1601652 (Migration)

[2016] AATA 4149

1601652 (Migration) [2016] AATA 4149 (22 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Miled Semaan Hindi

VISA APPLICANT:  Mr Elie El Hindy

CASE NUMBER:  1601652

DIBP REFERENCE(S):  OSF2015/054623

MEMBER:Glynis Bartley

DATE:22 July 2016

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 22 July 2016 at 10:29am

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the visa applicant, Mr Elie El Hindy, met the study requirements for the visa at the time of application and continues to meet those requirements at the time of decision.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 December 2015 to refuse to grant Mr El Hindy a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

3. Mr El Hindy is a 25-year-old Lebanese national. The review applicant, Mr Miled Semaan Hindi, is his father. Mr Hindi is an Australian permanent resident.

4. Mr El Hindy applied to the Department of Immigration for the visa on 19 March 2015. 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).

5. 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.

6. The delegate refused to grant the visa on the basis that cl.101.211 and 101.221 were not met because the delegate was not satisfied that Mr El Hindy was dependent upon Mr Hindi. The delegate was not also not satisfied that Mr El Hindy had, since turning 18, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. On that basis the delegate found that Mr El Hindy did not meet cl.101.213.

7. On 12 February 2016 Mr Hindi applied for review of the decision with this Tribunal.

8. Mr Hindi appeared before the Tribunal on 20 July 2016 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from Mr El Hindy. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic language.

9. Mr Hindi was represented in relation to the review by his registered migration agent who appeared at the hearing.

10. At the hearing Mr El Hindy’s migration agent provided additional documents to the Tribunal including, but not limited to, the following: an academic transcript for Mr El Hindy’s sister (Luciana), money transfer receipts and a letter confirming that Mr Hindi is employed as a painter and is paid $800 per week.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Subclass 101 (Child) visa is a visa for people outside Australia seeking a permanent visa on the basis of being the dependent child (natural, adopted or, in certain circumstances, step-child) of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen. 

13. 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). Mr El Hindy was 24 years old when he applied for the visa on 19 March 2015.

    Full-time study (or incapacitated for work)

14. At the time of application, Mr El Hindy 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).

15. 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].

16. Mr Hindi told the Tribunal that his son was interested in being a mechanic when he was at school and he did some study in a Lebanese college in 2012 and 2013, but the course did not continue after mid-2013 because there were insufficient students. His son could not afford to continue his studies at a private college. Mr Hindi said that, as far as he is aware, his son has not done any further study since 2013. Mr Hindi gave oral evidence that he regularly sends money to his son in Lebanon and supports him financially. Mr El Hindy and his four siblings live with Mr Hindi’s former spouse in a home owned by Mr Hindi.

17. Mr El Hindy told the Tribunal that he did not complete Year 12, but attended a technical high school. He could not recall when he left high school. The Tribunal asked Mr El Hindy about his studies since turning 18. He said that he studied to be a mechanic at a technical college for four years from around 2009 until 2013. Mr El Hindy gave oral evidence that he has some certificates and documents to show that he passed his studies. However, he was unable to re-enrol in the course after June 2013 because there were not enough students. He telephoned the college in around September 2015 and was told that they would start the course again over winter, but was later advised that there were insufficient students to proceed. Mr El Hindy confirmed that he has not undertaken any study since mid-2013. He told the Tribunal that he intends to return to his studies later this year. Mr El Hindy said that he has not done any work since he completed high school and is financially supported by his father. He denied telling the delegate in May 2015 that he was working full-time at a gym.

18. In the absence of any independent supporting documentation, the Tribunal is not prepared to accept that Mr El Hindy commenced full-time studies in 2009 as he claimed. The Tribunal finds on the basis of the translated and certified document from Zgharta Official Technical Institute that Mr El Hindy completed the first stage (one academic year) of a production mechanics course on 30 June 2013. There is consistent evidence before the Tribunal that Mr El Hindy has not undertaken any formal study since 30 June 2013. The Tribunal accepts that Mr El Hindy’s course did not proceed due to insufficient students. However, there is no evidence to suggest that Mr El Hindy pursued his studies at an alternative educational institution or commenced another course.

19. Mr El Hindy gave oral evidence at the hearing that he has no health problems.  The Tribunal finds that Mr El Hindy is not incapacitated for work due to loss of bodily functions or mental functions. 

20. There is no evidence to suggest that Mr El Hindy has undertaken any study which would result in the award of a professional trade or vocational qualification since June 2013. He had not studied in the 21-month period before the application was lodged in March 2015. For this reason Mr El Hindy does not meet cl.101.213. Accordingly, cl.101.221(2)(b) is also not  met.

21. 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).

22. Mr Hindi informed the Tribunal that he wishes to be reunited with his son in Australia. He stated that he has not seen his son since 1996. Mr Hindi asserted that there are limited opportunities in Lebanon and he hopes that his son can pursue his studies in Australia. The Tribunal acknowledges that evidence but it has no discretion to grant the visa on compassionate grounds. Having found that Mr El Hindy does not meet one of the requirements for the grant of the visa, the Tribunal must affirm the decision under review.

    DECISION

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

    Glynis Bartley
    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.

    …