Tran (Migration)

[2022] AATA 2959

Tran (Migration) [2022] AATA 2959 (15 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Le Xuan Tran

VISA APPLICANT:  Mr Anh Loc Nguyen

REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)

CASE NUMBER:  2015714

HOME AFFAIRS REFERENCE(S):          2019007334 OSF2019/007334

MEMBER:Stephen Conwell

DATE:15 July 2022

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 15 July 2022 at 3:57pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – reasonable time – lengthy period studying for English tests – leading to the award of a professional, trade or vocational qualification – decision under review affirmed 

LEGISLATION

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

CASES

Dai v MIAC [2007] FMCA 1345
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 28 August 2020 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 (applicant) applied for the visa on 2 August 2019. 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 of 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 of not being satisfied based on the available information that 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 applicant was represented in relation to the review by her registered migration agent (representative).  

7. 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 by way of video hearing via Microsoft Teams. The Tribunal exercised its discretion to hold the hearing by video. The parties raised no objections as to conducting the hearing in this manner. 

8. The applicant participated in the hearing by video on 14 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor (Mdm Le Xuan Tran). Both parties are currently in Vietnam. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative and the interpreter also attended the hearing by video.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant has fulfilled the criteria applicable to applicants aged 18 years or over, relating to post-secondary studies.

    Criteria for applicants over 18

11. 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).

12. The applicant was born on 1 January 1995 and lodged this application on 18 March 2019, when he was 24 years of age.

    Relationship status and history

13. At the time of application, the 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).

14. According to file notes dated 12 February 2020 of his interview with a Departmental official, (Departmental file fols.86-91), as well as the applicant’s oral testimony at hearing,  the applicant has never been engaged, or been the spouse or a de facto partner in a relationship.  Based on this written and oral evidence, the Tribunal is satisfied that at the time of the application, the applicant was not engaged to be married, did not have a spouse or de facto partner, and had never had a spouse or de facto partner. Accordingly, the applicant met the requirements of cl.101.213(1)(a) at the time of application. The Tribunal is satisfied that the applicant continues to meet this requirement at the time of decision.

    Not engaged in full-time work

15. 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).

16. According to a Departmental file notes mentioned above, the applicant confirmed that he had worked part-time as a waiter in restaurants and also held a two month ‘summer internship’ at an electronics importer, for which he was provided accommodation and transportation, but received no wages stores. The Department accepted that the applicant had not engaged in full-time work. Based on the written and oral evidence, the Tribunal is also satisfied that at the time of the application, the applicant was not engaged in full-time work. The Tribunal is satisfied that the applicant continues to meet this requirement at the time of decision.

    Full-time study (or incapacitated for work)

17. 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).

18. 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).

19. 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. As noted by the Court in Dai v MIAC,[1] the regulation does not require that the Tribunal find that the applicant has successfully completed the equivalent of year 12 or passed. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

    [1] Dai v MIAC [2007] FMCA 1345 at [46]–[48].

20. According to written evidence, including but not limited to, the decision record, the representative’s written submission dated 8 July 2022, the Departmental file notes of the applicant’s interviews with Departmental officials (as noted in the Departmental file and mentioned above), as well as the applicant’s oral testimony at hearing, his relevant study history may be summarised as follows:

    ·      the applicant completed high school in 2013;

    ·   from 2013 to 2016 he  studied at the University of Transport and Communications in Ho Chi Minh City, however ceased his studies in mid-2016, as he did not enjoy the course. He decided to learn English to prepare for further studies;

    ·   from 2016 to 2017 the applicant studied English. A Certificate of Graduation date 3 October 2017 shows that the applicant was awarded a Certificate in General English and English for Academic Purposes Level 4;

    ·   from 2017 to 2020 the applicant studied at University of Sunderland in Ho Chi Minh City. He was awarded a Bachelor of Arts with honours in Business Management.  A copy of his degree issued in May 2020 is included in the evidence;

    ·   since October 2020 the applicant claims he has been enrolled in, and presently studying towards, the International English Language Test (IELTS) as a precursor to further university study.

21. The applicant told the Tribunal that the sponsor sends him between AUD500-800 every month.  The sponsor told the Tribunal that she send him money via remittance or through friends who are intending to travel to Vietnam.  When she cannot send money every month, she tries to send him a larger sum on the next occasion. Both parties testified that the applicant receives financial support only from the sponsor. On the evidence before it, the Tribunal accepts that sponsor continues to support the applicant both financially and emotionally.

22. The question for the Tribunal is whether at the time of decision the applicant continues to meet the study requirement. As noted, 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 applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study.[2]  This involves consideration of what the applicant has been doing, the length, nature and explanation for any gaps in study.

    [2]  Hussain v MIBP [2017] FCCA 3247

23. The Tribunal accepts that the applicant was engaged in a full-time course of study at the time of his visa application. However he is also required to be a continuous full-time student since turning 18.

24. The Tribunal asked the applicant to explain the nature and schedule of his English course taken in 2016-2017. The applicant told the Tribunal that the course ran for a year over four semesters. He attended 5 classes a week. When asked why he had not submitted evidence of his study schedule or academic transcripts, he replied that this study was “a long time ago” and he didn’t keep any record of it. The Tribunal observed that the college at which he studied would no doubt have these records, to which the applicant responded that he was “trying to obtain a record of his studies.”

25. The applicant told the Tribunal he is currently enrolled full-time in further English studies, within the International English Language Test (IELTS) curriculum as a precursor to further university study. When asked by the Tribunal for evidence of this enrolment and of his study schedule, the applicant responded only in vague terms, claiming to have enrolled in the course in October 2020. He told the Tribunal that due to the global pandemic classes were initially offered entirely online until January 2021. Since then he claims to be attending in-person classes. He stated that it is an 18 month course which he hopes to complete by the end of this year.  He told the Tribunal that he would receive no certificate, however he would be awarded an IELTS Test score as evidence of English proficiency for the purpose of admission to further university studies.

26. On the evidence before it including the applicant’s oral testimony, the Tribunal finds there is insufficient evidence to support his claims that he continued to be a full-time student from mid-2016 to September 2017.  The Tribunal notes that the applicant has provided the Tribunal with the same evidence as was submitted to the Department – a certificate confirming the applicant’s completion of this English course. No academic transcripts or other documentary evidence has been submitted to confirm that the applicant’s English studies were full-time or would lead to the award of a professional, trade or vocational qualification. The Tribunal does not accept the applicant’s claim that he kept no record of this study, or that he is presently seeking to obtain such a record from the college.  This study was completed in 2017 and he has had ample time in which to obtain such records.  The Tribunal finds that the applicant’s English studies from 2016 to 2017, whilst no doubt of benefit to him, could not be characterised as study that would lead to the award of a professional, trade or vocational qualification.  Nor is there evidence to satisfy the Tribunal that the applicant’s English studies were full-time.

27. The same might be said about the applicant’s current enrolment in the IELTS English study. Despite claiming to have been enrolled in this current study since October 2020, the applicant has been unable to produce academic transcripts or other documentary evidence to confirm that these current English studies are full-time or would lead to the award of a professional, trade or vocational qualification. The only outcome he will achieve seems to be an IELTS score for assessment by universities and colleges regarding his proficiency in English. On the evidence before it including the applicant’s oral testimony, the Tribunal finds there is insufficient evidence to support his claims that he continues to be a full-time student as contemplated by cl.101.213(1)(c). 

28. The Tribunal notes that the applicant was over 18 years old when he commenced studying English in mid-2016. The Tribunal finds that on the evidence before it, that the applicant had not been undertaking continuous full‑time study since turning 18, or within 6 months (or a reasonable time) after completing Year 12 or its equivalent, since there is no evidence to indicate that the applicant’s current English studies are full-time or will lead to the award of a professional, trade or vocational qualification.  Consequently, and for the same reasons, the applicant does not continue to meet this requirement at the time of decision.  

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

30. 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 total or partial loss of bodily or mental functions, consequently cl.101.213(2) is not met in the present case.

31. 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

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

    Stephen Conwell
    Member