Ruan (Migration)

[2020] AATA 1960

Ruan (Migration) [2020] AATA 1960 (27 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ruijie Ruan

VISA APPLICANT:  Miss Lin Ruan

CASE NUMBER:  1616206

HOME AFFAIRS REFERENCE(S):          OSF2015/048456

MEMBER:Helen Kroger

DATE:27 May 2020

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(1)(c) of Schedule 2 to the Regulations; and

Statement made on 27 May 2020 at 12:58pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – study requirement – eligible study within a reasonable time of completing high school – dispute between divorced parents about tuition fees and living expenses – non-eligible study during this period – steps to facilitate full-time study – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 101.213(1)(c)

CASE

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 Immigration and Border Protection on 13 September 2016 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 4 January 2016. 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(1)(c).

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met.

5. The review applicant appeared before the Tribunal on 21 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Lin Ruan, who is the review applicant's daughter.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. The Tribunal was provided a copy of the delegate’s decision record for the purpose of its consideration.

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

   ISSUE

9. The issue in this case is whether the visa applicant (the ‘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 within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system : cl.101.213(1)(c).

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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 of those activities and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [28].

11. The Tribunal found the review applicant’s oral evidence at hearing to be candid, spontaneous and consistent, and therefore, both credible and reliable.

12. The Tribunal is satisfied from all the evidence before it that the applicant and her father (the review applicant) always intended for the applicant to undertake full time study in China. The applicant enrolled in full time study, majoring in Marketing at Guangxi Guilin University of Aviation and Aerospace Technology following the completion of her school studies in 2011 and graduated in 2014. The applicant then told her parents that she wished to study art and design that initiated a dispute between her divorced parents about the associated tuition fees and living away from home expenses. The Tribunal is satisfied that the review applicant has consistently supported the applicant throughout this period. The applicant did not immediately enrol in a subsequent University course due to the unresolved financial issues between her parents as neither was prepared to pay for the subsequent enrolment fees. The Tribunal is satisfied that in the intervening period, the applicant independently studied at the Beijing Xinfengshang Wedding Training Institute. A translated copy of the Learning Certification (folio 98) was submitted to the Tribunal for its consideration, that shows that the applicant was studying during the period of October 2014 through to September 2015. The applicant submits that her parents reached a resolution regarding tuition fees and she subsequently successfully enrolled at the Beijing Professional Business Institute to study interior design. The Tribunal is satisfied that the applicant continued to take steps that were intended to facilitate full time studies (consistent with the requirements of cl.101.213(1)(c).

13. In regards to the period of time taken by the applicant to undertake full-time study (leading to the award of a professional, trade or vocational qualification), the Tribunal is satisfied that in the circumstances of this particular case, that the period was reasonable because the steps the review applicant and the applicant took were all consistently geared towards the applicant qualifying in a course of study that she ultimately wished to pursue and that would fulfil the requirement contained in cl.101.213(1)(c).

14. Accordingly, based on all the evidence, the Tribunal finds that the applicant has (given she had already turned 18 at the time of application) within a reasonable time after completing the equivalent of year 12 in the Australia 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.

15. For the reasons above, the Tribunal is satisfied that cl.101.213(1)(c) is met at the time of application.

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

    Helen Kroger
    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 who is engaged to be married or has a spouse or de facto partner), being a 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 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.

    …