Alshayk (Migration)

[2019] AATA 3783

Alshayk (Migration) [2019] AATA 3783 (6 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Karrar Abdulhusain Saleh Alshayk

CASE NUMBER:  1620451

HOME AFFAIRS REFERENCE(S):          CLF2016/35054

MEMBER:Kira Raif

DATE:6 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 06 February 2019 at 4:15pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) – Subclass 802 (Child) – study requirements – did not attend hearing – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cls 802.212, 802.214, 802.216, 802.221, 802.216

CASES

Opoku-Ware v MIBP [2015] FCCA 1638

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 11 November 2016 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Iraq, born in October 1997. He applied for the visa on 8 June 2016. The delegate refused to grant the visa on the basis that cl.802.214 was not met because the delegate was not satisfied the applicant me the study requirements. The applicant seeks review of the delegate’s decision.

   Procedural issues

3. On 10 December 2018 the Tribunal invited the applicant to attend the hearing on 5 February 2019. On 4 February 2019 the applicant’s representative Ms Latifa Al-Haouli of Sabelberg Morcos Lawyers informed the Tribunal that due to illness, the sponsor was unable to attend the hearing and requested a hearing postponement. No medical evidence was provided to support that claim and the Tribunal informed the representative that in the absence of any medical evidence, the hearing would not be postponed. The representative indicated that they were awaiting the medical report, which would be provided to the Tribunal, however, on the evening of 4 February 2019 the representative informed the Tribunal that the applicant and the sponsor would attend the hearing the following day. Neither the applicant nor the sponsor attended the hearing on 5 February 2019, contrary to the information contained in Ms Al-Haouli submission to the Tribunal of 4 February 2019 concerning the applicant’s and sponsor’s appearance at the hearing.

4. At the time of this decision, no medical certificate and no other probative evidence has been provided to the Tribunal explaining the applicant’s failure to attend the hearing. The Tribunal is mindful that the applicant’s representative advised the Tribunal in the communications of 4 February 2019 that the sponsor had ‘medical concerns’. There is no suggestion that the applicant himself was unable to attend the hearing and give evidence and present arguments for any reason. The Tribunal finds that the applicant has been put on notice on 4 February 2019 that the hearing would proceed and the applicant had time to present medical evidence or other evidence of his inability to attend the hearing. The applicant has not sought an extension of time to provide medical or other evidence to explain his non-attendance.

5. The Tribunal is also mindful that the hearing invitation expressly stated that if the adjournment was not granted, the applicant must assume that the hearing would go ahead. The applicant was advised that if he did not attend the hearing, the Tribunal may make a decision on the case without further notice.

6. The Tribunal finds that the applicant was given a genuine opportunity to appear before the Tribunal to give evidence and present arguments.  He had not attended the hearing at the scheduled time and place. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Relevant law

7. At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have only been made in respect of Subclass 802 (Child).

8. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl.802.216, 802.226A), the criteria to be met in this case include cl.802.214.

9. At the time of application, the 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.802.214(1)(c).

10. 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.802.214(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.802.214(2).

11. Where cl.802.214(1)(c) applies, it must continue to be met at the time of decision: cl.802.221(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.

    Does the applicant meet the study requirement?

12. The applicant was born in October 1997 and was over the age of 18 at the time he made the application for the visa. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’. The Tribunal finds that cl. 802.214(2) does not apply.

13. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated on the application form that he was undertaking an English course at TAFE commencing from January 2016 but he had not provided any evidence of his study or that the course was a full-time course. The delegate wrote to the applicant requesting evidence of his full-time study and other materials but the applicant did not respond. As such, the delegate was not satisfied the applicant met cl. 802.214.

14. The representative provided a lengthy written submission and a large volume of documents to the Tribunal, with supporting evidence, on the evening of 4 February 2019. The Tribunal is mindful that the matter has been with the Tribunal for over two years with no evidence having been provided to the Tribunal prior to that date. The Tribunal notes that one of the reasons for the delegate’s decision to refuse the application was due to lack of documents. As the case has been with the Tribunal since December 2016, it is inexplicable that the applicant, or his representative, chose not to provide any submissions or evidence to the Tribunal until the day of the hearing. Neither has the representative offered any explanation for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters.

15. In his submission to the Tribunal of 5 February 2019 the applicant states that the English course he did at TAFE was full-time course as it comprised 450 teaching hours and the course attendance was from June to November 2016. In the Tribunal’s view, that in itself is not sufficient to establish that the course was full-time. The Attendance Certificate which the applicant presented to the Tribunal shows that the applicant attended 51 hours between 7 June and 22 November 2016. In the Tribunal’s view, attendance of approximately ten hours a month does not amount to undertaking a full-time course of study. However, even if the course was a full-time course, the Tribunal is not satisfied that the Certificate I in Spoken and Written English is a course that is leading to a formal qualification. The Tribunal considers that this course cannot be considered for the purpose of cl. 802.214.

16. The applicant states that the delayed recommencement of studies is indicative of his intention to complete the course and does not mean that he was not undertaking the course leading to the award of the professional qualification. The applicant refers to the reasoning in Opoku-Ware v MIBP [2015\ FCCA 1638 and states that his break in study must be considered by reference to his overall circumstances. The Tribunal accepts that argument.

17. The applicant refers to his father’s health, stating that he has been suffering from a number of illnesses and he presented his father’s medical records. The applicant states that his father’s medical issues affect him and the medical history is ‘completely synonymous’ with the period of time he has been unable to continue his enrolment.

18. The Tribunal acknowledges the medical reports relating to the sponsor and accepts that the sponsor suffers from a number of conditions. However, the presented evidence does not establish that the applicant himself was either suffering from any medical condition or that his father’s condition prevented the applicant from being able to undertake study. That is, while the Tribunal accepts the sponsor’s medical evidence, the applicant has not established a link between his father’s condition and his own study. There is no evidence before the Tribunal about the applicant’s activities during the period when he was not studying. There is little information before the Tribunal concerning the applicant’s circumstances and his capacity to study. The applicant has not provided adequate evidence in support of his claim that his inability to study was ‘synonymous’ with his father’s medical history. The Tribunal is not satisfied that it is.

19. The Tribunal is not satisfied that the 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. There is no evidence that he applicant was, at the time of the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal is not satisfied the applicant meets cl. 802.214.

20. Further, there is no evidence before the Tribunal concerning the applicant’s study at the time of this decision or of his engagement in any study-related activity. There is little evidence about the applicant’s present circumstances insofar as these relate to his study or capacity to undertake study. The Tribunal is not satisfied on the evidence before it that the applicant continues to meet c. 802.214 and that he meets cl. 802.221.

    Is the applicant a dependent child?

21. With respect to dependence, the applicant states in his written submission to the Tribunal that he is completely dependent on his father, despite helping him with the medical issues. The applicant states that his father provides him with financial support, the house to live in, food and basic necessities. The applicant states that he has no means of support other than from his father.

22. The applicant provided very little evidence to support these claims. He provided to the Tribunal a number of bank statements which appear to relate to his father. It is unclear how the bank statement relating to the sponsor could establish the applicant’s dependence on his father in the absence of any evidence relating to the applicant’s own financial circumstances. The applicant claims that he is fully dependent on his father for food, accommodation and basic necessities. The applicant has not presented evidence of his own financial circumstances, income or expenses. There is no evidence to establish that he relies on his father’s funds. He has not presented his own bank records for the relevant period, or evidence of any employment (or the absence of employment). There is no evidence that the applicant in fact lives with his father and relies on his father for accommodation. There is no evidence that the applicant relies on his father for food and clothing. It is not sufficient to state that the applicant is so reliant and there is very little probative evidence to support the applicant’s contentions.

23. On the limited evidence before it, the Tribunal is not satisfied that the applicant relies on his father for his basic needs for food, shelter and clothing and that the applicant’s reliance on his father is greater than his reliance on any other source. The Tribunal is not satisfied that the applicant was a dependent child of the sponsor at the time of the application and that he is a dependent child of the sponsor at the time of this decision. The Tribunal is not satisfied the applicant meets cl. 802.212 and cl. 802.221.

24. There is no evidence to suggest that the applicant meets the requirements for the grant of the Orphan Relative visa. In particular, the Tribunal notes that the applicant was over 18 at the time the application was made and he cannot meet the definition of ‘orphan relative’.

    Conclusion

25. For the reasons above, the criteria for the grant of a Subclass 802 visa are not met. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Kira Raif
    Senior Member