Phan (Migration)

[2023] AATA 324

Phan (Migration) [2023] AATA 324 (18 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Xuan Trang Phan

VISA APPLICANT:  Mr Huy Truong Nguyen

REPRESENTATIVE:  Mr David Chua (MARN: 9794858)

CASE NUMBER:  2111052

HOME AFFAIRS REFERENCE(S):          CLF2020/16241

MEMBER:Margie Bourke

DATE:18 January 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2023 at 4:20pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicant over 18– visa applicant was not studying at the time of application – Tribunal does not accept that participating in military service is the equivalent of attending an educational institution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, r 1.03, 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. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 2021 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 17 April 2020. 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.101.213 and cl.101.221

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied that the visa applicant had been a full-time continuous student since completing secondary education and since turning 18 years of age.

5. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the fact the visa applicant would attend the review from overseas, and the nature of the review. The Tribunal had regard to the fact the review did not involve an extensive amount of paperwork to be put to the review applicant during the hearing. The Tribunal considered the conduct of the hearing by video would allow the review applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and enable the Tribunal to properly assess the evidence before it. The hearing was conducted at a time when the availability of in-person hearings was restricted due to the ongoing pandemic. Upon application by the review applicant, the review had been assessed to be conducted with priority. For all the above reasons, the review applicant was invited to attend a hearing to be conducted by video.

6. The review applicant appeared before the Tribunal on 18 January 2023 by video to give evidence and present arguments. The review applicant attended on the same device with her representative. The Tribunal also received oral evidence from the visa applicant Huy Truong Nguyen, who attended the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter attended the hearing by video.

7. The review applicant was represented in relation to the review. The representative attended the hearing by video with the review applicant.

8. During the introduction and for a substantive part of the review applicant’s evidence, the review applicant and representative participated in the hearing by video. The review applicant indicated she had some difficulty hearing the interpreter, and the representative made some adjustments to the audio or volume on his device. Subsequently, the internet connection used by the review applicant and the representative became unreliable, and either their audio or video connection with the hearing would intermittently be interrupted. The Tribunal considered this was not a reliable form for the hearing to continue. With the consent of the review applicant and her representative, the review applicant and the representative then attended the hearing and participated in the hearing by way of telephone. The audio connection was subsequently clear and reliable. The Tribunal is satisfied that this was the appropriate and preferable way for the hearing to proceed. There was no difficulty with the connection or clarity for any of the other participants in the hearing.

9. The Tribunal is satisfied that continuing the hearing with the review applicant and her representative participating by way of telephone, after the review applicant had provided the substantive part of her evidence, allowed to the applicant to continue to give evidence and present arguments, and allowed the Tribunal to conduct a fair and effective hearing and enabled it to properly assess the evidence before it. The Tribunal notes that the change in the method of the review applicant’s participation in the hearing was done with the consent of all participants. The review applicant’s and her representative’s attendance by telephone after their attendance by video was unstable, ensured that she and her representative could properly participate in the hearing, and hear all the other participants, and they could communicate their answers and responses or submissions to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The Tribunal is satisfied that the written and oral evidence provided by the review applicant and the visa applicant in this review was credible and reliable. The Tribunal was provided with identity documents (including birth and death certificates), academic documents, and relevant statements, declarations and certificates. The Tribunal has considered the information provided to the Department, including the application and other forms.

12. The Tribunal is satisfied that the visa applicant, Huy Truong Nguyen, was born on 23 December 1999 and is the biological and eldest son of the review applicant. The application for the subclass 101 visa was made on 17 April 2020, and the visa applicant was 20 years of age at the time of application.

13. The visa applicant’s maternal grandfather became ill with cancer in 2008 and died in 2012. The visa applicant’s mother cared for her father during his illness.

14. The visa applicant’s mother, the review applicant, opened a shop in 2012 but this was closed in 2014. The visa applicant’s mother had debts due to 2 mortgages at this time.

15. The visa applicant’s parents separated in 2013. The visa applicant’s parents experienced financial hardship at the time of their separation, and struggled to pay the tuition and other educational costs for their three sons.

16. The visa applicant left school in May 2013, at the age of 13 years, and had not completed year eight. The visa applicant has not returned to secondary school. The Tribunal accepts the written and oral evidence that the visa applicant had poor academic performance at school, that there was family pressure, particularly from his father to leave school, and that the visa applicant felt embarrassed at school because of late payment of his tuition fees by his parents.

17. The visa applicant’s father, Huy Vu Nguyen, owned a motorbike repair shop. The visa applicant’s father had a motorbike accident in 2013. The visa applicant worked on a part-time basis for two months with his father after he left school in May 2013. The visa applicant’s father’s business went bankrupt in 2016.

18. The visa applicant’s mother migrated to Australia in 2015, and at that time her three sons, including the visa applicant, lived with their father. The visa applicant currently resides with his two younger brothers. The visa applicant’s aunt, who provided some care to the visa applicant and his brothers, died in 2019.

19. After working for his father two months, the visa applicant worked for Pham Minh Tam, in his motor repair business, from mid 2013 to the end of 2017. The visa applicant worked three days a week, and describes his employment as an apprenticeship.

20. In 2018 the visa applicant commenced military service. As the visa applicant was not studying, it was compulsory that he participate in military service for a period of two years. The visa applicant completed four years of military service in Vietnam, and the extended period of four years was not compulsory. The visa applicant was not paid to undergo military service.

21. At the time of application, namely 17 April 2020, and as recorded by the review applicant and visa applicant in the application forms, the visa applicant was not undertaking any form of study.

22. The visa applicant did not undertake study at an educational institution after leaving school in May 2013 until December 2021, a period of 8 ½ years.

23. On 25 December 2021 the visa applicant commenced a mechanical electrical refrigeration course at the Tran Dai Nghia intermediate school which he completed on 23 May 2022. After completing this course the visa applicant remained the school undertaking practice procedures fixing fridges. On 4 October 2022 the visa applicant commenced an electrical course at the same institution, and on 9 October 2022 the visa applicant commenced studying at the Binh Chanh District Continuing Education Centre as a distance student.

24. In the hearing the Tribunal discussed that it had no documents or records of the visa applicant’s current study.  After the hearing the Tribunal acknowledged in writing to the review applicant that a submission had been received whilst the hearing was in progress which included a translated application for Binh Chanh District Continuing Education Centre to confirm as part of the visa applicant’s curriculum vitae that he is a student at the Centre for the school year 2022 to 2023.

25. The Tribunal is satisfied that the visa applicant is not and has never been engaged to be married. The Tribunal is satisfied that the visa applicant does not have a spouse or de facto partner and has never had a spouse or de facto partner.

26. The Tribunal is satisfied that the visa applicant has never been engaged in full-time employment. The Tribunal accepts that the apprenticeship at Pham Minh Tam’s business was part-time employment. The Tribunal accepts that there is no payment for military service, and therefore this is not considered full-time employment.

27. The Tribunal is satisfied that the visa applicant is not a dependent child within the meaning of r.1.03(b)(ii). The Tribunal accepts the submission of the representative and the evidence of the review applicant, that the visa applicant is not incapacitated for work due to the total or partial loss of bodily or mental functions.

28. The Tribunal discussed with both the review applicant and the visa applicant as to whether based on the evidence they had provided, the visa applicant met the requirements in relation to study in cl.101.213(1)(c). The Tribunal accepts the evidence of the visa applicant that he is trying to meet the requirements.

    Criteria for applicants over 18

29. 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

30. 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).

31. The Tribunal is satisfied that at the time of application, the visa applicant was not engaged to be married, and did not have a spouse or de facto partner. The Tribunal is satisfied that at the time of decision the visa applicant has not been engaged to be married, and does not have a spouse or de facto partner.

32. Accordingly, the visa applicant meets the requirements of cl.101.213(1)(a), and continues to meet these requirements at the time of decision.

    Not engaged in full-time work

33. 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).

34. The Tribunal is satisfied that at the time of application the visa applicant was not engaged in full-time work. The Tribunal is satisfied that the time of decision the visa applicant has not been engaged in full-time work, and continues to not be engaged in full-time work.

35. Accordingly, the visa applicant meets the requirements of cl.101.213(1)(b), and continues to meet these requirements 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 Tribunal is satisfied based on the evidence and submissions before it, that the applicant was not incapacitated for work because of the total or partial loss of bodily or mental functions. Therefore, the requirements of cl.101.213(1)(c) apply to the visa applicant.

40. The Tribunal has considered the requirements of cl.101.213(1)(c), namely that the visa applicant has, 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.

41. Based on the evidence of the visa applicant and the review applicant and the written information provided, the visa applicant has not completed the equivalent of year 12 in the Australian school system. The visa applicant has not been a student since he was 13, but has been working in an apprenticeship from the ages 13 to 17 years.

42. Based on the evidence of the visa applicant and the review applicant and the written information provided, the visa applicant was not studying at the time of application, and had been undertaking military service since January 2018. At the time of application in April 2020, the visa applicant was not undertaking compulsory military service, as compulsory military service based on the evidence provided by the visa applicant and the review applicant does not exceed two years. The Tribunal accepts the evidence of the visa applicant and the review applicant that the visa applicant voluntarily continued military service. At the time of application the visa applicant was in the third year of his military service, and was participating in military service of his own volition.

43. The Tribunal has considered the evidence of the review applicant who claimed that when the visa applicant participated in military service, he was undertaking full-time study. The Tribunal accepts that military service may involve some study components. The Tribunal does not accept that military service is a full-time course of study. The Tribunal accepts that military service is precisely what its name says, that it is military service provided to the country. The Tribunal does not accept that participating in military service is a form of full-time study, and the Tribunal does not accept that participating in military service is the equivalent of attending an educational institution.

44. The review applicant stated in her evidence that the requirements of the subclass 101 visa do not require a visa applicant to studying at the time of application. The Tribunal has considered the judgement in Opoku-Ware v Minister for Immigration & Anor [2015] FCCA 1638, and note in particular the remarks at paragraph 82 -  “I accept the Minister’s  submissions that the construction of the clauses limits the grant of visas of this type to children over the age of 18, who are currently undertaking studies after the completion of year 12 (or its international equivalents). This construction is consistent, in my view, with the purpose of the subclass”, and also within paragraph 84 of the judgement – “That is to say that, at the time of application, the visa applicant must still be undertaking a full-time course of study”.  It is relevant in the assessment of whether the visa applicant meets the criteria in this review, that the evidence before the Tribunal is that the visa applicant has been employed on a part-time basis or undergoing military service between mid-2013 and the end of 2021, and not that he has been a full-time student.

45. The Tribunal has considered the period of time after the visa applicant left school halfway through year eight in 2013, prior to commencing studying a course in December 2021. The Tribunal has also considered the circumstances of the visa applicant in the period between his turning 18 in December 2017 and commencing study in December 2021. The Tribunal has applied the principles in Hussein v MIBP [2017] FCCA 3247, and considered what the visa applicant has done during the interval. The Tribunal finds that the visa applicant worked on a part-time basis for a period of 4½ years after leaving school, and then participated in military service for a period of four years after turning 18.

46. The Tribunal is satisfied that the visa applicant did not participate in compulsory military service as an interruption to ongoing study. The Tribunal is satisfied that the visa applicant was not studying prior to participating in military service.

47. The Tribunal notes that the visa applicant has not completed the equivalent of year 12 in the Australian school system, so the Tribunal is unable to assess a period of six months or a reasonable time from when the applicant completed the equivalent of year 12 in the Australian school system. The visa applicant turned 18 in 2017, and commenced his military service in January 2018. Since turning 18, the visa applicant commenced compulsory military service of two years, and then continued voluntarily to participate in a further period of military service. It is relevant however to consider that in Vietnam compulsory military service is applicable for persons who are not studying at the time they turn 18.

1. The Tribunal has considered the submissions of the review applicant’s representative on the evidence of the review applicant, that the financial hardship and family situation are relevant factors in this review. The Tribunal has considered the judgement in Sok v Minister for Immigration  [2005] FMCA 190, which provided an analysis of the appropriate factors to consider in assessing what could amount to reasonable time for a visa applicant in between completing secondary school and undertaking tertiary studies. The judgement noted that the analysis of what is reasonable must necessarily include the following factors: – the period of time, the activities undertaken, the purpose of those activities, and if no activities connected with the ultimate course of study were undertaken the reason for not undertaking activities related to the course of study.

2. It is a relevant consideration here that the visa applicant had not progressed to further study after secondary schooling at the time of application. On the contrary, the visa applicant had left school during year eight, and had undertaken part-time work for over four years. The visa applicant had then participated in military service, which is required of young persons in Vietnam who are not studying when they turned 18. At the time of application the visa applicant had voluntarily chosen to continue military service for a further two years. Based on the evidence before the Tribunal, the visa applicant was not a person who had been dependent on his parent or parents for financial support during ongoing study at the time of application or for many years prior to that date.

3. The Tribunal accepts that the visa applicant was not succeeding at school, and due to family pressures and financial reasons, the visa applicant left school in 2013 and commenced part-time employment. The visa applicant worked in his part-time apprenticeship for 4 ½ years, and then participated in military service for a further four years. At the time of application and at the time of the Department’s decision record dated 19 July 2021, the visa applicant had not undertaken any activities related to a full-time course of study or a course of study leading to the award of a professional, trade or vocational qualification. The Tribunal is not satisfied that the during the period of time between the applicant leaving secondary school in 2013, and commencing a course of study in December 2021, the applicant undertook other activities related to study, or to engaging in a course of study, with the exception of some study which may have been required as part of his military service.

4. The Tribunal has considered the visa applicant’s circumstances, which led to him leaving school age 13. The Tribunal is not without sympathy for those circumstances.

5. However, the relevant considerations here are whether the visa applicant meets the requirements for the subclass 101 visa, applicable to visa applicants aged over 18 at the time of application. The Tribunal finds that the visa applicant had not completed the equivalent of year 12 in the Australian school system. The Tribunal finds at the time of application, since turning 18, or within six months or a reasonable time after leaving secondary school, the visa applicant was not undertaking a full-time course of study.

6. The Tribunal finds that the visa applicant was not undertaking a course of study at the time of application. The Tribunal finds that the visa applicant had not been a student and had not been undertaking a course of study or studying for nearly 7 years at the time of application. The Tribunal accepts that the visa applicant undertook a six-month refrigeration course from December 2021 to May 2022, and commenced a further course in October 2022.

7. The Tribunal has considered whether within a reasonable time since the applicant left secondary school the visa applicant commenced undertaking full-time course of study.  The Tribunal has considered whether within a reasonable time since the visa applicant turned 18, the visa applicant has been undertaking a full-time course of study. The Tribunal finds that the visa applicant was not undergoing compulsory military service at the time of application, although the Tribunal accepts the visa applicant had chosen to undergo a further two years military service. The Tribunal accepts that the visa applicant chose to continue to do further military service and did not commence undertaking a full-time course of study until four years since turning 18. The Tribunal is not satisfied that the visa applicant has been undertaking a full-time course of study within six months or a reasonable time since turning 18.

8. For these reasons the Tribunal is not satisfied that the visa applicant has, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system (or alternatively, since leaving secondary school) has been undertaking a full-time course of study at an educational institution leading to the award of the professional, trade or vocational qualification.

9. Accordingly, the Tribunal is not satisfied that the visa applicant meets the requirements of cl.101.213(1)(c) at the time of application. Further, the Tribunal is not satisfied that the visa applicant meets the requirements at the time of decision.

10. For the reasons above, cl.101.213 is not met at the time of application.

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

12. 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

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

    Margie Bourke
    Member