Begum (Migration)

[2021] AATA 1325

Begum (Migration) [2021] AATA 1325 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Sharifa Begum

VISA APPLICANT:  Mr Mohammad Mostofa Shakil

CASE NUMBER:  1906550

HOME AFFAIRS REFERENCE(S):          2017053336 OSF2017053336

MEMBER:Andrew George

DATE:23 March 2021

PLACE OF DECISION:  Darwin

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 101.211 of Schedule 2 to the Regulations.

·cl 101.213 of Schedule 2 to the Regulations; and

·cl 101.221 of Schedule 2 to the Regulations

Statement made on 23 March 2021 at 5:27pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – ‘dependent child’ – applicants over 18 – full-time study requirement – Chartered University College – 18 hours of classes each week – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A; Schedule 2, cls 101.211, 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
Huynh v MIMA [2006] FCAFC 122
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 Home Affairs on 14 January 2019 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 19 July 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 (Cth) (the Regulations).

4. The delegate refused to grant the visa on the basis that cl 101.213(1)(c) was not met. The delegate found that the visa applicant completed his Year 10 equivalent schooling in 2011 and “… based on the evidence available and when considering the applicant’s education history, I am not satisfied that the applicant has been a fulltime student”.[1]

   [1] Decision Record/5.

5. The review applicant appeared before the Tribunal on 1 March 2021 to give evidence and present arguments. She was assisted by her brother, Mr Alam.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Dependent child criteria

7. The criterion in cl 101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl 101.221(1) or (2)(a).

   Dependent child

8. At the time of application, the visa applicant must be a ‘dependent child’ of an Australian citizen, permanent visa holder, or an eligible New Zealand citizen: cl 101.211(1)(a). ‘Dependent child’ is defined in reg 1.03 of the Regulations, which is extracted in the attachment to this decision. Essentially, the child must not be engaged or partnered, and if 18 or older, must be reliant on the parent for financial support to meet certain basic needs, or be incapacitated for work due to loss of bodily or mental functions.

9. In this context, for there to be the necessary element of dependency, there need not be a necessity to provide the relevant support. The question to be addressed is simply whether, as a matter of fact, the first person is relying for support on the other person rather than having to rely for support: Huynh v MIMA [2006] FCAFC 122 at [39], [44].

10. The review applicant’s evidence was that she regularly provides the visa applicant with money.[2] This is evidenced by numerous remittances from Aussie Forex & Finance, which all indicate ‘Family Support’ as their purpose.[3] This is consistent with older National Australia Bank statements on the Departmental File.

    [2] Hearing Bundle/Document A.

    [3] ibid/Document J.

11. The review applicant’s oral evidence was that the visa applicant spent the remittances on food, clothing, tuition and medical bills. The visa applicant lives with his grandfather and so does not pay rent, although does make contributions to expenses. The Tribunal accepts the review applicant’s evidence in this regard and, noting the definitions in r.1.03 and r.1.05A, is satisfied that the visa applicant was a dependent child of the review applicant at the time of application and also at the time of decision.

12. Accordingly, cl 101.211(1)(a) is met at the time of application and continues to be met at the time of decision.

    Applicant under 25 or incapacitated for work

13. At the time of application, the visa applicant must not have turned 25: cl 101.211(1)(b).

14. The visa applicant’s date of birth was 1 November 1994 and the date of application was 19 July 2017. Therefore, the applicant was aged 22 years as at the date of application and is aged 26 years as at the date of decision.

15. Accordingly, cl 101.211(1)(b) is met the time of application. It is not required to be met at the time of decision.

    Child-parent relationship

16. At the time of application, the visa applicant must be a child (other than adopted child) or specific kind of step-child of an Australian citizen, permanent visa holder, or eligible New Zealand citizen; or be adopted overseas by a person who at the time of the adoption, was not an Australian citizen, permanent visa holder, or eligible New Zealand citizen, but later became one: cl 101.211(1)(c).

17. The visa applicant is the natural born son of the review applicant,[4] an Australian permanent visa holder (Subclass 887).[5] Accordingly, cl 101.211(1)(c) is met at the time of application and continues to be met at the time of decision.

    [4] Departmental File/132.

    [5] ibid/238.

18. For the reasons above, the criteria in cl 101.211 are met.

    Criteria for applicants over 18

19. 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

20. 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).

21. The review applicant’s evidence is that the visa applicant is not, nor ever has been, married, engaged to be married, or had a de facto partner. Accordingly, cl 101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

22. 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).

23. There is no evidence before the Tribunal that the visa applicant is engaged in full-time work or was so engaged at the time of application. 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)

24. 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).

25. 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).

26. 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.

27. The Tribunal has before it a letter from Chartered University College dated 4 March 2019.[6] This letter indicates that the visa applicant was, at that time, “… a full-time student of The Association of Chartered Certified Accountants (ACCA) at Chartered University College”. The letter indicates that the visa applicant was admitted on 18 May 2011, when he was aged 16 years, and he was enrolled as a full-time student from the December 2011 session until the June 2019 session. The visa applicant had to repeat several subjects, which the review applicant attributes to examination failures.[7]

    [6] Hearing Bundle/Document C.

    [7] ibid/Document H.

28. The Tribunal notes that the letter of 4 March 2019 was not before the delegate, but rather a different version dated 10 July 2017 that only contained session enrolment details from June 2014 to June 2017.[8] The discrepancy is not explained, but is also not suspicious, and the Tribunal accepts the contents of the 4 March 2019 document.

    [8] Departmental File/216.

29. The Tribunal notes the contents of the visa applicant’s interview with a consular official on 8 May 2018. The delegate placed weight on the following question and answer:[9]

    Detailed explanation for his daily/weekly activities? -I have 6 hours classes. I have classes two days in a week. I also go for group study with other students. Other than that I stay mostly at home.

    [9] ibid/246.

30. The delegate interpreted this answer to mean that “… the applicant only has six hours of formal study two days a week …”.[10] The review applicant disputes this interpretation and says of the visa applicant:[11]

    He was enrolled in three subjects and was attending classes for 18 hours in a week. So totally he attended 18 hours of class each week. Each subject had three hours in a day. He had three subjects and each subject had 6 hours class time. He attended two days in a week for each class.

    [10] Decision Record/5.

    [11] Hearing Book/Document H.

31. The review applicant’s evidence is supported by a letter from Chartered University College of 4 March 2019, which says:[12]

    This is to certify that, Mohammad Mostafa Shakil (Date of Birth: 01/11/1994), student ID-107112818 is a full-time student of The Association of Chartered Certified Accountants (ACCA) at Chartered University College. This is the requirement of our institute, that every student needs to attend weekly 18 hours class (6 hours per subject per week-2 days, 3 subjects x 6 hours).

    [12] ibid/Document B.

32. The Tribunal accepts the evidence of the review applicant and Chartered University College and is satisfied that, as at the date of application, the visa applicant had been undertaking full-time study since turning 18 years. The Tribunal also notes that on 5 October 2020, the visa applicant was awarded an undergraduate degree from Oxford Brookes University.[13] He has been completing his professional experience internship placement since 16 June 2020.[14] Characterised as a whole, the applicant had been undertaking full-time study since the age of 18 years to become an accountant and he continues to meet this requirement as at the date of decision.

    [13] ibid/Document F.

    [14] Letter from Evaly dated 2 March 2021.

33. Accordingly, cl 101.213(1)(c) is met and continues to be met at the time of decision.

34. For the reasons above, cl 101.213 is met at the time of application and continues to be met at the time of decision. Accordingly, cl 101.221(2)(b) is met and cl.101.221 is therefore also met.

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

    DECISION

36. 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 101.211 of Schedule 2 to the Regulations.

    ·cl 101.213 of Schedule 2 to the Regulations; and

    ·cl 101.221 of Schedule 2 to the Regulations

    Andrew George
    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.

    …