Srishataroon (Migration)

[2021] AATA 3402

Srishataroon (Migration) [2021] AATA 3402 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nriluk Srishataroon

VISA APPLICANT:  Mr Tantichet Srichatarun

CASE NUMBER:  1829247

HOME AFFAIRS REFERENCE(S):          2016011898 OSF2016/011898

MEMBER:Moira Brophy

DATE:25 August 2021

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 25 August 2021 at 4:41pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – part-time employment – caring for family member – decision under review affirmed           

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.05; 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 10 August 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 14 October 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 (Cth) (the Regulations). Relevantly to this case, they include cl 101.221(2)(b) which requires that an adult child, that is that he has turned 18, and that he be a full-time student at the time of decision.

4. The delegate refused to grant the visa on the basis that cl 101.221 was not met because at the time of decision the applicant had not maintained his status as a full-time student.

5. 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.

6. The review applicant, Ms Nriluk Srishataroon gave evidence by telephone to the Tribunal on 19 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Tantichet Srichatarun. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

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

   Background

8. The applicant, Tantichet Srichatarun, was born in Saraburi, Thailand, on 18 October 1991.  He is the holder of a passport issued from Thailand. On his application he states his mother lives in Australia with his sister.

9. At the time of application, the applicant stated he had completed his secondary schooling at the Bansuan (Chan Anusorn) in Chonburi Province on 29 March 2009. He enrolled at Punyapiwat Centre in Chonburi in the period from 2010 to 2012 studying a Vocational Certificate in Commerce. He enrolled at Burapha University on 23 May 2013 in a Bachelor of Political, Science and Law which commenced on 23 May 2013 with the estimated date of completion being 22 May 2017.

10. The review applicant, Ms Nriluk Srishataroon was born in Udon Thani, Thailand.  Ms Srishataroon arrived in Australia on 27 May 1999 as the holder of a TR 676 visa. She was granted a Subclass 820 visa on 2 January 2014.  In the application Ms Srishataroon claimed to be the biological mother of the applicant Tantichet Srichatarun.

11. In the delegate’s decision dated 10 August 2018 it was found the applicant had last been enrolled in a course of study in Semester 2 2014 (as per the statement of results from Burapha University dated 11 August 2017). The applicant had been given an opportunity to provide to the delegate evidence that he was enrolled for further study since that time but he had advised he had not enrolled in a further course since he was caring for his grandmother who was unwell. That being the case the delegate found he was not able to meet cl. 101.221(2)(b) of Schedule 2 to the Regulations because he was aged over 18 years at time of application and not undertaking a full-time course of study at the time of decision.

12. On 3 February 2020 the Tribunal wrote to the review applicant and requested that evidence be provided of the applicant’s continuous study since the visa application was lodged.

13. Prior to hearing the applicant provided to the Tribunal documents including character statements for the review applicant, bank account details for the review applicant, a letter in support from the sister of the applicant, income tax statements for the review applicant for the years from 2014 to 2021.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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).

15. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Regulations 1994. Relevantly to this case, they include cl.101. 213 and cl.101.221 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work, and study.

16. The delegate refused to grant the visa on the basis that cl.101.221(2)(b) was not met because there was no evidence that the applicant was at the time of decision, a full time student or undertaking a full time course of study leading to the award of a professional, trade or vocational qualification. There was no evidence before the delegate that he continued to be a full-time student beyond November 2017.

17. The issues in this case are whether the visa applicant meets cl.101.213 and cl. 101.221.

    Criteria for applicants over 18

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).

    Relationship status and history

19. 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).

20. The Tribunal accepts the oral evidence of the review and visa applicant that the applicant is not married, engaged to be married or in a de facto relationship now, and was not at time of application. There is no information before the Tribunal to contradict this, and no reason to not accept their oral evidence. Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

21. 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).

22. At the time of application, the visa applicant stated he had been engaged in employment as a salesperson since March 2016. He stated he was employed for 30 hours each week. At the time of hearing the evidence as to whether this employment was ongoing was equivocal. The applicant said he had not been in paid employment for the past seven years. The review applicant told the Tribunal the applicant had been working on a part time basis but was no longer working because of COVID.

23. The Tribunal accepts Thailand law establishes regular working hours of eight per day and 48 per week. (Hours of Work: Labor Protection Act, 1998 (as amended)).

24. The Tribunal accepts, on the oral evidence of the review applicants, that the visa applicant was previously employed on a part time basis but that has ceased due to COVID and that he is not presently engaged in full time work. Accordingly, cl.101.213(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

25. 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).

26. 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).

27. The Tribunal observes no claims have been made, and there is no evidence to suggest the applicant was incapacitated for work due to the loss of bodily or mental functions, and therefore cl.101.213(2) is not met in the present case.

28. 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. These cases are discussed further below.

29. In the material before the delegate, including the application form and material subsequently provided, no evidence was provided that the applicant was undertaking a course of study at the time of decision (10 August 2018). The information provided was that he had completed studies at Burapha University, Chon Buri Thailand during Semester 1 2013 and Semester 2 2013. He had also completed Semester 1 2014. No further transcripts were provided. A letter from the Registrar of the university dated 22 August 2017 stated he was currently enrolled in and studying in his fourth year at the Faculty of Political Science and Law.

30. On 27 June 2018 the applicant was requested by the Department to provide further evidence of study in the period from Semester 1 in 2014. In response the applicant wrote to the Department and stated he did not study in 2016 and 2017 because he was caring for his grandmother who was sick and required assistance. At the time of hearing the review applicant told the Tribunal the paternal grandmother of the applicant had died in 2016, the visa applicant said she had died in 2017. Both parties gave evidence the applicant had not studied since her death.

31. The Tribunal discussed the visa applicant's study history with the review applicant and visa applicant during the hearing.

32. Significantly and relevant for this review, the evidence before the Tribunal is that since Semester 2 2014 the visa applicant had not continued to study. This issue was discussed with the applicants at the hearing. No evidence was provided that the applicant had studied since then.

33. While the Tribunal is mindful of the difficulties for both the review applicant and the applicant in continuing to be separated and the implications for them and their extended family of their continuing to be geographically separated there is no dispute that the applicant was not continuously studying in the period from Semester 2 2014.

34. Accordingly, cl 101.213(1)(c) is not met at time of decision.

35. 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

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

    Moira Brophy
    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.

    …