Zhu (Migration)

[2017] AATA 612

Zhu (Migration) [2017] AATA 612 (13 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ermei Zhu

VISA APPLICANT:  Mr Shudeng Lin

CASE NUMBER:  1509957

DIBP REFERENCE(S):  OSF2014/023926

MEMBER:Sue Raymond

DATE:13 April 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 13 April 2017 at 5:00pm

CATCHWORDS

Migrant – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – cl 101.213(1) – Applicant over 18 years – Continuing full-time study since leaving school – Applicant previously withdrawn from mother’s spouse application – Mother’s marriage broken down – No evidence of enrolment in full time study – ‘Non-qualification’ course

LEGISLATION

Migration Act 1958, s 359AA

Migration Regulation 1994, Schedule 2 cl 101.213(1), 1.03, 1.05A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The review applicant, Ms Zhu is seeking to sponsor her son, Mr Lin, to come to Australia on a Child (Migrant) (Class AH) visa. Ms Zhu is an Australian permanent resident. Mr Lin currently lives in China.

2. The visa applicant applied to the Department of Immigration for the visa on 4 August 2014. 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. On 28 May 2015 the delegate refused to grant the visa on the basis that cl.101.211, 101.213 and 101.221 were not met. The departmental delegate determined that as the applicant has not provided evidence of ongoing enrolment in full time study since turning 18 years old, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, she found that the applicant does not meet the requirements of subclause 101.213(1). The delegate concluded that the applicant therefore did not meet the definition of “dependent child” under subclause 101.211(1)(a).  

4. The review applicant appeared before a differently constituted Tribunal on 9 May 2016. That Member was not available to complete the review so the matter was reconstituted to the current Tribunal.

5. A further hearing was held on 19 July 2016 and at that hearing the Tribunal also heard evidence by conference telephone from the visa applicant in China. The current Tribunal has had regard to the evidence given at the initial hearing by listening to the recording of that hearing. A further hearing was held on 22 November 2016 and an opportunity provided after the hearing for the provision of additional documentation. The additional documentation was received by the Tribunal in December 2016. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. Two further files were before the Tribunal relating to the review applicant’s visa applications but the Tribunal has not relied on information in these files which is adverse to the applicant.

7. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearings via conference telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Ms Zhu initially included the visa applicant in her application for a spouse visa. His application was withdrawn as part of that process. Ms Zhu is in Australia on a permanent partner visa and her marriage has since broken down. She is seeking to sponsor her son to Australia on a Child subclass 101 visa.

10. The criteria for the child visa can be satisfied in a number of different ways. The issue in this case is whether the criteria for the child visa are satisfied, in particular whether the visa applicant has been undertaking a full time course of study, such as to satisfy visa sub-criterion cl.101.213(1)(c).

11. There are a number of facts which are not controversial. Based on the evidence before me I make the following findings:

    ·The visa applicant was born in April 1992 and is currently aged 25 years. He currently lives in China.

    ·At the time of the lodgement of the visa application he was 22 years old.

    ·The sponsor is an Australian permanent resident and is the mother of the visa applicant.

    ·The review applicant was granted a subclass 100 visa in December 2012.

12. As the applicant is over 18 years of age at the date of the visa application, he must satisfy certain requirements, one of which is cl.101.213. This criterion provides as follows:

    [101.213] (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.

    [101.213] (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.

13. I accept that the visa applicant is not engaged to be married; does not have a spouse or defacto partner; has never had a spouse or defacto partner and is not engaged in full-time work.

14. There is no evidence that the visa applicant is incapacitated for work due to total or partial loss of his bodily or mental functions. That is relevant for the purpose of cl.101.213(2), as it means that the visa applicant must satisfy the requirements of cl.101.213(1)(c).

15. Consequently the issue for consideration is whether “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.”

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

17. Ultimately, in this case I am not satisfied, on the evidence before me, that within 6 months or a reasonable time of completing the equivalent of year 12 in the Australian school system, the applicant has been undertaking a full-time course of study. The reason for the Tribunal’s lack of satisfaction is an evidentiary one. 

18. The review applicant is clearly distressed by the situation she finds herself in with her son in China and with her being in Australia and her marriage now broken down. However, the Tribunal must apply the migration law in conducting its review. The Tribunal caused certain enquiries to be made with the overseas post in relation to the two courses apparently undertaken by the visa applicant in China. The Tribunal also permitted further documentary evidence to be provided following the last hearing.

19. The Tribunal accepts for present purposes that the visa applicant finished high school in July 2011. At that time the visa applicant was 19 years old.

20. He is asserted to have commenced an English Language course at the Gulou Global Foreign Language Training Centre for the study towards the International English Language Testing System (IELTS). This course was apparently conducted from November 2011 to October 2012. For present purposes, I accept that the gap between high school and this course was reasonable.

21. One issue is whether the English Course was a course of full-time study at a relevant institution leading to a particular type of qualification. I have considerable doubt about whether the Gulou Global Foreign Language Training Centre is an “educational institution leading to the award of a professional, trade or vocational qualification.”  However, as to the question of whether it was full-time study, the documentation provided to the Tribunal certifies that he “had an English training course at the branch of the Global IELTS School from November 2011 to October 2012”.

22. Enquiries with the overseas post indicated that they spoke with a teacher at the school who confirmed that Mr Lin applied to study at the daily oral English class around the relevant period. There was no attendance record held by the training centre to reflect if he did attend the classes. The teacher at the Centre was asked if they have any evidence to suggest that he completed the course and the information was that the Training centre did not have any evidence to support the applicant’s claims. This information was put to the review applicant pursuant to section 359AA of the Migration Act at the hearing in November 2016.

23. I accept that an applicant could theoretically satisfy this requirement even though they did not ultimately achieve a qualification. The review applicant asserts that Mr Lin did undertake full-time study. No documentary evidence or evidence obtained from the Training Centre supports that assertion. I am ultimately not satisfied on the evidence before me that Mr Lin undertook full-time study at the Training Centre. I am also not satisfied that it is an educational institution leading to the award of a professional, trade or vocational qualification.

24. In addition, in relation to the study at the Sichuan College of Law and Commerce, the overseas post contacted the vocational study section of the Sichuan Education Department. The official confirmed that the school is a private school not eligible to provide a qualification. It is stated that the College is similar to the Training Centre which provides study courses to the student. The course the applicant attended was considered to be a ‘non-qualification’ course. The applicant would not obtain any qualification should he complete the study. On the basis of that information which was put to the review applicant in November 2016, under section 359AA of the Migration Act, I am not satisfied that the Sichuan College of Law and Commerce is an “educational institution leading to the award of a professional, trade or vocational qualification.”

25. It follows I am not satisfied that the requirements of cl.101.213(1) are met. As that is essential for the grant of the visa, in light of the fact that Mr Lin is over 18 years of age, the requirements for the visa are not met.

26. In addition, it is not entirely clear that Mr Lin is currently studying. Nevertheless, I have not relied on that aspect in making my decision.

27. The review applicant is upset and does not understand why the situation has ended in this way. She believes that it is not fair. She has supported her son. However, the Tribunal is bound by the migration law—in particular the Migration Regulations and specifically cl.101.213 of Schedule 2 to those Regulations. For the above reasons, the Tribunal affirms the decision under review.

28. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

29. The Tribunal records that although there is a non-disclosure certificate on the departmental file, the information in the material covered by the certificate (one folio) is irrelevant to the findings needed for the decision under review. Ms Zhu has recounted information about the history of her own partner visa application in the hearings before the Tribunal.

    DECISION

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

    Sue Raymond
    Senior Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.03   Definitions

    …

    dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

    (a)has not turned 18; or

    (b)has turned 18 and:

    (i)is dependent on that person; or

    (ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

    1.05A Dependent

    (1)Subject to subregulation (2), a person (the first person) is dependent on another person if:

    (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

    (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

    (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

    (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

    …