Ahmadi (Migration)

[2019] AATA 2740

Ahmadi (Migration) [2019] AATA 2740 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ishaq Ahmadi

VISA APPLICANT:  Mr Mohammad Ali Ahmadi

CASE NUMBER:  1802861

HOME AFFAIRS REFERENCE(S):           2017/017938 OSF2017/017938

MEMBER:Justin Owen

DATE:24 May 2019

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 24 May 2019 at 10:09am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – study requirements – not studying full-time since turning 18, within six months, or reasonable time after completing equivalent of Australian year 12 – applicant not incapacitated for work – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

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 and Border Protection on 24 September 2017 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 for the visa on 12 February 2017. 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 was not met because the delegate was not satisfied that the visa applicant has 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. The delegate furthermore was not satisfied that the visa applicant is incapacitated for work due to the total or partial loss of their bodily or mental functions.   

5. The review applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Dordana Ahmadi, Mr Ishaq Yari and the visa applicant Mr Mohammad Ali Ahmadi. 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. The review applicant provided the Tribunal with a copy of the department’s refusal decision.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the visa applicant meets the study requirements necessary for the grant of the visa.

   Criteria for applicants over 18

10. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

11. At the time of application, the evidence presented by the review and visa applicant is that the visa applicant was 21 years old as he was born on 10 October 1995 and they applied for the visa under review on 12 February 2017.

    Relationship status and history

12. 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). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

13. The oral evidence from the review applicant is that his son was neither engaged nor married at the time of application or since. The visa applicant gave the same evidence.  The Tribunal has no cause to doubt the oral evidence at face value. 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

14. At the time of application, the visa applicant must not be engaged in full-time work: cl.101.213(1)(b). This must continue to be the case at the time of this decision: cl.101.221(2)(b).

15. Again, the oral evidence from the review applicant is that his son was not in full-time work, either at the time of application or since. The visa applicant gave the same evidence.  The Tribunal has no cause to doubt the review applicant’s oral evidence at face value. 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)

16. 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).

17. 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]-[16]. In determining what is a ‘reasonable time’ for cl.101.213(1)(c), 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 [19]. 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).

18. Where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: cl.101.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

19. The Tribunal notes the visa applicant turned 18 years of age on 10 October 2013.  In his oral testimony he claims that he remains in the Afghani school system and at the time of decision is undertaking the equivalent of Year 12 in the Australian school system.  The visa applicant is currently 23 years of age. 

20. The review applicant and the visa applicant claim that the visa applicant has been undertaking full-time study at an educational institution leading to the award of a professional, trade or vocational qualification since the time of application.

21. The Tribunal notes that the visa applicant made his application on 12 February 2017.  The Tribunal notes from a spreadsheet of the visa applicant’s educational history provided by the review applicant’s then representative to the delegate (D1, Folio.95) that the visa applicant claims to have studied from November 2016 until March 2017 at the Fanus College in Sangi Masha, Jaghori Afghanistan.  The visa applicant therefore purports to have been studying at Fanus at the time of application.   

22. The Tribunal discussed the reasons for the delegate’s refusal with the review and the visa applicants.

23. The Tribunal noted from the decision record that the review applicant provided that a school identification card purportedly issued by the Fanus Educational Centre on 22 October 2016 had been represented as evidence of the visa applicant’s studies.  The Tribunal noted that the delegate had made several attempts to verify the document via telephoning the contact numbers printed on the document.  One response indicated that the number did not exist and the other was answered by an individual that claimed the number did not belong to the ‘Fanus Education Centre’, contrary to the information written in the document. 

24. The review applicant attempted to explain this situation to the Tribunal.  He stated that the visa applicant had enrolled at Fanus Educational Centre for a three-month period during winter.  He said that Fanus was a winter school that was operated by a small number of teachers.  In relation to the telephone calls he claimed that one phone had been turned off and the other response that the number did not belong to Fanus was made by a disgruntled teacher who was trying to undermine the school. 

25. The visa applicant in his oral testimony also stated that when he attended Fanus in 2016 it was during winter.  The visa applicant stated that Fanus operated only during winter.  He claimed the issues the Department had in making contact with Fanus was because one of the numbers belonged to a teacher who was not in Afghanistan when the Department called whilst the other was owned by a teacher that had had a falling out with the school. 

26. The Tribunal noted however the written submission that the review applicant made through his representative to the Tribunal on 22 April 2018 (T1, Folio.22-24) and the submissions made in relation to the delegate’s findings concerning Fanus.  The Tribunal noted that the review applicant’s submission plainly states ‘Fanus College does not run in the winter season’ as the reason the delegate had such difficulties in confirming the visa applicant’s enrolment.    The review applicant’s submission claims that the number the delegate contacted but was unanswered was due to the fact it belonged to a teacher and during the winter season teachers often travel and the number was not reachable.  In relation to the number that was answered, the review applicant’s written submission states that, due to the fact Fanus did not run during winter, the telephone may have been lent to another person for this winter period or that it may be that a family member of the owner of the number answered the phone. 

27. The Tribunal noted the contradictions concerning Fanus Educational Centre in the oral testimony of the review and visa applicant as opposed to the review applicant’s written submission.  The review and the visa applicant each had said that Fanus was a winter school.   The review applicant’s written submission stated that Fanus was not a winter school.  The Tribunal raised the contradiction with the review applicant.  He responded stated Fanus College was largely an informal educational body for preparatory work for the next academic year that had operated in winter.  The review applicant said that the government had nothing to do with the course and the courses would not run every winter.            

28. The review applicant’s representative stated that Fanus runs as an informal college during winter but is not an ‘official’ college of Fanus during this period.  The Tribunal noted that the College was apparently providing student cards to the visa applicant – as provided in evidence to the delegate -  even though it was not, as claimed by the review applicant’s representative, an officially run college during winter.   

29. The Tribunal is not satisfied with the explanation that has been provided to the contradictions in the evidence concerning Fanus College and the visa applicant’s alleged attendance at this college.  The Tribunal notes that the review applicant’s written submission clearly states that Fanus does not operate during winter.  The review and visa applicants however clearly stated the visa applicant attended Fanus during winter.  The review applicant’s written submission claims that the published telephone number for Fanus provided by the review applicant was answered by someone that stated it was not the school’s phone number due to the fact it was the winter season, Fanus was not operating and the number had been lent to another party.  The review and visa applicants however have stated the number was answered by a disgruntled former teacher who denied it was the number of Fanus in an attempt to damage the institution.   The review applicant’s written submission claims the other published telephone number for Fanus the review applicant provided was not answered as the number was ‘inactive’ and teachers travel during winter and the number was not reachable.  The Tribunal notes that the delegate’s decision occurred after his investigations – which included attempting to contact Fanus by telephone - in September 2017 which was the start of Autumn.  The Tribunal has reviewed the testimony of the review applicant and the visa applicant, written evidence previously submitted, and the review applicant’s written submission through their representative concerning the visa applicant’s alleged studies at Fanus.  The Tribunal notes the considerable contradictions in evidence and the explanations that have been given but is not satisfied that either the student identification card purportedly from Fanus (D1, Folio.52-53) is genuine or that the visa applicant was undertaking full-time study at Fanus College at the time of application. 

30. The Tribunal notes that the review applicant claimed that the visa applicant attended Ferdawsi High School in Quetta, Pakistan between January 2014 and March 2016 (D1, Folio.95).   The Tribunal notes that the review applicant previously provided the delegate with a document purportedly provided by the Ferdawsi High School (D1, Folio.58) stating the visa applicant had been studying there from 1 November 2013 until 31 January 2015.  The review applicant in oral testimony to the Tribunal said he had no other documentary evidence of the visa applicant studying at Ferdawsi High School.  The Tribunal notes the correspondence states the visa applicant attends 5 periods of class 6 days a week. 

31. The Tribunal notes that in the visa applicant’s visa application form from February 2017 it is stated that the visa applicant completed their studies at Ferdawsi High School on 31 January 2015 (D1, Folio. 10), some two years prior to the lodgement of the visa application and over a year earlier than the review applicant’s earlier claim to the delegate that the visa applicant attended Ferdawsi High School until March 2016 (D1, Folio.95).   The Tribunal asked the visa applicant why this was the case.  The visa applicant said that after finished at Ferdawsi High School at Year 9 he only did about three months study at the Year 10 level.  He said he then went to Afghanistan and eventually enrolled at Fanus in November 2016.  The visa applicant said that when his mother left for Australia he missed his family and therefore didn’t attend school very much.  The Tribunal accepts that the visa applicant attended Ferdawsi High School until January 2015.  In the absence of any further corroborative evidence the Tribunal does not accept that the visa applicant attended Ferdawsi High School on a full-time basis beyond January 2015.  The Tribunal accepts that the visa applicant’s education was disrupted due to events in Afghanistan but notes there is no evidence before it of the visa applicant’s full-time study beyond January 2015 until after the time of application in February 2017.  The Tribunal is not satisfied that the visa applicant was engaged in full-time study at Ferdawsi High School beyond 31 January 2015. 

32. The Tribunal notes the claim made that the visa applicant was enrolled in the Star Educational Society.  The review applicant provided the delegate with photographs of the review applicant at the ‘Star Educational Society’ and a letter purportedly supplied by the Society certifying the visa applicant had been a student at the Society since 8 October 2013 had also previously been supplied to the delegate (D1, Folio.59)   The review applicant said the visa applicant had attended the Star Educational Society for about half an hour a day whilst the visa applicant said he studied English there from 4.30pm until 6pm.  The Tribunal notes that the review applicant’s representative has previously claimed the visa applicant attended the course between August 2013 and April 2016.  The Tribunal notes the lack of contact details from Star Educational Society.  The Tribunal also notes that the review applicant and the visa applicant both concede that the course was no more than one and a half hours a day.  Given the lack of contact details of the issuing authorities and the admission by the review applicant that the visa applicant was studying there for only a short time a day, the Tribunal gives these claims little weight as evidence of the visa applicant’s full-time education commitments.  The Tribunal is not satisfied that these commitments were in fact full-time. 

33. The Tribunal notes the wide range of claims that have been made concerning the visa applicant’s purported enrolment at the Jaghori Agricultural High School since 23 March 2017.  The Tribunal notes that this is more than a month after the lodgement of the visa applicant’s application. As the Tribunal is making a decision at the time of application, the Tribunal is not required to make a finding in relation to the applicant’s claims in relation to Jaghori Agricultural High School though it notes the written evidence that has been submitted. The Tribunal has considered if the claims made concerning the Jaghori Agricultural High School ‘speak to’ the time of application criteria.  On the evidence before it the Tribunal is satisfied that the claims do not.    

34. Accordingly, the evidence before the Tribunal in this case is that the visa applicant was not undertaking a “full time course of study” at the time of application.  The evidence before the Tribunal suggests that since turning 18 on 10 October 2013 the visa applicant has not been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.  The Tribunal notes the somewhat unusual situation before it given that the review applicant claims his son the visa applicant is currently still at school -  in the Australian equivalent of Year 11 or Year 12 -  despite him turning 24 years of age at his next birthday.   The review applicant and the visa applicant claim that circumstances in Afghanistan have disrupted the progress of the visa applicant’s education.  The Tribunal acknowledges that this may be the case but nevertheless notes that between the visa applicant turning 18 years of age and the time of application there have been substantial periods of time where the visa applicant was not undertaking a full-time course of study as required under the regulations.  

35. All the evidence, including that from the review applicant himself, has not satisfied the Tribunal that at the ‘time of application’ the visa applicant was undertaking a course of full-time study (as required by the regulations).  

36. Given all the above, the evidence is that the visa applicant cannot meet the time of application requirement in cl.101.213(c) as he was not “undertaking a full time course of study” at the time of application. Accordingly, cl.101.213(1)(c) is not met at the time of application.

37. There was no claim, or evidence, that at the time of application that the review applicant’s son the visa applicant was incapacitated for work because of any total or partial loss of bodily or mental functions.  The Tribunal is not satisfied that at the time of application the visa applicant was incapacitated for work due to the total or partial loss of their bodily or mental functions.  The visa applicant therefore does not meet cl.101.213(2)(b)(ii) of the dependent child definition and thus does not meet cl.101.213(2). 

1. For the reasons above, cl.101.213 is not met at the time of application.

2. 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

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

   Justin Owen
   Senior 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 or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.

   …