EL MASRI (Migration)

[2018] AATA 4118

EL MASRI (Migration) [2018] AATA 4118 (5 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs ZEINAB EL MASRI

VISA APPLICANT:  Mr FAYSSAL EL MASRI

CASE NUMBER:  1704689

HOME AFFAIRS REFERENCE(S):           2015054993

MEMBER:Russell Matheson

DATE:5 February 2018

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 05 September 2018 at 1:43pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time course of study – regular money transfers – review applicant’s daughter as sender of money – Source of money – knowledge of tuition fees – did not complete equivalent of year 12 – did not undertake full time course – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA,
Migration Regulations 1994 (Cth), r 1.03, Schedule 2 cls 101.213, 101.211, 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 17 February 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 is a national of Lebanon. He applied for the visa on 22 September 2015. 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.101.221: that the visa applicant is a full time student at the time of application and decision.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because the delegate was not satisfied that the visa applicant was studying full time in a course of study at an educational institution leading to the award of a professional, trade or vocational qualification since turning 18 years old. The review applicant seeks review of the delegate’s decision.

5. The review applicant appeared before the Tribunal on 12 April 2018 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 Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has before it the Department’s file relating to the visa applicant; its own file; and a copy of the Department’s decision provided by the review applicant to the Tribunal.

9. The Tribunal has taken into consideration all the evidence in the Department’s file OSF2015/054993, folios numbered 1-194, and the Tribunal file 1704689, folios numbered    1-22 and the evidence at the Tribunal hearing.

10. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record

    ISSUE

11. The issue in this case is whether the visa applicant has, since turning 18, or within six months or a reasonable time after completing the equivalent of year 12, been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

    Dependency

12. The visa applicant was born in February 1994 and the Tribunal finds that he had turned 18 by the time the application was made. There is no evidence before the Tribunal that the visa applicant was, at the time of making the application, a dependent child within the meaning of the definition of ‘dependent child’ in r.103 of the Regulations.

13. With respect to dependence, the review applicant told the Tribunal that the visa applicant lives with his father in Lebanon. The review applicant further stated that she sends the visa applicant money for food, clothes and school fees. She further stated that she pays for everything including the utility bills and that the visa applicant does not pay rent because he is living with his father. The review applicant told the Tribunal that she sends money to the visa applicant via money transfers and sends cash with friends when they are visiting Lebanon to give to the visa applicant.

14. The visa applicant told the Tribunal that the review applicant sends him money for his school fees when he needs it and his brother who is working gives him money for his daily living expenses. The visa applicant further stated that the review applicant does not send him cash money for his day-to-day living expenses and that he has not received money from other sources. The review applicant told the Tribunal the visa applicant had previously worked on weekends because she had no money to send to him. The review applicant provided as evidence numerous Western Union money transfers addressed to the visa applicant and his brother in Lebanon. The majority of these listed the sender of the money transfers as the review applicant’s daughter Halloum. The review applicant told the Tribunal that she borrowed money from her daughter to send to the visa applicant and that her daughter helped her complete the forms to send the money to the visa applicant and his brother. Based on the evidence provided. The Tribunal is unable to determine whether it is the review applicant’s money or the daughter’s money or any other person’s money that is being used to pay the visa applicant’s school fees or daily expenses.

    s.359AA

15. The Tribunal is mindful that the visa applicant and the review applicant were inconsistent with their evidence during the hearing on a number of occasions and this led the Tribunal to question the visa applicant and review applicant’s credibility. These were discussed with the review applicant in accordance with s.359AA of the Act. The Tribunal informed the review applicant that it wished to put new information that it would consider being the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information to the review applicant and invited her to comment on or to respond to the information. The Tribunal told the review applicant that she may respond to the information orally or in writing. The review applicant was also informed that she may seek additional time to comment on or respond to the information. The review applicant responded orally.

16. The Tribunal put to the review applicant that the visa applicant had given evidence that the money he receives from for his mother is for school fees only, and that he receives money from his brother who is working for his daily living expenses. The review applicant’s evidence is that the money she sends the visa applicant is used for his school fees and living expenses.

17. The review applicant responded orally that the visa applicant should have explained that he used the money for living expenses and he didn’t know it was important and he was confused. She further stated that the visa applicant’s brother gives him money every now and then.

18. The review applicant told the Tribunal that she sends regular money transfers to the visa applicant and his brother in Lebanon for their tuition and daily living expenses. The review applicant said that she borrows the money from her daughters and other people to send to her son in Lebanon. She further stated that she pays for everything and has also sent cash money through a third party to her sons. When questioned as to how this occurred she said that she gave her friend who was visiting Lebanon $400 dollars cash to give to her son two weeks ago. The review applicant also stated that she could not remember her friend’s name. The review applicant said that she also gave her neighbour’s friend $200 to give to her son in Lebanon about nine months ago and she could not remember her name either. The visa applicant told the Tribunal that he uses all the money for his tuition fees and receives money from his brother who is working for his daily living expenses and receives no other financial support from any other source. He further stated that he does not know where his mother gets the money from because they have never spoken about it.

19. Also in accordance with s.359AA the Tribunal put to the review applicant that the visa applicant’s evidence is that he has no knowledge of receiving cash money from the review applicant’s friends and has no knowledge of his siblings giving money to the review applicant to send to him.

20. The review applicant responded orally stating that the visa applicant does not know his siblings are sending him money because she had never told him and he had never asked her. She further stated that the visa applicant thinks she gets good money and that she told the visa applicant to tell her what he needs and she sends the money. The review applicant also told the Tribunal that the cash money she sends with friends is sometimes given to the visa applicant and sometimes to his brother in Lebanon. Based on the evidence provided the Tribunal finds the visa applicant has little knowledge of who is sending him money and for what purposes it is to be used for. The Tribunal is also of the view that the review applicant is prepared to fabricate evidence in relation to the amount of financial support she is providing to the visa applicant. 

21. The review applicant post hearing provided handwritten statements from the following:

    ·Amne Assoum, born 1 February 1959, stating that she took five thousand dollars on 2 August 2015 from the review applicant (Zainab El Masri) not dated.

    ·Hassan Alameddine, dated 20 March 2018, stating that they have lent the review applicant two thousand dollars and the money will be returned on 20 August 2018.

    ·Hanin Ghantouss, born 15 May 1995, stating that she had taken two thousand dollars to Lebanon on behalf of her mother in law (Zainab El Masri) on 18 February 2018, also not dated.

22. The Tribunal place no weight on the statements as they do not indicate the source of the money or why the money was lent to the review applicant, or why the money was taken to Lebanon or for what purpose or who the money was intended for.

23. Ultimately, while the Tribunal accepts that the review applicant has been providing some financial support to the visa applicant, there is no evidence that the money being sent by the review applicant is being used for food, shelter and clothing. Both the visa applicant and the review applicant also provided evidence that the visa applicant receives money from his brother who is working for his day-to-day living expenses. The visa applicant also told the Tribunal that he continually searched for work and worked on a part time basis at a restaurant after leaving secondary school and he lived with his father rent free. Based on the evidence provided the visa applicant supported himself by working and was reliant on his father for lodgings and received financial assistance from his brother for day-to-day living expenses. In such circumstances the Tribunal is not satisfied the visa applicant is a dependent child who is reliant on the review applicant for financial support to meet his basic needs, greater than any other source.

24. The Tribunal is not satisfied that at the time of application and at the time of decision, the visa applicant has been wholly or substantially reliant on the review applicant (his mother) for financial support to meet his basic needs for food, clothing and shelter. The tribunal is not satisfied the visa applicant’s reliance on the review applicant is greater than his reliance on any other person, or source of support, for financial support to meet his basic needs for food, clothing and shelter. There is no evidence that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is not satisfied that the visa applicant was a dependent child at the time of the visa application and at the time of this decision. The visa applicant does not meet cl.101.211 and cl.101.221. 

    Criteria for applicants over 18

25. 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

26. 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).

27. The visa applicant informed the Tribunal that he is not engaged to be married and has never had a spouse or de facto partner. He further stated that he is not in a relationship at the present time. There is no evidence before the Tribunal to indicate that the visa applicant is in any type of relationship.

28. Accordingly, cl.101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

29. 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).

30. The visa applicant told the Tribunal that he is not currently working and that he worked part time Friday, Saturday and Sunday prior to starting his studies. The review applicant said her son worked weekends before he started his studies. The visa applicant had previously informed the Department at interview that he worked part time at a restaurant as a waiter from Friday to Sunday. The visa applicant said that he is currently unemployed. There is no evidence before the Tribunal that the visa applicant is or has been in engaged in full time work. The visa applicant provided evidence to the Tribunal that he has worked in a restaurant on a part time basis.

31. Accordingly, cl.101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

32. At the time of application, the visa applicant must have, since turning 18, or within six 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).

33. 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).

34. 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.

    Does the visa applicant meet the study requirement?

35. The review applicant provided to the Tribunal a copy of the primary decision record which contains the following information.

36. The visa applicant provided the following information relating to his study;

    ·Statement (translated  10 September 2015, folios DF 70), from Al Abir Technical Institute El Menieh indicating the visa applicant is registered for the academic year 2015-16 and 2016-2017 major in assistant accounting and the second phase of a further three years to major in accounting and computer technology.

    ·Statement (translated 7 September 2015) from Al Abir Technical Institute El Menieh that the visa applicant was registered to attend the institute for the period 2015-16 majoring in assistant accounting (DF folio 63).

    ·Statement from the local Town Councillor of El Menieh stating the visa applicant had to leave school due to difficult material and life circumstances and that now he is able to resume his studies (DF folio 65).

    ·A copy of his school certificate stating that the visa applicant had completed year six of the basic education, second circle for the school year 2008/2009, further stating the visa applicant failed his final exams (DF folio 67).

    ·Five receipts for course fees and enrolment from Al Abir Technical Institute El Menieh for the period 5 September 2015 to 12 February 2016 totalling 1.7 million Lebanese Liras.

    ·Nineteen Western Union money transfer forms and receipts for the period 26 August 2015 to 31 August 2017. The money transfers indicate that the senders were the review applicant (Zeinhab) and her daughter (Halloum) and the recipients were the two sons of the review applicant Faysal and Mahmoud.

    Hearing and other considerations

37. The Tribunal is mindful that the visa applicant and the review applicant were inconsistent with their evidence during the hearing on a number of occasions and this led the Tribunal to question the visa applicant’s and review applicant’s credibility. These were discussed with the review applicant in accordance with s.359AA of the Act. The Tribunal informed the review applicant that it wished to put new information that it would consider being the reason or part of the reason for affirming the decision. The Tribunal explained the relevance and the consequences of the information to the review applicant and invited her to comment on or to respond to the information. The Tribunal told the review applicant that she may respond to the information orally or in writing. The review applicant was also informed that she may seek additional time to comment on or respond to the information. The review applicant responded orally.

38. The Tribunal put to the review applicant that the visa applicant stated that he studies full time at Al Abir Technical Institute and is specialising in accounting. He further stated that he has completed stage one of his studies and is currently in the process of completing stage two. The visa applicant said that he attends the institute from Monday to Thursday in the afternoon between the hours 3pm to 8pm each day. The review applicant said that the visa applicant attends his studies at the institute between the hours of 2pm to 5pm but the hours vary and he attends three or four hours at a time.

39. The review applicant’s evidence in response said that it depends on the visa applicant when he attends classes. Sometimes he goes early and sometimes he goes later; it is up to the visa applicant when he goes to classes. Based on the evidence provided the Tribunal accepts the visa applicant’s study hours may vary, but finds the review applicant has little knowledge of his hours of study.  

1. The Tribunal asked the visa applicant when he commenced his studies at Al Abir Technical Institute. The visa applicant said that he stared his course in 2015 at the beginning of the year. The Tribunal asked the visa applicant what month in 2015 did he start his accountancy course. He said that he could not remember and then corrected himself and said that he started in September. The Tribunal during questioning asked the visa applicant if there was anyone else in the room with him in Lebanon because there were questionable background noises which appeared to be whispering, the visa applicant replied that he was on his own and there was no other person in the room with him.

2. Also in accordance with s.359AA the Tribunal queried with the review applicant why the visa applicant could not remember when he commenced his studies with Al Abir Technical Institute.

3. The review applicant stated that she believed that the visa applicant may have thought that she had said something different at the hearing and that was why he was confused about his enrolment and did not know what to say. Based on the evidence provided the Tribunal finds that the visa applicant has little knowledge of when he enrolled at Al Abir Technical Institute.

4. Evidence before the Tribunal in the Form 47CH declares that the visa applicant left primary school in 2008. The Tribunal asked the visa applicant when he finished primary school. The visa applicant responded that he left primary school in 2014; that is what he remembers. He further said that he does not know and he can’t remember when he left school. 

5. Also in accordance with s.359AA the Tribunal queried with the review applicant why the visa applicant could not remember when he left primary school.

6. The review applicant responded orally that the visa applicant left primary school in 2008 and does not know why he said he left in 2014. Based on the evidence provided the visa applicant has little knowledge of his school years.

7. The Tribunal questioned the review applicant and the visa applicant in relation to the cost of the fees for the visa applicant’s accountancy course. The review applicant told the Tribunal the cost of her sons fees were somewhere around 1.5 million Lebanese Liras each year for the course.  The visa applicant said the cost of the course was 3 million Lebanese Liras for the first two years of the course and the future costs for stage two of the course were 4 million Lebanese Liras. The visa applicant further stated that the total costs for his accountancy course was 7 million Lebanese Liras.  The Tribunal informed the visa applicant that there was documentation in the Department file (folio 70) from Al Abir Technical Institute outlining the study fees of his accountancy course. The document states that the cost of studies, registration and education is 3 million Lebanese Liras each year for the first two years (stage 1) and 4 million Lebanese Liras each year for the next three years (stage 2). The Tribunal informed the visa applicant that the total cost of his education for five years is 18 million Lebanese Liras. The visa applicant when informed of this said that he meant to say every year and it was 18 million Lebanese Liras. The Tribunal sought clarity from the visa applicant during the hearing as to the costs of his fees particularly in relation to the total costs and he maintained that the total costs for his tuition was 7 million Lebanese Liras until the information in the documents was brought to his attention.  The review applicant told the Tribunal that she did not say the cost of her son’s tuition was 1.5 million Liras per year and that she forgot what she had said and was surprised about what her son had said. The Tribunal is of the view the visa applicant and review applicant have little knowledge of the actual costs of his tuition and does not find either the applicant’s evidence credible.

8. The Tribunal queried with the review applicant that the money transfer receipts that she had provided as evidence did not cover the cost of the visa applicant’s tuition fees. The review applicant told the Tribunal that she can pay the fees at a later date and that she still owes money for the visa applicants’ tuition, but cannot remember how much she owes.

9. Also in accordance with s.359AA the Tribunal queried with the review applicant why the visa applicant could not remember the cost of his study fees with Al Abir Technical Institute and why she had no idea what the actual fees were.

10. The review applicant responded orally that the visa applicant had made a mistake and she does not know how to explain. She further stated that the Tribunal should not consider it a lie and that the family are under a lot of pressure due to fighting where the visa applicant is living in Lebanon. Based on the evidence provided the Tribunal finds that the visa applicant has little knowledge of how much his study fees are.

11. The review applicant told the Tribunal that the visa applicant had left school in 2008 to find a job because the family had no money. She further stated that the visa applicant lived a rough lifestyle and even when you found a job it did not cover the costs of food. The review applicant told the Tribunal that she cannot return to Lebanon because she owes a lot of money to other people.  The visa applicant told the Tribunal that he left school because he did not have any money for school fees. The visa applicant said that he used to work on Fridays, Saturdays and Sundays at a restaurant. He further stated that it was hard to find work and that the work was irregular.

12. Based on the evidence provided the Tribunal is of the view that the visa applicant has not studied since completing year six basic education for the school year 2008/09 at 14 years of age, and failing his final exams (DF folio 67). The visa applicant’s evidence is that he left school because of financial reasons and he could not pay the school fees and that he decided to look for work. The visa applicant stated that he worked part time and continued to look for work after leaving school. The applicant has not declared any studies for seven years between finishing school in 2008 and enrolling in his accountancy course at the Al Abir Technical Institute in Lebanon in August 2015. The visa applicant turned 18 years of age on 1 February 2012. The visa applicant had trouble remembering when he actually started his studies and had no idea of the costs involved studying at the Al Abir Technical institute and little idea as to when he finished his basic education or left school.  The Tribunal finds that the visa applicant has little knowledge of his schooling years and when he actually started studying after leaving school.  Based on the evidence provided the Tribunal finds the visa applicant left school in 2008 and did not complete the equivalent of year 12. The visa applicant did not complete the equivalent of year 12 when he turned 18. The visa applicant has not been undertaking a relevant full-time course of study continuously from the time he turned 18.  The Tribunal finds that since turning 18 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.

13. Based on the evidence provided the Tribunal is 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. Accordingly the Tribunal finds cl.101.213(1)(c) is not met.

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

15. There is no suggestion that the visa applicant is an adopted child of the sponsor and he does not meet the requirements for the grant of the Adoption visa. The visa applicant is sponsored by his biological mother, whose whereabouts are known and who is not incapacitated, and the visa applicant does not meet the requirements for the grant of the Orphan Relative visa.

    Conclusion

16. 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

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

    Russell Matheson
    Member