Pulatov (Migration)

[2021] AATA 386

Pulatov (Migration) [2021] AATA 386 (10 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sanat Pulatov

VISA APPLICANT:  Ms Sabina Pulatova

CASE NUMBER:  1932138

HOME AFFAIRS REFERENCE(S):          2019007913 OSF2019/007913

MEMBER:David Crawshay

DATE:10 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 10 February 2021 at 4:57pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study since turning 18 – short courses between completing equivalent of year 12 and commencing degree course in home country – application and letter of offer for degree study in Australia – application for student visa refused – English language requirement – “reasonable time” – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)

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 28 October 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 22 May 2019. 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 relates to certain requirements for applicants who are 18 years of age or over 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 had not been studying in a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification, and she had not been in continuous full-time study since completing high school.

5. The review applicant appeared before the Tribunal on 6 February 2021 to give evidence and present arguments. The Tribunal also took evidence from the visa applicant. The hearing was held remotely via Microsoft Teams audio.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the visa applicant satisfied the criteria for applicants aged 18 years or over at the time of application and continues to satisfy that requirement at the time of this decision.

   Criteria for applicants over 18

8. If, at the time of application, the visa applicant has turned 18, that person needs 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).

9. Clause 101.213 states as follows:

   (1)   If the applicant has turned 18:

   (a)the applicant:

   (i)is not engaged to be married; and

   (ii)does not have a spouse or de facto partner; and

   (iii)has never had a spouse or de facto partner; and

   (b)the applicant is not engaged in full‑time work; and

   (c)subject to subclause (2), the applicant has, 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.

   (2)   Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

   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. There is no evidence in front of the Tribunal to show that the visa applicant has ever been in any of the abovementioned relationships.

12. The Tribunal is satisfied that cl.101.213(1)(a) is met at the time of application and continues to be met at the time of this decision.

    Not engaged in full-time work

13. 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).

14. There is no evidence in front of the Tribunal to show that the visa applicant has ever been engaged in full-time work.

15. The Tribunal is satisfied that cl.101.213(1)(b) is met at the time of application and continues to be met at the time of this decision.

    Full-time study (or incapacitated for work)

16. At the time of application, the visa applicant must have, 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: cl.101.213(1)(c).

17. 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]. The requirement under cl.101.213(1)(c) 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).

18. 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.

19. There is no evidence in front of the Tribunal to demonstrate that the visa applicant was and continues to be incapacitated in the manner contemplated by cl.101.213(2).

20. The evidence in front of the Tribunal is that the visa applicant studied a Diploma in Pharmacy at Samarkand Base Medical College from September 2015 to August 2018. The visa applicant turned 18 during this time. In submissions to the Tribunal, the review applicant’s representative argued that this constituted the visa applicant’s secondary education. The Tribunal understands that schooling is Uzbekistan is organised along these lines and accepts that the visa applicant’s Diploma of Pharmacy is equivalent to completion of year 12 in the Australian school system. Therefore, it accepts that she completed the equivalent of year 12 in the Australian school system in August 2018.

21. The evidence in front of the Tribunal is that the visa applicant is currently studying a Bachelor Degree in Translation from Samarkand State Institution of Foreign Languages, having begun this course in September 2019. Based on this evidence, the Tribunal accepts that the visa applicant is currently studying this course and that the course is a full-time course at an educational institution leading to the award of a professional, trade or vocational qualification.

22. Further evidence provided to the Tribunal demonstrates that the visa applicant undertook study in three further courses:

    ·an English course from the Innovation Centre in Samarkand from December 2018 until April 2019;

    ·a certificate in tour guiding from the Samarkand Regional Centre from April 2019 until September 2019; and

    ·

    a home nursing course at Ösiyo Malaklari, Samarkand from June 2019 until

    
    

    August 2019.

23. The Tribunal questioned the parties at hearing and is satisfied based on their evidence that these courses are not full-time courses of study leading to the award of a professional, trade or vocational qualification.

24. The issue that now arises is whether the visa applicant commenced the requisite study, being the Bachelor Degree in Translation in September 2019 within six months or a reasonable time after the visa applicant completed the equivalent of year 12 in the Australian school system, which it has already found was in August 2018.

25. The Tribunal finds that, as the visa applicant commenced her Bachelor Degree in Translation some 12 to 13 months after completing her Diploma on Pharmacy, she cannot be said to have commenced the requisite study within six months of completing the equivalent of year 12 in the Australian school system.

26. The question then turns to whether this period of 12 to 13 months is a reasonable time. 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].

27. In addition to the three courses undertaken by the visa applicant during the break in her studies, the Tribunal also notes that she had an application on-foot for admission into a Bachelor of Nursing from Western Sydney University (WSU) for a significant period of 2018 and into 2019. The evidence in front of the Tribunal shows that she applied for this study in August 2018 and received a letter of offer to study in December 2018. Evidence also shows that she applied for a student visa in late-January 2019 but this visa was refused in late-February 2019 for reasons of not being a genuine temporary entry. Additionally, the testimony from the visa applicant at hearing was that she needed to have achieved an IELTS score of 6.5 or higher in order to commence study at WSU, something the Tribunal was able to verify after consulting publicly sourced documents.

28. The Tribunal has considered the evidence and makes the following findings. It finds that the visa applicant had taken active steps to enrol at an Australian university upon completion of her secondary school study in August 2018 and had prepared for this by undertaking an IELTS-approved English course in Samarkand in late-2018. It finds that, after she was denied a visa in order to study in Australia, she enrolled in further courses of study, albeit not full-time courses. It finds that she took the opportunity to enrol in a full-time course in Samarkand when she was able to do so given the university timetable in September 2019.

29. Based on the findings it has made, the Tribunal accepts that the gap in studies from when the visa applicant completed the equivalent of year 12 in the Australian school system until when she commenced the requisite study, although covering a period of between 12 to 13 months, was reasonable having regard the surrounding circumstances. The Tribunal accepts that the visa applicant had been undertaking the requisite study within a reasonable period after completing the equivalent of year 12 in the Australian school system.

30. Accordingly, cl.101.213(1)(c) is met at the time of application.

31. The Tribunal accepts that the visa applicant continues to undertake the requisite study at the time of this decision.

32. Accordingly, cl.101.213(1)(c) continues to be met at the time of decision.

    CONCLUSION

33. For the reasons above, cl.101.213 is met at the time of application.

34. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

35. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

36. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221(2)(b) of Schedule 2 to the Regulations.

    David Crawshay
    Member