1412796 (Migration)

[2015] AATA 3481

1412796 (Migration) [2015] AATA 3481 (13 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Kwabena Gyimah

VISA APPLICANT:  Mr Kofi Gideon Gyimah

CASE NUMBER:  1412796

DIBP REFERENCE(S):  OSF2013/100354

MEMBER:Chantal Bostock

DATE:13 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 13 October 2015 at 12:19pm

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 20 May 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 16 January 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).

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the Departmental delegate was not satisfied that the applicant had been in continuous study since turning 18 years of age and that the gaps in his studies were for a reasonable period only.

5. The review applicant appeared before the Tribunal on 1 September 2015 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 Akan (Ghana) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant was born on 10 October 1989 in Ghana. He is sponsored by his father, the review applicant, an Australian citizen, for a child (subclass 101) visa. The applicant was 23 years old at the time of application, which was 6 January 2013.

8. According to the visa application form, the applicant studied at Nsaba Presbyterian school from 15 September 2003 until 10 June 2008. Evidence of his West African Senior School certificate was lodged with the Tribunal. He commenced further studies, including a diploma in network engineering, diploma in designing and building websites and certificate in graphics and multimedia foundation at NIIT in March 2010, which he completed in March 2013. Evidence of these studies was submitted before the Tribunal.

9. At the hearing, the review applicant explained that his son enrolled the NIIT courses. Prior to commencing the course, however, his son either broke or sprained his leg and ankle playing soccer. He was taken to a renowned hospital in Ghana. His son may have had surgery, as indicated in the letter from Korbu-Bu Teaching Hospital dated 3 November 2011 but he was not sure. He was discharged and given exercises. It took about three years, possibly a little less, for his leg to recover. The accident was the reason for gap in his son’s studies. NIIT granted him permission to defer his course.

10. When asked why the visa applicant’s injury was not mentioned to the Department, the review applicant stated that he did not know that there was an issue relating to the gap in his son’s study.

11. About one year after the accident, while his son was waiting for his leg to improve, he commenced private studies at home, namely a higher national diploma in electrical and electronic engineering. The review applicant provided the Tribunal with a copy of this diploma, which indicated that the review applicant’s son passed the examinations on 3 June 2010. While he was undertaking this course, he was studying other courses.

12. When asked why his son’s study for his national diploma in electrical/electronic engineering was not declared on the visa application form, the review applicant explained that his brother (his representative) completed the application form based on the information he had before him.

13. The review applicant explained the school system in Ghana as he knew it. Children undertake primary school for six years, middle school for four years and if they pass middle school, proceed to secondary school. At secondary school, students are eligible to undertake “A” levels after two years of study, which if passed, allows them to enter university. If they do not pass “A” levels, they are able to sit for “O” levels at the end of the five years.

14. The review applicant stated, however, that there had been changes to the school system, which he does not understand as he is not highly educated. Students may now attend university or technical college earlier. Students sit at general exam for West Africa, which if passed, allows them to attend university.

15. During the hearing, the review applicant stated that his son is neither studying nor working at the moment. His son stopped studying about a year ago. His son will explain what courses he has done after 2013. His son is waiting for a positive outcome on the visa application. They thought that the processing will take about six months and it was not worthwhile to be enrolled in a course of study and then be required to leave. He would like his son to study here in Australia. When the Tribunal explained to the review applicant that his son must be studying at the time of decision, the review applicant stated Department’s processing of the visa applicant was very slow.

16. The visa applicant also gave evidence at the hearing. He confirmed that he undertook secondary studies from 2003 until 2008. He was due to commence his studies at NIIT in 2008, when he injured himself playing soccer, sometime in 2009. Somebody kicked his leg from behind. He was taken to hospital for treatment. While his leg was not broken, it was badly sprained. He was in much pain and he was unable to walk due to the swelling. He needed time to recuperate. The surgery involved correcting his ankle. His ankle was in plaster, which was problematic and had to be removed. After surgery he could walk, but needed time for his leg to become strong. He used traditional herbs to aid recovery. It took one to two years for his leg to recover.

17. During this time, he undertook private studies at home. He took a one year accelerated course in electrical/electronic engineering at Accra Polytechnic and sat exams which he passed. He attended some classes.

18. The visa applicant confirmed that he had completed three courses at NIIT, which he commenced in 2010. In 2014, he completed practical electrical/electronic engineering training for one year.

19. The visa applicant confirmed that he is not currently studying as he is waiting for the outcome of the visa application. He is currently undertaking unpaid voluntary work in electrical wiring.

20. Following the hearing, the review applicant submitted further information relating to the Ghanaian educational system and further information relating to the visa applicant’s previous educational history and his injury from Korle-Bu Teaching Hospital.

21. The Migration Regulations set out additional requirements relating to, amongst other things, 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); Opoku-Ware v MIBP [2015] FCCA 1638.

22. Based on the evidence of the review applicant given at the hearing, which was confirmed by the visa applicant, the Tribunal finds that the visa applicant is not currently studying. It places significant weight on the evidence of the review applicant that the visa applicant stopped studying about one year ago as he was awaiting the outcome of the visa application.

23. In considering cl.101.213(2), the Tribunal places some weight on the evidence of the review applicant and the visa applicant that the visa applicant injured his leg, although their evidence was unclear as to when the injury occurred, the nature of the injury and the length of the recovery time. The medical evidence indicates that the visa applicant suffered a fractured patella in October 2008, which was operated on 10 December 2008. Giving the review applicant and the visa applicant the benefit of the doubt, the Tribunal finds that the visa applicant fractured his patella sometime in October 2008, which needed surgery in December 2008. Based on the evidence before it, however, the Tribunal is not satisfied that the visa applicant was incapacitated for work due to the total or partial loss of the child’s bodily or mental functions at the time of application, namely on 6 January 2013.  

24. The Tribunal therefore finds that at the time of decision, cl.101.213 does not continue to be met. Accordingly, cl.101.221(2)(b) is not met.

25. 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

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

    Chantal Bostock
    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.

    …