Flomo (Migration)

[2024] AATA 901

Flomo (Migration) [2024] AATA 901 (12 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Linda Flomo

VISA APPLICANTS:  Mr Brooks Saye Gborweah
Ms Randolphline Lee Gborweah

REPRESENTATIVE:  Mrs Prisca Eboh

CASE NUMBER:  2016841

HOME AFFAIRS REFERENCE(S):          F2016/075791/ F2016/ F2016/075792

MEMBER:Meena Sripathy

DATE:12 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and second named named visa applicants meet the following criteria for a Subclass 101 (Child) visa:

·cl 101.213 of Schedule 2 to the Regulations; and

·cl 101.221(2)(b) of Schedule 2 to the Regulations

·PIC 4020 for the purposes of cl. 101.223 of Schedule 2 to the Regulations

Statement made on 12 April 2024 at 11:27am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study since turning 18 or completing secondary school – aged 18 or more but attending high school at time of application meets requirements – currently enrolled in university courses – incorrect information and bogus documents – departmental checks found letters and reports from schools to be non-genuine – schooling disrupted by period as refugees in third country – long period of no direct contact, and information and documents sent by relative who is looking after applicants – updated information and documents provided after contact re-established – reliability of verification checks – country information – compassionate or compelling reasons for waiving criterion – long separation – sponsor’s health and emotional impact, employment in essential sector in regional city – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b), Schedule 4, condition 4020

CASES
Arora v MIBP [2016] FCAFC 35
Batra v MIAC [2013] FCA 274
Hussain v MIBP [2017] FCCA 3247
Kaur v MIBP [2017] FCAFC 184
MIAC v Henschel [2013] FCCA 58
Opoku-Ware v MIBP (2015) 297 FLR 416
Plaintiff M64/2015 v MIBP [2015] HCA 50

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 20 October 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 14 June 2016. 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 were only made in respect of Subclass 101 (Child).  Both visa applicants were sponsored by their mother, Ms Linda Flomo, who is an Australian permanent resident.

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(1)(c) and 101.221(2)(b).

4. The delegate refused to grant the visas on the basis that cl 101.213(1)(c) and 101.221(2)(b) were not met because the delegate found each of the applicants were not studying full time since turning 18 years or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system. The delegate found the each of the applicants were not a full time student at time of application; was not satisfied they were incapacitated for work because of total or partial loss of bodily or mental functions; and was not satisfied that each of the applicants continues to be a full-time student at time of decision.

5. The visa applicant’s sponsor made a combined application for review of the decisions to the Tribunal on 19 October 2020.

6. The review applicant appeared before the Tribunal on 6 October 2023 to give evidence and present arguments. The review applicant was represented in relation to the review.

7. The issue in this case is whether the visa applicants 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: cl103.213(1)(c). The visa applicants must continue to meet this requirement at time of decision: clause 101.221. The Tribunal has also considered the issue of PIC 4020 which arises on the material before it.

8. For the following reasons, the Tribunal has concluded that the visa applications should be remitted for reconsideration.

   CLAIMS AND EVIDENCE

   Evidence before the Department

9. Information in the application form for the first named visa applicant (Brooks Saye Gborweah) indicates he was born in December 1994 in Ganta Liberia and is a Liberian national.  He indicates he is never married.  He names his mother in Australia and two males in Liberia as parents, and two sisters including the second named visa applicant and another sister in Australia.  He resided in a refugee camp in Guinea from 2003 to 2008, and since then in Monrovia Liberia. He indicated he attended Row W  Garway Elementary & Junior High School in Neezoe Community Paynesville City from 2016 to 2018 and that he is not currently undertaking a post secondary course. He provided no details of employment and indicated he was financially supported by his mother for food, clothes, accommodation and education since January 2009.

10. Information in the application form for the second named visa applicant (Randolphine Lee Gborweah) indicates she was born in April 1997 in Ganta Liberia and is a Liberian national.  She indicates she is never married.  She names her mother in Australia and two males in Liberia as parents, and two siblings including the first named visa applicant and a sister in Australia.  She resided in a refugee camp in Guinea from 2003 to 2008, and since then in Monrovia Liberia. She indicated she attended Hope Academy from 2010 to 2018 and that she is not currently undertaking a post secondary course. She provided no details of employment and indicated she was financially supported by her mother for food, clothes, accommodation and education since January 2009.

11. In June 2017 and December 2017 the following documents relating to the applicants’ education was submitted to the Department:

    For Brooks Saye Gborweah

    ·School reports from Row W. Garway Elem , & Junior High School Junior High School report issued to Brooks Saye Gborweah for years 2011/2012, 2012/2013, 2013/2014

    ·A letter from the Row W. Garway Elem. Junior & Senior High School stating Brook Saye Gborweah was a student from 2011-2017, dated 31 May 2017.

    • Statutory Declaration by the review applicant dated the 12 June 2017 stating both of the visa applicants are studying at high school in Liberia.  They have not completed high school because they were in a refugee camp in Guinea.  After returning to Liberia they started school I 2011 and are still attending. They were both full time students before they turned 18 and have continued full time since then.  She has provided all financial support for them and will continue until the end of their education.

    ·Letter of Attestation issued by St. Francis High School for Brooks Saye Gborweah dated 16 November 2017 stating he is a regular student of the school in 2017/2018 , having transferred from Row W. Garway Elementary, Junior and Senior High School on 31 May 2017 and enrolled at St Francis High School in September 2017.

    ·School report issued by St. Francis High School in support of Brook Saye Gborweah for the academic year dated 18 November 2017.

    For Randolphine Lee Gborweah

    ·Letter of Attestation issued by Hope Academy High School for Randolphine Lee Gborweah dated 18 May 2017 stating she is a regular student of the school in 2016/2017

    ·Report Cards for Randolphine Lee Gborweah from Hope Academy for years 2010/2011, 2011/2012, 2012/2013, 2013/2014

    ·Letter of Attestation issued by St. Francis High School for Randolphine Lee Gborweah dated 16 November 2017 stating she is a regular student of the school in 2017/2018 , having transferred from Hope Academy on 18 May 2017 and enrolled at St Francis High School in September 2017.

    ·School report issued by St. Francis High School in support of Randolphine Lee Gborweah for the academic year 2017/2018 regarding attendance Oct-Nov 2017.

12. Departmental checks were conducted to establish the authenticity of the information provided in support of the applicant’s application. During this process the Department obtained information that the enrolment letter and progress reports from Row W. Garway Elem. Junior & High School were non-genuine.

13. On 20 January 2020, the Department wrote to the first named visa applicant advising that the letter from Row W. Garway Elem , & Junior High School Junior High School dated 31 May 2017 and school reports from that school was considered to be bogus documents  on the basis of checks conducted that indicated the Row W. Garway Elem , & Junior High School Junior High School did not exist and Roy W. Garway School is an elementary school which has no Junior or High School and the checks established that the visa applicant was never a student at the school.  The visa applicant was invited to comment on this unfavourable information which may mean that PIC 4020 is not met.  They were also invited to provide information regarding compassionate or compelling circumstances affecting an Australian citizen or permanent resident to justify the waiver of PIC 4020.

14. On 20 January 2020, the Department wrote to the second named visa applicant advising that the letter from Hope Academy dated 18 May 2017 and school reports from that school were considered to be bogus documents on the basis of checks conducted that indicated the Hope Academy High School did not exist and the checks established that the visa applicant was never a student at the school.  The visa applicant was invited to comment on this unfavourable information which may mean that PIC 4020 is not met.  They were also invited to provide information regarding compassionate or compelling circumstances affecting an Australia citizen or permanent resident to justify the waiver of PIC 4020. 

15. Information in the Department file indicates that verification checks undertaken in respect of the first and second named applicants’ enrolment at St Francis High School was confirmed as genuine and the applicants were enrolled and studying year 12 at that school since September 2017.

16. On 20 October 2020 the sponsor responded with a Statutory Declaration dated 10 October 2020, in which she explained that her children were living with her uncle since she came to Australia in 2008 and she had no knowledge of the information that was provided about their education. When she found out about this matter and questioned her uncle he became very angry with her.  She is very scared about the circumstances and did not know what to do.  She stated that the documentation arranged from the school was beyond her control because it was done by her uncle. She and her children have to follow the instructions and advice of their uncle. She is very stressed and worried about her children and has not seen them in 12 years since she left Liberia.

17. The delegate considered this response and refused the application on 20 October 2020.  The delegate found that the applicant has not been studying full-time since turning 18 years old or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system. The delegate also concluded the applicant was not a full-time student at time of application and further considered that the applicant is not incapacitated for work because of total or partial loss of bodily or mental functions. The delegate was also not satisfied that the applicant continues to be a full-time student at time of decision and therefore was not satisfied that the applicant satisfy either clause 101.213(1)(c) or 101.221(2)(b).

    Evidence before the Tribunal

18. The sponsor applied for review of the decisions to refuse each of the visa applicants’ visas to the Tribunal on 19 November 2020.

19. On the 25 July 2023 following constitution of the matter to the presiding member, an officer on behalf of the Tribunal wrote to the sponsor requesting information.

20. On the 3 October 2023, the Tribunal received a cover letter from the applicant’s representative, enclosing the following information in anticipation of the hearing:

    For Randolphline:

    ·     Statutory Declaration by Linda Flomo;

    ·     A letter from St Francis High School dated August 13 2020 attesting to Randolphline Lee Gborweah attending from 2015-2018

    ·     Student Permanent Grade sheet from St Francis High School for the years 2015/2016, 2016/2017 and 2017/2018

    ·     Letter from Hope Academy dated 8th March 2020 for Randolphine

    ·     Hope Academy Junior High School report cards for the years 2012/2013, 2013/2014, 2014/2015, 2014/2015.

    For Brooks:

    • Letter of recommendation from Hope Academy High School

    • Hope Academy Junior High School report card for the years 2012/2013, 2013/2014, 2014/2015, 2014/2015

21. On the 4 October 2023 the Tribunal received a signed statutory declaration from the sponsor Linda Flomo providing detailed information about her and the visa applicants’ situation in Liberia.

22. On 23 October 2023 the Tribunal received a submission from the representative providing the following information:

    ·That Brooks Saye Gborweah attended Hope Academy High School until Year 9 and then changed to Youth Academy High School from where he graduated in July 2018.  A copy of his Diploma from Youth Academy is attached.

    ·After leaving high school Brooks attended ABC University, but he became sick and transferred to “Bush Sink” for herbal/local treatment.  Following his recovery he enrolled at the UMU University in 2023 where he is currently studying Computer Programming.

    ·That Randolphine Lee Gborweah attended Hope Academy High School from 2012-2015 and then started at St Francis High School from where she graduated in 2018.

    ·After leaving high school she proceeded to UMU University where she is currently enrolled in a Nursing degree.  The representative is instructed that the universities are presently closed due to the general election in Liberia.  Lee is spending time at the YMCA Institute to acquire computer skills. Brooks is helping out at home.

23. On 24 October 2023 the Tribunal received a further letter from the representative revising information provided in the earlier submission:

    ·Mr Kelvin Zumba, the review applicant’s cousin, has advised that the visa applicants do not live with him. They live in a different city to Mr Zumba. A statement from Mr Kelvin Zumba is attached.

    ·Visa applicant Brooks was enrolled at ABC in 2022. At the time of the delegate’s decision he was undertaking an apprenticeship training with a local construction group because his uncle failed to enrol him at university.

    ·Mr Kelvin Zumba confirms both visa applicants are currently enrolled at UMU university.

    ·A Letter of Admission from UMU University regarding Randolphine Lee Gborweah. 

    ·A Letter of Admission from UMU dated September 2023 relating to Brooks Gborweah

    Tribunal hearing

24. At the commencement of the hearing, the Tribunal noted issues with the adequacy of interpreting by the Mano language interpreter that had been arranged.  The review applicant noted that he may be from a different tribe and she was unable to understand the language.  He similarly appeared to have some difficulties.  The Tribunal decided to dismiss the interpreter, and after assessing the review applicant’s English proficiency, and with her and her representative’s agreement, proceeded in English. If necessary to take evidence from the visa applicants a further hearing with an appropriate interpreter would be arranged.

25. The applicant confirmed her current living arrangements and family composition.  She lives alone in Townsville and works as a disability care support worker, on a permanent part time basis. Before this she worked in aged care.  Her eldest daughter lives in Brisbane, and her other two children are the visa applicants.  She came to Australia in 2008, sponsored by her uncle and with his family members.  Her daughter had travelled to Australia earlier with her uncle. She travelled to Australia from Guinea where she had been living in a refugee camp for some years.  At the time she came to Australia, her children, the visa applicants were living in Liberia with her uncle, Isaac. They had been living with him for some years.

26. The applicant confirmed that the visa applicants’ father lives in Liberia, but he has no contact or involvement in their lives and has not been involved for many years.  She separated from him when their youngest child was very young and he had no involvement since then.  She understands he remarried and has his own family. She also understands he is very ill now.

27. The Tribunal asked about her contact with the visa applicants. The applicant explained that she had little direct contact with them until the Department’s letter informing of the false information about their education. Until this time her uncle controlled their communications and told her he was looking after them and she should not worry. The applicant explained that she trusted her uncle because he was good to her in Liberia when she was young and he assured her that he would look after her children. She began sending money to him for her children as soon as she started earning it here. She regularly sent amounts between $200-$500 and whenever he asked for it, for their needs.

28. The Tribunal asked what knowledge she had of their education. She said her uncle Isaac told her they were in school but did not tell her which one. When the Department sent the letter about the false documents this was the first she knew about it. 

29. The Tribunal noted that both visa applicants were well over the age of 18 years when the application was made and yet they claimed to be in high school.  She said that the education system is different in Liberia compared to Australia and it is not uncommon for older students to be in school.  She said sometimes the delay in schooling can be because of the carer, for example using the money for other purposes.

30. The Tribunal asked when she started having direct contact with the visa applicants.  She said it was after the department’s letter and the refusal of the application she confronted her uncle. He responded in anger and cut himself off from her.  She then contacted her cousin Kelvin and asked him to help her by finding out what schools the children were in and help her to get the documents.  After that she found out that her son was at Hope Academy and then went to Youth Academy from where he graduated year 12.  Her daughter went from Hope Academy to St Francis and she graduated from there.  The Tribunal put to the applicant that information on the Department file indicates that they did a verification check on the Hope Academy which indicated that this school does not exist.  The Department’s letter informed her of this, and yet she is still insisting that they both studied there. The applicant said that she asked her cousin Kelvin to confirm where they studied and he spoke with people from each of these schools and she maintains that they attended the Hope Academy and it does exist. She invited the Tribunal to make its own enquires.

31. After her son finished high school uncle Isaac arranged for him to do an apprenticeship in a local company. Then she arranged for him to attend ABC college. It was a theology college and he lived on the campus.  After one semester he got sick and had to leave.  This is when he came to Monrovia, where he is now, staying with his sister.  She said he is now, as of this year enrolled in a computer course at UMU.  The Tribunal noted that it has no evidence of this.

1. Her daughter started at UMU after she graduated from high school. She is studying nursing and is still doing this course. She took a break for one semester and did a computer course at YMCA. The UMU is closed now because of the elections. When it opens again she will return to complete her course. The Tribunal requested more evidence of her progress in the nursing course and the YMCA course. 

2. The Tribunal discussed with the applicant the issues arising in the case. The first issue is whether the visa applicants were undertaking full time study leading to the award of a professional, trade or vocational qualification at time of application and continue to meet this at time of decision.  It put to her that there are two issues about this criteria – one is whether it is satisfied, given the contradictory information before it, that the visa applicants were at the high schools as claimed. And secondly, if they were, whether undertaking high school satisfies this criterion.  It indicated it would like to receive further evidence and submissions on this point. The next issue that arises relates to PIC 4020, given the incorrect information about the schools that the Department put her on notice of.  As she has conceded that her son did not go to the first school claimed, it would have to be satisfied there are compassionate or compelling reasons for waiving this criterion. The applicant said that she has done everything to reunite with her children and they mean the world to her. She has been devastated by the decision to refuse their visas. It has had an emotional and physical impact on her.  She has been separated from her children for so many years and all of what she has done in Australia has been towards bringing them to be with her here. 

3. Following the hearing the Tribunal sent the applicant a letter inviting comment on information and inviting further information and submissions addressing the issues.

4. On 15 November 2023 the Tribunal received a submission and supporting documents from the representative. In response to the invitation to comment under s359A it is submitted:

   ·The review applicant affirms her children did not attend Row W Garway Elem Junior School, however they did attend the Hope Academy High School, contrary to the information that it does not exist.  Evidence of photos, a short video and letter from the principal are provided in support. Information is also available online, and links are provided.

   ·The review applicant confirms that Randolphine attended St Francis High School, completing year 12 there in 2018.  Contrary to the information before the Department she attended Years 10-12 there, while Brooks attended Youth Academy High School. A letter from the school principal at St Francis confirming her attendance from 2015-2018 is provided.

   The following documents are provided in support:

   ·Photos and a video of Hope Academy High School evidencing its existence.

   ·Letter dated 9 November 2023 from Principal of Hope Academy High School confirming the visa applicants’ attendance from 2012 to 2015 from grades 7 to 9.

   ·Various documents relating to Brooks Gborweah’s current study including :

   •   United Methodist University Enrolment Application for Brooks Gborweah dated 23 October 2023

   •   Transcript from Youth Academy dated 19 February 2019 for Brooks Gborweah relating to 2015-2018 Grades 10, 11 & 12

   •   Letter of Recommendation for employment or admission to any institution of learning from Pastor Perry Tweh of Higher Praise Citizen of Heaven International Ministry for Brooks Gborweah dated 23 October 2023

   •   Medical Report for Brooks Gborweah dated 22 October 2023 indicating he is free from communicable disease and physically and mentally fit

   •   General Admission Information for United Methodist University indicating the enrolment requirements

   •   Receipt for payment of USD$206 to UMU by Brooks Gborweah on 30 October 2023

   •   E-Portal UMU Student Billing Form date 27 October 2023 showing an amount owing of USD$222.25

   •   WAEC Liberia Online -Results – Gborweah, Brooks -Youth Academy 2018

   ·Various documents relating to Randolphine Lee Gborweah’s current study including :

   •   E Portal United Methodist University -Letter of admission dated 29 October 2020

   •   Receipt for payment of Entrance exam fees 2018

   •   E-Portal UMU Student Billing Forms relating to College of Health Science -Nursing- dated 17 September 2022 , 4 October 2021, 8 September 2018, 30 October 2020

   •   E-Portal UMU Official Grade Sheets 2018/2019, 2019/2020, 2021/2022 Nursing Major

   ·Regarding the issue of dependency, the review applicant instructs the applicants are fully dependent on her for financial support as well as emotional and moral support. Neither are employed nor have they ever worked. The review applicant submits that at the time of making the application in 2016, the children were fully dependent on her for financial support, and that they have continued to depend on her till date. Prior to this time, the review applicant transferred money to her children through her uncle, Isaac to pay for the children’s food, accommodation, clothing, electricity, school fees and school supplies, etc. However, once the relationship between her and her uncle became strained, she ceased providing him with funds and started providing funds directly to the children. In support of this, documents relating to financial transfers comprising email correspondence from WorldRemit dated between July – November 2023 is provided.

   ·Reference letter for review applicant dated 30 October 2023 from support worker  providing additional information relating to her background and circumstances.

5. On 30 November 2023, the Tribunal invited the applicant to provide further clarification of certain matters arising from the material submitted, specifically the Tribunal sought:

   ·clarification of when Randolphline commenced her Nursing course at UMU, as the Letter of Admission dated 29 October 2020 contradicts the evidence of Student Billing and Grade Sheets from 2018/2019;

   ·confirmation and evidence of Randolphline’s completion of the Liberia Senior High School Certificate Examination (LSHSCE) or West African Senior School Certificate Examination (WASSCE);

   ·comment on information the Tribunal located on the university’s public Facebook page indicates that classes commenced for the Second semester 2022/2023 on 2nd October 2023 and does not suggest there has been any suspension of classes  and invitation to provide

   ·evidence that Brooks is currently undertaking study in the claimed IT course at UMU; and Randolphine is currently undertaking the Nursing course .

6. On 14 December 2023, in response to a request for further information from the Tribunal

   ·A submission from the applicant’s representative providing an explanation for the date in Randolphine’s admission letter and the basis of her admission to UMU given her unsuccessful WASSCE results; it is submitted the universities were closed across Liberia due to the elections and the Facebook page may not have been updated

   ·Copy of Randolphine’s WASSCE certificate. 

   ·Copies of Randolphine’s Student Grade Ledger for Nursing 2019/2020 Semester II; 2021/2022 Semester I; 2022/2023 Semester I

7. On 14 March 2024, the Tribunal requested updated information and evidence to confirm the current student status of Randolphine Lee and Brooks Saye Gborweah, noting that the information previously provided refers to the 2022/2023 academic year and the criteria at issue, cl.101.221(2)(b) requires the Tribunal to be satisfied the applicant continues to be undertaking full time study at time of decision which is the time of the Tribunal’s decision.

8. On 11 April 2024 the Tribunal received a submission dated 10 April 2024 from the applicant’ representative and supporting evidence to confirm  Randolphine Lee and Brooks Saye Gborweah ongoing enrolment and study in their courses at UMU.  The supporting evidence were letters from the Dean of UMU dated 15 February 2024 and student billing forms for 2023/2024 academic year and Grade sheets for each of them for the second semester  of the 2022/2023 year.

   FINDINGS AND CONSIDERATION

   Clause 101.213: Criteria for applicants over 18

9. 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

10. 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).

11. In the present cases, the evidence before the Department and to the Tribunal is that both visa applicants, Brooks Saye Gborweah and Randolphline Lee Gborweah, are now and have been since time of application, single.  There is no other information before the Tribunal to suggest otherwise. 

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

    Not engaged in full-time work

13. 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).

14. The evidence before the Tribunal is that both visa applicants were studying full time at high school at time of application and have been and continue to be financially supported by the review applicant.  There is no evidence that either of them were, or are, engaged in full time work.

15. 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)

16. 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).

17. In the present case both visa applicants had turned 18 years of age at the time of application. Brooks Saye Gborweah turned 18 in 2012 and Randolphine Lee Gborweah turned 18 in 2015.  Both claim to have been studying at high school at the time of the application in June 2016.

18. The Tribunal has considered whether the wording of this provision contemplates an applicant who, since turning 18, is still completing secondary school education and has yet to commence a post-secondary course as is the case in the present matter.  While there does not appear to be any judicial authority that has specifically considered this situation, authorities that have considered the construction of the provision identify a two staged enquiry, first that the applicant be undertaking full time study and a subsidiary enquiry to have been undertaking relevant post-secondary full-time study from one of the above alternative points in time.[1] The Tribunal finds it is open to conclude here that the applicants meet both given they turned 18 and had not yet completed the equivalent of year 12.  Any other construction that precludes an 18-year-old who is undertaking full time secondary education at time of application appears incongruous with the purpose of the provision, which contemplates a person over the age of 18 can still be dependent if engaged in full time study.[2]

    [1] MIAC v Henschel [2013] FCCA 58, see also Khan v MICMA [2023] FCA 463

    [2] See for example Department Policy THE AH-101 MAIN APPLICANT (immi.gov.au)

19. The Tribunal has considered the explanation provided by the review applicant for the visa applicant’s delayed secondary high school education.  She explained that their education was disrupted by the circumstances of the civil conflict and that they were residing in refugee camps outside the country before they returned to Liberia.  The Tribunal observes that support for this explanation can be found in independent information relating to education in Liberia that notes youth between 15-24 may still be in school and working towards educational goals in that country.[3] 

    [3] EPDC_NEP_2018_Liberia.pdf

20. 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.

21. The issue in this case arises because the delegate did not accept on the material before the Department that either Brooks or Randolphine were undertaking the study at the schools as submitted in the evidence they provided to the Department.  These findings were based on outcomes of verification checks undertaken which concluded that the Row W Garway school and Hope Academy High School did not exist and therefore the documents submitted were non genuine.  The verification found the documents submitted for each of the applicants from St Francis High School on the other hand, to be genuine.[4]

    [4] CLF202082143, CLD2020/36589717,  folios 102-105 and CLF202081542 CLD2020/36322259 [OSF2016/075791] folios 138-141

22. Before the Tribunal the review applicant concedes that the visa applicants did not attend the Row W Garway school as claimed in their application but maintains that they were engaged in high school education.  She has provided new evidence to the Tribunal that both attended Hope Academy High School between 2012- 2015, contrary to the Department’s information that this school does not exist.  It was submitted that Brooks Saye Gborweah subsequently attended Youth Academy High School from 2015 to 2018, and Randolphine Lee Gborweah went on to the St Francis High School to complete year 10 to 12, graduating from this school in 2018. Evidence of letters and transcripts for each of the applicants from these schools was submitted as described above.

23. The Tribunal has considered this new information and evidence, the review applicant’s oral testimony to the Tribunal at hearing, and the information obtained by the Department. It observes the information and evidence submitted by the review applicant to the Tribunal contradicts the information obtained by the Department regarding the documentation from St Francis High School.  The information on the Department file indicates that verification was undertaken on the documents submitted for applicant Randolphine Lee Gborweah  from St Francis High School and this document was found to be genuine, contradicting the information provided to the Tribunal that Brooks did not attend this school, but rather completed years 10-12 at Youth Academy High School and Randolphine was at St Francis High School from 2015 to 2018 and not just in 2017-2018 as stated in the earlier letter provided from St Francis High School. This gives rise to concerns for the Tribunal about the reliability of the verification checks undertaken by the Department.

24. Additionally the Tribunal has been provided evidence of WAEC Liberia Online Results for the Liberia Senior High School Certificate Examination (LSHSCE) examination undertaken by Brooks at Youth Academy School in 2018 and in respect of Randolphine, the West African Senior School Certificate Examination (WASSCE) examination in 2018 at St Francis High School which supports the claimed attendance at these high schools in this period.  This evidence is consistent with independent information considered by the Tribunal regarding the education system in Liberia:

    Primary and Secondary Education

    Education is free and compulsory from ages 6 to 16, but school attendance is not enforced. Elementary school is 6 years, beginning at age 6. Junior high school is 3 years and senior high school is 3 years. Upon completion, students sat for the Liberia Senior High School Certificate Examination (LSHSCE), awarded by the West African Examinations Council (WAEC) from about 1998-2018. However, starting in 2013, the West African Senior School Certificate Examination (WASSCE) was gradually introduced, also awarded by WAEC. The WASSCE has now fully replaced the LSHSCE. The scores for either exam can be verified online with WAEC scratch cards/PINs.[5]

    [5] Liberia (aacrao.org)  Information obtained from AACRAO EDGE, which is described as “the Electronic Database for Global Education, a leading US resource for evaluating foreign educational credentials for more than 15 years”.

25. On all of the evidence now before it and having regard to the concern expressed above relating to the verification checks undertaken by the Department, the Tribunal makes the following findings in respect of each of the visa applicants, on the basis of the evidence now before it.

26. It accepts that Randolphine Lee Gborweah was studying at St Francis High School at the time of application in June 2016.  She was at that time over 18 years of age. As discussed above, the Tribunal has considered whether undertaking high school study after turning 18 meets the requirements of cl.101.213(c) and concludes that it does. On the evidence before it, the Tribunal is satisfied that Randolphine was studying full time at St Francis High School at time of application in June 2016.  It accepts, on the evidence of her year 12 WASSCE examination in 2018 that she completed the equivalent of year 12 in 2018 which supports the claimed attendance at this high school in this period.  The Tribunal accepts that Randolphine Lee had not completed year 12 at the time of the visa application and was still at that time undertaking her high school education. 

27. On this basis the Tribunal is satisfied that Randolphine Lee meets cl.101.213(1)(c).

28. In respect of Brooks Saye Gborweah, the Tribunal accepts on the evidence now before it, he was studying at Youth Academy High School in June 2016.  As indicted above, evidence is before the Tribunal that he completed the LSHSCE examination in 2018 at Youth Academy School which supports the claimed attendance at this high school in this period.  He was at that time over 18 years of age.  The Tribunal accepts that Brooks had not completed year 12 at the time of the visa application and was still at that time undertaking his high school education. 

29. On this basis the Tribunal is satisfied that Brooks Saye meets cl.101.213(1)(c).

    Clause 101.221(2)(b): continues to satisfy 101.213

30. At time of decision the visa applicants must continue to satisfy cl.101.213.  This means that each of them must, 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. 

31. The evidence before the Tribunal is that Randolphine Lee was granted admission to UMU and has been undertaking study in a nursing course there.  Documents of receipts of payment of fees, and grade sheets have been provided, current to the present time. The Tribunal also has before it letters from the Dean of UMU dated 15 February 2024, confirming the applicant continues to be a student at the university.  The Tribunal is satisfied that the writer of the letters in the Dean of Admissions Registration and Records at the United Methodist University according to publicly available information.[6]

    [6] UMU − United Methodist University

32. On the basis of this evidence the Tribunal is satisfied Randolphine Lee Gborweah continues to meet cl.101.213 at time of decision.

33. It is submitted that Brooks Ghorweah is enrolled to studying an IT major at United Methodist University.  In November 2023 the representative submitted that despite enrolment,  he had not commenced classes due to the closure of the university during the elections. In a subsequent submission dated 10 April 2024, evidence was provided that he completed Semester II of 2023. Evidence of student billing, grade sheets and a letter from the Dean was provided in support.

1. On the evidence before it the Tribunal is satisfied that Brooks Ghorweah is undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification at time of decision and therefore he meets cl.101.221(2)(b).

2. For the reasons above, cl 101.213 is met at the time of application in respect of visa applicants Randolphine Lee Gborweah and Brooks Saye Ghorweah.  The Tribunal has also found cl.101.213 continues to be met at the time of decision, and accordingly, cl 101.221(2)(b) is met in respect of both visa applicants.

   PIC 4020

3. The Tribunal observes in these matters that an invitation to comment on adverse information was sent to both applicants relating to the satisfaction of PIC 4020.  The review applicant has conceded that the information relating to Brooks Saye Gborweah attending Row W Garway Elem. Junior and Senior High School was not genuine. 

4. The Tribunal notes that, in contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

5. On the basis of the information obtained by the Department and the review applicant’s concessions, the Tribunal finds that a bogus document was provided to the Department and PIC4020(1) is not met. 

   Are there compassionate or compelling circumstances that justify the granting of the visa?

6. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in reg 1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

7. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

8. The review applicant has given evidence that she has been separated form the visa applicants, her children, since she left Liberia in the context now over 16 years ago; she is devastated by the decision to refuse their visas and it has had an emotional and physical impact on her.  She told the Tribunal that all of what she has done in Australia has been towards bringing them to be with her here. The Tribunal has also considered the information, including confidential information relevant to health status, contained in the support letter from a Queensland community organisation of which the review applicant is a client of many years.

9. The Tribunal accepts on the evidence before it that the review applicant, an Australian permanent resident, is genuinely distraught by the long-term separation from her children, the visa applicants, and continued separation from them has serious implications for her mental health. The review applicant is currently gainfully employed as a disability support worker, an essential service in Australia. It finds that deterioration in her mental health that may impact on her capacity to maintain employment is not in her or Australia’s best interests. In the circumstances, the Tribunal is satisfied there are compassionate circumstances that affect the interests of an Australian permanent resident that justify the granting of the visa.

10. Therefore the requirements of PIC 4020(1) should be waived in respect of each of the visa applicants.

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

    DECISION

12. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first and the second named visa applicants meet the following criteria for a Subclass 101 (Child) visa:

    ·cl 101.213 of Schedule 2 to the Regulations; and

    ·cl 101.221(2)(b) of Schedule 2 to the Regulations

    ·PIC 4020 for the purposes of cl. 101.223 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member