided to the Department previously, the Tribunal has not been satisfied these satisfy the ‘study’ requirement specified under law. The receipts do not speak to the nature of the study (full-time, part-time, or occasional), nor the timing of the actual study (each semester). It is also not clear whether the service, or study, was undertaken and completed, or critically, whether the study was “leading to the award of a professional, trade or vocational qualification”. The visa applicant, and review applicant upon review, have had ample opportunity to add to this evidence, or expand upon it, though no further information, or claims, have been provided.

22. Based on all the information and evidence submitted, the review applicant has not satisfied the Tribunal the visa 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.

    DECISION

23. Given all the above, the visa applicant does not satisfy clause 101.211(1)(c).

24. As the visa applicant does not meet clause 101.211(1) or (2) in Schedule 2 of the Regulations, the visa applicant also does not meet clause 101.221 in Schedule 2 of the Regulations.

25. Given the finding above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of a Child (Subclass 101) visa.

26. As there are no claims, or evidence, that the visa applicant meets the two other subclasses in this class of visa, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of an Adoption (Subclass 102) visa or an Orphan Relative (Subclass 117) visa.

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

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    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.

    …