TRAN (Migration)

[2019] AATA 5040

TRAN (Migration) [2019] AATA 5040 (5 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr MICHAEL TRAN

VISA APPLICANT:  Ms THI THANH THUY TRAN

CASE NUMBER:  1727413

HOME AFFAIRS REFERENCE(S):           2013027119

MEMBER:Hugh Sanderson

DATE:5 November 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 November 2019 at 4:00pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study requirement – inconsistent information – continuation of studies – resit of examination – plans to commence a Master’s degree – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 November 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 20 August 2013. 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).

3. The delegate refused to grant the visa on the basis that cl.101.213 and cl.101.221 were not met because the delegate was not satisfied that the visa 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 a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

   Background

4. The review applicant was born in Vietnam. He entered Australia in 1998 and is an Australian citizen. He is the father of the visa applicant. DNA testing has taken place to confirm that he is the biological father of the visa applicant.

5. The visa applicant is a citizen of Vietnam. She was born in June 1994 and is currently 25 years old. Her mother and an older brother live in Vietnam. The current application was filed just after the visa applicant had turned 19 years of age.

6. The visa applicant claimed that she graduated from high school on 19 June 2012. She then enrolled in Hai Phong University studying for a Bachelor of Finance. She claims she was still studying the course when she applied for the Child visa. Various documents were provided by the visa applicant to show her enrolment and study at Hai Phong University.

7. The Department requested further information to confirm the visa applicant’s continuation of her studies. A letter was provided from Hai Phong University dated 12 September 2017 stating the visa applicant had studied Corporate Finance for the academic years 2012 to 2016, however, had not graduated as she had not completed some modules for the course. The visa applicant’s academic transcript dated 15 September 2017 provided details of a number of courses that she had failed.

8. The Department wrote to Hai Phong University to verify the visa applicant’s current studies. The University responded on 9 October 2017, stating the visa applicant commenced her studies in September 2012 and continued studying until December 2015. The visa applicant had not attended any classes since then but was on a list of students who are eligible to graduate on completion of her grades, and that eligibility would be reserved until 31 December 2020.

9. The visa applicant was interviewed by an officer from the Department on 26 October 2017. The visa applicant provided the following information:

   ·She was currently studying Banking Management at Hai Phong University, however, she wanted to get high scores in some modules and was waiting to undertake exams for the subjects;

   ·She had recently studied a module called Accounting Management for three months, but could not remember when she commenced that course of study; and

   ·When not at university she studies English part-time during the week and full-time on weekends with a tutor.

10. When the information obtained from Hai Phong University was put to the visa applicant, she initially indicated that she had been undertaking some assignment work in 2016 and had completed her module in Accounting Management in March or April 2016. She then claimed that she did not attend Hai Phong University from June 2016 to July 2017 and had enrolled in Accounting Management in March 2017.

11. The delegate who considered the application noted the following issues:

    ·The visa applicant had acknowledged that she had not attended university from June 2016 to July 2017, a period of over 12 months; and

    ·The visa applicant had stated that her study from January 2016 to June 2016 was part-time.

12. Based on these findings, the delegate was not satisfied that the visa applicant had, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification at the time of the application or at the time of the decision. The delegate found the visa applicant did not meet the criteria for the grant of the visa in cl.101.213(1)(c) and cl.101.221 and refused the application.

    Information to the Tribunal

13. The review applicant provided further information to the Tribunal including the following:

    ·Evidence of the visa applicant’s mother’s medical condition;

    ·Evidence of money being transferred by the review applicant to the visa applicant; and

    ·Records of the visa applicant’s study in Vietnam.

14. The visa applicant provided a statement where she made the following claims:

    ·She had been studying full-time at Hai Phong University since she completed high school in September 2012;

    ·Up until 2016 the visa applicant was required to attend classes six days a week and after that between three and four days a week, which still requires full-time study;

    ·The only time the visa applicant has not been studying was between University terms;

    ·The visa applicant was confused when spoken to by the Department and did not understand the southern Vietnamese accent;

    ·The visa applicant contacted Hai Phong University about the letter dated 7 October 2017 and claimed she was told the following:

    oThe visa applicant’s attendance record was fine;

    oThe University admitted an error in providing the letter, but was “unwilling to be accountable for their error as the staff that submitted this incorrect information would be severely affected”; and

    oThe University staff apologised to the visa applicant but was unwilling to admit they were at fault or provide a letter stating their mistake about her attendance;

    ·The visa applicant’s mother has multiple medical problems and the visa applicant is required to assist her and neither the visa applicant nor her mother obtains any income other than from the review applicant; and

    ·The visa applicant has never been in paid employment.

15. The review applicant appeared before the Tribunal on 18 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing.

16. The review applicant was unable to provide much information about the visa applicant’s study. He said that when he spoke to the visa applicant over the phone he always encouraged her to study hard and he believed that she had always been enrolled in a full-time course of study. He said the visa applicant had obtained the required documents from the University to prove her study. He said that she had now completed her course and her plan was to start a Master’s degree, which would commence in July 2020. He said that she would receive the results of the completion of her course in June 2020. He was not sure what she would be doing over the next 12 months.

17. The visa applicant said she was living with her mother. She said they were both financially dependent upon the review applicant as her mother was ill, and did not receive any other income.

18. The review applicant said she completed her current course on 25 May 2019. She said she planned to enrol in a Master’s degree, which would commence in September 2020. She said that she would only get the results from her final year of study in July 2020.

19. The review applicant claimed that in the 12 months after she finished her course she would be doing a project to help her prepare for the Master’s degree. She said that she also planned to study English. She said what she would study in the next 12 months would be guided by her teacher/supervisor who would propose topics for her to study before she started her Master’s degree.

20. The Tribunal referred to the letter from the University, which indicated she had not been enrolled in study at the University from January 2016 to October 2017. The visa applicant claimed that this was an error made by the University. She said there were two types of courses, one where a person would graduate within four years and a second extended course where you graduated after accumulating credits. She said this gave students time to repeat courses they failed. She denied that the course she was studying was a part-time course.

21. The Tribunal referred to various differences in the academic transcript dated 15 September 2017 and the new document provided dated 21 March 2019. This included details of the marks she received for various courses and the number of credits given for courses. The visa applicant claimed the marks were different because students could use the results from other exams and the higher mark was shown on the more recent certificate.

22. The Tribunal referred to the certificate dated 15 September 2017 which showed that of the last 24 courses she was enrolled in she failed 19 of those courses, which indicated she was not participating in those enrolled courses and was, at best, attending university only part-time. The visa applicant said that over that period her studies were adversely affected by her mother’s health situation. She said that she was required to provide care for her mother which was why the results were not good.

23. The Tribunal raised various issues with the review applicant and it was agreed that the review applicant would provide submissions and any further information to the Tribunal by 19 July 2019. The Tribunal would also arrange for the verification of the certificate from the University dated 21 March 2019.

24. The report for the integrity check of the documents provided by the review applicant was as follows:

    Integrity HCMC verified the education documents to Hai Phong University and was advised the documents the applicant provided is genuine. However, the Hai Phong provided further information that you may need for further consideration.

    ·The applicant enrolled as a full-time student for the bachelor course started in 2012 which was expected to complete in 2016. However, the applicant was not satisfied to graduate as she failed most of subjects. The applicant was allowed to re-sit (to re-take the test) by September 2020.

    ·Hai Phong University informed the transcript that the applicant provided to department was issued in 2016 only reflected the score of attendant and mini tests taken during the time she studied. It did not appear the final score that the applicant obtained from each subjects. They attached a final score list indicating the student likely failed most of the subjects. They also explained the student would receive ‘0’ score if she did not sit for the test.

    Base on the transcript report provided by the Hai Phong University, it indicated the applicant did not take 18/43 final tests during her full-time study from 2012 to 2016. And the period of 2016 – 2019 is the time the applicant needs to re-sit for examination only…

    I will close this referral with ‘serious concern’ outcome.

25. The Tribunal wrote to the review applicant on 6 September 2019 pursuant to s.359A of the Act with the results of the integrity report. The Tribunal noted that if the integrity report was accepted, it indicated the visa applicant was not a full-time student from 2016 – 2019 as she was only required to sit for exams and was not undertaking a full-time course of study. The review applicant was also invited to provide evidence that the visa applicant had enrolled in and been accepted for the claimed Master’s degree. The review applicant was requested to provide evidence of the completion of her previous studies and acceptance into the further study.

26. The review applicant provided a letter from Hai Phong University dated 23 September 2019 confirming the visa applicant was a full-time student of the University from January 2016 to June 2019. A further letter was provided dated 25 September 2019 from the rector of Hai Phong University certifying that the visa applicant had submitted her application for the Master’s entrance exam in the first period of 2020 at Hai Phong University.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The issue in this case is whether the visa applicant meets the additional criteria for applicants over the age of 18. Specifically, the issue identified in the Department’s decision is whether the visa applicant has been engaged in full-time study as required by cl.101.213(c).

    Criteria for applicants over 18

29. 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

30. 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).

31. There is no information before the Tribunal which would indicate the visa applicant has been engaged to be married or has ever married or been in a de facto relationship.

32. Accordingly, cl.101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

33. 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).

34. There is no information before the Tribunal which would indicate the visa applicant has been engaged in full-time work at any time.

35. Accordingly, cl.101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

36. 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).

37. 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). There is no information before the Tribunal that would indicate the visa applicant has ever been incapacitated for work due to any reason.

38. 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.

39. The visa applicant has claimed that she has been a full-time student at Hai Phong University since completing high school. She claims her studies started in July 2012 and continued until June 2019. She claimed that she was now enrolled to complete a Master’s degree commencing in September 2020. The Department identified a period from January 2016 to June 2016 where it concluded the visa applicant was engaged in only part-time study. The Department also identified the period from June 2016 to July 2017 when the visa applicant was not engaged in any study.

40. The evidence of the visa applicant is that she completed her current course of study at Hai Phong University on 25 May 2019. She claimed that she planned to be enrolled in a Master’s degree commencing on September 2020. She claimed that she was, at the time of hearing, planning to study English and would be studying, as guided by her teacher/supervisor, topics to assist her in her Master’s degree.

41. The letter provided from Hai Phong University dated 23 September 2019 supports a finding that the visa applicant was engaged in full-time study at the University from January 2016 to June 2019. This is despite the fact that previous documents provided by the University did not indicate the visa applicant was studying over this period, but was merely a period where she was allowed to re-sit exams in order to improve her marks. It is also inconsistent with the letter from Hai Phong University dated 9 October 2017, which stated the visa applicant was engaged in full-time study until December 2015 and had not attended classes since then. This indicates that the visa applicant was not, from 2016, undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

42. The visa applicant claimed that the information provided by Hai Phong University in their letter dated 9 October 2017 was a mistake by a member of staff that had submitted incorrect information. It was claimed that although acknowledging this error to the visa applicant, Hai Phong University was not willing to provide a letter or any other documentation acknowledging this error “as the staff that submitted this incorrect information would be severely affected”.

43. The Tribunal does not accept that, if Hai Phong University had provided incorrect information as to the visa applicant’s study at the University, it would not be willing to provide documentation to correct that information and acknowledge the error in their previous letter. If this information were provided to the visa applicant and to the Tribunal on review this would not lead to any repercussions for the staff member at Hai Phong University and that staff member would not need to be identified. The Tribunal does not accept the claims of the visa applicant that the information provided by Hai Phong University in its letter dated 9 October 2017 was a mistake. The Tribunal does not accept that if the information in that letter was a mistake, the University would not have been willing and able to provide a correction regarding the information provided to the visa applicant.

1. When the documentation provided by the visa applicant, including the academic transcript, was referred to Hai Phong University it was confirmed that the period from 2016 to 2019 was the time the visa applicant needed to re-sit her examinations. The University did not indicate she was undertaking a full-time course of study. The period that she was allowed to re-sit her exams is the equivalent of the four-year period of time that the normal course would be completed in. This does not support a finding that the visa applicant over this period was undertaking a full-time course of study.

2. The visa applicant has now provided a letter from Hai Phong University 23 September 2019, stating that the visa applicant was a full-time student at the University from January 2016 to June 2019. This is inconsistent with previous information provided from the University. There are no details of the courses the visa applicant was undertaking over this period or the hours she was required to attend university.

3. The visa applicant claimed that she ceased studying at the University in May 2019 and received her results in June 2019. She claims that she is now planning to undertake a Master’s degree at the University, commencing in September 2020. She has provided a letter from the Rector of Hai Phong University stating that she has submitted an application for the Master’s entrance exam in the first period in 2020. This does not indicate that she has been accepted into undertaking a Master’s degree. There is no information as to when the entrance exam is to take place. It was claimed that she would only get the results from the entry examination in July 2020. There is no explanation as to why, if she completed her studies in June 2019, she would not be starting a Master’s degree until September 2020, more than a year later.

4. The claim that the visa applicant will be commencing a Master’s degree in September 2020 is speculative. Her past results from Hai Phong University indicate that she has failed, at some time, the majority of subjects that she claims to have sat for. The period of time from the visa applicant claiming to have completed her degree at Hai Phong University to her plan to commence a Master’s degree is inconsistent with her currently undertaking a full-time course of study.

5. The visa applicant claimed that as she has finished her undergraduate degree, she planned to study English and undertake course projects which would assist her complete her Master’s degree. The visa applicant has provided no independent information which would indicate that she is undertaking any course of study at an educational institution at this time or that she will be undertaking any course of study until, at the earliest, September 2020. The Tribunal is not satisfied that at the time of this decision the visa applicant is undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

6. The Tribunal has considered all the circumstances of the visa applicant and her claims as to her study and proposed study in the future. The Tribunal finds the visa applicant ceased being a full-time student at Hai Phong University not later than June 2016 after commencing her studies in 2012. At that time, the visa applicant had failed multiple subjects in her course and as a result was not able to graduate. After that time she was allowed a further four-year period to re-sit the exams which she had failed or did not achieved a satisfactory mark. Over this period, the visa applicant was not undertaking a full-time course of study as she was only re-sitting exams, which did not require her attendance at the University as a full-time student.

7. After re-sitting the required exams, the visa applicant graduated from Hai Phong University in June 2019. The Tribunal finds that after that time the visa applicant has not been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

8. The visa applicant claims that she is planning to commence a Master’s degree, starting in September 2020. This is more than a year after she graduated from Hai Phong University with an undergraduate degree. The Tribunal does not accept that the delay from the end of 2015 2012, when she ceased studying full-time, or from June 2019, when she completed her undergraduate degree after re-sitting exams, to when she proposes to commence a Master’s degree, can be considered a reasonable time in any break in full-time study.

9. The visa applicant has not been accepted or enrolled into the Master’s degree. At most, the visa applicant has submitted an application for the entrance exam. The claim that she proposes to undertake a Master’s degree is speculative and, in light of the fact that the visa applicant failed multiple exams while undertaking her undergraduate degree, the probability of her passing the entrance exam becomes remote.

10. There is no information why, if the visa applicant did genuinely intend to enrol into a Master’s degree that she had not submitted an application for the entrance exam prior to or at the time of her completing her undergraduate degree in June 2019. The claim that she is intending to commence a Master’s degree appears to be made simply for the purposes of the immigration application and not a genuine reflection of any intention or capacity to continue to undertaking a full-time course of study.

11. The visa applicant has claimed that she was required to provide care for her mother who suffers from various medical conditions. There is little information which would indicate the type or amount of care that the visa applicant is required to provide to her mother. There is little information which would indicate that the assistance the visa applicant is required to provide to her mother would make the period in which the visa applicant has not been undertaking a full-time course of study as described above a reasonable period.

12. In all the circumstances, the Tribunal is not satisfied that at the time of this decision the visa applicant continues to be undertaking a full-time course of study at an educational institution leading to the award of a professional or trade or vocational qualification. The Tribunal is not satisfied that any break in the visa applicant undertaking a full-time course of study since completing the equivalent of year 12 in the Australian school system has been reasonable.

13. The Tribunal finds cl.101.213(1)(c) does not continue to be met at the time of this decision. Accordingly, cl.101.221(2)(b) is not met.

14. 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

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

    Hugh Sanderson
    Member