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

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).
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.
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).
The delegate refused to grant the visas on the basis that cl 101.213(1)(c) and 101.221(2)(b) were not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flomo (Migration)

Details

AGLC: Flomo (Migration) [2024] AATA 901
Case: [2024] AATA 901
Decision Date: 12 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered applications for Child (Migrant) (Class AH) visas, Subclass 101, made by Brooks Saye Gborweah and Randolphine Lee Gborweah. The applicants, who were over 18 at the time of their applications, claimed to be undertaking full-time secondary education in Liberia and financially supported by their mother in Australia. The Department had raised concerns regarding the genuineness of documents submitted to evidence their schooling and the applicants' eligibility under criterion 101.213, which pertains to full-time study since turning 18 or completing secondary school.

The primary legal issues before the Tribunal were whether the applicants met the requirements of criterion 101.213, specifically concerning their engagement in full-time study since turning 18, and whether the submitted documentary evidence was sufficiently reliable. The Tribunal also had to consider the implications of the Department's findings of incorrect information and bogus documents, and whether any compassionate or compelling reasons existed to waive certain criteria, such as the long separation from their sponsor and the sponsor's health and emotional impact.

The Tribunal reasoned that the wording of criterion 101.213, which requires full-time study since turning 18 or within a reasonable time after completing the equivalent of Year 12, could encompass an applicant who, at the time of application, was still undertaking full-time secondary education and had not yet commenced post-secondary studies. This interpretation was considered to align with the purpose of the provision, which allows for dependency if engaged in full-time study. The Tribunal noted that the applicants had turned 18 and had not yet completed the equivalent of Year 12, and were financially supported by their mother. While acknowledging the Department's concerns about document reliability, the Tribunal found it open to conclude that the applicants met the study requirements under clause 101.213 and the ongoing requirement under clause 101.221(2)(b).

Consequently, the Tribunal remitted the applications for reconsideration by the Minister. The remittal was with the direction that the applicants met the criteria under clause 101.213 and clause 101.221(2)(b) of Schedule 2 to the Regulations, and that Public Interest Criterion 4020 should be considered for the purposes of clause 101.223.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the visa applications should be remitted for reconsideration.CLAIMS AND EVIDENCEEvidence before the Department 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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 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 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). 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. Accordingly, cl 101.213(1)(a) is met. It continues to be met at the time of decision.Not engaged in full-time work 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). 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. 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) 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). 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. 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)