1517528 (Migration)

[2016] AATA 4126

1517528 (Migration) [2016] AATA 4126 (14 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Saliha Mohamed Yousif Salih

VISA APPLICANT:  Mr Munzer Ali Eltayeb Farah

CASE NUMBER:  1517528

DIBP REFERENCE(S):  2015062749

MEMBER:Helena Claringbold

DATE:14 July 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

·cl.101.213 of Schedule 2 to the Regulations; and

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 14 July 2016 at 1:22pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 8 June 2015, Mr Munzer Ali Eltayeb Farah applied for a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).  The application was made on the basis of his relationship with Ms Saliha Mohamed Yousif Salih, who is the review applicant and sponsor.

2. On 13 December 2015 a delegate of the Minister for Immigration refuses to grant Mr Farah the visa because the delegate was not satisfied that Mr Farah at the time of decision, was a full time student.

3. 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).

4. 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(c) because the delegate refused to grant the visa on the basis that the visa applicant, at the time of decision, was not a full time student.

5. Ms Salih requested review of the delegate’s decision and provided the Tribunal with a copy of the delegate’s decision record.  She appeared before the Tribunal on 1 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Farah. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.  The review applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2015/062749, folios numbered 1-151 and the Tribunal file 1517528, folios numbered 1- 18 and the oral evidence provided at the Tribunal hearing.

8. The issue in this case is whether the applicant was undertaking full time study at the time of application and time of decision and therefore satisfies cl.101.213(1) and cl.101.221(2).

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

9. Ms Salih was born on 21 November 1970.  She is an Australian citizen who was born in Sudan.  She is in a partner relationship with Mr Aziz Osman Awad Osman who is an Australian citizen.  They have two sons, Loai Aziz Osman who was born on 14 February 2004, Gosau Aziz Osman who was born on 3 August 2009 and a daughter Linda Aziz Osman who was born on 5 September 2012.  She was previously married to Mr Ali Altayeb Fareh and they have two sons, the applicant and Mohamed-Elfatih Ali Eltayeb Farah who was born on 20 May 1994.

10. Mr Farah was born on 21 November 1991 and is a national of Sudan.  His father, Mr Ali Eltayeb Farah was born on 1 January 1948, he is a resident of Abu Dhabi.  He has a brother who is a resident of Sudan and two other brothers and a sister who are resident in Australia.  He declared living in the United Arab Emirates (UAE) from January 1999 until September 2011.

    Is the visa applicant a full time student?

11. 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 applicant 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).

12. 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].

13. The applicant must be able to provide evidence that at the time of application and decision he is undertaking a fulltime course of study at an educational institution leading to the award of professional, trade or vocational qualification.

    Is the visa applicant incapacitated for work?

14. There is no evidence before the Tribunal that the visa applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant undertaking full-time study?

15. The evidence before the Tribunal is that the applicant’s study is as follows:

    ·2009-2010, on 21 June 2010 he completed the secondary school academic year at Al Mutanabbi Boys School for Secondary Education.

    ·2010-2011, July 2010 until September 2011 no evidence of study provided.

    ·2011-2015, on 1 September 2011 he began study for a Bachelor of Business Administration at Almughtaribeen University in Sudan, with an expected graduation date of 1 October 2015.  This claim is supported by a copy of Registration Certificate dated 5 October 2015, the certificate is uncertified and the original has not been provided.

16. On 27 October 2015, at a Departmental interview the applicant provided evidence that he registered in a general six month English course.  He provided a letter from Un Educational and Scientific Cultural Organisation which stated that the applicant has been registered at the institute since 10 October 2015.  This claim is supported by a copy of a letter, which is not on official letterhead and the applicant’s name and dates are entered in hand writing.  The letter is uncertified and the original has not been provided.

17. Additionally, in the sponsor’s visa application OSF2004/023343, the sponsor did not declare the applicant as her child.  On 2 May 2015, the sponsor’s spouse in a statutory declaration stated that the sponsor had not declared the relationship between herself and the applicant as a friend had assisted with the application form and was unaware of the need to disclose the sponsor’s children as they did not have contact with the applicant who was living with his father in United Arab Emirates (UAE).

18. On 25 May 2016, Ms Salih’s migration agent provided the following information:

    ·Letter of offer with acceptance to Bachelor of Business (Hons) in International Business program at Limkokwing University of Creative Technology Malaysia to begin on 2 February 2011, the letter is dated 4 December 2010. 

    ·2 paper items.  One of the items alleges to be from the Al Mutanabi Boys’ School for Secondary Education, Abu Dhabi Educational Zone.

    ·A letter dated 19 January 2016 from Al-Mughtaribeen Uni certifying that Mr Farah has completed a sublamentry exam during the period 25/10/2015 to 12/1/2016. 

    ·A letter dated 21 January 2016 from Al-Mughtaribeen Uni certifying that Mr Farah is a student in the college of Business Administration Department.  The letter is not on official letterhead and is not certified.

    ·Certificate dated 29 March 2016, from Al-Mughtaribeen University awarding on 11 March 2016 Mr Farah a Bachelor of Banking and Finance at the College of Business Administration. 

    ·A certificate dated 25 April 2016 for a period from 4 February 2016 to 27 February 2016 total of 30 hours from Cambridge International Training Centres stating that Mr Farah completed English language/pre beginner program. 

    ·A certificate dated 25 April 2016 for a period from 5 March 2016 to 27 March 2016  total of 30 hours from Cambridge International Training Centres stating that Mr Farah completed English language to the level of beginner. 

    ·A letter dated 17 May 2016 from Cambridge International (Sudan) stating that Mr Farah has registered for a reading and writing level (1) course with CITC Sudan, Khartoum Branch for a period from 2 May 2016 and expected to finish on 7 June 2016. 

    ·A statement of payment vouchers from Ms Salih to Mr Farah dated from January 2016 to 26 April 2016. 

19. Further submitted is a statement from Ms Salih’s migration agent as follows:

20. During the period from June 2010 until September 2011 Mr Farah was residing with his elderly father in Abu Dhabi.  Mr Farah was under the guidance of his father who initially wanted Mr Farah to study in Malaysia.  He awaited responses from a number of universities in Malaysia and Sudan and this took time.  In addition, he had to wait until his father decided that Mr Farah should study in Sudan.  This caused Mr Farah to miss applying for university in Sudan in September 2010 and he eventually applied in 2011.  This time should be considered as reasonable time to enrol in post-secondary study as the applicant was trying to find educational offers in countries with different academic dates. 

    Additionally, that Mr Farah is currently enrolled on an English course at Cambridge International.  It is his intention to enrol in September 2016 in a higher educational degree in the same field.

    The Tribunal hearing

    Ms Salih evidence is as follows:

21. When the visa application was lodged Mr Farah was in full time study at the Al-Mughtaribeen University.  He completed that study and began to study English and he intends to enrol for higher education in September 2016.  When Mr Farah was twelve years old she became separated from him and his brother, Mohamed.  She did not see the boys for eight years.  Each time she would call her ex-husband to speak with her sons he would tell her they were dead and not to call again.  The family is separated her ex-husband is living in the United Arab Emirates with another woman.  Mohamed has been granted a visa to live in Australia however Mr Farah’s application was refused.  Once Mohamed comes to Australia Mr Farah will not have anyone else.  She wants Mr Farah to come to Australia and for the family to be re-united. 

    Mr Farah’s evidence is as follows:

22. On 21 June 2010 he completed secondary school.  On 10 October 2011, he began full time study at the Al-Mughtaribeen University which he completed on 21 January 2016. He was awarded a Bachelor of Banking and Finance from the university on 11 March 2016.  On 21 January 2016, he began English study at the Cambridge Institute.  The study is on a month by month basis and requires two hours attendance each day.  He intends to enrol in full time study in September 2016.

23. He did not undertake any study between 21 June 2010 and 10 October 2011.  During that time he was accepted to undertake full time study at Limkokwing University in Malaysia.  However his father was unable to finance the study and he was told by his father to study in the Sudan as it was cheaper.

24. The Tribunal put to Ms Salih information provided by Mr Farah that the Tribunal may consider would be the reason or part of the reason for affirming the decision.  The relevance of the information and the consequences were explained to Ms Salih.  She was invited to comment on or respond to the information and could seek additional time to do so.  Ms Salih provided some comment and also sought additional time to respond.

25. Ms Salih was told that the information provided by Mr Farah is as follows: that he was not undertaking any study from 21 June 2010 when he finished his secondary education until 10 October 2011 when he began full time study at the Al-Mughtaribeen University; that his university study concluded in January 2016 and that from February 2016 he was undertaking study on a monthly basis in English.

26. Ms Salih responded that throughout the sixteen months from 21 June 2010 until 10 October 2011 Mr Farah was applying to different universities.  However he was under his dad’s control and financed by his father who told him to wait and enrol in September.  In addition she stated that he did not have the financial capacity to study as he father was unable to finance him.

27. Ms Salih’s migration agent stated that Mr Farah completed full time study in January 2016 and was awarded his degree in March 2016.  In addition she said that Mr Farah is currently studying English to enable him to have a higher standard of the language for future study and employment.

28. The Tribunal provided Ms Salih additional time to provide information to the Tribunal.  On 16 June 2016 and 4 July 2016 Ms Salih’s migration agent provided information to substantiate the visa applicant’s educational claims and further stated:

    ·The time between the visa applicant finishing the equivalent of year 12 in Australia, (Secondary School) in 2010 and beginning university study in 2011 should be considered reasonable because the visa applicant was dependent on his father to make decisions for him and he was waiting on university offers.

29. From February 2016 until September 2016 the visa applicant continues to study for a Continuing Education Certificate – English Language.  This study is consistent with policy for Student skilled and employer visa applications where English is a threshold requirement and as such it can be classified as leading to a professional or vocational qualification or career.
    
    

    FINDINGS

30. The Tribunal has considered the evidence individually and as a whole. The Tribunal accepts that at the time of application Mr Farah was, within a reasonable time, undertaking fulltime study at Almughtaribeen University and that he graduated from that university in March 2016.

31. Having considered the evidence individually and as a whole the Tribunal accepts the following evidence; that having graduated from Almughtaribeen University, Mr Farah In February 2016, undertook study at the Cambridge International Training Centre and intends to complete that study with a Continuing Education Certificate in English Language in September 2016; that in October  2016, Mr Farah’s intentions are to complete a Degree of Bachelor in Marketing at Almughtaribeen University, which is due to be completed in September 2018.

32. The evidence before the Tribunal is that a temporary interruption to Mr Farah’s undertaking study was due to his father’s procrastination about Mr Farah’s study and educational options and Mr Farah’s dependency on his father’s direction.  Other evidence is that Mr Farah continued studies, in the relevant period, graduating with a Degree of Bachelor in Banking and Finance from Almughtaribeen University and in undertaking full time study at the Cambridge International Training Centre, which leads to a Continuing Education Certificate in English.  While Mr Farah was not undertaking full time studies for a time, by the same token he did not cease studies altogether. Rather, once he was directed by his father and accepted into Almughtaribeen University, he commenced undertaking full time study within his chosen field.  He continues with full time study in English to enable him to proceed on his intended trajectory towards a qualification in marketing.  Furthermore, there is no evidence that the applicant worked in this period. 

33. The Tribunal is satisfied that Mr Farah 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. 

34. This leads the Tribunal to conclude that at the time of application and at the time of decision Mr Farah was 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. 

35. Accordingly, cl.101.213(1)(c) is met at the time of application, and continues to be met at the time of decision.

36. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

37. The Tribunal remits the applications for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 101 (Child) visa:

    ·cl.101.213 of Schedule 2 to the Regulations; and

    ·cl.101.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    Member