SHI (Migration)

[2019] AATA 2992

SHI (Migration) [2019] AATA 2992 (5 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Meiyun Shi

VISA APPLICANT:  Mr Kai Lin

CASE NUMBER:  1731511

HOME AFFAIRS REFERENCE(S):          OSF2017/019021

MEMBER:Helena Claringbold

DATE:5 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 June 2019 at 2:59pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – applicant not full-time student at time of application – not incapacitated for work – mental health issues – multiple courses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth), 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. On 18 January 2017, Mr Lin Kai (the visa applicant) applied for a Child (Migrant) (Class AH) visa Subclass 101 (Child). The application was based on the visa applicant’s relationship with his mother, Ms Shi Meiyun, the sponsor and review applicant.

2. On 30 November 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met subclause cl.101.213(1)(c) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 13 December 2017, the sponsor provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision brought by the sponsor.

3. On 30 April 2019, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the sponsor’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The sponsor was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal Hearing.

   ISSUE

6. The issue in this case is whether, at the relevant time, the visa applicant was a full-time student at an educational institution leading to the award of a professional, trade or vocational qualification at the time of the application and decision and therefore satisfies cl.101.213(1) and cl.101.221(2)(b) of Schedule 2 to the Regulations.

   CLAIMS AND FINDINGS

   Additional criteria for applicants over 18

7. At the time of application the visa applicant was over 18 years old, therefore additional requirements relating to relationships, work and study must be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213 of Schedule 2 to the Regulations. These requirements must continue to be met at the time of decision: cl.101.221(2)(b) of Schedule 2 to the Regulations.

   Full-time study (or incapacitated for work)

8. 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).

9. 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).

10. 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.

    CLAIMS AND FINDINGS

    BACKGROUND ON THE EVIDENCE

11. The sponsor was born in 1970 in Fuqing, Fujian Province, China. The sponsor was married to Mr Lin Huaping. There are two children from this relationship who were born in 1991 and 1994 (the visa applicant). In January 2008, the sponsor entered Australia as the holder of a student guardian visa. The sponsor departed Australia in January 2009 and returned to Australia in February 2009 as the holder of a student guardian visa. Since then, the sponsor held multiple bridging visa E’s. In October 2012, she married Mr John Patrick. There are no children from this marriage. In October 2016, the sponsor was granted a Partner (Residence) (Class BS) visa. In November 2016, the sponsor and her husband departed Australia and travelled with the visa applicant and then returned to Australia in November 2016. In the period of March 2016 to February 2019, the sponsor has departed Australia on three occasions as the holder of a partner visa.  

12. The visa applicant was born in March 1994 in Fuqing City, Fujian Province, China. He turned 18 in March 2012. His father lives in China and his mother, step-father and brother live in Australia.

    Was the visa applicant undertaking full-time study?

13. Information provided in support of the visa application is as follows.

14. In July 2010, at the age of 16 years, the visa applicant completed studies at the Longtian Town Longxi High School. In March 2012 the applicant turned 18. In the period of September 2012 to July 2015, the visa applicant undertook secondary vocational education at the Fuqing Health School and completed a Diploma of Rural Medicine. A notarised graduation certificate recorded that the applicant started this study after graduation from Junior Middle School.

15. In July 2015, the visa applicant applied to study at Zhangzhou Healthcare Vocational College. In September 2015, the applicant made payment to Zhangzhou Healthcare Vocational College to undergo the college entrance examination in October 2015.

16. From September 2015 to October 2015, the visa applicant was preparing for the college entrance examination and he successfully passed the examination.

17. From July 2015 to June 2016, the visa applicant claimed that he completed a one year internship at the Hong Lu Hygenic Clinic under the supervision of Dr Bing Chen.  He told the Tribunal that there were many doctors involved in the clinic and that the clinic treated the people from Hong Lu village. He told the Tribunal that he worked at the clinic from Monday to Friday and sometimes on Saturday and Sunday when the doctors were there. He provided the Tribunal with a ‘Certification of Assessment Medical Professionals in Provisional Licence Period’ dated 26 March 2016. This recorded that from June 2015 to June 2016, the applicant, completed a ‘Practicum Period’ for an Associate Diploma in ‘Medicine for villages’, with the Community Service Centre for Shizhu Streets, Fuqing City and received a pass mark. The certificate does not provide any information about the time involved in the ‘Practicum Period’, or whether the ‘Practicum Period’ was considered to be study or training or whether it was full-time or part-time.

18. In March 2016, the visa applicant was enrolled in a Diploma Course in Pharmacy at the Zhangzhou Healthcare Vocational College with an expected completion date of 20 January 2019.  As detailed in the delegate’s decision, during a Departmental interview and confirmed by the visa applicant at the Tribunal hearing, the visa applicant did not commence this study.

19. In July 2016, the visa applicant transferred his studies to the Nankai University Modern Distance Education College (NUMDEC), which is an online and distance education provider. He was enrolled with NUMDEC from September 2016 to March 2019, to study for a Diploma Degree in Pharmacology, majoring in Pharmacology (Tertiary Diploma course duration two and a half years with post course practice of four and a half).  

20. As detailed in the delegate’s decision record during a Departmental interview the visa applicant admitted to having spent limited time from September 2016 to December 2016, studying the course at NUMDEC as he has been caring for his elderly grandmother and he travelled with the sponsor and her husband in November 2016. The sponsor challenged this information and told the Tribunal that the information is incorrect she claimed that the applicant’s focus was on his study and after study he cared for his grandmother. A certificate dated 15 November 2016, recorded that the applicant was a student at the college studying a major in pharmacology.

21. Information in the delegate’s decision record is that the NUDMEC is classified as an online and distance education provider by the Ministry of Education of the Peoples Republic of China and adult, online and distance education are not considered as full-time study.  A representative from the college confirmed that the visa applicant was enrolled in one of the schools online programs.  However, they stated that the online course is not fulltime. The representative advised that from September 2016 to 29 March 2017 the applicant had earned 300 credits as a new starter and 85 credits for studying online. According to the college’s crediting system, 85 credits equates to 425 minutes or approximately seven hours of study online. 

22. In response to this information and as detailed in the delegate’s decision record, the applicant acknowledged that the course at the NUMDEC was not a full-time course of study.  He claimed that the credit points do not necessarily equate to the actual hours he spent studying online due to a combination of reasons.  He claimed that he had earned 764 credits as at 15 November 2017. He told the Tribunal that there were no standard hours for this study but he studied about 10 to 20 hours weekly and he completed this study in January 2019. He provided NUMDEC Certificate of Graduation dated February 2019. This recorded that the applicant studied online from September 2016 to January 2019 majoring in pharmacy and was permitted to graduate.

23. The applicant told the Tribunal that in January 2018, he began study at the Minyitang Haixia Occupational Training School in Putian.  He stated that it is full-time study and when he passes the exam will be granted a certificate of massage and will be able to open his own shop. A certificate from the school has been provided and this recorded that the applicant began study on 5 January 2018 in a two year full-time occupational course (general practitioner class) for a health care massager. The visa applicant provided the Tribunal with the same information about this study. He provided the Tribunal with a certification of Student Academic Scores. This recorded that the visa applicant began a two year study program in January 2018 with a finish date of 30 April 2019 in a profession as a health massage therapist.

24. The sponsor and her spouse told the Tribunal that they want to reunite with the visa applicant and want to care for him. The sponsor told the Tribunal that her separation from the visa applicant’s father has had a big effect on the visa applicant.

25. The Tribunal considered the evidence individually and as a whole.  It is satisfied that the visa applicant was a full-time student until July 2015 at Fuqing Health School.  It is satisfied that the applicant began full-time study again in January 2018 at Minyitang Haixia Occupational Training School in Putian.  It does not accept that the applicant studied at the Zhangzhou Healthcare Vocational College, because the applicant’s evidence is that he didn’t commence this study. There is little independent evidence to substantiate the visa applicant’s claims of undertaking a full-time internship training course with health service centre. The document he provided does not provide an explanation of the hours the visa applicant was involved or whether his involvement was full-time. However, even if the Tribunal accepted this evidence of a one year internship from July 2015 till June 2016, it does not accept that the applicant’s study from September 2016 to January 2019 at the NUMDEC was full-time study.

26. The NUMDEC is classified as an online and distance education provider by the Ministry of Education of the Peoples Republic of China.  Studies undertaken there are not considered full-time study by the Ministry of Education of the People’s Republic of China.

27. The applicant’s migration agent stated that because of the applicant’s illness, he should be considered incapacitated for work due to mental incapacity from December 2016 till November 2017. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the visa applicant undertook full-time study from August 2015 until January 2018. For the reasons detailed in this decision record the Tribunal does not accept, the migration agent’s argument that the visa applicant’s lack of full-time study was due to him being incapacitated from December 2016 to November 2017.  During this time the applicant was enrolled in the study at NUMDEC and the Tribunal determined that the applicant’s study at NUMDEC was not full-time study.

28. The Tribunal, therefore is not satisfied that since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had 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) of Schedule 2 to the Regulations.

    Is the visa applicant incapacitated for work?

29. The Tribunal has been provided with a typed letter claiming to be the visa applicant’s outpatient medical record from Fuqing Rongkang Hospital.  It provided the following information: in December 2016, the visa applicant’s chief complaint was depression and poor quality of sleep for eight years ‘aggravated one month ago’. He became depressed when his mother went abroad and his father had marital infidelity.  After his parents’ divorce in 2012 his father remarried and the visa applicant was laughed at by classmates and his illness became worse. He felt depressed, hopeless and pessimistic about life and continued to have poor quality of sleep. He felt tired and didn’t have the energy to work.  He stayed at home every day but couldn’t stand it and came to the hospital for treatment. He has not had suicidal tendencies or ‘autolesion’, but felt pessimistic. He has ‘no special disease history, personal and family history’. He was diagnosed with depressive disorder and prescribed Escitalopram 10mg qd and Lorazepam 1mg *14 days. From December 2016 to February 2017 the same medicine is prescribed. From March until September 2017 Lorazepam is reduced to 0.5 mg.  In May 2017 the visa applicant is recorded as occasionally depressed with no fatigue and normal sleep and in September 2017, the visa applicant is recorded as significantly improved with no depression, normal diet, normal sleep and normal daily life and work.  In November 2017, the visa applicant’s condition is recorded as basically relieved. Another typed letter dated 15 October 2017 provided diagnoses for the visa applicant of depressive disorder and he is instructed to take his medication on time and ‘have a good rest’.

30. The Tribunal considered the evidence individually and as a whole about whether the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental function.  There is no evidence before the Tribunal that the applicant provided any information about any medical or psychological condition either at the time of application in January 2017 or when invited to respond to the Department’s findings that he was not studying full-time or up to the time of decision on 30 November 2017.  At no time prior to the visa application being refused has a claim been made that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. In fact, the evidence the visa applicant provided at the time of application and during the processing of the visa application is that he was a full-time student.  He confirmed this evidence in January 2017, on the Form 80 he signed. His other evidence is that he studied for a limited time at the NUMDEC because he was caring for his grandmother and travelling with the sponsor and her husband. He also claims that he earned 764 credits for studying at the NUMDEC from September 2016 to November 2017. 

31. Additionally, the information in the medical record from Fuqing Rongkang Hospital is vague in detail.  It stated that the visa applicant felt tired and didn’t have the energy to work and was prescribed medication from December 2016 to October 2017 and was diagnosed with depression. It does not give any opinion that at the time of the visa application on 18 January 2017, the visa applicant was incapacitated for work due to the total or partial loss of his bodily or mental functions.

32. As a result the Tribunal is not satisfied that, at the time of application, the visa applicant was incapacitated for work due to the total or partial loss of his bodily or mental functions. The applicant does not meet cl.101.213(2) of Schedule 2 to the Regulations.

33. Accordingly, cl.101.213(1)(c) is not met at the time of application, and continues not to be met at the time of decision.

34. For the reasons above, the visa applicant does not meet cl.101.213(1), cl.101.213(1)(c), and cl.101.213(2) of Schedule 2 to the Regulations.

35. Therefore 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

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

    Helena Claringbold
    Member