HUSSAIN (Migration)

[2019] AATA 821

HUSSAIN (Migration) [2019] AATA 821 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad HUSSAIN

VISA APPLICANTS:  Mr Zulfiqar Ali Hussain
Ms Saima Hussain

CASE NUMBER:  1807648

HOME AFFAIRS REFERENCE(S):           OSF2013/031144 ; OSF2013/031164

MEMBER:Meena Sripathy

DATE:24 January 2019

PLACE OF DECISION:  Sydney

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

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

·cl.101.221 of Schedule 2 to the Regulations.

Statement made on 24 January 2019 at 10:47am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Federal Circuit Court remittal – relationship status – employment situation – study requirement – ceased studying due to security situation – insurgent attacks against Hazara students in Quetta – both resumed full time study at time of decision – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213, 101.221

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 December 2014 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 17 April 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, they include cl.101.213(1)(c).

4. On 9 December 2014, the delegate refused to grant the visas on the basis that cl.101.213(1)(c) was not met because the applicants had not been undertaking full time study leading to the award of a professional, trade or vocational qualification since ceasing their study following the completion of year 12 in 2013 due to security concerns.  The applicants’ father, as sponsor, sought review of these decisions to then Migration Review Tribunal (which, from1 July 2015, became the Administrative Appeals Tribunal).  On 1 March 2016, the Tribunal (the ‘first Tribunal’) affirmed the decision under review on the basis that the Tribunal was not satisfied that the applicants were continuously involved in study from the time they commenced their studies.

5. The review applicant sought judicial review of the first Tribunal’s decision. On 20 December 2017 the Federal Circuit Court of Australia quashed the first Tribunal’s decision and remitted the matter to be determined according to law.

6. The issue in this case is whether the 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: cl.101.213(1)(c).  This requirement must continue to be met at time of decision: cl.101.221(2)(b).

7. The Tribunal has before it the Department files in respect of the visa applicants, and the evidence provided to the first Tribunal, including evidence provided at a hearing on 22 February 2016. 

8. On 5 December 2017 the present Tribunal wrote to the review applicant to invite him to provide further evidence, including evidence of study the visa applicants are currently engaged in and if there are any gaps in their study, any explanations for those gaps.  On 2 January 2019 the Tribunal invited the review applicant to provide information about the visa applicants’ current relationship and employment circumstances.  The Tribunal received responses and supporting evidence on 17 December 2018 and 22 January 2019.

9. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The visa applicants are the son and daughter, respectively, of the review applicant.  They are now 29 and 27 years old. Information provided to the Department and first Tribunal indicates that at the time the visa application was made, in April 2013, the first named visa applicant was studying in a Bachelor of Science course at General Mohd Musa College and the second named visa applicant was studying for a Bachelor of Commerce at Government Girls College Quetta. They were both single and financially supported from rental income from a property owned by the review applicant.  The visa applicants stopped studying sometime in 2013 until late 2014, due to the security situation at that time.  They were not studying at the time they were interviewed by the delegate in October 2014.  However, evidence provided to the first Tribunal indicates they both resumed full time study (the first named applicant, from February 2015, and the second named applicant, from November 2014) and they were studying at the time of the hearing before the first Tribunal in February 2016.  Evidence was also provided to the first Tribunal to support the applicants’ claims about the security situation in Quetta and particularly its impact on Hazara students in Quetta at that time.

12. Before the present Tribunal, it has been submitted that both applicants have continued their study continuously since resumption of their study in 2014 and 2015, and the following documentary evidence was provided in respect of each of them: 2018/2019 student cards for each of the visa applicants, receipts for payment of fees and examination receipts and results for 2016 and 2017.  It was also submitted that they are not  and have not been engaged to be married, and neither have, nor have ever had, a spouse or de facto partner and are not engaged in full time employment.  Supporting evidence of ‘non marriage certificates’ issued by the Metropolitan Corporation Quetta and statements attesting to their employment situation from a local Councillor was provided.

13. On the basis of the evidence before it the Tribunal makes the following findings relevant to the visa criteria.

    Criteria for applicants over 18

14. 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

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. The Tribunal is satisfied on the basis of a documentary evidence provided with the application, and oral evidence to the delegate and first Tribunal, that each of the visa applicants were not engaged to be married, nor had or ever had any spouse or de facto partner at time of application.

17. Accordingly, cl.101.213(1)(a) is met.  The review applicants confirmed to the present Tribunal that they continue to be single now.  It continues to be met at the time of decision.

    Not 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 Tribunal is satisfied on the basis of evidence provided with the application, and oral evidence to the delegate and first Tribunal, that neither visa applicant was or has ever been engaged in full time work.  Accordingly, cl.101.213(1)(b) is met.  Evidence that they continue to be students and not engaged in employment to date has been provided to the present Tribunal, and on this basis it is satisfied that the criterion continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

20. 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).

21. The Tribunal accepts that the visa applicants were undertaking a full time course of study at time of application. This is supported by the documentary evidence provided with the application and oral evidence given by the visa applicant to an officer of the Department at interview  and to the first Tribunal, and was accepted by both the delegate and first Tribunal.

22. 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.

23. The Tribunal accepts on the evidence before it, that the visa applicants were enrolled in and undertaking full time study at the time of application up until late 2013, when they ceased studying for a period of time for security reasons.  Evidence is before the Tribunal to support their claims that there were concerns about their safety as Hazara students during this period and this was the reason for the suspension of their study.  The Tribunal accepts that insurgent attacks against Hazara students in Quetta were occurring in this period and accepts on this evidence that the gap in their study during this period was not unreasonable.  Evidence has since been provided that, since resuming their study in November 2014 and February 2015, the visa applicants’ have been, and are, continuing full time study. 

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

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

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

27. As the visa applicants have now both turned 25, they do not need to continue to satisfy the criterion in cl.101.211: cl.101.221(2)(a).    Accordingly, cl.101.221 is met. 

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

    DECISION

29. The Tribunal remits the applications for Child (Migrant) (Class AH) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 101 (Child) visa:

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

    ·cl.101.221 of Schedule 2 to the Regulations.

    Meena Sripathy
    Member