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

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).
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).
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
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Phan (Migration) [2023] AATA 324
Case: [2023] AATA 324
Decision Date: 18 January 2023

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101, made by Huy Truong Nguyen, who was the biological and eldest son of the review applicant. The application was made on 17 April 2020, at which time the visa applicant was 20 years of age. The Tribunal was required to determine whether the visa applicant met the eligibility criteria for the visa.

The primary legal issue before the Tribunal was whether the visa applicant, who was over 18 years of age at the time of application and had not been studying, met the requirements for the subclass 101 visa. Specifically, the Tribunal had to consider if participation in military service could be considered equivalent to attending an educational institution for the purposes of the visa. The visa applicant had left school at age 13, had not completed year eight, and had subsequently undertaken four years of military service in Vietnam.

The Tribunal reasoned that the criteria for a subclass 101 visa require the applicant to be under 18 years of age at the time of application, or if over 18, to be undertaking full-time study at a secondary school or a post-secondary institution. The Tribunal found that the visa applicant was 20 years old when the application was made and had not been studying. While the visa applicant had undertaken military service, the Tribunal concluded that this was not the equivalent of attending an educational institution as contemplated by the visa requirements. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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