Lemlem (Migration)

[2023] AATA 3515

Lemlem (Migration) [2023] AATA 3515 (3 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kidane Chekol Lemlem

VISA APPLICANT:  Mr Mulugeta Asmelash Haile

REPRESENTATIVE:  Mr Graham T Scarratt (MARN: 9801552)

CASE NUMBER:  2118240

HOME AFFAIRS REFERENCE(S):          BCC2020/2570240

MEMBER:Meena Sripathy

DATE:3 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2023 at 5:25pm

CATCHWORDS

MIGRATION ­– Child (Migrant) (Class AH) visa – subclass 101 (Child) visa –applicant over 18– the study requirement is not met at the time of decision – not satisfied that he is incapacitated for work because of loss of bodily or mental functions – not satisfied that the on the job training leading to the award of a professional, trade or vocational qualification – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

CASES
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463
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 13 October 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 17 March 2020. 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.

4. The delegate refused to grant the visa on the basis that cl 101.213 was not met because the delegate found there was no evidence the applicant was enrolled in or participating in full time education since he turned 18 and there was also no evidence that he was incapacitated for work due to the total or partial loss of bodily or mental functions.

5. The visa applicant’s sponsor, his mother, applied for review to the Tribunal.

6. The review applicant appeared before the Tribunal on to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya, Tigrinya (Ethiopian) and English languages. The review applicant was represented in relation to the review.

7. The issue in this case is whether the visa 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: cl103.213(1)(c). The visa applicant must continue to meet this requirement at time of decision: clause 101.221.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence before the Department

9. The following information was provided in the application form. The visa applicant was born in 1995 in Emrakuba, Sudan.  He is an Eritrean citizen and has been residing in UNHCR Hitsats Camp Tigray, Ethiopia since June 2016.  He indicates he is never married. No other members of the family unit are indicated. His father is deceased and his mother resides in Australia.  He studied at Adi Guri School in Mendefera, Eritrea from September 2011 to December 2012.  At the time of application he is not undertaking  any post secondary course of study.  He indicates no employer and is financially supported by his mother in Australia since June 2016 and ongoing.  The visa applicant is sponsored by his mother, who was born in 1961 in Ethiopia and is an Australia citizen by grant in April 2016. She indicates the visa applicant is her natural child. A completed Form 80 was also submitted at time of application.

10. On 18 January 2021 and again on 26 February 2021 the Department requested evidence the applicant was a full time student at the time the application was lodged, and is still a student; evidence he has been a continuous full time student since turning 18; and an explanation of any periods when the applicant was not studying, including why he was not studying, how he supported himself and full details of any employment including income and hours worked.

11. On 3 June 2021 evidence of money transfers, telephone charges and a rental property agreement was provided in response.

12. On 14 June 2021 the Department invited the applicant to undergo DNA testing.  This invitation was taken up and evidence of the biological relationship was provided on 24 September 2021.

13. On 13 October 2021 the delegate refused the application, not being satisfied that cl. 101.213(1)(c) or cl.101.213(2) was met.

    Evidence before the Tribunal

14. The sponsor applied for review to the Tribunal on 3 December 2021.  No further evidence was submitted.  

15. On 23 July 2023, upon constitution of the matter, an officer of the Tribunal wrote to the review applicant and invited evidence addressing the issued under consideration , cl101.213(1)(c), and any submissions addressing a recent Federal Court decision Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463 which confirmed that cl. 101.213(1)(c) requires that the visa applicant must have commenced the relevant study at the time of application for the visa (at para [70]).

16. On 7 August 2023 the Tribunal received evidence of three further money transfers from the sponsor to the visa applicant in 2022 and 2023 and a Statutory Declaration by the sponsor stating that the visa applicant has been studying Auto Mechanic but she is unable to provide a letter of school enrolment due to her son’s manager being on leave and she requests 2-3 weeks for his return.  She also wishes to advise her son is experiencing hardship and his safety and wellbeing are at risk as an Eritrean citizen and she is extremely worried about his safety as his mother.

17. On 29 September 2023 the Tribunal received the following further documents and evidence:

    ·Letter dated 28 September 2023 from Dr Alfred Mathazia relating to the strain on the sponsor’s mental health caused by her unsuccessful attempts to bring her son to Australia.

    ·Statement from the sponsor, dated 26 September 2023, explaining that her son could not study since 2016 until current because he was housed in a refugee camp and there were restrictions on study and no access to study institutions or schools. When he was in Eritrea he did not study because he worked on his uncle’s farm learning farm duties.  He was not paid and only received accommodation and food. The Conflict in the region has restricted his study. Only this past couple of years he has been able to progress with study at a garage place in Kotebe Adiss Abeba (sic) to be a motor mechanic.  He is an apprentice and does not receive money.  All his studies are done at the premises of the garage. She sends money to support her son as she has done over the years.  She attaches the latest money transfers.

    ·Emails from Letegyorgis Haile (half brother of the visa applicant) and Mulat Gebretsadik (the visa applicant is his mother in law’s son) stating they are available to provide evidence about the visa applicant at the hearing.

    ·Letter from Farol Gelana, General Manager Poly D.A.F. Trading PLC confirming that the visa applicant has been undergoing training with this organisation since 15 October 2014 in the Ethiopian calendar (equivalent to 25 October 2021 in European calendar).  His training has been focussed on vehicle mechanical  and parts maintenance work..  This on the job training program is unpaid and he has been participating voluntarily.

    ·Photo of the applicant showing him at a workshop

    Evidence at hearing

18. At hearing the review applicant gave the following evidence.  She lives alone in Wilson, Western Australia, and is currently studying English and receives Centrelink income support. Her family in Australia comprises her two daughters, who are both older than the visa applicant.  She came to Australia in 2004 with her then husband and one of her daughters, and they sponsored the other daughter around 7 or 8 years ago.  She has since divorced her husband, but he still lives in Australia.  They came here from Sudan. 

19. Outside Australia the review applicant said her only remaining child is the visa applicant.  He was with his father (different father to her two daughters) when she came to Australia.  His father passed away after they came to Australia.  She found this out later on through his uncle.  The visa applicant was then living with his uncle in a rural area keeping animals.  Prior to this the review applicant did not know anything about the visa applicant’s whereabouts or even if he was alive.

20. He is now living in Addis Ababa in a refugee camp but she does not know the name.  He lives alone and is not in a relationship.  His uncle lives in Eritrea.  He is working in a garage, training to become an auto mechanic. The Tribunal noted the evidence provided, being a letter from a person who confirmed his on the job training. She confirmed this is a private business and he is the owner. The Tribunal noted this was not evidence of a course of education leading to a formal qualification. She said she does not know if it leads to a qualification.

21. The Tribunal noted her statement in which she stated the visa applicant has not been able to study since 2016 because he has been in a refugee camp and asked where he was before 2016. She said he was in another refugee camp in Ethiopia but she does not know the name. She believes he went from Eritrea to Ethiopia around 12 years ago, about 7 years after they came to Australia. He was herding cattle in Eritrea.  The Tribunal noted in his application he stated he last studied in 2011-2012 in Adi Guri school in Eritrea.  She agreed with this and said he had no opportunity to study since then.

22. The Tribunal discussed with the review applicant the issue before it, being that, because he was over 18 years at the time of application, cl.101.213(1)(c) requires that he must be undertaking a full time course leading to a qualification at the time of application, March 2020.  A recent court decision confirms that this provision means he must be studying at the time of applicant. The evidence provided by the visa applicant and herself at the hearing indicates he was not studying at that time.  She said she understands but he had no opportunity to study because he was dependent on his uncle who wanted him to work. She also said that when he was in a refugee camp be could not study. Now, since they came to know of the requirement that he be studying, he is getting training at a garage to become an mechanic.  The Tribunal noted that the criteria requires he continues to meet the stud requirement at time of decision, but this means he must be engaged in full time study leading to a qualification and there is no evidence that his on the job training meets this requirement. She said she is not sure what he gets at the end of it.

23. The Tribunal asked the representative whether he had any submissions, noting that the issues were put to the review applicant in the pre hearing correspondence, including an invitation to respond to the Federal Court authority on this point, the decision in Khan. The representative said that he understands but the visa applicant has been unable to study due to the situation in his home country and therefore the required evidence cannot be provided. He made no other submissions or arguments. He is now engaged in unpaid training.

24. The Tribunal repeated the issue before it and explained that it has no power to consider the surrounding circumstances of why the visa applicant has been unable to engage in study. The review applicant had no further evidence or arguments to make. 

25. In light of the review applicant’s evidence the Tribunal did not consider it necessary to take evidence from the visa applicant or other witnesses.

    Criteria for applicants over 18

26. 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

27. 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).

28. The Tribunal accepts the oral evidence of the review applicant that the applicant is not married, engaged to be married or in a de facto relationship now, and was not at time of application.  There is no information before the Tribunal to contradict this, and no reason to not accept their oral evidence.  Accordingly, cl.101.213(1)(a) is met and continues to be met at the time of decision.

    Not engaged in full-time work

29. 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).

30. The Tribunal accepts, on the oral evidence of the review applicant, and evidence of remittances provided by the review applicant , that the visa applicant is not, and has not been engaged in full time work. Accordingly, cl.101.213(1)(b) is met and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

31. 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).

32. 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]. 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).

33. In Khan v MICMA,[1] the Federal Court confirmed the phrase ‘has been undertaking’ means an action that has already commenced and is ongoing. In order for an applicant to meet cl 101.213(1)(c) they must have commenced a full-time study at the time the visa application is lodged.

    [1] [2023] FCA 463.

34. 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.

35. The evidence before the Tribunal, provided by the visa applicant in his visa application and confirmed in written statements and oral evidence from the review applicant at hearing, is that the visa applicant was not undertaking any study at time of application. He last studied in 2012 in Eritrea and since that time he was first living in Eritrea with his uncle and working on his farm, and then moved to Ethiopia and was living in a refugee camp situation,  and has not undertaken any further study. 

36. The Tribunal accepts the review applicant’s explanation that the visa applicant has not had the opportunity to study since 2012 due to his family circumstances and country conditions, however this evidence indicates that he does not meet cl.101.213(1)(c) as this criteria has been interpreted by the Full Federal Court in the Khan decision referred to above.

37. Evidence has been provided that he is now undertaking on the job training with a private garage business, to become an auto mechanic.  A letter from the garage owner and a photo of him in work clothes in a garage has been provided in support of this, and the Tribunal accepts that he is engaged in this activity as claimed. However, given the evidence of his engagement in training to become an auto mechanic the Tribunal is not satisfied that he is incapacitated for work because of loss of bodily or mental functions and therefore he does not meet the alternative criteria in cl.101.213(2). 

38. Accordingly, on the evidence before it, the Tribunal has no option but to conclude that cl 101.213(1)(c) is not met. The Tribunal also finds, on the evidence, that the study requirement is not met at the time of decision as it is not satisfied that the on the job training he is engaged in constitutes full time education at an educational institution leading to the award of a professional, trade or vocational qualification.

39. For the reasons above, cl 101.213 is not met at the time of application, and cl.101.221 is not met at time of decision.

40. 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). On the evidence before it, the Tribunal finds that the review applicant is the biological mother of the visa applicant and therefore the visa applicant is unable to meet the criteria for an adoption or orphan relative visa.

41. Although no specific request was made to refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act (which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so) the Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided, on the limited information before it, not to refer the matter.

42. The Tribunal notes that the applicant can still make a request directly to the Minister.  The review applicant may wish to provide further evidence and supporting documentation addressing the broader circumstances of the visa applicant in a submission.

    DECISION

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

    Meena Sripathy
    Member