Zheng (Migration)

[2017] AATA 756

Zheng (Migration) [2017] AATA 756 (26 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Yu Chun Zheng

VISA APPLICANT:  Mr Hao Dong Zheng

CASE NUMBER:  1611730

DIBP REFERENCE(S):  OSF2016/037024

MEMBER:Kira Raif

DATE:26 April 2017

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 26 April 2017 at 11:52am

CATCHWORDS
Migration – Child (Migrant)(Class AH) visa – Subclass 101(Child) – Full time study – No study during relevant period – Course did not lead to professional, trade or vocational qualification – Not presently enrolled in full-time course leading to formal qualification

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

CASES
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 on 12 July 2016 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 is a national of China, born in July 1996. The visa applicant applied to the Department of Immigration for the visa on 18 February 2016. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the applicant was undertaking relevant study. The applicant’s father, who was the sponsor in the application (‘the review applicant’) seeks review of the delegate’s decision.

3.    The review applicant appeared before the Tribunal on 26 April 2017 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 Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Relevant law

4.    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).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). There are requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

6. 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 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). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

7.    In determining what is a ‘reasonable time’ for this requirement, 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.

Does the applicant meet the study requirement?

8.    There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’. The Tribunal finds that the visa applicant must meet cl. 101.213(1)(c).

9.    As the visa applicant was born in July 1996, the Tribunal finds that he was over 18 years of age at the time the application was made.

1. In relation to his study, the visa applicant stated on the application form that between 2012 and June 2015 he completed Jinqiao Fizhou School and between September 2015 and June 2016 he was undertaking a Diploma at Fujian New East Cuisine School. The applicant enclosed with his application statements from the two institutions confirming his status as a student and his mark sheets for the first course.

2. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant’s study at Jinqiao Fuzhou School between September 2012 and July 2015 had been confirmed by the school’s student registration office in March 2016. The Tribunal accepts that the visa applicant has completed that study in July 2015.

3. In relation to the second course, the primary decision record refers to the applicant providing a statement from the New East Cuisine School which refers to the applicant undertaking Cake baking classes from September 2015 to January 2016 and another statement showing the applicant continued in the same course between February 2016 and June 2016. According to the primary decision, the visa applicant was interviewed and initially stated he was undertaking a four year course but later said it was a two year course. He said he attended classes Monday to Friday and that classes started on 28 February 2016. He said the school distributed 7-8 books. The decision record indicates that the visa applicant could not provide details about the school building, class details or classmates.

4. According to the primary decision record, Fujian New East Cuisine School was contacted on a number appearing on the School’s website to verify the evidence. An officer of the school checked school records and advised that no record of the applicant could be found. The officer advised that there was no four year cake baking course. The officer explained that it is a training school where students pay and go to any class available on the day.

5. DIBP officer contacted the applicant’s teacher Mr Huang on the number provided by the visa applicant. Mr Huang first advised he could not recall the applicant’s name. An hour later Mr Huang was contacted again and advised that the applicant is a student at his class and is undertaking a four year course which commenced on 15 February 2016. Mr Huang stated that the applicant attends classes most days including the weekends and that the school distributes 2-3 books to students. (The visa applicant explained to the Tribunal in oral evidence that when he referred to 7-8 books, he included the notes he kept during classes. The Tribunal finds that explanation implausible since the Tribunal does not accept the visa applicant would be unable to distinguish between a textbook and the notes he took at lectures.)

6. The delegate notes that the information supplied by Mr Huang concerning the course duration, commencement of the course, the applicant’s attendance pattern and the number of books distributed contradicted the evidence provided by the visa applicant. Further, Mr Huang could not explain why there was no record of the applicant with the school.

7. The delegate also noted that the applicant provided false claims regarding his classmates. He named Jin Cai as a classmate but when that person was contacted, he said he was a classmate of the applicant at high school in Xiamen and not a current classmate.

8. In oral evidence to t the Tribunal the review applicant stated that since turning 18, the visa applicant had completed high school and wanted to acquire a skill and he found a teacher to become a pastry cook. The review applicant’s evidence about his son’s study was quite vague and he told the Tribunal that he was not familiar with his son’s study and he left these arrangements to his daughter. The review applicant could not state whether the pastry course was leading to a formal qualification and did not know the details about the course.

9. The review applicant told the Tribunal that the visa applicant commenced the Diploma in 2015 and that it was a two year course. He said the visa applicant left the course in the first half of 2016 because he did not like it and had transferred to another course. The review applicant could not recall when his son left the pastry course but said it was in the first half of 2016. He suggested it was between March and May 2016. The Tribunal is mindful that the primary decision record refers to the statement provided by the visa applicant with his application which refers to the visa applicant undertaking the course until June 2016. That suggests to the Tribunal that the review applicant may not have been truthful in his evidence to the Tribunal about his son’s course duration and attendance.

10. The Tribunal questioned the visa applicant about his study. The visa applicant told the Tribunal that he is presently enrolled in an Advanced Diploma of Interior Design at the Chinese Occupational Skills Institute. He commenced the course in September 2016 and has completed one semester of the four year course. The visa applicant said that between September 2015 and June 2016 he studied at the New East Cuisine School. The visa applicant said he completed half of the course before he left. The Tribunal questioned the visa applicant about the pastry course. The visa applicant could not state what subjects he has undertaken and although he repeatedly stated that he learned how to make various cookies and cakes, he was unable to offer any description of how to cook anything at all, stating he could not remember. In the Tribunal’s view, if the applicant did attend that course on a full-time basis for a period of a year, as he claims, he would have at least some knowledge of what the course was about.

11. The Tribunal acknowledges that the visa applicant has presented with his application written statements confirming his enrolment in the pastry course. Such evidence is insufficient to satisfy the Tribunal that he was in fact enrolled, and undertaking, that course. The significant discrepancies in the visa applicant’s evidence and the information supplied by his teacher, the fact that the visa applicant has little knowledge about the content of the course or its details, indicate to the Tribunal that the visa applicant had not been truthful in his evidence and the Tribunal is not satisfied that he did attend the pastry course between 2015 and 2016. The visa applicant’s complete lack of knowledge of the subject matter when questioned by the Tribunal supports the Tribunal’s view that the visa applicant did not undertake that study.

12. The review applicant repeatedly told the Tribunal that they have paid the tuition fees for the course and that means his son was studying. There is little documentary evidence confirming the payment of the tuition fees but even if they did pay the tuition fees, that is not sufficient to establish the visa applicant’s enrolment in the relevant course.

13. The Tribunal has had regard to the information contained in the primary decision record. The review applicant was unable to offer a satisfactory explanation for the discrepancies and deficiencies in the visa applicant’s evidence and the Tribunal found the visa applicant’s explanations unpersuasive. There is very limited evidence relating to the visa applicant’s attendance at the pastry course. Other than the brief statements that were provided with the primary application, there is no other evidence, for example, in the form of lecture notes, exam papers and results, statements from teachers and classmates, timetables, etc. The review applicant informed the Tribunal that since his son has left the course, they could not obtain any further evidence of his study but the evidence suggested above should have been available to the visa applicant throughout his study. Having regard to the very limited evidence of the visa applicant’s study between 2015 and 2016, the deficiencies in evidence identified in the primary decision record, and the visa applicant’s inability to offer any useful description of the course or its content, the Tribunal has formed the view that the visa applicant did not undertake the pastry course between September 2015 and June 2016 as he claims. The Tribunal is not satisfied the visa applicant was undertaking any study in that period.

14. The delegate also formed the view that the course the applicant claimed to be undertaking did not lead to a professional qualification. According to the primary decision, the school’s website indicates the school offers individual two months courses and there is no indication that the courses lead to a professional, trade or vocational qualification. The information supplied by the school was consistent with the information available on the website. The information suggests that at best, the visa applicant had been enrolled in short courses and not in an ongoing two year course. Both the visa applicant and the review applicant informed the Tribunal that the course was a formal Diploma course. The Tribunal notes that this explanation is not consistent with the information available on the school’s website and supplied by the school, as set out in the primary decision record. Thus, even if the Tribunal were to accept that the applicant was undertaking the course at Fujian New East Cuisine School (a claim the Tribunal does not accept), the Tribunal is not satisfied that this this was a course leading to the award of a professional, trade or vocational qualification.

15. Both the visa applicant and the review applicant told the Tribunal that the visa applicant is presently enrolled in an Advanced Diploma of Design. There is no documentary evidence before the Tribunal concerning the visa applicant’s current study and the review applicant’s migration agent informed the Tribunal that she was unable to obtain that evidence from the review applicant. For the reasons stated above, the Tribunal has formed the view that both the visa applicant and the review applicant have been less than truthful in their evidence concerning the visa applicant’s study. The Tribunal is not prepared to accept their assertions concerning the visa applicant’s current study without probative documentary evidence concerning such study. On the limited evidence before it, the Tribunal is not satisfied that the visa applicant is presently enrolled in a full-time course leading to a formal qualification.

16. The Tribunal is not satisfied that the visa applicant has been undertaking study since around June 2015. The Tribunal is not satisfied that the applicant has, since turning 18 or within 6 months or a reasonable period after completing the equivalent of year 12, been undertaking full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualifications. There is no evidence to indicate that the visa applicant was, at the time of making an application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal is not satisfied the visa applicant meets cl 101.213(2) and cl. 101.213.

17. Clause 102.211 requires the visa applicant to be under the age of 18 at the time of the application. As the visa applicant had turned 18 at the time when he applied for the visa, the Tribunal finds that she does not meet any of the subparagraphs in that clause. He does not meet cl. 102.211. There is no evidence before the Tribunal that the applicant is an orphan relative of the sponsor and the Tribunal is not satisfied that he meets cl. 117.211.

Conclusion

1. 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

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

Kira Raif
Senior Member