1412380 (Migration)

[2015] AATA 3539

1412380 (Migration) [2015] AATA 3539 (23 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Sadiq

VISA APPLICANT:  Miss Kausar Fatima

CASE NUMBER:  1412380

DIBP REFERENCE(S):  2013031152

MEMBER:Michael Cooke

DATE:23 October 2015

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 23 October 2015 at 1:21pm

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 30 June 2014 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 to the Department of Immigration for the visa on 22 April 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).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this case, they include cl.101.213.

4. The delegate refused to grant the visa on the basis that cl.101.213(1) was not met because he was not satisfied that the applicant was unmarried and a full time student.

5. The review applicant appeared before the Tribunal on 31 August 2015 to give evidence and present arguments. The Tribunal also received oral evidence from: The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant can meet the requirements of being unmarried and a full time student and dependent on her father.

   Dependent child criteria

9. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   Dependent child

10. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl.101.211(1)(a). ‘Dependent child’ is defined in r.1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

11. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is whether, as a matter of fact, the first person is relying for support on the other person: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

    Findings and reasons

12. The Tribunal has received additional financial information from the applicant’s father indicating continuous remittances to the applicant. The Tribunal is satisfied the applicant was over 18 at time of application and is a ‘dependent child’ of an eligible person at the time of application and decision.

13. Accordingly, cl.101.211(1)(a) is met at the time of application and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

14. At the time of application the visa applicant had not turned 25. There is nothing in the evidence to support a finding that the visa applicant was, at the time of the visa application, incapacitated for work due to the loss of her bodily or mental functions.

15. Accordingly, cl.101.211(1)(b) is met at the time of application and is not required to be met at the time of decision.

    Child-parent relationship

16. At the time of application and decision the visa applicant was a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen pursuant to cl.101.211(1)(c).

17. Accordingly, cl.101.211(1)(c) is met at the time of application and continues to be met at the time of decision.

    Conclusion about dependent child criteria

18. For the reasons above, the criteria in cl.101.211 and cl.101.221(2)(a) are met.

    Additional criteria for applicants over 18

19. There are additional 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).

    Relationship status

20. 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). The Tribunal has read both the delegate’s decision and the submission of the review applicant’s representative. The Tribunal is satisfied on the evidence before it  that the applicant was and is not engaged to be married, and did not have or ever has had a spouse or de facto partner. Accordingly, cl.101.213(1)(a) is met at the time of application and continues to be met at the time of decision.

    Not engaged in full-time work

21. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). The Tribunal finds no evidence that the applicant is or was engaged in full-time work. Accordingly, cl.101.213(1)(b) is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

22. 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).

23. 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]. 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 at [28].

    Findings and reasons relating to whether the applicant has been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12; when the study commenced; and whether the applicant is still studying.

24. In the present case, it is not in dispute that the visa applicant had turned 18 at the time of the visa application. The visa applicant was born on 19 September 1988 and had turned 18 by the time of the visa application. The evidence indicates that the visa applicant was 24 at the time of the visa application. Based on the evidence, the visa applicant had turned 18 on 18 September 2006.

25. It has had regard to the documentation that has been produced regarding the various courses that were undertaken by the visa applicant. It is satisfied on the evidence before it that she has completed the equivalent of Year 12 in the Australian school system in 2008.  In any event there had been a lengthy period prior to 2011 when the applicant was not in any way undertaking a full-time course of study at an educational institution. The delegate commented that the applicant was not studying full time since turning 18. The Tribunal has had the benefit of hearing the review applicant on this subject and has read his submission in which the delegate’s findings have been rebutted by the review applicant father.

26. The review applicant  has submitted the following comment:

    In response to the delegate's finding at [19.f.] above, we submit that Miss Fatima satisfied 101.213(1)(c) as she would be studying full-time in a course leading to the award of a professional, trade or vocational qualification, but for the fact that she was persuaded by her father Mr Sadiq to stop studying due to the volatile and unsecure security situation in the area in which she lives, Quetta, Pakistan. We submit that it would be unreasonable to expect Miss Fatima, as a young single Shi'a Hazara girl living alone in Quetta to continue studying amidst the volatile and unsecure security situation in Quetta, Pakistan.

    We note that Departmental policy, under Section 16 of the PAMs for the Subclass 101 Child visa, states that 'reasonable time', as used in subclause 101.213(1)(c), "as it applies to a break in study, is solely intended to cover the period between secondary school and post-secondary studies", and that it "is not intended that 'reasonable time' take account of breaks once post-secondary studies have commenced or for breaks between post-secondary studies and postgraduate studies'.

    We note that Miss Fatima had completed her secondary school at Government Girls Inter College Sardar Hassan Musa, in 2008. However, in 2008 and 2009, Mr Sadiq and his son, Muhammad Ali were subjects of attacks and threats, before Mr Sadiq fled Pakistan in 2010 with his family except for Muhammad All and Miss Fatima Miss Fatima reluctantly ceased her studies, before requesting her parents to allow her to be readmitted in college in 2011 which they reluctantly agreed until she had to pause her studies again in March 2012.

    We submit that these reasons contribute to a break in Miss Fatima's study for more than 6 months and should be considered reasonable gaps in her study given the compelling circumstances.

    We are instructed that Miss Fatima has since, in early 2015, resumed her studies of her B.A. at Govt. Sardar Hassan Musa Girls Degree College in Gulstan Town, Quetta, as evidenced by the attached copies of her enrolment and student card. She instructs that continues to study the same course, B.A., as the course she began in 2011.  

27. The Tribunal has constructed a timeline of the visa applicant’s study regime since leaving school at approximately age 20 in 2008. This is based on information in the visa applicant’s Department Form 80 and information she provided with her application and information submitted by the review applicant’s representative to the Tribunal. The review applicant has claimed she did not attend any study after leaving school from January 2008 until January 2011. She then was enrolled to study at Hasan Musa Degree College from January 2011 to March 2012 when she then withdrew. She then was re-admitted to her studies in March 2015 at Hasan Musa Degree College.

28. The delegate also informed (in the decision record on the Tribunal file) that the visa applicant gave conflicting information to the delegate as to why she did not commence or disrupted her studies. In his representative’s  submission the review applicant put the delegate’s conclusion thus:

    The delegate noted that she discontinued her studies in March 2012 due to the security situation. During the interview, the delegate noted that Miss Fatima initially claimed she does a few classes in the morning on some days and for the last 12 months had done stitching classes some evenings, although she was unable to name the teacher which could have allowed DISP to verify this information.

    When this inconsistency was put to her at interview, the delegate noted that Miss Fatima indicated she actually goes sometimes to the university to meet friends not to study but still does stitching sometimes the delegate was of the view that either way she is not a full time student.

    When asked about the reason for ceasing study, the delegate noted that Miss Fatima indicated it was because she has to do household duties, but in her application she indicated it was a result of the security situation.

    The delegate found that Miss Fatima's statement that she goes to meet some friends at the university also goes against the credibility of the claim that she ceased study due to the security situation.

29. The Tribunal notes the argument raised by the review applicant against the finding of the delegate. The finding of the delegate was based firstly on the observation that the visa applicant had not pursued post-secondary school education from 2008 until January 2011 and then withdrew from March 2012 until March 2015. Essentially the only study the visa applicant had performed was between January 2011 and March 2012 (1 year 2 months) and March 2015 to October 2015 (6 months). In other words since 2008 she has attended school for one year and 8 months in nearly 7 possible study years.

30. The review applicant has argued that disruptions caused to her studies by the claimed dangerous situation for Shia Muslim Hazaras in Quetta Pakistan have created the scenario where the visa applicant has not been undertaking full-time study since leaving school. They argue that the visa applicant has been undertaking full-time study within 6 months (or a reasonable time) after completing year 12. The review applicant has argued that the visa applicant did not begin her studies in June 2008 and when she did commence in January 2011 that was a ‘reasonable time’ after completing year 12 when faced with the impact of the security situation in Quetta.

31. The Tribunal does not consider the attempts (in the review applicant’s submission) to counter her inconsistent responses to the delegate as to why there was a break in her study regime - as satisfactory. The review applicant rejects that she said to the delegate that she ceased studies because she ‘had to do household duties’. On her Department form she claimed she withdrew due to the security situation. This inconsistency troubled the Tribunal because as the study chronology of the visa applicant shows (see above) she has performed little study - post-secondary. She relies for her claim of the break in a study being ‘a reasonable time’ after completing year 12 (2008) as being based solely on the security situation in Quetta - yet she has given inconsistent information which goes to her credibility.

32. Furthermore, the Tribunal finds that the visa applicant has not satisfied the Tribunal that full time educational opportunities were not available to her. The Tribunal notes the parties have provided no specific information about the unavailability of full time study opportunities. Interestingly, the delegate made a comment on this specific point that:

    ‘General information held by post is that many students continue to study in their local area 'Hazara town' notwithstanding the generalised security situation outside of that area’.

33. The Tribunal draws from the submission the clear conclusion that the visa applicant or her father decided that she should not study in the manner required by the Regulations. The submission states:

    “Miss Fatima reluctantly ceased her studies before requesting her parents to allow her to be re-admitted in college in 2011 which they reluctantly agreed until she had to pause her studies again in March 2012.”

    “she was persuaded by her father Mr Sadiq to stop studying due to the volatile and unsecure security situation in Quetta Pakistan”.

    “We further submit that since Miss Fatima turned 18, she would have been studying (my emphasis) at Govt. Sardar Hassan Musa Girls Degree College in Gulstan Town, Quetta, except for the declining security situation in Quetta, Pakistan, which made the sponsor fear for her safety and discourage her from further pursuing her studies between 2008 and 2011 and again between March 2012 and early 2015. We submit that Miss Fatima's reasons for not continuing her studies is not unreasonable in the circumstances, and as such she satisfies subclause 101.213(1)(c)”.

34. 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 at [28].

35. The Tribunal finds that the reasons for the applicant's decision to not commence study at the appropriate time are unclear. The claim of the review applicant is that the visa applicant could not or he would not permit her to study because of the contemporary security situation in Quetta. The applicant completed her (year 12 Australian equivalent) schooling in 2008. Her parents were living in Pakistan until they left in October 2009. There is no evidence that the College she attends was closed for enrolments during that period for security reasons. The Tribunal observes that having finally enrolled in 2011 she then interrupted her studies for the claimed security reasons in March 2012 and did not return to study until early 2015. Yet in her interview with the delegate she gave conflicting accounts as to what she was doing during this later period. She has given two different explanations as to why she did not study or stopped studying to the delegate and thus the visa applicant's credibility becomes an issue. The Tribunal does not accept the rebuttal of the review applicant (found in his submission) for her conflicting accounts found in the delegate’s decision record.

36. The fact is that the applicant left school in 2008 and did not begin her studies until 2011. The review applicant’s representative has claimed in his submission that the basis for her decision to not commence study at the appropriate time was that “she was persuaded by her father Mr Sadiq to stop studying due to the volatile and unsecure security situation in the area in which she lives, Quetta, Pakistan”. The applicant completed her studies at age 20 in 2008. The Tribunal observes that at that time she lived with her parents and brother and sister in the family home according to their advice. Her parents were living in Pakistan at the time and did not leave until 10 December 2009 (D1, f.112).

37. The Tribunal has considered 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 [28].

38. The Tribunal rejects the review applicant’s (above) reason why she did not begin her studies at the appropriate time as a credible reason. The Tribunal finds that the real reason the visa applicant did not begin her studies was because her father simply chose not to permit her to study within 6 months (or a reasonable time) after completing year 12 in the Australian school system or alternatively she chose not to begin post year 12 studies in the Australian school system for her own reasons.

39. The Tribunal finds that the visa applicant has not been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12 in the Australian school system. For the reasons above, cl.101.213 is not met at the time of application. The criteria for the grant of a Subclass 101 visa are not met.

1. The tribunal finds there have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117).

   DECISION

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

   Michael Cooke
   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.

   …