1419193 (Migration)

[2015] AATA 3878

1419193 (Migration) [2015] AATA 3878 (17 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mustapha Ahmad Hassan

VISA APPLICANTS:  Mr Ahmad Hassan
Mr Mohamad Hassan

CASE NUMBER:  1419193

DIBP REFERENCE(S):  OSF2013/010159 - OSF2013/010160

MEMBER:Helena Claringbold

DATE:17 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 17 December 2015 at 7:55am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 17 September 2014 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. Mr Ahmad Hassan and Mr Mohamad Hassan, the visa applicants applied to the Department of Immigration for the visas on 10 May 2013 on the basis of their relationship with Mr Mustapha Ahmad Hassan who is their father.

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 and cl.101.221 because the delegate refused to grant the visas on the basis that the visa applicants, at the time of decision, were not full time students.

4. Mustapha, the review applicant appeared before the Tribunal on 3 December 2015 to give evidence and present arguments and provided the Tribunal with copies of the decision records. The Tribunal also received oral evidence from Ahmad and Mohamad. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2013/010159, folios numbered 1-50 and OSF 2013/010160, folios numbered 1-99 and the Tribunal file 1419193, folios numbered 1- 57 and the oral evidence provided at the Tribunal hearing.

7. The issue in this case is whether Ahmad and Mohamad were undertaking full time study at the time of application and time of decision and therefore satisfied cl.101.213 and cl.101.221.

   What is the background of this case based on the evidence before the Tribunal?

8. Ahmad was born on 4 June 1992 and is 23 years old.  He is a national of Lebanon who was born in Bebnine, North Lebanon.  At the time of application he was 20 years old and provided evidence shortly after the time of application that he was not undertaking full time study.  He had never been married or been in a de facto relationship.

9. Mohamad was born on 4 June 1992 and is 23 years old.  He is a national of Lebanon who was born in Bebnine, North Lebanon.  At the time of application he was 20 years old and provided evidence that shortly after the time of application he was not undertaking full time study.  He had never been married or been in a de facto relationship.

10. Mustapha was born on 15 April 1966.  He disclosed that he is partnered with Ms Houda Hassan who was born on 8 May 1965.  He has a daughter Iman who was born on 24 February 1994 and four sons, Ahmad who was born on 4 June 1992, Mohamad who was born on 4 June 1992, Mouemen who was born on 27 July 1995, Souhayb who was born on 21 August 1997 and Abdul who was born on 17 September 1999, they reside in Lebanon (refer: D1 f22). On the sponsorship form Mustapha provided evidence that Mouemen, Souhayb and Abdul are dependent on him (refer: D1 f4)

    On 2 October 2015, Mustapha provided evidence that he has “psychological status” and is worried about his sons in Lebanon. “I need them to live with me because I am alone in Australia” (refer: T1 f34-f35).  In prior correspondence Mustapha provided evidence that he is separated from his wife Houda (refer: T1 f30).

    Are the visa applicants full time students?

11. 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).

12. 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).

13. 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].

14. Are the visa applicants incapacitated for work?

    There is no evidence before the Tribunal that the visa applicants were or are incapacitated for work because of loss of bodily or mental functions.

    Were the visa applicants undertaking full-time study?

15. Ahmad and Mohamad provided evidence to the Department that they undertook education at the School of Professional and Technical Studies in Eldekwaneh, Beirut and they began studies on 1 October 2011 and completed studies on 1 July 2013 (refer: D1 f20).  In addition a statement from the School of Professional & Technical Studies dated 18 January 2013 gives evidence that the applicants are studying TS (Superior Technical) Major Buildings & Civil Engineering corresponding to the academic year 2012/2013 (refer: D1 f49).

16. Additional evidence provided by the visa applicants on 14 January 2014 is that they didn’t enrol with an educational provider for the year 2013-2014; that they undertook private tuition at home.  On 16 September 2014, the visa applicants provided evidence that they discontinued studies middle of 2013 and didn’t resume studies since that time.

    At the Tribunal hearing

17. Mr Hassan provided the following evidence: that since he arrived in Australia in 2000 he talks to Mohamad and Ahmad every day and sometimes two to three times a day and discusses with them how they were going. At the time of application Mohamad and Ahmad were full time students. Approximately one month after the applications were lodged they both withdrew from their study.  Their withdrawal from study was a result of dangerous circumstances in travelling from their home to their educational institute.  These circumstances were caused by war in the area and when combined with the advice from their migration agent that their visas would be granted within three months and a decision was taken to terminate studies.  He didn’t know where the applicants were studying but felt their studies were in engineering or something to do with construction.

18. Mohamad and Ahmad provided evidence that they finished studies in mid June 2013 because of the dangerous circumstances in travelling to the Technical and Science Institute in Beirut.  Their decision not to continue study was fuelled by advice from their migration agent that their visas would be granted within three months of lodging the visa applications. 

19. The Tribunal has considered the evidence individually and as a whole and on the evidence before it is not satisfied that the visa applicants had been undertaking full time study since turning 18 or within 6 months (or a reasonable time) after completing year 12 in the equivalent Australian school system, at an educational institution leading to the award of a professional, trade or vocational qualification because the evidence they have provided to the Tribunal is limited to a statement from the School of Professional & Technical Studies which states, studies continue at the institution for the academic year 2012-2013 and good behavior and conduct had been observed  during studies.  The applicants have not provided the Tribunal with any academic records of their completed studies or expected outcomes of their studies to support their claims of study at the time of application.  The applicants had difficulty articulating to the Tribunal the award or qualification their studies could lead to.  Accordingly cl.101.213(1) is not met at the time of application.

20. Even if the Tribunal accepted that the applicants’ studies at the time of application would lead to an award of a professional trade or vocational qualification, on their evidence they discontinued studies in the middle of 2013 and have not resumed full time studies since that time.  This leads the Tribunal to conclude that at the time of decision the applicants had not been undertaking full time study since turning 18 or within 6 months (or a reasonable time) after completing year 12 in the equivalent Australian school system, at an educational institution leading to the award of a professional, trade or vocational qualification.  Accordingly cl.101.221(2)(b) is not met at the time at the time of decision. 

21. As the visa applicants have not satisfied cl.101.221(2)(b) the Tribunal has not considered any of the other requirements for grant of the visas.

22. For the reasons above, the criteria in cl.101.211 and cl.101.221 are not met.

23. For the reasons above, the criteria for the grant of a Subclass 101 visas are not met

    DECISION

24. The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

    Helena Claringbold
    Member