Phan (Migration)

[2019] AATA 1927

Phan (Migration) [2019] AATA 1927 (21 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Hai Phan

VISA APPLICANT:  Miss Thi Hong Nhung Tran

CASE NUMBER:  1700469

HOME AFFAIRS REFERENCE(S):           OSF2016/038689

MEMBER:Kira Raif

DATE:21 February 2019

PLACE OF DECISION:  Sydney

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(1)(a) of Schedule 2 to the Regulations; and

· cl.101.213 of Schedule 2 to the Regulations; and

· cl. 101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 21 February 2019 at 10:35am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – study requirements – visa applicant has turned 18 – provisions appear to contemplate a single full time course of study – satisfied the courses were done on full-time basis – funds provided by sponsor is considerably greater – satisfied visa applicant is a dependent child of sponsor – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 Part 101, cls 101.211(1)(a), 101.213, 101.221

CASES

Dai v MIAC [2007] FMCA 1345

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 Immigration and Border Protection on 14 December 2016 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 is a national of Vietnam, born in November 1994. She applied for the visa on 7 July 2016. The delegate refused to grant the visa on the basis that cl.101.213 and cl. 101.221 were not met because the delegate was not satisfied the visa applicant met the study requirements. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 21 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s partner and the pastor of her church. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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).

6. 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).

7. 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).

8. 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.

   Does the visa applicant meet the study requirement?

9. The visa applicant was born in November 1994 and the Tribunal finds that she had turned 18 by the time the application was made. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’.

10. The review applicant provided to the Tribunal a copy of the primary decision. It indicates that the visa applicant provided the following information about her study in the application:

    2010-2012  Nguyen Trai High School
    2012-2013  Khanh Hoa Medical College

    2014  preparing for exams at home
    2015-2016  Da Nang Polytechnic College

11. The visa applicant included with her application confirmation from Da Nang Polytechnic College indicating that the visa applicant is a full-time student majoring in general nursing. She commenced the course in September 2015 and graduated with the Intermediate Professional Diploma Certificate in nursing in June 2016. A further Certificate from Da Nang Polytechnic College dated November 2016 indicates that the applicant is enrolled in a nursing course on a full-time basis. The visa applicant subsequently provided additional evidence of her studies.

12. The primary decision record indicates that a Departmental officer contacted Khan Hoa Medical College in November 2016 and confirmed that the visa applicant had been enrolled in an intermediate nursing course from September 2012 to November 2013 but had quit her course.

13. The visa applicant was interviewed by the delegate in November 2016. She confirmed that she completed high school in 2012 and from November 2012 to mid-2013 undertook studies at Khan Hoa Medical College but she quit her course from July or August 2013 due to a neurological disorder. She was not hospitalised but saw a doctor and took medication. She was sick for four months and then reviewed and prepared lessons to enter Da Nang Polytechnic College until September 2014. She did not attend any course to help her prepare for the entrance examinations but stayed at home and reviewed by herself.

14. The delegate concluded that the applicant was not studying from October 2013 when she quit her studies at Khanh Hoa Medical College and until she commenced her studies in September 2014 and found this was not a reasonable period.

15. In her written submission to the Tribunal received on 8 February 2019 the applicant states that she completed high school in December 2012 and attended the Intermediate Nursing course between September 2012 and October 2013 at Khanh Hoa Medical College. She did not complete the course due to her health problems. From September 2014 to May 2018 she attended and completed a General Nursing Course at Da Nang Polytechnic and she is presently attending a nursing course at Dong A University.

16. The applicant states she could not complete the intermediate nursing course because of her health problems and doing preparation for the exams. Her health problems included multi joint inflammation, limitation of movement, tiredness, limited eating and sleeping. She received medical treatment from October 2013 to February 2014. Her health and the preparation for the exams at home prevented her from studying for 11 months prior to her admission at Da Nang Polytechnic College. The applicant states that she received physiotherapy instead of medication from a doctor because she was used to that treatment for her health problem and that is the reason she was unable to provide the Department with a medical certificate.

17. The applicant provided a further written submission to the Tribunal on 19 February 2019. The review applicant presented a report from her social worker outlining the family situation and the effect the visa applicant’s visa refusal has had on the family. There is also a statement from a pastor. The Tribunal accepts that evidence, but finds it of limited relevance, as the Tribunal has no power to grant the visa on compassionate grounds.

18. The review applicant confirmed in oral evidence to the Tribunal the visa applicant’s study history. She said her daughter left the course in August 2013 and re-enrolled in the course in August 2014. The course commenced in September 2014.

19. In relation to the visa applicant’s medical condition, the review applicant said she had developed difficulty in breathing and with movement. She was treated with acupuncture and Chinese medicine. 

20. The Tribunal notes that the evidence of the visa applicant’s medical condition has been consistent and the visa applicant disclosed that condition during her interview with the delegate. The Tribunal accepts that the visa applicant had been unwell for a period of about four months and for that reason, she was unable to engage in studies. However, the break in studies was for about one year. The review applicant explained to the Tribunal that her daughter wanted to do something else but she eventually decided to return to nursing. The review applicant said that in the period before re-enrolling in a course, her daughter was preparing for the university entrance exam. Because she did not feel she could pass, she ultimately decided not to enter the university but enrolled in a college instead.

21. Authorities provide that the visa applicant’s activities during the break in studies are relevant. That is, determining what is a ‘reasonable time’ within the meaning of cl. 101.213 requires consideration of 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). The assessment necessarily depends on all the circumstances of the case (Dai v MIAC [2007] FMCA 1345).

22. In this case, the Tribunal accepts that between around August 2013 and February 2014 the visa applicant could not attend the course due to her medical condition. The Tribunal accepts that between early 2014 and around September 2014 when she recommenced her studies, the visa applicant was engaged in self-study in preparation for the university entrance examination. The Tribunal accepts that the visa applicant was engaged in activities that were relevant to her education. The Tribunal also places weight on the fact that enrolments in tertiary courses are limited to particular times of the year and the review applicant’s evidence to the Tribunal is that the visa applicant could only enrol in a course commencing in September, there was no opportunity for an earlier enrolment. The Departmental policy provides examples of circumstances which may be considered reasonable, which include the applicant commencing studies but moving between institutions and the time it takes to re-commence studies.

23. The Tribunal finds that after the visa applicant recovered from her illness, she engaged in self-study in preparation for formal study and awaiting the possibility of enrolment. Having regard to the visa applicant’s circumstances and her activities during the period of non-study, the Tribunal is satisfied that the visa applicant had been undertaking full-time study since turning 16 or a reasonable time after completing year 12. The Tribunal is satisfied the courses were done on a full-time basis and led to the award of formal qualifications. The Tribunal is satisfied the visa applicant is continuing with her studies at present. The Tribunal is satisfied the visa applicant meets cl. 101.213(1)(c) and continues to meet this provision at the time of decision.

24. 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). There is no evidence that the visa applicant was engaged to be married or that she had a spouse or de facto partner. Accordingly, cl.101.213(1)(a) was met at the time of application, and continues to be met at the time of decision.

25. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). The review applicant’s and the visa applicant’s evidence to the Tribunal is that the visa applicant works on a part-time basis. There is no suggestion that she has ever engaged in full-time work. Accordingly, cl.101.213(1)(b) was met at the time of application, and continues to be met at the time of decision.

26. The Tribunal finds that the visa applicant meets cl. 101.213.

    Is the visa applicant a dependent child?

27. In her submission to the Tribunal of 8 February 2019 the review applicant provided evidence relating to the financial support provided to the visa applicant. Her evidence is that regular money transfers were made to the visa applicant from September 2016, totalling $11,000 to pay for her tuition fees and living expenses.

28. The review applicant told the Tribunal she provides the visa applicant with financial support for her study, food and other expenses. The review applicant said she sends $300 a month to her daughter and if she misses a month, she would send double the following month. She sends money through the money transfer service. The review applicant said her daughter receives cash and uses cash, the money is not deposited into a bank account. The review applicant presented to the Tribunal evidence of several money transfers and the Tribunal accepts that evidence.

29. The review applicant’s evidence is that the visa applicant pays rent of 10 million dong ($600-700) every six months and spends 5 million (about $300) on other expenses. The review applicant said that her daughter started working about a year ago as a salesperson. She receives about 2 million dong a month and uses the funds for daily expenses.

30. The Tribunal is mindful that the amount of funds provided by the sponsor is considerably greater than the amount received by the visa applicant from her employment. The evidence of transfers shows that the review applicant has regularly sent over $300 a month to the visa applicant and such sums are greater than her income from employment. The review applicant said that her funds are used for rent, books and food and the main clothing expenses while the visa applicant uses her money for any additional expenses.

31. The Tribunal is satisfied that the visa applicant’s reliance on her mother for the basic needs of food, shelter and clothing is greater than her reliance on any other source, including income from employment. There is no evidence that the visa applicant has any other source of income. The Tribunal finds that the visa applicant is, and was at the time of the application and for a substantial period before the application was made, dependent on her mother for her basic needs for food shelter and clothing. The Tribunal is satisfied that the visa applicant is a dependent child of the sponsor and was at the time of the application. Accordingly, cl.101.211(1)(a) is met at the time of application, and continues to be met at the time of decision.

    Conclusion

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

    DECISION

33. 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(1)(a) of Schedule 2 to the Regulations; and

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl. 101.221(2)(b) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member