Kingok (Migration)

[2024] AATA 25

Kingok (Migration) [2024] AATA 25 (10 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ayoul Denggarang Kingok

VISA APPLICANT:  Mr Sibet Ayoul Denggarang Kingok

CASE NUMBER:  2112783

HOME AFFAIRS REFERENCE(S):          OSF2018/006675

MEMBER:David Crawshay

DATE:10 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 10 January 2024 at 2:54pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – full-time course of study – applicant claimed to still be undertaking secondary study – government changes in Sudan disrupting education – delays obtaining tertiary enrolment – decision under review affirmed         

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

CASES

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 20 July 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 14 November 2018. At the time of application, the Child (Migrant) (Class AH) visa contained Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have only been made in respect of Subclass 101 (Child).

3. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.213, which sets out certain requirements for visa applicants who have turned 18 years at the time of application.

4. The delegate refused to grant the visa on the basis that cl.101.213 was not met. The delegate was not satisfied that the visa applicant had been studying in enrolled and participating in full-time education at the time of application as required under cl.101.213(1)(c). The delegate was also not satisfied that the visa applicant was incapacitated in the manner set out in cl.101.213(2).

5. The review applicant appeared before the Tribunal on 22 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the visa applicant satisfies the criteria for visa applicants who have turned 18 years at the time of application and continues to satisfy those criteria at the time of this decision.

   Criteria for applicants over 18

8. If, at the time of application, the visa applicant has turned 18, that visa applicant needs 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).

9. Clause 101.213 states as follows:

   (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.

   (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 .

   [emphasis in original]

10. Clause 101.221(2)(b) states as follows:

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

    (a)   …

    (i)…

    (ii)…

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

    Full-time study (or incapacitated for work)

11. At the time of application, the visa applicant must have, since turning 18, or within six 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).

12. 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).

13. 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 period of time 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.

14. At the time the visa was applied for in November 2018, the visa applicant had turned 18 but claimed in his application form dated 27 October 2018 to still be undertaking secondary study. In support of this claim, he provided a letter dated 30 October 2018 from Comboni College in Khartoum stating that he was a “3^rd secondary student” in the 2018/19 academic year. In his application form, he listed his estimated date of completion as 1 July 2019.

15. The Tribunal makes the following findings. It has concerns about the claims of the visa applicant having finished secondary school in 2019 based on the lack of evidence of him having done so and countervailing public-source information suggesting that fourth year (and not third year) is the leaving year for Sudanese secondary schools prior to 2020/2021 academic year.[1] However, it accepts based on a letter from Comboni College dated 8 September 2021 (selected contents of which were read into evidence at hearing) that he had been enrolled in post-secondary study and accepts as likely that he would needed to have completed the equivalent of year 12 in the Australian school system in order to enrol in this post-secondary course of study. On balance, the Tribunal accepts that the visa applicant finished school in July 2019.

    [1] ‘Major overhaul in Sudan education curriculum’, Dabanga (26 November 2019), >

    As this date was after the time of application, it accepts that the visa applicant was enrolled in secondary study at the time of application, and that cl.101.213(1)(c) was met at that time.

16. At hearing, the Tribunal asked the review applicant what happened after the visa applicant concluded his secondary study. He said that the regime changed and all the schools were closed. He said that they were waiting for the visa applicant’s results for 10 months because of the “revolution” and the regime change. He said that no schools were open in 2020 and the revolution continued. He said that the schools sometimes closed for three months when the people were in the streets and then they reopened when things “cooled down”.

17. At this point, the Tribunal read out the following quote from the CIA World Fact Book to the review applicant:

    Military regimes favoring Islamic-oriented governments have dominated national politics since Sudan gained independence from Anglo-Egyptian co-rule in 1956. The 30-year reign of President Omar Hassan Ahmad al-BASHIR, following months of nationwide protests, ended with the military forcing him out in April 2019. In July 2019, the country’s Transitional Military Council signed an agreement with the Forces for Freedom and Change (an umbrella group of civilian actors) to form a transitional government under a Constitutional Declaration. Economist and former international civil servant Abdalla HAMDOUK al-Kinani was selected to serve as prime minister of a transitional government, which was to have guided the country to credible democratic elections in late 2022. In October 2021, the Sudanese military organized a takeover that ousted Prime Minister HAMDOUK and his government and replaced civilian members of the Sovereign Council (Sudan’s collective Head of State) with individuals selected by the military. HAMDOUK was briefly reinstated in November 2021 but resigned in January 2022.[2]

    [2] Central Intelligence Agency, World Fact Book: Sudan

18. The Tribunal remarked that while the above source discloses that protests took place in 2019, it also states that by July 2019 a settlement had been reached between the military and the umbrella civilian group to form a transitional government. It put to him that this information did not appear to support his claims about there being widespread protests that closed schools down and resulted in the visa applicant not receiving his results for 10 months. Instead, it put to him that the source suggested that the protests ended around the time that the visa applicant graduated. It put to him that, overall, the source suggested a period of stability from July 2019 to October 2021 at which point the military staged a takeover, and that school closures would have been unlikely during this time based solely on there being civil unrest, disquiet or protests.

19. The review applicant replied that when Hamdouk took over, Sudan was not normal. He said that civilians were still in the streets because they did not like Hamdouk. He said that sometimes the school was open, but sometimes it was closed because of street protests.

20. The Tribunal discussed the review applicant’s claim that the visa applicant did not receive his results for 10 months. In response, he said that he thought when the committee began marking the papers, part of the school burnt down so they transferred the marking to another part of the city. He said that the head of the committee for marking tried to announce the results but the order came from the minister of higher education not to announce the results because the universities were not open.

21. The Tribunal asked the review applicant when the visa applicant received his results, and he replied that it was in June or July 2020. He said that the visa applicant enrolled in a four-year Information Technology course in October 2020.

22. Later in the hearing, the review applicant revisited the issue of when results were announced for the visa applicant’s secondary schooling. He told the Tribunal that the delay in marking began in April 2019 at the end of exams and finished at the end of August 2019 when results were announced. He said that it was not a stable time to apply for university because there was a crisis and a delay from universities. The Tribunal asked why it took the visa applicant until October 2020 to get into university, and the review applicant replied that it had to do with fees. He said that foreign applicants to university were required to pay in US dollars. He said that the visa applicant registered himself but the full fee was not paid.

23. The Tribunal put to the review applicant that the fee for the visa applicant’s study was listed in Sudanese pounds in the letter from Comboni College dated 8 September 2021. He replied that the fee is represented in Sudanese pounds in that letter, but that it was a directive from the ministry for all foreigners to pay in US dollars.

24. The Tribunal suggested to the review applicant that, based on the money he had remitted to the visa applicant he would have had the financial means by which to pay the study fees in 2019. In response, the review applicant said that on the one hand he sent money to the visa applicant for accommodation, services and pocket money, and on the other hand he sent money to pay for his university fees. He said that he gave over money for registration to the university but did not complete the payment. He said that the lady with whom the visa applicant was staying was claiming the money for everything. He said that he did not want to argue because he did not want to cause a crisis for the visa applicant.

25. The Tribunal heard from the visa applicant at hearing that his last year of secondary schooling was academic year 2018/2019 after having studied there for three years. He said that he next studied at Comboni College in an Information Technology course in November 2019. When asked whether he was able to study the whole way through from November 2019 to April 2023 (when the current fighting in Sudan began), the visa applicant said that he could.

26. Having questioned the parties, the Tribunal put an inconsistency to the review applicant – being that the visa applicant had told it that he began his post-secondary study in November 2019 versus the review applicant stating that it was in October 2020. The review applicant said that he directed the visa applicant to enrol in the IT course and that they “looked for fees” after that – which he stated was the “half fees”. The review applicant also pointed to a “huge” protest in November 2019 and the COVID-19 pandemic.

27. The Tribunal has considered the information in front of it. A first point to make is that there is a dearth of documentary evidence that substantiates the claims made by the parties or that otherwise shows when key events took place. Significantly, no documentary evidence has been presented that shows the exact date when the visa applicant commenced study in the Information Technology course at Comboni College and whether it was in October 2020 (as stated by the review applicant) or November 2019 (as stated by the visa applicant). This is despite the Tribunal having invited the review applicant to provide any such information by 5 January 2024.

28. A reason given for this dearth of information was that documents relating to the visa applicant’s study were either lost or have been unable to be retrieved due to the fighting in Sudan since April 2023. However, this reason assumes that the documents in question were only sent in hard-copy form and were not available in electronic form. At hearing, the Tribunal made the parties aware of an electronic application called “moodle” which was advertised on the homepage of the Comboni College website.[3] According to the moodle webpage, some of its features include the following: “[v]iew your grades, check completion progress in courses and browse your learning plans”.[4] The Tribunal put to the review applicant that a student in an information technology course would be using that application to access their results. The review applicant replied that the system in Sudan is “different”. He said that some universities have a “good process”, but the problem is that if teachers or assistants do not publish the results electronically, then students will not be able to access them.

    [3] >

    The Tribunal rejects this response as it is speculative and does not address why the visa applicant would have been unable to access his results via this application – especially as he was a student who would have been expected to have a high level of computer literacy given that he was studying information technology. It is given no weight.

29. This dearth of information about the visa applicant’s study and specifically the date when he commenced post-secondary study makes it difficult to assess whether the applicant had been undertaking post-secondary study within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system. The most that can be said based on the letter dated 8 September 2021 from Comboni College was that the visa applicant had commenced post-secondary study by this date. Certainly, there is no evidence of sufficient probative value to substantiate that the visa applicant commenced his post-secondary study on or before January 2020 – which was six months after he completed the equivalent of year 12 in the Australian school system.

30. The review applicant’s testimony at hearing was also marked by several shifts. For instance, while he initially stated that it took 10 months for the visa applicant’s results to be released, he later stated that the results announcement occurred in late-August 2019 – a much shorter period of time. The Tribunal also perceived a shift in the answers given by him for the delay in the visa applicant applying for university. In this regard, the review applicant initially stated that it was due to protests and no mention was made of fees. However, and after being challenged about the effect of protests, he later stated that the delay was because he was unable to pay the requisite fees for study, with the protests playing a secondary role along with the advent of the COVID-19 pandemic in 2020.

31. To be clear, the Tribunal does not doubt that protests took place in 2019 and 2020, with publicly available sources showing protests having taken place during that time, including in Khartoum.[5] However, no information has been presented to show that these protests were of the magnitude that would either cause schools to close for months-at-a-time as claimed by the review applicant. Furthermore, the visa applicant claimed to the Tribunal that he was able to study from November 2019 until April 2023 when the recent fighting broke out. This suggests that if there were protests, they were not so large as would shut down the school.

    [5] See, e.g., ‘Sudanese call for justice in first protest under Hamdok’s cabinet’, Sudan Tribune (12 September 2019),

32. The Tribunal also has concerns over the review applicant’s claim of not having enough money to pay the fees for the visa applicant’s study. As put to him at hearing, it would have thought he would have the financial means to pay for the fees in 2019 based on the remittals he had been making around that time. These remittals include USD3,650 in 2019 alone according to records provided at the Department stage. In coming to the above finding, the Tribunal has given little weight to the claims made about the visa applicant’s landlady siphoning off the remittals in the absence of supporting evidence. However, even if this claim is true, there have been no reasons given for why the study fees could not be paid directly by the review applicant himself by transfer in US dollars.

33. As a result of these concerns, the Tribunal is not satisfied as to the reasons given by the review applicant for the delay in the visa applicant commencing post-secondary study. It is not satisfied that the delay in the visa applicant commencing post-secondary study was reasonable having regard to the surrounding circumstances.

34. Based on the information in front of it and the findings made above, the Tribunal finds that at the time of this decision, the visa applicant had not, within six 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. Clause 101.213(1)(c) does not continue to apply.

1. Lastly, there is no evidence in front of the Tribunal to demonstrate that the visa applicant was incapacitated for work because of loss of bodily or mental functions, and no claims were made by the review applicant that this is the case. The exception in cl.101.213(2) does not continue to apply.

2. Therefore, the visa applicant does not continue to satisfy the criterion in cl.101.213. As a result, cl.101.221(2)(b) is not met.

3. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117). In any case, as the visa applicant had turned 18 at the time of application, he is unable to satisfy cl.102.211 or cl.117.211.

   DECISION

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

   David Crawshay
   Member