TRAN (Migration)

[2018] AATA 2350

TRAN (Migration) [2018] AATA 2350 (31 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Van Luyen Tran

VISA APPLICANT:  Miss Thi Kieu Tien Tran

CASE NUMBER:  1706341

HOME AFFAIRS REFERENCE(S):         OSF2016/038768

MEMBER:K. Chapman

DATE:31 May 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 31 May 2018 at 9:36pm

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 107 (Child) – Full time study requirement – Failure to enrol in a full time course – Commencement of full time course – Part-time tuition studies – Decision under review affirmed

LEGISLATION
Migration Ac 1958, ss 65, 359AA
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 Immigration and Border Protection on 21 March 2017 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, Miss Thi Kieu Tien Tran, applied for the visa on 3 November 2016. She was aged 19 years of age at the time of application and is now aged 20 years. The visa application was sponsored by her father, Mr Van Luyen Tran (‘the review applicant’), who is an Australian permanent resident. The review applicant is divorced from the mother of the visa applicant. He was sponsored to Australia through an offshore Partner visa but is now divorced from the sponsor of that visa. The review applicant is currently sponsoring a new partner for a Prospective Marriage visa.    

3. 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). 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 and cl.101.221.

4. The delegate refused to grant the visa on the basis that cl.101.213 and cl.101.221 were not satisfied by the visa applicant because she was assessed not to have been a full time student since turning 18 years of age at the time of the visa application. On 28 March 2017, the review applicant applied to the Tribunal for review of the visa refusal decision. He provided a copy of the visa refusal decision with his application for review.

5. The review applicant appeared before the Tribunal on 24 April 2018 to give evidence and present arguments. He confirmed that only he was giving oral evidence to the Tribunal. His registered migration agent made pre and post hearing submissions but did not attend the review hearing. Those submissions have been duly considered by the Tribunal.

6. The review hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The Tribunal notes that the initial interpreter was replaced with a new interpreter at an early point in the review hearing. The review applicant confirmed on several occasions that he understood the new interpreter and the review hearing commenced afresh with that interpreter. The Tribunal observed no problems with the conduct of the review hearing utilising the new interpreter, nor did the review applicant raise any issues of concern with their interpreting services.

7. During the review hearing the Tribunal raised information with the review applicant pursuant to the procedures in s.359AA of the Act. He requested to respond in writing and the Tribunal permitted him to do so. Such written submissions dated 26 April 2018 were received on 1 May 2018 and have been duly considered by the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. An issue in the present case is whether the visa applicant, at the time of application, satisfied the full time study requirements (which are described in further detail below). A further issue is whether she continues to satisfy such requirements at the time of this 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). For the reasons that follow, it is only necessary for the Tribunal to make findings with respect to the study requirements.

    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). However, this requirement does not apply in the case of visa 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). The Tribunal notes there is no evidence before it to suggest the visa applicant has ever been incapacitated for work due to the loss of bodily or mental functions, nor was that contention advanced by the review applicant. The Tribunal finds accordingly. Therefore, cl.101.213(1)(c) must be satisfied by the visa applicant in order for her to be granted the Child visa.

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].

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. The review applicant informed the Tribunal in his oral evidence that the visa applicant (his daughter) remains dependent upon him even though she is an adult. She turned 18 years of age on 16 August 2015 and was 19 years old at the time of the visa application. The visa applicant left school during year 9. The review applicant explained that at the time his daughter turned 18 years of age she was receiving English tutoring from a Mr Nguyen Duy Doan for 3 sessions per week for 1.5 hours each session. She was not doing anything else. Mr Doan was a private tutor and a university graduate. When asked by the Tribunal if Mr Doan’s tutoring was leading to the award of a qualification, the review applicant advised that his daughter was ‘only learning English for daily usage.’ The review applicant told the Tribunal his daughter was studying with Mr Doan for a period of approximately 6 months, from 1 May 2015 until 30 November 2015.

15. The review applicant advised that after finishing study with Mr Doan the visa applicant stayed at home and ‘did nothing’ until starting a nail manicure course in around June 2016. He confirmed this information to the Tribunal. The review applicant advised that his daughter obtained an allergy and had to cease the nail manicure course in around December 2016. According to the review applicant, his daughter ‘didn’t do anything’ other than studying English on the internet until starting an English language course at Duong Minh Language School in July 2017. She studied English language there 3 days per week from 9:30am to 11am and between July 2017 and September 2017 she only conducted that course. He advised that in September 2017, the visa applicant recommenced secondary schooling in year 9 continuing education and concurrently studied the English language course at Duong Minh Language School. The review applicant confirmed to the Tribunal that his daughter did not study from December 2016 until July 2017 when she commenced at the Duong Minh Language School, which was followed by concurrent study of the Year 9 continuing education course from September 2017. The review applicant advised that his daughter continues to conduct these concurrent studies.

16. Pursuant to the provisions of s.359AA of the Act, the Tribunal raised with the review applicant that the Department of Immigration file (at folio 92) contains a record of interview conducted between the visa applicant and a Departmental officer in Vietnam on 15 February 2017. The Tribunal advised that this record tends to suggest that the visa applicant between turning 18 years of age in August 2015 and June 2016 studied English with a tutor from 8:30am to 11am on 3 days per week, from June 2016 to December 2016 she studied manicure at World Nail, and from the conclusion of her manicure studies in December 2016 she stayed at home until the date of the interview.

17. The Tribunal advised that the above information is relevant to the review as it tends to suggest that the visa applicant has not since turning 18 years of age been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Accordingly, if the Tribunal relied upon the information it would be the reason or part of the reason to affirm the decision under review. The review applicant confirmed he understood why the information is relevant to the review and the consequences of the Tribunal relying upon it. The Tribunal offered the review applicant more time to comment on or respond to the information. He requested an adjournment which was granted. Following that adjournment he requested to respond in writing after the review hearing. The Tribunal granted that request and has duly considered written submissions lodged on his behalf on 1 May 2018.

18. Pursuant to the provisions of s.359AA of the Act, the Tribunal also raised with the review applicant that the Department of Immigration file (at folio 78) contains a ‘Study Time Confirmation Letter’ from Mr Nguyen Duy Doan dated 1 December 2016 indicating that he taught English to the visa applicant from 1 May 2015 to 30 November 2016. The Tribunal drew to the review applicant’s attention that he had earlier inconsistently advised in oral evidence that such instruction took place between 1 May 2015 to 30 November 2015. The Tribunal advised that this information is relevant to the review as it tends to suggest that the visa applicant has not since turning 18 years of age been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. Accordingly, if the Tribunal relied upon the information it would be the reason or part of the reason to affirm the decision under review.

19. The review applicant confirmed he understood why the above information is relevant to the review and the consequences of the Tribunal relying upon it. The Tribunal offered the review applicant more time to comment on or respond to the information. He requested the opportunity to provide a response in writing after the review hearing. The Tribunal granted that request and has duly considered written submissions lodged on his behalf on 1 May 2018.

20. The submissions received on 1 May 2018 (dated 26 April 2018) contend that the visa applicant since turning 18 years of age studied English at home, then commenced vocational study as a baker then as a nail technician but could not complete those courses due to allergic reactions to bakery products and chemicals. They contend she attempted to gain entry to a recognised educational institution to continue further studies but could not do so due to lack of secondary education and is now continuing her secondary education. It is stated at paragraph 9, “The Visa Applicant has clearly failed to enrol in a full time course of study at an educational institution since turning 18. Therefore, the Tribunal is required to consider whether the Visa Applicant has commenced full time studies within a reasonable period of time.” Additionally, the submissions indicate that the review applicant was mistaken with the dates he gave with respect to Mr Doan’s tuition and the information provided by the visa applicant through the letter from Mr Doan reflects the correct dates. The Tribunal has carefully considered the submissions.

21. For completeness, the Tribunal notes that at the review hearing it raised with the review applicant that two letters he submitted tend to suggest the visa applicant has not since turning 18 years of age been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. He was invited to comment upon a letter he submitted from the Director of Career Education dated 13 March 2018 (at folio 47 of the Tribunal file) indicating the visa applicant has been studying Year 9 in the school year 2017 to 2018 and he confirmed that this study commenced from September 2017. Further, the review applicant commented that a Certification letter he submitted from the Duong Minh Language School dated 14 April 2018 (at folio 49 of the Tribunal file) indicates the visa applicant is currently studying ‘Breakthrough Plus 3A’ and he confirmed that this course started in July 2017.

22. The Tribunal has carefully considered all of the evidence submitted on behalf of the review and visa applicants’. The Tribunal finds that the visa applicant had not completed the equivalent of year 12 in the Australian school system at the time she turned 18 years of age on 16 August 2015, nor has she done so at the time of this decision. Accordingly, the Tribunal must assess whether the visa applicant has since turning 18 been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The Tribunal does not accept submissions lodged on behalf of the review applicant that it is to assess the visa applicant using the ‘6 months’ or ‘reasonable time’ periods applicable for those who have completed the equivalent of year 12 in the Australian school system.

23. The Tribunal notes that the submissions received on 1 May 2018 refer to the visa applicant studying to become a baker. When considering the following material submitted to the Tribunal by the review applicant, being an earlier submission dated 19 April 2018 referring to the visa applicant performing bakery training ‘until 2015’ (at folio 56 of the Tribunal file) in conjunction with a translated Curriculum Vitae indicating the visa applicant in 2014 ‘learn to make cookies’ (at folio 53 of the Tribunal file), the Tribunal finds that the bakery studies took place before the visa applicant turned 18 years of age. Accordingly, they are not studies in the period following the visa applicant turning 18 years of age.

24. The Tribunal accepts that the visa applicant studied English language with Mr Doan from 1 May 2015 until 30 November 2016 as noted in his letter. It is further accepted that the review applicant was confused as to these dates in oral evidence and no adverse inference is drawn. However, the Tribunal finds that this study was part time in nature, was not conducted at an educational institution and did not lead to any award. The Tribunal also accepts that the visa applicant studied the manicure course from June 2016 until December 2016 and that it was on a full time basis. The Tribunal also accepts that the visa applicant has studied English at the Duong Minh Language School on a part time basis from July 2017 until the present time and that she has studied full time Year 9 continuation from September 2017 until the present time (including concurrently studying since September 2017). The Tribunal also accepts that the visa applicant has informally studied English language at home on the internet intermittently since turning 18 years of age, however finds that this has not been on a full time basis, nor through an educational institution, nor has it led to an award.    

25. Following careful consideration of the evidence, the Tribunal finds that the visa applicant was not undertaking a full time course of study at an educational institution leading to the award of a professional, trade or vocational qualification between 16 August 2015 and June 2016 (from her 18^th birthday until commencement of the manicure course), or from December 2016 until September 2017 (from her concluding the manicure course until commencement of full time Year 9 continuation study). That is so even if the manicure course is accepted as meeting the full time study requirements. The visa applicant had simply not been studying full time since the age of 18 years, in the manner contemplated by cl.101.213(1)(c), at the time of the visa application. Nor was she so studying during a significant portion of time during the period following the time of application. Therefore, cl.101.213(1)(c) is not satisfied by the visa applicant. At the time of decision, cl.101.213 does not continue to be satisfied. Accordingly, cl.101.221(2)(b) is not satisfied by the visa applicant.

26. 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

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

    K. Chapman
    Member