1407473 (Migration)

[2015] AATA 3072

1407473 (Migration) [2015] AATA 3072 (9 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jainoor Mallam

VISA APPLICANT:  Mr Jason Bertrand Mallam

CASE NUMBER:  1407473

DIBP REFERENCE(S):  osf2012/102969 OSF2012102969

MEMBER:Alan Duri

DATE:9 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2015 at 5:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Joseph and Jason Mallam were born on 8 July 1988 in Fiji.  Their father Mr Jainoor Mallam became an Australian permanent resident on 29 November 2008.

2. On 21 November 2012 Joseph and Jason Mallam applied for Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958.

3. On 19 February 2014 the delegate refused to grant the visas on the basis that cl.101.211 and cl.101.213 were not met.  The delegate noted that Jason has been employed for the majority of time since turning 18 and he has not been enrolled in full time studies.

4. [Note the delegate also refused Joseph’s application for different reasons.  Joseph’s matter is dealt with in a separate decision 1407870.]

   Hearing

5. The review applicant Mr Jainoor Mallam appeared by videoconference from Cairns before the tribunal on 9 July 2015 to give evidence and present arguments. The tribunal also received oral evidence from Jason Mallam.

   Mr Mallam’s evidence

6. Mr Mallam told the tribunal that Jason has never been married and does not work full time.

7. The tribunal asked Mr Mallam about Jason’s educational history.

8. Mr Mallam stated that Jason finished high school in 2007.  He subsequently went to New Zealand for a few years and returned to Fiji and undertook autocad training.  However Mr Mallam was not sure of the period this course occurred.  Mr Mallam told the tribunal that Jason commenced a Diploma in Electrical Engineering in January 2013 and completed the course in May 2015.  He is waiting for the graduation ceremony.  Mr Mallam said that the course was a full time course.  Mr Mallam also stated that Jason has worked over the years on a casual basis.

   Jason Mallam’s evidence

9. Jason was present at the hearing and gave evidence.  He explained that he was in Australia on a visitor visa.

10. Jason told the tribunal that he finished high school when he was about 19 years old.  He then travel to New Zealand for holidays and applied for an extension working visa.  He ended up staying in New Zealand until about September 2009.  Jason stated that he worked in various occupations such as cleaning at night and also as a data technician.  Following his return to Fiji, he enrolled in an autocad program.  He recalled that this course lasted about three months.  The tribunal noted a document on the file that suggested the course was conducted from February to April 2010.  Jason agreed that this would have been the case. 

11. Jason told the tribunal that he next studied from January 2013 when he enrolled at the Fiji National University for a Diploma in Electrical Engineering.  This was a full-time course and his course ended in May 2015.  However, he indicated that he is waiting for the graduation ceremony in December 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Jason Mallam was born 8 July 1988 and turned 18 on 8 July 2006.  The visa application was lodged on 21 November 2012, when he was 24 years old.  Based on information contained in the department’s’ file and in the oral evidence obtained at the hearing, the tribunal makes the following findings:

    ·Jason completed high school in Fiji on 5 December 2007.

    ·Jason attended the Fiji National University from February 2010 to April 2010 and undertook mechanical engineering modules referred to as autocad.

    ·According to the visa application, Jason indicated that he was not undertaking any post secondary course of study.

    ·Jason commenced work on 16 September 2009 for Matrix Holdings in Suva.  At the time of the visa application he was working 20 hours per week and earning FJ$150 per week. He has also worked at various other casual jobs.

    ·Jason enrolled in a Diploma of Electrical Engineering and undertook full-time studies from January 2013 until May 2015.  Jason is not currently enrolled in any course of education.

13. As Jason was over 18 at the time of the visa application he must satisfy educational requirements set out in cl.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.

    (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.

14. There is no evidence or no suggestion that cl.101.213(2) is applicable in this case.

15. Clause101.213 also needs to be continued to be satisfied at the time of the decision (cl.101.221(2)(b)).

16. Based on the findings set out above, at the time of the visa application Jason was not studying in any capacity.  He completed high school in 2007 and undertook a three month course in 2010.  The visa application was lodged in November 2012.  At that stage he was not undertaking any study.  While the tribunal acknowledges that Jason commenced study the following year, cl.101.213 requires that at the time of the visa application, the applicant is undertaking a full-time course of study.

17. This means that Jason was not 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 visa application in November 2012..  Accordingly, cl.101.213(1)(c) is not met at the time of application. 

18. In addition, as at the time of decision Jason is no longer undertaking full-time studies.  It follows that he also does not satisfy the time of decision criteria in cl.101.221(2)(b).

19. The tribunal further notes that, notwithstanding the problems with the educational history, Jason has provided evidence of long periods of time where he has worked on a casual basis.  However, given the tribunal is decision concerning the educational requirements, the tribunal did not need to go on to consider whether or not Jason was financially dependent upon Mr Mallam within the definition of r.1.05A.

20. It follows that an essential criterion for the grant of a Subclass 101 visa is not met.  There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

    DECISION

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

    Alan Duri
    Member