Tran (Migration)

[2020] AATA 1141

Tran (Migration) [2020] AATA 1141 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chi Phuc Tran

VISA APPLICANT:  Mr Chi Khanh Tran

CASE NUMBER:  1709899

HOME AFFAIRS REFERENCE(S):          OSF2016039152

MEMBER:David Crawshay

DATE:27 March 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 27 March 2020 at 9:46am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time course of study – dates of study – gap between courses – short course to prepare for university entrance exams – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 101.213(1)(c), 101.221(2)(b)

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 2 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 applied for the visa on 13 April 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 (the Regulations). Relevantly to this case, they include cl.101.213, which relates to the criteria that need to be satisfied by an applicant who is over 18 years of age at the time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the visa applicant had not been studying in a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification, and he had not been in continuous full-time study since completing high school.

5. The review applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfied the criteria for applicants over 18 at the time of application and continues to satisfy that requirement at the time of this decision.

   Criteria for applicants over 18

8. 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).

9. Clause 101.213 states as follows:

   (1)   If the applicant has turned 18:

   (a)the applicant:

   (i)is not engaged to be married; and

   (ii)does not have a spouse or de facto partner; and

   (iii)has never had a spouse or de facto partner; and

   (b)the applicant is not engaged in full‑time work; and

   (c)subject to subclause (2), the applicant has, 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.

   (2)   Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

   Relationship status and history

10. 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).

11. The submission of the review applicant’s agent is that the visa applicant has never been in such a relationship, and there is no evidence in front of the Tribunal to show that he has ever been in such a relationship. The Tribunal is satisfied that cl.101.213(1)(a) is met at the time of application and continues to be met at the time of decision.

    Not engaged in full-time work

12. 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).

13. The submission of the review applicant’s agent is that the visa applicant has never been engaged in full-time work, and there is no evidence to show that he has ever been engaged in full-time work. The Tribunal is satisfied that cl.101.213(1)(b) is met at the time of application and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

14. 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).

15. 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).

16. 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.

17. In her decision, the delegate pointed out that the visa applicant had provided misleading information about when he ceased his studies at the College of Commerce and Tourism. The delegate said that he initially claimed that he studied there from September 2012 to September 2013, before submitting a document issued by the College that stated that the visa applicant studied from September 2012 until January 2013. The delegate said that the visa applicant submitted a written statement claiming he studied at the College until April 2013 but was unable to provide evidence of this end-date because the College did not submit his application to its parent college. The delegate stated that no evidence was provided to substantiate the visa applicant’s claim in relation to his ceasing his study with the College in April 2013. Based on an eight-month break in study – i.e. between January 2013 and September 2013 – the delegate was not satisfied that the visa applicant had been in continuous full-time study since completing high school.

18. The review applicant has since submitted a number of documents that seek to attest to the visa applicant ceasing study at the College in April 2013. Among these is a certificate that purports to be from the College of Commerce and Tourism, certifying that the visa applicant was a student of the College from September 2012 until April 2013. It states that, from May 2013, the visa applicant was no longer a student of the College and the College made efforts to erase his name and not to retain his study results. The Tribunal accepts that this document is genuine, and finds that the visa applicant was undertaking studies at the College from September 2012 until April 2013, when he withdrew.

19. The Tribunal finds that the visa applicant then studied a Bachelor of Business Administration from September 2013 to June 2018 at Phuong Dong University. The Tribunal finds that there was a gap between his first course and this course of around five months, from April to September 2013. The question for the Tribunal is whether, characterised as a whole, the visa applicant’s conduct in the period which includes this gap warrants the conclusion that he has been undertaking relevant study.[1] In doing so, the Tribunal must have regard to all relevant circumstances including the nature and duration of the gap and any explanation for the gap.[2]

    [1] Hussein v MIBP [2017] FCCA 3247, [111] (Judge Barnes).

    [2] Ibid [114].

20. During this gap, in May and June 2013, the visa applicant claims to have enrolled in a short course organised through his high school to prepare himself for university exams. Evidence was submitted in the form of a document titled “Application for confirmation” and dated

    
    

    8 April 2017, stating that the visa applicant applied for and studied such course. The document was drafted by the visa applicant but was certified by the school, using its official seal. The Tribunal is satisfied that the visa applicant undertook the claimed course.

21. The Tribunal has considered the relevant circumstances. It has had regard to evidence that the visa applicant undertook a course through his high school. It has considered the submission of the review applicant’s representative that the process of securing a place in a university course in Vietnam is highly competitive. It notes that the visa applicant was ultimately successful in applying for a Bachelor of Business Administration in September 2013. The Tribunal accepts that, after having considered these circumstances, the visa applicant’s conduct warrants the conclusion that he had been undertaking relevant study at the time of application and up until he graduated from the Bachelor of Business Administration in June 2018.

22. The Tribunal is satisfied that, at the time of application, the visa applicant had, since turning 18 or within six months of completing the equivalent of year 12 in the Australian school system, been undertaking a full-time course of study at an educations institution leading to the award of a professional, trade or vocational qualification.

23. Accordingly, cl.101.213(1)(c) is met at the time of application.

24. Following graduation from the Bachelor of Business Administration course in June 2018, the visa applicant claims to have commenced study for a Master of Business Administration through Phuong Dong University in November 2018. Evidence was submitted to support this claim, including a document titled “Notification of entry into master’s level” dated 15 November 2018. The Tribunal accepts that this document is genuine. It accepts that the visa applicant’s studies continued through enrolment in this course.

25. A final issue for the Tribunal was the visa applicant’s current study status. At the time of hearing, the Tribunal had no evidence stating when his Master’s degree was due to finish and if the visa applicant was currently studying this course other than what had been claimed by the visa applicant himself. The visa applicant told the Tribunal that he had in his possession a document dated 18 February 2020 from the university to show that he was currently enrolled, and the Tribunal requested this document given that it did not appear on its file.

26. Following the hearing, a document titled “Certification” and dated 18 February 2020 was submitted. The document stated that the visa applicant was studying a Master of Business Administration in the second year (2019-2020) at Phuong Dong University. The document carried the official seal of Phuong Dong University. The Tribunal accepts that the document is genuine. It accepts that the visa applicant is currently enrolled in the Master’s course and is undertaking study.

27. Accordingly, cl.101.213(1)(c) continues to be met at the time of decision.

    CONCLUSION

28. For the reasons above, cl.101.213 is met at the time of application.

29. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

30. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

31. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221(2)(b) of Schedule 2 to the Regulations.

    David Crawshay
    Member