Promkhan (Migration)

[2021] AATA 2308

Promkhan (Migration) [2021] AATA 2308 (9 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Amporn Promkhan

VISA APPLICANT:  Mr Thirasak Somboonsak

CASE NUMBER:  1825199

HOME AFFAIRS REFERENCE(S):          2017006558 OSF2017/006558

MEMBER:P. Maishman

DATE:9 April 2021

PLACE OF DECISION:  Perth

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

Statement made on 09 April 2021 at 11:46am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicant over 18– criteria relating to study specified not met – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 101.213, 101.221

CASES
Sok v MIMIA [2005] FMCA 190
Wake v MIAC [2010] FMCA 272

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 6 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 applied for the visa on 26 April 2017. 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 which comprises criteria that must be satisfied by visa applicants who are 18 or older at the time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the visa applicant was over 18 years old and was not undertaking a full-time course of study at an educational institution.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

6. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The review applicant appeared before the Tribunal on 22 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Lance Singh, the review applicant’s husband.

8. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

9. The review applicant was represented by her husband in relation to the review.

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 had before it a copy of the Department’s file containing the visa application form, the sponsorship form, the visa applicant’s birth certificate and various documents received by the Department. The visa applicant is the son of the review applicant and was born on 7 August 1993 and turned 18 on 7 August 2011. At the time of application the visa applicant had turned 18 but had not turned 25 years.

12. The review applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate says the visa applicant completed secondary education on 31 March 2008, completed further study on 30 April 2014, undertook military duty between 1 November 2014 and 1 November 2016, and was not presently undertaking full time study.

13. After the hearing the Tribunal invited the applicant to provide proof of enrolment, dates of attendance, details of suspension and resumption of all courses of study in Australia and overseas from 1 January 2017 to date. The Tribunal received a 2017 financial statement and invoices from North Regional TAFE, a translated copy of evaluation records in comparison to educational senior high school, and a translated copy of an enrolment form for the Mahamakut Buddhist University.

14. The issue in this case is whether the visa applicant has, since he turned 18 or within six months or a reasonable time after the completing the equivalent of year 12, been undertaking a full-time course of study and an educational institution leading to the award of a professional, trade or vocational qualifications.

    Criteria for applicants over 18

15. 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).

    Full-time study (or incapacitated for work)

16. Applicants who have turned 18 when they make their visa application, must be undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. This must have been undertaken since turning 18, or within a certain time of completing the equivalent of year 12: cl.101.213(1)(c).

17. The meaning of ‘since’ was considered in Wake v MIAC.[1] The Court held that ‘since’ in this context was used in the sense of ‘continuously from’ the event of turning 18 and rejected the submission that it meant ‘at any time after’ turning 18.[2]

    [1] Wake v MIAC [2010] FMCA 272.

    [2] Wake v MIAC [2010] FMCA 272 at [25]–[26]. The Court held that this interpretation was from the ordinary meaning of the word having regard to the language and immediate legislative context.

18. 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].

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).

20. The school year in Thailand is divided into two semesters[3]. The first semester begins in the beginning of May and ends in October. The second semester begins in November and ends in March.

    [3] Education in Thailand - Wikipedia

21. The Tribunal had regard to the visa applicant’s letter to the Department dated 25 December 2017. The visa applicant said he was studying at Prachin Buri Polytechnical College until 2010 but did not pass two subjects and did not have a certificate. He recommenced study on 14 May 2013 until he was recruited into military service on 1 November 2014 until 1 November 2016.

22. The review applicant told the Tribunal the visa applicant continued to study until he received notice that he was required to undertake military service. The Tribunal queried why the visa applicant finished in May 2014 when his military training did not commence until six months later in November 2014. The review applicant said he was given the option of dropping study and starting training immediately or finishing his studies.

23. The review applicant said the visa applicant finished his military training and came to Australia to visit as a Tourist in 2017. He was in Australia twice for three months duration during 2017 and undertook English studies at TAFE in Broome during both visits. The visa applicant returned to Thailand and undertook mature age studies in 2018 and 2019 to complete his year 12 equivalent. The visa applicant was enrolled to commence university in Thailand at the beginning of 2020. The visa applicant was unable to commence or to obtain documents confirming his enrolment because the university closed in response to the Covid-19 pandemic.

24. The visa applicant’s transcripts of vocational certificates on the Department’s file indicate he was undertaking study at Prachin Buri Polytechnical College until 2010. Although a course is registered for 2011 there is no credit or grade indicating the visa applicant continued to study into 2011. The visa applicant was enrolled and undertaking study at Prachin Buri Polytechnical College from 14 May 2013 until 30 April 2014 when he left the institution to continue studying had other institutions. The visa applicant did not study between April 2014 and 1 November 2014 when he commenced two years military service. After his military service he visited his mother in Australia on several occasions in 2017.

25. The Tribunal accepts the review applicant’s submission, supported by evidence provided in the form of receipts from the Broome campus of the North Regional TAFE, the visa applicant undertook some classes while in Australia. The documents do not indicate the course in which the applicant enrolled, whether the course was full-time or the dates of attendance. The Tribunal is not satisfied the visa applicant was, at the time of application, undertaking a full-time course of study.

26. The Tribunal also accepts, based on the evidence provided after the hearing, the applicant returned to study in 2019 and achieved senior high school level. The Tribunal attributes no weight to the document purporting to support the submission the visa applicant enrolled at Mahamakut Buddhist University in 2020 because it contains no indication of when the enrolment took place or whether the enrolment was accepted.

27. The Tribunal finds the visa applicant turned 18 years old in August 2011 and was not studying at that time. He did not resume study until May 2013.

28. The Tribunal is not satisfied that the visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification, continuously from the time he turned 18.

29. The review applicant gave evidence the visa applicant was fit and healthy and had no conditions that caused him a loss of bodily or mental functions and made him incapacitated for work. There is no evidence before the Tribunal that suggests the visa applicant is incapacitated for work due to the loss of his bodily or mental functions.

30. Accordingly, cl.101.213(1)(c) is not met.

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.

    P. Maishman
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03     Definitions

    …

    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.

    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.

    …