Baig (Migration)

[2019] AATA 817

Baig (Migration) [2019] AATA 817 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdul Khalique Baig

VISA APPLICANT:  Mr Sajjad Ali Baig

CASE NUMBER:  1622245

HOME AFFAIRS REFERENCE(S):           OSF2016/040776

MEMBER:Kira Raif

DATE:23 January 2019

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(1)(a) of Schedule 2 to the Regulations

Statement made on 23 January 2019 at 11:04am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant attained age of 18 – relationship status – undertook a Nikah ceremony – not a genuine spousal relationship – marriage formally annulled – study requirement – not considered by the delegate – reasons for periods of non-study – reconstruction of family home – care of sister – sister and grandmother passed away – religious ceremonies – inadequate evidence to make positive finding – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 101.213, 101.221; Schedule 4, PIC 4017

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 17 October 2016 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 is a national of Pakistan born in September 1991. The visa applicant applied for the visa on 15 September 2016. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate found that the applicant had a spouse. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The applicant provided a number of documents to the Tribunal in late December 2018 and early January 2019. The applicant’s representative provided a detailed written submission on the afternoon of 4 January 2019, less than one working day before the scheduled hearing. The Tribunal finds such late submission of legal arguments less than helpful. No explanation is offered by the applicant’s representative for the failure to comply with paragraph 5.1 of the AAT Practice Directions on Migration and Refugee Matters. The Tribunal is mindful that the application for review was lodged with the Tribunal in December 2016 and the issues that arise on review are well defined in the primary decision record. The applicant was represented by the same agent throughout the process.

4. The review applicant appeared before the Tribunal on 7 January 2019 to give evidence and present arguments. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. 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).

6. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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).

7. Relevantly to this case, subparagraph (1)(a) of that provision relevantly requires that the applicant must not be engaged to be married, does not have a spouse and has never had a spouse.

   Criteria for children over 18

   Relationship status

8. The visa applicant was born in September 1991 and the Tribunal finds that the visa applicant was over the age of 18 at the time the application was made.

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant included with his application a divorce certificate dated 9 September 2016 issued in Pakistan. The divorce was granted on 27 August 2016.

10. In his submission which accompanied the application, the applicant stated that it was the wish of his grandmother that he should marry. To comply with his grandmother’s dying wish, he and his brother undertook a Nikah ceremony with their second cousins. The applicant claims that the marriages occurred ‘on paper’ only and they never commenced cohabitation. The brides had never entered the family home as spouse and there was never the husband and wife relationship, nor the financial support. In 2015, during the processing of the Humanitarian visa applications, the father informed the Department about the marriages without obtaining legal advice and the applicant’s application was refused on the erroneous assumption that the fact of the Nikah alone was sufficient to establish a spousal relationship, which is not the case.

11. The applicant provided a further submission to the Tribunal. The review applicant provided evidence of the visa applicant’s study and a number of statements. The review applicant presented a statement from the visa applicants. The visa applicants state that although they had a Nikah, they were never in a married relationship with their respective partners.

12. With respect to the engagement, the visa applicant states that in 2014 his grandmother told him that she wanted to see them engaged to their cousins before she passed away. They did not want to disobey their grandmother and agreed to her request. About six months later there was a formal request for engagement and the proposal had been accepted. Shortly after, their sister and then their grandmother died and the family was in mourning so the marriage was postponed. Later on their father told them that the family was considering formal plans for arranging the annulment process.  After their visas were refused, their father made arrangements to have the marriage annulled through a lawyer. There was no request for reconciliation and the marriages were formally annulled in August 2016. The applicants state that despite the Nikah, culturally and practically they were not in a married relationship. They never lived with their partners and had not seen each other since the engagement ceremony. They never shared money and neither did their families. They barely know each other and had no personal commitments. Their friends never believed they were married. The marriage ceremonies were never held, so in their culture they were not considered as a married couple. There was never a genuine married relationship between them despite the formal marriage.

13. The applicants provided a number of statements from third parties supporting these claims.

14. In the written submission received by the Tribunal on of 4 January 2019 the review applicant outlined the background of the two visa applications, family circumstances and set out his children’s study history. With respect to the visa applicants’ spousal relationships, the review applicant refers to r. 1.15A(4) and notes that there is a parliamentary intention that the decision makers must consider the circumstances mentioned in r.1.15A(3) when it is warranted and the delegate failed to engage in an analysis of the statutory definition of ‘spouse’.

15. The review applicant notes that while his sons signed the paperwork necessary for the marriage, the delegate failed to have regard to the fact that the marriages have been annulled, which is a finding that the marriages had never validly existed. The visa applicants never considered themselves to be validly married. The review applicant addressed each of the considerations under s. 5F and r. 1.15A and set out the religious requirements for a valid marriage. 

16. The Tribunal accepts the review applicant’s interpretation of what the legislative provisions require in relation to the spouse. That is, the requirement in cl. 101.213(1)(a)(ii) and (iii) refer to a ‘spouse’ within the meaning of r. 1.15A and that term is to be interpreted in the same way it would apply with respect to other criteria set out throughout the Migration Act and the Regulations. That is, the factors set out in r. 1.15A may be relevant and the term ‘spouse’ requires more than a formal marriage registration. In this case, the Tribunal accepts the parties’ evidence that despite the formal marriage, the applicant did not have a meaningful relationship with his spouse, they had never lived together, has not shared finances and social activities and had not presented themselves to others as being a married couple. The marriage was annulled before the couple established the relationship and their relationship was not in the form of a spousal relationship despite the formality of the marriage.

17. The Tribunal is satisfied the visa applicant meets cl. 101.213(1)(a).

    Full-time study (or incapacitated for work)

18. 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).

19. There is no evidence that at the time of making the application, the visa applicant was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.

20. With respect to their study, the visa applicant states in his written evidence to the Tribunal that after completing schooling, he was enrolled in another course but took a gap year in 2011 and early 2012 to help rebuild their damaged home and look after the family. In 2012 he completed an IELTS course and in 2013 he did an office management course in computer science before being accepted into Superior College for a Bachelor of Science. They had to take time off in 2014 when his sister was ill and in 2015 when his sister and grandmother passed away. From 2016 the visa applicant had been studying at Superior Polytechnic College and will complete the course in late 2018 or early 2019.

21. The review applicant told the Tribunal in oral evidence that his sons were the sole carers of their sister. There was time when she was very ill and hospitalised and they had to come back to look after her as there were no other facilities available to care for the disabled daughter. When the daughter’s condition deteriorated, she needed full-time care. His daughter was hospitalised for two months and spent a couple of months at home before she passed away. A short time later his mother passed away and there were many religious ceremonies the visa applicants had to participate in. The review applicant said once they had taken time off school, they could not re-enrol at any time but had to wait for the new semester. They had to withdraw from the course and re-enrol at the start of the next year.

22. The review applicant’s evidence is that the children completed secondary schooling in 2010. They were involved in house renovations in 2011 and did an English preparation course in 2012. That course was of two months’ duration and that course did not lead to a formal qualification. They did not commence formal study until 2013. There was also a period when the home was demolished, so they had to take charge of the reconstruction.

23. The review applicant told the Tribunal that after completing intermediate high school, the visa applicant did some short courses, and then BA and an Engineering course. The BA was done through distance education between 2017 and 2018. The office management course required about 3 hours of study a day and the course ran for three months. The English course was also about 3 hours a week.

24. The visa applicant said when their sister and grandmother passed away, he took about a year or a year and a half off. Around the time when their house was rebuilt, they took between 8 months and 12 months off their studies. The Tribunal is mindful that the review applicant’s evidence to the Tribunal refers to longer periods of non-study.

25. The representative submits that the Tribunal must assess the particular circumstances of the applicant and what is reasonable having regard to their particular factors, including cultural factors. The evidence is that the eldest male in the family takes care of the family business. In this case, this included the reconstruction of the family home in 2010. The devastation was extensive not only to the family home but to the educational institutions. In relation to the second period when the sister was ill, primarily it was the mother who was the carer but as her health deteriorated, the daughter needed 24 hour care and other care such as transport to the hospital and there was need for care by the entire family. She was hospitalised for two months when the visa applicants provided emotional care and following the passing, there was a 40 day mourning period. Then the grandmother passed away and there were other ceremonies and the mourning period. The period of one year is a reasonable period given the family’s circumstances and history.

26. In the post-hearing written submission of 21 January 2019 the review applicant states the visa applicant was awarded the Intermediate Education Certificate in December 2012 even though the results were declared in February 2011. The review applicant states that between February and August 2011 the visa applicant was enrolled in the Diploma of Office Management at Sadiqabad Institute of Computer Science. He states that these courses were Diploma-level courses certified by the Skill Development Council. The review applicant states that the visa applicant was not engaged in studies between August 2011 and September 2013 because of the damage to the house during the flooding, the repairs to the house and the family’s relocation to another area during a period when the children could not enrol in a formal course. The review applicant submits that the period when the visa applicant was not studying was outside of his control. The review applicant states, with respect to the second period between November 2014 and January 2016, that in that time the visa applicant was taking care of his sister and could not study due to the family commitments.

27. The Tribunal accepts the review applicant’s submission that an assessment of the entirety of the circumstances is required and that the reasons for not studying, and the activities during that period, are relevant. However, establishing that the period when the visa applicant is not engaged in studies was beyond the visa applicant’s control is not determinative.

28. The review applicant’s oral evidence suggests that at least some of the courses done by the visa applicant, including the Office Management course and the English course, were done on the part-time basis. Further, the review applicant has not established to the satisfaction of the Tribunal that in the entire period between August 2011 and September 2013 and from November 2014 to January 2016 the visa applicant could not engage in some form of studies or study – related activities due to other commitments.

29. The Tribunal has formed the view that there is inadequate evidence to enable the Tribunal to make a positive decision that the visa applicant meets the study requirement in cl. 101.213(1)(c). However, the Tribunal is also mindful that this provision was not considered by the delegate. There is no assessment of the visa applicant’s study and of his circumstances that resulted in the two lengthy periods when he had not engaged in studies. There is also no assessment whether the study undertaken by the visa applicant was on a full-time basis and leading to a formal qualification, particularly the Office Management course. In such circumstances, the Tribunal has determined that the most beneficial course of action for the applicant is to enable that assessment to be done by the delegate. This would enable the applicant to present his case to the delegate and, should the applicant be unsuccessful, he would have an opportunity for review. As such, the Tribunal makes no findings in relation to cl. 101.213(1)(c) and limits its findings to the only issue that was considered by the delegate.

    Conclusion

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

    DECISION

31. 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(1)(a) of Schedule 2 to the Regulations

    Kira Raif
    Senior Member