Do (Migration)

[2021] AATA 3840

Do (Migration) [2021] AATA 3840 (21 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Thanh Thuy Do

VISA APPLICANT:  Mr Minh Thuan Do

CASE NUMBER:  1835665

HOME AFFAIRS REFERENCE(S):          2015/071200

MEMBER:M. Edgoose

DATE:21 September 2021

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 21 September 2021 at 11:05am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – gap in studies – relationship status – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221; rr 1.03, 1.05

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 Home Affairs on 12 November 2018 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 applied for the visa on 16 September 2015. 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 and cl 101.221.

4. The delegate refused to grant the visa on the basis that cl 101.213 and cl 101.221was not met.

5. The review applicant appeared before the Tribunal on 21 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Minh Thuan Do the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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).

   Relationship status and history

9. 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).

10. The visa applicant confirmed at hearing that he is not engaged to be married and does not have and never has had a spouse or de facto partner.

11. Accordingly, cl 101.213(1)(a) is met. It 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 visa applicant informed the Tribunal that he does not work and has never worked. 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)

14. 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).

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. The Tribunal notes that according to the delegate’s decision on 19 December 2017 a case officer from the Department spoke with the Proctor of the District 8 Continuation Education Centre. The Tribunal notes that one of the Proctor’s responsibilities was managing the student records at the centre.

    The Proctor confirmed that the applicant was initially enrolled at their school in class 10B1 for the academic year 2016 to 2017 however the applicant only studied for one and half months, then stopped. When the new school year for 2017 to 2018 opened, the applicant applied to recommence his studies in class 10A1 and re-commenced studying on 15 August 2017.

    Although recommencing his studies on 15 August 2017 according to the statement made by the Proctor of the District 8 Continuation Education Centre the visa applicant was interviewed again by a case officer on 3 May 2018. The visa applicant informed the case officer that the information the department had received was correct however when asked why he had stopped studying after 1.5 months during the 2016 – 2017 school year the visa applicant stated:

    that he had moved house and that he did not go to study/school after that.

18. The case office then asked the visa applicant what did he do when he did not attend school. The visa applicant informed the case officer that:

    he stayed home and then also claimed that he registered to study English at the house of his mother's friend, which was next door to where he lived, and he studied English there from 6pm to 8pm on Tuesdays and Thursdays.

    The Tribunal notes that no evidence has been submitted to the Department or the Tribunal to support the visa applicant’s claim that he had registered to study English at the house of him mother’s friend. 

19. On 19 September 2018 the visa applicant claimed that during the 2016-2017 school year he was not well and was prescribed treatment by a doctor for sinusitis and that he took medication twice a day for one year. The visa applicant claimed that the medication made him sleepy and as a result was regularly late for class and as a result was marked absent. The Tribunal notes that the visa applicant was not able to provide a doctor’s letter or a copy of the prescription for his medical when requested by the Department. 

20. On 12 November 2018 the delegate refused the visa application based on the visa applicant providing inconsistent information on several occasions in relation to his studies. Based on the inconsistent information provided the delegate was not satisfied the visa applicant had been studying full-time since turning 18 years of age and therefore did not meet the requirements of clause 101.213(1)(c).  

21. At hearing the visa applicant claim that he has continued to study. The Tribunal informed the visa applicant that it had no evidence before it to support this claim. Prior to the hearing the review applicant has not provided the Tribunal with any evidence to suggest that the visa applicant is studying full-time. The visa applicant requested further time to provide information. The Tribunal refused this request given that the visa applicant has not supplied any evidence to support this claim since applying to the Tribunal on 5 December 2018.

22. Accordingly, cl 101.213(1)(c) is not met.

23. The review applicant informed the Tribunal that her son has continued to study. She believes that he has been studying and I believe in him. The Tribunal informed the review applicant that the Tribunal has no evidence before it that the visa applicant is currently studying. The review applicant requested further time to provide information. The Tribunal refused this request given that the review applicant has not supplied any evidence to support this claim since applying to the Tribunal on 5 December 2018.

24. There is no evidence before the Tribunal that the visa applicant was incapacitated for work because of loss of bodily or mental functions at the time of application. The visa applicant confirmed this at hearing. Therefore cl 101.213(2) does not apply.

25. At the time of decision, cl 101.213 does not continue to be met. Accordingly, cl 101.221(2)(b) is not met.

26. 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

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

    M. Edgoose
    Member