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

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).
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).
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.
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.
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.
The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
The review applicant was represented by her husband in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal…

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.

Continue reading Promkhan (Migration)

Details

AGLC: Promkhan (Migration) [2021] AATA 2308
Case: [2021] AATA 2308
Decision Date: 9 April 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Promkhan, where the review applicant sought a Child (Migrant) (Class AH) visa, subclass 101, for her son. The son, born on 7 August 1993, had turned 18 at the time of application and was under 25. The core dispute revolved around whether the visa applicant met the specific study criteria for applicants over 18.

The Tribunal was required to determine if the visa applicant had, since turning 18 or within a reasonable period after completing the equivalent of Year 12, been undertaking a full-time course of study at an educational institution leading to a professional, trade, or vocational qualification. This criterion, as outlined in clause 101.213(1)(c) of the Migration Regulations 1994, needed to be met at the time of application and continue to be met at the time of the decision, as per clause 101.221(2)(b).

The Tribunal's reasoning focused on the interpretation of "since" in relation to the full-time study requirement. Citing *Wake v MIAC*, the Tribunal held that "since" meant "continuously from" the event of turning 18, rather than "at any time after." The evidence presented indicated that the visa applicant had completed secondary education in 2008, further study in 2014, and undertaken military duty between 2014 and 2016. While some documents relating to TAFE and university enrolment were provided, the Tribunal found that the applicant had not continuously undertaken a full-time course of study since turning 18, nor had he met the alternative requirement of being incapacitated for work.

Consequently, the Tribunal concluded that the criteria for the grant of a Subclass 101 visa were not met. The decision under review, which affirmed the refusal of the visa, was therefore affirmed by the Tribunal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 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. 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. 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. 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 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) 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). 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. 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].

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.P. MaishmanMemberATTACHMENT – RELEVANT LAWMigration Regulations 19941.03 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. …

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.