Hossaini (Migration)

[2020] AATA 1563

Hossaini (Migration) [2020] AATA 1563 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Zarah Hossaini

VISA APPLICANTS:  Ms Sabira Hossaini
Ms Alia Hossaini

CASE NUMBER:  1835486

HOME AFFAIRS REFERENCE(S):          2013/102889 OSF2013/102889

MEMBER:Justin Meyer

DATE:30 April 2020

PLACE OF DECISION:  Melbourne

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

·cl.101.213(1) of Schedule 2 to the Regulations; and

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

Statement made on 20 April 2020 at 6:22pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – dependent children – study requirement – enrolment in full-time course leading to qualification – visa applicants not studying full-time at time of application – previously studied English – evidence of study not provided with application or during interviews with delegate – error by previous migration agent and misunderstandings with interpreter, who spoke a different dialect – subsequent study – requirement should not be interpreted narrowly – status of Hazaras in Pakistan, including employment prospects – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cll 101.211, 101.213(1), 101.221(2)

CASES

Huynh v MIMA [2006] FCAFC 122

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 Home Affairs on 5 November 2018 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 6 November 2013. 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 in determining whether the definition of dependent child is met in the regulations, they include cl.101.213 of the Migration Regulations which 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.

4. The regulations also relevantly further state at cl.101.213:

   (2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child

   Dependent Child

   of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a 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 bodily or mental functions.

5. The delegate refused to grant the visas on the basis that cl.101.213(1) was not met because the applicants were not enrolled in full time education that leads to an award, and at the time of application was not satisfied that the applicants met subclause 101.213(1)(c).

6. The delegate also considered subclause 101.213(2) whereby subclause 101.213(1)(c) does not apply to an applicant who at the time of application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The applicants had not submitted any evidence that they are incapacitated for work due to a total or partial loss of physical and mental functions, and the delegate found that the applicants had not met the requirements of this subsection either.

7. The review applicant appeared before the Tribunal on 6 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sabira Hossaini and

   
   

   Ms Alia Hossaini, the visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

8. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the definition of dependent child is met per the regulations in respect of the visa applicants.

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

    Dependent child

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

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

14. The delegate found that a letter was submitted dated 31 July 2018 from the Learners Academy (English Language Program) in Quetta, Pakistan that states that the visa applicant Sabira Hossaini attended English Language courses from foundation one to advanced level from 6 January 2010 until 1 November 2012. No further evidence was provided that demonstrates that the applicant either undertook or is currently enrolled in a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

15. In the case of the other visa applicant, Alia Hossaini, she attended the same academy and performed the same course but it was over different dates: from 5 November 2012 until 10 October 2013.

16. Both visa applicants according to the delegate confirmed that they were neither currently enrolled in full time education nor currently employed in any capacity.

17. The delegate noted that the policy intention is that the education needed be at least the equivalent of an Australian TAFE Certificate Level course. Courses of a lesser nature, such as hobby-type courses, single subject courses, and other courses of a very short duration are not acceptable.

    Evidence before the Tribunal

18. It was submitted that both applicants satisfy the requirement under section 101.213 (1)(c) of the regulations based on two main arguments:

    ·Both visa applicants’ documentary evidence of education had not been submitted in the application due to an error made on behalf of the previous migration agent who completed the forms for both applicants.

    ·In light of the documentary evidence that is now present, the Tribunal should place significant weight on the special circumstances of this case when considering the application of section 101.231(1)(c) of the Regulations.

19. It was submitted both visa applicants satisfy the requirements of subclause 101.213 and specifically 101.213(1)(c) as they have been undertaking full-time course of study at educational institutions leading to the award of a professional, trade or vocational qualification.

20. It was submitted that evidence exists in the form of certificates of completion from various educational institutes for both applicants. Their course of study would lead them to the profession of education, in that they would become English language teachers.

21. It was claimed that the previous migration agent for the applicants had failed to include this evidence when the application was made. When asked to provide such evidence to support their application during their in-person interviews, it was claimed that both applicants failed to do so as they did not understand what was being asked of them by the delegate. It was claimed that the applicants had requested a Hazaragi interpreter to be present at their interviews but had only been provided with a Dari interpreter. Although similar, the two dialects are sufficiently distinct to cause misunderstandings between the interpreter and the Applicants.

22. It was submitted that the applicants have received certifications for completing the following courses in various educational institutions in Quetta city in Pakistan.

    Sabira Hossaini’s Completed Courses

    o The Pioneers Academy – Diploma – Adobe Premiere (Jan 2018 to June 2018)

    o The Pioneers Academy – Diploma – Web Design (Dec 2016 to July 2017)

    o The Pioneers Academy – Diploma – Internet (March 2016 to Sept 2016)

    o The Pioneers Academy – Diploma – MS Word (Jan 2015 to April 2015)

    o The Pioneers Academy – Diploma – Photoshop (May 2015 to Dec 2015)

    o The Pioneers Academy – Diploma – MS Office, PowerPoint & Excel (Mar 2014 to Aug 2014)

    o The Pioneers Academy – Diploma – Hardware- (Sep 2014 to Dec 2014)

    o The Pioneers Academy – Diploma – Basic computer course (Dec 2013 to Feb 2014)

    o The Learners Academy -English Language Program (Completed) - enrolled from January 6th 2010 to November 1st 2012.

    o Madrasa Certificates Religious studies; Started April 2013; Ended 20th September 2018- All Certificates Attached.

    Alia Hossaini’s Completed Courses

    o The Pioeneers Academy – Diploma – Web Design (Dec 2016 to July 2017)

    o The Pioneers Academy – Diploma – Internet (March 2016 to Sept 2016)

    o The Pioneers Academy – Diploma – MS Word (Jan 2015 to April 2015)

    o The Pioneers Academy – Diploma – MS Office, PowerPoint & Excel (Mar 2014 to Aug 2014)

    o The Pioneers Academy – Diploma – Hardware- (Sep 2014 to Dec 2014)

    o The Pioneers Academy – Diploma – Basic computer course (Dec 2013 to Feb 2014)

    o The Pioneers Academy – Diploma – Basic computer course (Dec 2013 to Feb 2014)

    o Madrasa Certificates Religious studies; Started April 2013; Ended 20th September 2018- All Certificates Attached.

    o The Learners Academy -English Language Program (Completed)- enrolled from November 5th  2012 to 10th of October 2013)

23. The Tribunal has given consideration to the term ‘Full-time Course of Study’

24. As found by the department based on identity documents I also find that Alia Hossaini was born on 31 December 1992 and Sabira Hossaini was born on 31 December 1993. At the time of application, 6 November 2013. Thus both applicants were above the age of 18. I find they began their courses within a reasonable time of turning 18.

25. I accept from oral and photographic and written evidence that Alia Hossaini has been enrolled in Pioneers Academy since November 2012 and Sabira Hossaini since January 2010. I have had the advantage of interviewing both visa applicants at length in the hearing and found their responses to be consistent and credible.

26. There is evidence that since reaching the age of 18, both visa applicants have consistently been enrolled in courses in Pioneers Academy until present.

27. There is evidence that prior to reaching the age of 18, both visa applicants had always been enrolled at educational institutions throughout their childhood. I accept their written and oral evidence that their mother financially supports them and that they do not and have not ever worked for money.

28. The applicants’ mother, Ms Zarah Hossaini, the review applicant, presented simple but clear evidence that she provided education opportunities and financial support. I accept her corroborative evidence.

29. A key question before the Tribunal is whether since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the visa applicants have been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

30. It was submitted by the visa applicants that the education obtained by both applicants is not one that immediately provides trade or vocational qualification. However, the topics covered by each course undertaken leads both applicants to the obtainment of vocational qualification in the education sector.

31. The Tribunal considers the meaning of the words ‘leading to the award of a professional, trade or vocational qualification’. It accepts that an overly narrow interpretation of these words would be departure from the meaning of the regulations. 

32. The Tribunal founds the visa applicants to have a good knowledge of English and finds that they could at least teach elementary English at their skill level. I accept their oral evidence that this is their career goal. I also find that context is important and that is that opportunities for girls or young women are limited in Pakistan and that Hazaras experience heightened discrimination. The visa applicants I accept reside in a Hazara dominated area of Mariabad, an enclave within Quetta, Pakistan.

33. The visa applicants face possible discrimination based on their ethnicity. A recent RefWorld report on Pakistan-Shi’a and Hazaras describes the situation:

    The situation for Hazaras in Quetta is now particularly serious. Because of their clearly identifiable features, it is dangerous for them to travel out of their neighbourhoods. In addition to the high-profile attacks that reach the headlines, there are frequent incidents of shootings and other attacks against individuals or groups of Hazaras in Quetta. According to a March 2018 Human Rights Commission of Pakistan report, at least 509 Hazaras were killed and 627 were injured over the past five years as a result of violent attacks by extremist groups (community leaders warn that the actual figures could be far higher). These have contributed to an acute sense of insecurity and vulnerability.[1]

    [1] Minority Rights Group International, World Directory of Minorities and Indigenous Peoples - Pakistan : Shi'a and Hazaras, June 2018, available at: <  

34. But that is not to say that they have no career prospects. I find that the variety of courses that they studied combined would assist in gaining a teaching qualification at a later point. Not all their courses are directly about English teaching but would be in English or facilitate IT skills essential for modern teaching for example. The college certification provided to the Tribunal is extensive, and importantly the visa applicants could speak to the material with credibility. As their education was more informal because of their refugee status I consider their later courses to be the equivalent of finished school education.

35. I note that in the case of Sok v MIMIA it is stated that  

    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
    

    [2] Sok v MIMIA [2005] FMCA 190 [15].

    of which may be fulfilled by undertaking courses at alternative institutions. [2]

36. With this principle in mind I find that on balance their qualifications and courses, would assist and are aimed at becoming vocationally qualified as described in the regulations. They meet the relevant age and time of decision requirements in the other necessary respects as well. Both visa applicants gave a credible and detailed account of their current studies and the studies that have undertaken over years. I give this evidence weight.

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

38. As such I find that the visa applicants were so dependent and I do not need to consider whether the applicants are incapacitated for work due to the total or partial loss of the child’s bodily or mental functions (“subclause 101.213(1)(c) does not apply to an applicant who at the time of application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child” per the words of the delegate).

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

40. I accept that the visa applicants are the children of the review applicant, as accepted by the department on identity documents and are thus in a relevant child-parent relationship.

41. The applicants’ age at time of application were 22 years and 19 years.

42. At the time of application and or decision, the visa applicants are children of an eligible person, who later became a permanent resident of Australia. Accordingly, cl.101.211(1)(c) is met at the time of application, and continues to be met at the time of decision.

43. For the reasons above, the criteria in cl.101.211 cl.101.221 (2)(a) are met.

44. At the time of application, neither visa applicant was engaged to be married, and was not or ever have had a spouse or de facto partner: cl.101.213(1)(a). This continues to be the case at the time of this decision: cl.101.221(2)(b).

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

    Not engaged in full-time work

46. 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). I find from the whole of the evidence from questioning that they were not.

47. 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)

48. 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).

49. 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).

1. 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.

2. As outlined above, I find that at the time of application, the visa applicants had been undertaking full-time study since turning 18, or within 6 months (or a reasonable time) after completing year 12; and the applicants continues to meet this requirement, and are still studying, at the time of decision.

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

4. For the reasons above, cl.101.213 is met at the time of application.

5. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) is met.

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

   DECISION

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

   ·cl.101.213(1) of Schedule 2 to the Regulations; and

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

   Justin Meyer
   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 who is engaged to be married or has a spouse or de facto partner), being a 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 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.

   …