Phromphian (Migration)

[2020] AATA 3933

Phromphian (Migration) [2020] AATA 3933 (27 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nattaphon Phromphian

VISA APPLICANT:  Mr Phanouvath Phromphian

CASE NUMBER:  1908807

HOME AFFAIRS REFERENCE(S):          OSF2018/002795

MEMBER:Margie Bourke

DATE:27 July 2020

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 27 July 2020 at 2:42pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa – applicant over 18– applicant has not been undertaking any course of study – criteria relating to study specified not met – compassionate and compelling circumstances – Ministerial Intervention– decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

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
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 4 March 2019 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 20 November 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.

4. The delegate refused to grant the visa on the basis that cl.101.213 and cl.101.221 were not met because the delegate found the visa applicant had not provided information or documentation in support of the visa applicant’s study at the time of application or at the time of decision, or that he was incapacitated from study or work.

5. The review applicant appeared before the Tribunal on 27 July 2020 via video to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the visa applicant’s mother from overseas via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages who attended the hearing via video.

6. The hearing had previously been scheduled for 16 July 2020, but there were initial difficulties with the video connections, and then the interpreter left the video and was not able to be contacted. The review applicant requested the hearing proceed without the interpreter, but the tribunal indicated this may not be fair or reasonable to proceed without the assistance of an interpreter.  The review applicant had advised the tribunal in the hearing response form that the visa applicant and witness required the assistance of an interpreter.  The hearing was rescheduled at the earliest possible date, and proceeded on 27 July 2020.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the visa applicant meets the over 18 criteria, particularly in relation to study.

   Criteria for applicants over 18

9. 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

10. 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).

11. Based on the consistent oral evidence before me, I am satisfied that the visa applicant is not engaged and has never been engaged, and does not have a spouse or de facto partner, and has never had a spouse or de facto partner.  Accordingly, the visa applicant meets the requirements of cl.101.213(1)(a) at the time of application, and continues to meet this requirement at the time of decision.

    Not engaged in full-time work

12. 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).

13. Based on the consistent evidence before me in the hearing I am satisfied that the visa applicant has not been engaged in full time work, and is not engaged in full time work.  I accept he had a part time job distributing leaflets in Bangkok in October 2018 for approximately five weeks.  Accordingly, the visa applicant meets the requirements of cl.101.213(1)(b) at the time of application and continues to meet this requirement at the time of decision.

    Full-time study (or incapacitated for work)

14. 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).

15. 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).

16. 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.

17. I am satisfied based on identity documents and school records and the oral evidence of the visa applicant that he was born in January 1999 and had turned 18 years in January 2017, which was before the application for the visa was made on 20 November 2018. I am satisfied based on the graduation certificate that the visa applicant completed the equivalent of year 12 in the Australian school system in Alaska in May 2018.

18. I accept there is no evidence that the visa applicant was incapacitated due to partial or total loss of mental or bodily functions, and does not satisfy the definition of dependent child in r.1.03(b)(ii).  I accept the oral evidence of the visa applicant and his parents, that the visa applicant does not suffer from any disability or incapacity. The alternative to meeting the requirements of cl.101.213(1)(c) as set out in cl.101.213(2) does not apply to the visa applicant.

19. I am satisfied that the visa applicant lived in Alaska with his parents, as his father had work there.  I accept that the visa applicant returned to Bangkok after completing his secondary school diploma in June 2018, and resides with his mother. I accept that the visa applicant wished to study a bachelor of engineering at university.

20. I am satisfied based on the consistent evidence before me that the visa applicant and his parents had a family meeting about the visa applicant’s future.  The review applicant moved to Australia, obtained employment, and after obtaining the requisite documents and saving for the application fee, lodged the application for the subclass 101 visa which is the subject of this review.

21. At the direction of his father, the visa applicant accepted that an Australian education would be preferable, and more advantageous for his career. Due to financial constraints the review applicant did not wish to fund the cost of a university course in Bangkok, if his son was then able to study in Australia.  The review applicant instructed his son to wait on the outcome of the visa. The review applicant and his son also thought it unlikely that any completed units of a Thai university bachelor course would be recognised in the Australian tertiary system, and therefore those units would have to be repeated (and paid for again) in the Australian university course.

22. The visa application was refused by the Department in a decision dated 4 March 2019.  The review applicant applied for review, and continued to wait for a decision, instructing his son not to commence his tertiary studies.

23. I accept that the visa applicant resided with his mother, and remained financially supported by his father.

24. I accept that in 2020 the visa applicant advised his mother that he could not continue to wait any longer to commence his studies, and after a family discussion, it was agreed, the visa applicant should apply to study in Bangkok. I accept that the restrictions on international travel caused by the covid-19 pandemic, and the requirements for non students of the visa applicant’s age to join the Thai army were other relevant factors in the family decision.  The visa applicant sat his admission examination, and is now accepted for a bachelor of engineering at Sripatum University in Bangkok, Thailand.  I accept the review applicant has paid the first semester fees for the academic year which commences in August 2020.

25. I have considered the review applicant’s evidence in relation to the comparative study costs of Thai and Australian universities for equivalent courses. I accept the review applicant’s assessment that he believed the Australian engineering degree would cost substantially more, (up to five times more) but be of greater benefit to his son.

26. I have considered that the visa applicant has not been undertaking a full time course of study since he completed his secondary education in May 2018, a period of over two years.  I have considered the evidence that the visa applicant has not been working, except for a short period in October 2018 when he had a part time job delivering leaflets. When considering whether the time since completing secondary school, before undertaking a full time course of study is a reasonable time, I have considered the activities the visa applicant has been doing.  The evidence before me is that the visa applicant has not been working (except for the part time job in October 2018), or studying, has done some reading and gone to the library with friends.  I accept the review applicant was waiting on the visa, so his son could study in Australia. I accept the visa applicant was following his father’s direction. I accept the overall intention was for the visa applicant to study engineering, at the best possible educational institution, and that the visa applicant has been financially reliant upon his parents while waiting to begin his tertiary study. However, the evidence is that the visa applicant has not been undertaking a full time course of study since completing secondary school, a period of over two years. The visa applicant has not been undertaking any course of study.

27. I accept the evidence before me as credible and reliable. I have considered the explanation for the visa applicant not commencing a full time course of study in the period of over two years since he completed secondary school, because his father instructed him to wait for the visa to study in Australia, and not be studying and paying for a course in Thailand that he may not complete.  I am not satisfied that the wait of two years in the circumstances is a reasonable time.

28. I am 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, been undertaking a fulltime course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

29. Therefore, I am not satisfied that at the time of application the visa applicant meets the requirements of cl.101.213(1)(c).

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

31. 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

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

    Ministerial Intervention

33. The tribunal recommends this matter for consideration of the Minister’s discretionary powers pursuant to s.351 of the Act. The tribunal considers there are compassionate and compelling circumstances due to the age of the visa applicant, and his relationship with his father, and exceptional circumstances that would affect an Australian citizen, the visa applicant’s father.  The visa applicant’s father has attained work internationally, and financially supports his family, and has guided his son towards international study, and to live with him in Australia. It will cause the visa applicant’s father hardship if he cannot successfully support his son to reside with him, and to achieve a recognisable Australian tertiary qualification, and career.

34. The visa applicant stated he completed his secondary schooling in Alaska for two years when his father was working there, and his high school diploma shows he attained very good grades there in his year 11 and 12.  The visa applicant returned to Bangkok to reside with his mother, and hoped to study engineering in Australia. Due to financial constraints, and with the plan to obtain the visa and study in Australia, the visa applicant followed his father’s directions and did not apply to study in Thailand in 2018 or 2019.  For this reason, the visa applicant does not meet the criteria for the visa. The visa applicant has now passed his admission examination and he is now accepted in bachelor of engineering in the Sripatum University in Bangkok. The evidence before me indicates the visa applicant genuinely intends to study engineering, and financial limitations have been a burden for this family.

    Margie Bourke
    Member