Akinyemi (Migration)

[2019] AATA 3980

Akinyemi (Migration) [2019] AATA 3980 (19 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Bamidele Azeez Akinyemi

VISA APPLICANT:  Ms Blessing Funmilayo Akinyemi

CASE NUMBER:  1732103

HOME AFFAIRS REFERENCE(S):           F2016/075763

MEMBER:Meena Sripathy

DATE:19 August 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 19 August 2019 at 11:38am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – visa applicant is not studying at time of decision – no evidence that she continued to be a full time student at time of decision – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 12 October 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 24 May 2016.

3. The review applicant appeared before the Tribunal on 24 July 2019 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 Yoruba and English languages.

4. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

6. The following information was provided in the application form. The visa applicant is a 23 year old, single, Nigerian national.  She has one sibling in Nigeria.  She attended Oluyole Private International College from 2005 to 2011 for her secondary education and Institut Polytechnique Le Citoyen in Republic of Benin from February 2012 to June 2015 for a Business Administration qualification.  She is financially supported by her sponsor, the review applicant for her school fees, clothing and food.  The sponsor is the 54 year old father of the visa applicant. He has three children, one of whom is living with him.

7. The following documents were submitted in support of the application: copy of visa applicant’s passport, certificate of vaccinations, five Western Union remittance receipts for periods in April and May 2016; visa applicant and sponsor’s birth certificates; visa applicant’s education documents including West African Senior School Certificate dated June 2011 and transcript of her Business Administration course for 2012-2015 and sponsor’s Australian passport, citizenship certificate and letter from employer.

8. File notes on the Department file indicates that it was noted the visa applicant was not declared on the sponsor’s Subclass 820 Partner visa application.  It is also noted that the applicant’s university degree was completed in June 2016 (sic).

9. On 19 April 2017 the applicant was requested to provide further information including a Form 80 and evidence of enrolment in full time education and any explanation of gaps in study of more than 6 months.  In response a completed Form 80 was submitted on 13 June 2017 but no other documents were provided.  The Form 80 provided information of study between February 2012 and June 2015 in Benin. 

   Evidence before the Tribunal

10. On 18 December 2017 the representative of the review applicant provided a submission and supporting documents.  The representative advised that the visa applicant commenced a Bachelor of Computer Science at Houdegbe North American University Benin on a full time basis on 7 March 2016, and the present application was lodged on 24 May 2016.  The course end date was 21 September 2018.  Certified copies of an offer of admission, enrolment form, student card and academic transcripts were attached. It is submitted there was a one year gap in the applicant’s study between her Bachelor of Business Administration (completed August 2015) and commencing the Bachelor of Computer Science in March 2016, explained by the applicant participating in the compulsory Nigerian National Youth Services Corps Program which she had reduced on the basis that she was starting a new course of study in March 2016.  The submission explained the failure of the applicant to provide this information to the Department was due to a misunderstanding by the sponsor that only completed courses were to be included in the application form.  The sponsor also did not understand the request for evidence of study currently being undertaken. 

11. On 22 July 2019 the Tribunal received copies of 60 receipts of money transfers made by the review applicant to the applicant (transferred though her mother) between 2014 and 2019.

12. At the hearing on 24 July 2019 the review applicant gave evidence that he is employed full time as a supervisor and fitter at Coopers Engineering.  He lives with his son in a home he owns.  He arrived in Australia in 1998, initially on a prospective marriage visa to marry an Australian woman he met while in England.  Unfortunately that relationship did not work out and he was left by her in a destitute situation.  Sometime later, he met another woman and eventually was granted a Partner visa on the basis of this relationship.  His son, Bamidele, who accompanied him to Australia, was included in that visa application.  The review applicant said he included reference to the visa applicant as his child in his Partner visa application at that time, contrary to the note in the Department file.  He explained that she had previously applied to come to Australia to study at Sydney University, but in the meantime gained admission to a course at the Institute in Benin and decided to complete the course there. 

13. In addition to the visa applicant and the son he lives with here, the review applicant has another son in Nigeria, who was born after he obtained his permanent residency, after his relationship in Australia broke down.  This son, Tim, is living in Nigeria with the visa applicant. He has recently commenced a course in Ghana.  

14. The visa applicant lives in a house the review applicant owns, with her brother Tim, when he is not studying in Ghana.  Their mother lives nearby in a separate home on the same compound.  The visa applicant is single and has never been engaged or married.  She is not working.  She is financially supported by the review applicant who sends money for her and her brother on a regular basis.

15. The Tribunal asked the review applicant about the visa applicant’s study history.  He said she completed her secondary schooling in Nigeria, and then commenced a Commerce degree in Benin. He referred to the institution as the North American University, Benin.  Towards the end of that course she returned to Nigeria to do her National Youth Service, and after that she continued her study in a Computer Science course at the North American University in Benin in 2016.  She completed this course in 2018 and returned to Nigeria.  She has not studied since then because he wants her to come to Australia to do further study. 

16. The Tribunal asked the review applicant about the frequency of his contact with the visa applicant. He said he is in regular, almost daily contact.  It asked if he was aware of any issues she had during her study at the University in Benin, or whether there were issues affecting the University.  He said he was not aware of any issues and she completed the course. The Tribunal put to him information before it that indicated the Houdegbe North American University (Benin) experienced financial difficulties in 2018 and is no longer operational.  The article, dated in April 2019, stated that there were only a few hundred students in 2018 and from the second half of 2018 all teaching had ceased.[1]  It put to him that if it accepted this information it may have concerns about whether the visa applicant studied there in 2018 and completed her course as claimed.  In response, the review applicant said he has no knowledge of any problems at the university of this kind.  He regularly sent the visa applicant money for her fees and as far as he was aware she paid her fees and completed her course. 

    [1] see also

17. The Tribunal discussed with the review applicant why the visa applicant did not provide information about the computer science course in her visa application or subsequently when requested by the Department to provide further information.  He said that she asked him at this time what to provide and he, mistakenly, told her she only needed to provide information about the courses she had completed at that time.  He said he was not represented then and did not know what was being asked.   Later after the application was refused he sought advice and then they provided the information about this course to the Tribunal.

18. The review applicant confirmed that the visa applicant is not studying at this time. The Tribunal explained that a criteria for the visa requires her to be studying at time of decision.  The applicant’s representative at this time interjected and stated that he was unaware of this and was of the view that time of decision meant time of the department’s decision. The Tribunal referred the representative to case law authorities which have considered these issues: Hussain v MIBP [2017] FCCA 3247 and Opoku-Ware v MIBP (2015) 297 FLR 416 and, at his request, agreed to allow time for him to provide submissions on this issue following the hearing.

19. The Tribunal spoke with the visa applicant by telephone with the assistance of an interpreter in the Yoruba language.  It asked her where she was living and with whom.  She gave the address provided in the application and stated that she lived there with her mother and brother, and that the property was owned by her parents. She is not in a relationship and has never been engaged or married. She is not working.  She is not studying at present.

20. She completed her last course in September 2018.  It was a computer science course at North American University Benin. She studied continuously from March 2016 to September 2018, and lived in boarding accommodation at the school. The fees were paid by her father.    He sent the money and she paid in cash at the office at the school. When asked if she had receipts or evidence of these payments she said she had to provide all the receipts to the school before she left to show she did not owe any money, in order to obtain her graduation. 

21. The Tribunal asked the applicant if she had any issues at the school during her study. She said she did not. It asked her if she was aware of any financial difficulties or issues at the school. She said she did not. She had no problems and was not aware of any. She completed her course in September 2018 and returned to Nigeria by October.  The Tribunal put to her the information in the articles previously referred to, stating that all teaching had ceased by the second half of 2018.  She said this did not happen in her course and she is not aware of it. She does not know if other courses were affected.  The Tribunal invited her to provide any further evidence she has to support her claim that she was studying throughout this period and completed her course.

22. It discussed with her the time of decision criteria to be studying at this time. She confirmed she was not studying now but had been studying up until September 2018.  The Tribunal explained that it is a criteria for the visa that she be studying at time of application and also at time of decision.

23. The Tribunal asked how she is financially supported. She said her father sends her money regularly. She also gets some support from her mother, who has a business buying and selling. 

24. Following the hearing, on 4 August 2019, the Tribunal received the following documents in support of the application:

    ·Transcripts of the visa applicant’s study for years 2016/2017; 2017/2018 and another one for 2017/2018.

    ·Course registrations forms for 2016-2018.

    ·Evidence of applicant’s address in Nigeria at March 2016.

    ·Evidence of sponsor’s ownership of the property the visa applicant lives in.

    ·Visa applicant’s Bachelor of Computer Science degree dated 21 September 2018.

    ·Receipts for fees paid 2016-2018.

    ·Student ID cards 2016-2018.

    No further submissions were made addressing the time of decision study requirement. 

25. On 5 August 2019 an officer of the Tribunal contacted the representative to ask if further submissions would be forthcoming.   He indicated that if he does not put in anything by 7 August 2019 he will not be making further submissions and the Tribunal can proceed to make the decision on the available material.

26. No further submissions or evidence were received by the Tribunal as at the date of this decision. 

    CONSIDERATION

27. 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).

28. 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 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work and study.

29. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because there was no evidence that the applicant was at time of application, a full time student or undertaking a full time course of study leading to the award of a professional, trade or vocational qualification. There was also no evidence that she continued to be a full time student at time of decision, and she also does not meet cl.101.221.   

30. The issues in this case are whether the visa applicant meets cl.101.213 and clause 101.221.

    Criteria for applicants over 18

31. 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).

    Relationship status and history

32. 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).

33. The Tribunal accepts the oral evidence of the review and visa applicant that the applicant is not married, engaged to be married or in a de facto relationship now, and was not at time of application.  There is no information before the Tribunal to contradict this, and no reason to not accept their oral evidence.  Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

34. 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).

35. The Tribunal accepts, on the oral evidence of the review and visa applicants, and evidence of regular remittances provided by the review applicant , that the visa applicant is not, and has never, been engaged in full time work. Accordingly, cl.101.213(1)(b) is met   and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

36. 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).

37. 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).

38. The Tribunal observes no claims have been made, and there is no evidence to suggest the applicant was incapacitated for work due to the loss of bodily or mental functions, and therefore cl.101.213(2) is not met in the present case.

39. 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. These cases are discussed further below.

40. In the material before the delegate, including the application form and Form 80 subsequently provided, no evidence was provided that the applicant was undertaking a course of study at the time of application.  The information provided was that she had completed a Bachelor’s Degree in Business Administration and was awarded the degree on 25 August 2015.

41. However, before the Tribunal she has provided new evidence that she enrolled in, commenced, and has now completed, a Bachelor of Computer Science degree at Houdegbe North American University, Benin.  Evidence was provided that she commenced this course on 6 March 2016 and completed it in September 2018.  Information was also provided that in the period between completing the previous degree course and commencing this one, she participated in the Nigerian National Youth Services Corps program which is mandatory following graduation.  An explanation was provided for why this information was not provided to the Department earlier, being that the sponsor misunderstood what was required and directed the visa applicant to only include courses she had completed as at that time. 

42. The Tribunal discussed the visa applicant’s study history with the review applicant and visa applicant during the hearing.  It also put to each of them reports obtained from open source material on the internet that suggested the institution she was purportedly attending, Houdegbe North American University, Benin, was experiencing financial difficulties during 2018 and that teachers had ceased teaching by the end of that year. It explained that if the Tribunal relied on this information it may not accept that she completed the computer science degree course as claimed.  Both the review applicant and visa applicant had no knowledge of any financial or other issues at the university and maintained that she paid fees and completed this study.  Following the hearing, further evidence of transcripts, course registration forms, receipts for fees paid and the visa applicant’s student ID cards and certificate of graduation was provided to support her claims. 

1. While the Tribunal has some concerns about the credibility of the applicant’s claims to have completed the degree course at Houdegbe North American University, Benin in September 2018 light of the independent information before it[2], it accepts she has provided documents, including transcripts, course registration forms and student cards, to support her enrolment, attendance and completion of the course.  For present purposes, the Tribunal accepts she was enrolled in the Computer Science course at Houdegbe North American University, Benin in March 2016.  It is not ultimately determinative to the outcome of the matter, however notwithstanding the reports of problems at the institution in 2018, it gives her the benefit of doubt and accepts she completed the course in September 2018. 

   [2] Karim Okanla, Hans Dembowski , From boom to bust, 24/04/2019, D+C Development and Cooperation, also  although the Tribunal notes this latter article appears to be a blog and it was unable to verify the reliability of this source.

2. However, significantly and relevant for this review, the evidence before the Tribunal is that since completing that course in September 2018, the visa applicant has not, and is not, continuing her study.  This issue was discussed with the applicants and the representative at the hearing.

3. Case law authorities, binding on the Tribunal, squarely address the time of decision study requirement.  Hussain v MIBP makes clear that while there is no requirement for an applicant to have been ‘continuously involved’ in study from the time of commencement of their studies and up until the time of decision,[3]  the visa applicant must, at the time of decision, be undertaking a full-time course.  In Opoku-Ware v MIBP, the Court held that the provision does not permit an end to the study within the decisional time frame, and considered that the phrase ‘has been undertaking’ in cl.101.213(1)(c) describes an action that has already commenced and remains ongoing. It stated that there are no words present in this provision to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of full-time studies, that has recently stopped. Further, the Court considered that the verb ‘continues’ in cl.101.221(2)(b) is written in the present tense and requires that the applicant is still undertaking studies at the time of the decision in respect of the visa.[4]  In Hussain, Judge Barnes observed that the Court in Opoku-Ware was addressing the need for the study to remain ongoing, in the sense of not having ceased, at the time of decision, and held that Opoku-Ware did not stand for the proposition that continuous involvement in study, without a pause, is required. 

   [3] Hussain v MIBP [2017] FCCA 3247 (Judge Barnes, 20 December 2017) at [114].

   [4] Opoku-Ware v MIBP [2015] FCCA 1638 (Judge Lloyd-Jones, 19 June 2015) at [75] – [78].

4. Neither the review applicant nor his representative made any submissions addressing the above authorities or suggesting an alternative construction.  No evidence of current study has been provided.

5. Therefore, on the basis of the evidence and these authorities, the Tribunal finds the visa applicant is not currently studying and therefore does not continue to meet the requirement in cl.101.213(1)(c) at the time of decision.

6. For the reasons above, cl.101.213 is met at the time of application, but, at the time of decision, cl.101.213 does not continue to be met.  Accordingly, cl.101.221(2)(b) is not met.

7. As a result of the above findings, it is not necessary to consider the dependency criteria in cl. 101.211 and cl.101.221(2)(a).

8. For these reasons, the criteria for the grant of a Subclass 101 visa are not met.

9. No claims have been advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117), and on the evidence before it the Tribunal finds the applicant does not meet the criteria for the grant of a visa under either of these subclasses. 

10. In these circumstances, the Tribunal has no option but to affirm the decision under review.  

    DECISION

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

    Meena Sripathy
    Member