Sangsuwan (Migration)

[2021] AATA 966

Sangsuwan (Migration) [2021] AATA 966 (2 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Banyay Sangsuwan

VISA APPLICANT:  Ms Kanyares Petcharat

CASE NUMBER:  1827369

HOME AFFAIRS REFERENCE(S):          2017007184 OSF2017/007184

MEMBER:Stephen Conwell

DATE:2 March 2021

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 02 March 2021 at 10:04am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – applicant employed after tertiary studies – no current studies – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

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 12 September 2018 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 22 November 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 (Cth) (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 was not met because he was not satisfied based on the available information that the visa applicant (the applicant) had, 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 the relevant study as required by cl.101.213(1)(c).

5. The review applicant (the sponsor) provided a copy of the decision record to the Tribunal for the purpose of the merits review.

6. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

7. The parties participated in the hearing by telephone on 1 March 2021 to give evidence and present arguments. The Tribunal received oral evidence from the sponsor, the sponsor’s husband and from the applicant in Thailand. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The interpreter attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant meets cl. 101.221(2)(b) at the time of decision. 

   Criteria for applicants over 18

10. 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)

11. 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).

12. 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).

13. 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.

14. In the applicant’s visa application form, she states that she completed her secondary schooling in 2013. There is documentary evidence in the departmental file of her completion of a Bachelor of Business Administration (Marketing) at a university in Thailand in May 2016. The decision record notes that the applicant provided evidence of completion of two ‘Short Cooking Class’ courses. These courses are by definition, of short duration and the Tribunal gives no weight to them. Her visa application form also states that soon after completing her degree she was employed with Toyota Summit Company Limited from September 2016 to June 2017.

15. At hearing both the sponsor and her husband gave evidence. The sponsor is the applicant’s mother. She became an Australian citizen in July 2017. The sponsor said that the applicant last visited Australia from December 2019 – February 2020. The sponsor stated the applicant is not currently studying; she lives with her family who run a roadside food stall, which the applicant helps with. Currently the sponsor sends the applicant approximately AUD200 a month as financial assistance.

16. The sponsor’s husband agreed with his wife’s testimony, adding that her journey to becoming an Australian citizen occurred without any visa issues and was financed by the two of them, without needing to rely on any funding from the Australian government.  He said that this would also apply to the applicant should she be granted a visa.

17. The applicant’s oral testimony confirmed her recent history – that she is currently 27 years old and has not studied since completing her degree in 2016; upon returning from Australia in February 2020 she assists her family in running their roadside food stall. She confirmed that she is in good health and is not incapacitated for work.

18. The Tribunal has considered the evidence before it; it accepts the veracity of the applicant’s study and recent history.  Based on the totality of the evidence, the Tribunal finds that the applicant is not currently engaged in any study. Therefore, the Tribunal concludes the applicant is not undertaking study at the time of this decision .

19. The Tribunal notes that no claims have been made, and there is no evidence to suggest, that the applicant was incapacitated for work due to the loss of bodily or mental functions, Indeed the applicant expressly confirmed that her health was unimpaired. Therefore cl.101.213(2) does not apply in the present case.

    Conclusion

20. The Tribunal finds that cl.101.213 does not continue to be met at the time of decision. Indeed, the evidence shows that the applicant completed her tertiary studies in May 2016, which is before the date of application. There is no evidence that she undertook any further studies after May 2016. There is no evidence that she is currently studying.

21. Therefore, cl.101.221(2)(b) is not met.

22. 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

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

    Stephen Conwell
    Member