Ellis (Migration)

[2021] AATA 2322

Ellis (Migration) [2021] AATA 2322 (8 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Gerald Colin Ellis

VISA APPLICANT:  Mr Aaron Munukayumbwa Mukelabai

CASE NUMBER:  1935381

HOME AFFAIRS REFERENCE(S):          CLF2019/022284 F2019/022284

MEMBER:David Barker

DATE:8 April 2021

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 08 April 2021 at 9:23am

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicant over 18– applicant has not enrolled in a further course of study – cl.101.213 does not continue to be met at the time of decision – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.03, Schedule 2, cls 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
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 October 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 (the applicant) applied for the visa on 1 April 2019. 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). Relevantly to this case, they include cl.101.213 and cl.101.221, which specify particular requirements applicable when an applicant is over 18 at time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213 and cl.101.221 were not met because the visa applicant did not satisfy the criteria to be regarded as a dependent child as they determined the applicant had not, since he turned 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.

5. The visa applicant’s stepfather (the review applicant and sponsor) appeared before the Tribunal on 11 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and his mother.  The hearing was conducted by videoconference utilising the MS Teams platform.

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

   Background

7. The review applicant is a national of Australia of British descent. He and the mother of the applicant, a national of Zambia, were married in Coffs Harbour, NSW, in January 2015. The visa applicant, a national of Zambia, is currently 26 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, provides the following information:

   ·     The visa applicant turned 18 years in 2013 and was 24 years old at the time of application. No claims have been made that the visa applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions. Because the applicant was over 18 years of age at the time of application, he is required to meet cl.101.213.

   ·     The applicant completed his grade 12 / matriculation studies in December 2012 and only commenced his university studies in 2015, therefore taking a three‑year gap in between study. The applicant provided a signed letter confirming this break in study.

   ·     Information provided to the Department by the applicant stated that after completing his grade 12 / matriculation studies, he started making his application to the University of Zambia, because this was where he wanted to pursue his studies and, as his mother could not afford to pay the tertiary school fees, this institution offered government loans. The applicant decided to apply for government loans in order to be admitted to the University of Zambia and on his third attempt in 2015 was successful.

   ·     The delegate found that the gap of some years between the applicant completing secondary school and commencing further study at the University of Zambia constituted reasonable time. The delegate made a finding that the applicant could have applied to other institutions during the three-year period while he was applying to study at the University of Zambia. The delegate noted that the applicant had stated that he spent most of his time working as an Assistant Sales Personnel at an internet cafe and helping his mother at home and consequently found that the applicant’s circumstances did not fall under the requirements set out by policy with regards to the “circumstances outside of the applicant’s control”.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in this case is whether the applicant satisfies the criterion in cl.101.213 and cl.101.221.  This requires consideration of whether the applicant was undertaking a full‑time course of study at an educational institution leading to the award of a professional, trade or vocational qualification at the time of application and at the time of this decision.

10. The review applicant, visa applicant and mother of the visa applicant provided their oral evidence in a straightforward and genuine manner.  The Tribunal was struck by their appropriate demeanour and respect for each other and the procedures of the Tribunal and the Australian migration system. The Tribunal is satisfied that all three people can be regarded as witnesses of truth and that their evidence can be relied upon.

    Criteria for applicants over 18

11. 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).

12. Clause cl.101.213 states:

    (1)  If the applicant has turned 18:

    (a)  the applicant:

    (i)  is not engaged to be married; and

    (ii)  does not have a spouse or de facto partner; and

    (iii)  has never had a spouse or de facto partner; and

    (b)  the applicant is not engaged in full-time work; and

    (c)  subject to subclause (2), 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.

13. Clause cl.101.221 states:

    (1)  In the case of an applicant who had not turned 18 at the time of application, the applicant:

    (a)  continues to satisfy the criterion in clause 101.211; or

    (b)  does not continue to satisfy that criterion only because the applicant has turned 18.

    (2)  In the case of an applicant who had turned 18 at the time of application:

    (a)  the applicant:

    (i)  continues to satisfy the criterion in clause 101.211; or

    (ii)  does not continue to satisfy that criterion only because the applicant has turned 25; and

    (b)  the applicant continues to satisfy the criterion in clause 101.213.

14. The applicant turned 18 in March 2013.  The application was made in April 2019.  He is therefore required to meet the additional criteria.

    What is the visa applicant’s relationship status and history?

15. 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).

16. There is no evidence before the Tribunal to demonstrate the applicant is engaged or has at any stage been married or had a de facto partner.  The evidence provided to the Tribunal during the hearing was that he is single and at present resides in the home of his sister and her immediate family.  The Tribunal has no reason to doubt the genuineness of this evidence.

17. The Tribunal is satisfied the time of application criterion in cl.101.213(1)(a) is met.

    Is the visa applicant engaged in full-time work?

18. 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).

19. The evidence provided to the Tribunal during the hearing was that the applicant earns small amounts from repairing mobile phones or computers on an ad hoc basis. It is claimed he does not have and at no stage has had full-time employment. There is no evidence before the Tribunal to demonstrate this is not the case.

20. The Tribunal is satisfied the time of application criterion in cl.101.213(1)(b) is met.

    Is the visa applicant incapacitated for work?

21. There is no evidence before the Tribunal that the visa applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant a full-time student at the time of application?

22. 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).

23. 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).

24. 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.

25. The applicant is reported to have matriculated from secondary school in Zambia at the end of the school year in 2012. He turned 18 in March 2013. The evidence indicates that he commenced a Bachelor of Science (Computer Science) in the school of Natural Sciences at the University of Zambia at the start of the 2015 academic year. Further to this, the applicant’s evidence at hearing is that he successfully completed the course requirements for this undergraduate degree in December 2019.

26. The oral evidence provided at hearing by the review and visa applicants and by the mother of the visa applicant is consistent with their written submissions in relation to whether, since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12, the visa applicant has been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.  With respect to the oral evidence and submissions provided in support of the visa applicant’s claims, the Tribunal makes the following findings:

    ·     The Tribunal accepts that the visa applicant’s year 12 results were released to him in February 2013;

    ·     The visa applicant’s resumption of study after completing secondary school in 2012 was not unnecessarily delayed through his restricting his study options to tertiary study at a university. This is evidenced by the visa applicant’s enrolment in a Diploma course at the Evelyn Hone College of Applied Arts and Commerce Management Board. The Tribunal accepts he was advised in October 2013 that his enrolment was not accepted;

    ·     The Tribunal accepts the visa applicant applied for an assisted admission to the University of Zambia in May 2013 and February 2014, without success;

    ·     The Tribunal accepts that the financial circumstances of the visa applicant’s family were such that they could not fully fund his enrolment in undergraduate university courses and that as a consequence he was reliant on the success of applications for either a government-assisted admission, or international scholarships.  The Tribunal accepts that the visa applicant diligently applied for admission to university in Zambia through both of these pathways. This is evidenced by the visa applicant’s unsuccessful applications for scholarships from the Japanese, Russian, Algerian and Chinese government scholarship programs;

    ·     The Tribunal accepts the visa applicant was finally accepted into the University of Zambia for the 2015/2016 academic year to undertake a Bachelor of Science (Computer Science) and that the direct intervention and advocacy of his mother contributed to his being accepted into the course;

27. The Tribunal is satisfied, when all the circumstances are taken into account, that the visa applicant commenced further study within a reasonable time after completing the equivalent of year 12. The Tribunal accordingly finds that the criteria in cl.101.213(1)(c) is met.

28. Indeed, the Tribunal was impressed with the visa applicant’s demonstrated commitment to improving his future career prospects through gaining tertiary qualifications. With respect to his academic progress in the Bachelor of Science (Computer Science), the evidence before the Tribunal is that he successfully completed the requirements of this course in December 2020.  The visa applicant indicated that he has no current plan to undertake further study and that he is at present living in the home of his sister, whilst he waits for his formal graduation and for the outcome of the current review.  He gave evidence that job opportunities are limited in Zambia and that he would like to join his mother in Australia.

29. The circumstance where, at the time of decision, an applicant has completed their studies was considered by the Federal Circuit Court of Australia in: Opoku-Ware v MIBP (2015) 297 FLR 416. In that case, the Court was undertaking a judicial review of a decision of the Migration Review Tribunal (the MRT) affirming a decision of the Minister’s delegate to refuse a Subclass 101 Child (Migrant) visa. The MRT accepted that the visa applicant had within a reasonable time since completing year 12 enrolled in a full-time course of study, and that he satisfied cl.101.213(1)(c). However, at the time of its decision, the visa applicant had completed this course and had not enrolled in any subsequent course. On this basis, the MRT found the applicant did not continue to meet cl.101.213(1)(c) at the time of decision and therefore did not meet cl.101.221(2)(b). The Court found that there was no error in the Tribunal’s finding that the applicant did not meet cl.101.221(2)(b) at the time of decision. The Court noted that the phrase ‘has been undertaking’ in cl.101.213(1)(c) describes an action that has already commenced and remains ongoing and 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. The Court found 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.

30. Unfortunately, the circumstances of the visa applicant are similar to those discussed in Opoku‑Ware v MIBP.  The visa applicant has completed study in the Bachelor of Science (Computer Science).  He has not enrolled in a further course of study and gave no indication that he has immediate plans to do so.

31. Accordingly, whilst the Tribunal is satisfied cl.101.213(1)(c) was met at the time of application, at the time of decision, cl.101.213 does not continue to be met. Accordingly, cl.101.221(2)(b) is not met.

32. 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

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

    David Barker
    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.

    …