Makwati (Migration)

[2018] AATA 1980

Makwati (Migration) [2018] AATA 1980 (7 June 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Leonard Makwati

VISA APPLICANT:  Mr Godknows Makwati

CASE NUMBER:  1609625

HOME AFFAIRS REFERENCE(S):         OSF2016/075640

MEMBER:Hugh Sanderson

DATE:7 June 2018

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 07 June 2018 at 11:03am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) –Visa applicant over 18 – Not undertaking a full-time course of study – Completed Bachelor’s degree – Not working – No incapacity – Lived with mother in Zimbabwe – Mother deceased – 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 Immigration and Border Protection on 30 May 2016 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 February 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 have only been made in respect of Subclass 101 (Child). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.101.213(c) was not met because at the time of the application the applicant was not undertaking a full-time course of study and had ceased any full-time course of study in August 2014.

   Background

4. The review applicant was born in Zimbabwe and first entered Australia in 2009. He became an Australian citizen in 2014. He is married with two children who live in Australia. The visa applicant is his son from a prior relationship.

5. The visa applicant was born in Zimbabwe in 1991 and is currently 26 years old. He completed the equivalent of High School in Zimbabwe in November 2010. He then enrolled in the University of Zimbabwe for a Bachelor of Arts Degree. He was granted this degree on 15 July 2014. He provided a copy of his academic transcript dated 7 August 2014.

6. The current application was filed on 24 February 2016 when the applicant was 24 years and six months old. He stated that his birth mother died in 2010. He did not provide any details of any employment. He stated that he was not currently studying, but finished his Bachelor’s Degree in September 2014. He claimed that he was dependent upon his father for financial support, receiving US$50 per week.

7. The review applicant provided a statement where said as follows:

   I am an Australian citizen by grant and writing to confirm that Godknows Makwati is my son born out of wed-lock in Zimbabwe. I would like him to come and live with me permanently here in Australia.

   I left him back in Zimbabwe as his mother was still alive and she could not let him migrate with me. Now that she passed on, I am responsible for his upkeep and I am sending him money frequently.

8. The delegate who considered the application noted that the applicant was over the age of 18 and had not been undertaking a full-time course of study since he completed his Bachelor of Arts degree in September 2014. Accordingly, the delegate found the applicant did not meet the criteria in cl.101.213(1)(c) and refused the application.

   Information to the Tribunal

9. The review applicant provided a statement to the Tribunal where he claimed the following:

   I am writing to you to appeal for a review of this decision based on the following:

   ·Godknows turned 18 years in 2010 the same year he completed Form 6, the equivalent of Year 12 in Australia.

   ·This is the last level of secondary education before one enrols in college or University.

   ·In February 2011 he got an offer to study for a three-year Bachelor of Arts Degree and he finished in September 2014.

   It is unfortunate that I did not apply for a visa for him during this period when he was still studying because I did not want to cut short or disturb his studies, I had some financial challenges and I was ignorant of the requirements and laws of Border Protection especially this clause 101.213(1)(c). However, I do not understand how else he could have been at school after he had already finished the full-time course of study as was highlighted on the refusal of the visa. The University qualification is the last level that prepares someone for the job market.

10. The review applicant appeared before the Tribunal on 7 June 2018 to give evidence and present arguments.

11. The review applicant confirmed that his son was not studying. He said that his son was not working and was dependant on him for support. He said that his son was not incapacitated for any reason.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the visa applicant has been 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.  

    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).

    Full-time study (or incapacitated for work)

15. 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).

16. 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).

17. 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.

18. The evidence provided in support of the application shows that the visa applicant completed his studies not later than August 2014. This is one year and six months prior to the filing of the application. He did not undertake any postgraduate studies and has not undertaken any full-time course of study since then. He claims not to have worked and has been financially dependent upon the review applicant.

19. Although the Tribunal understands why the review applicant did not arrange to file the application for the visa while the visa applicant was undertaking his studies, the fact is that the requirements for the grant of the Child visa requires the visa applicant, if they are over the age of 18 years, both at the time of the application and at the time of the decision to be undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. The clear evidence before the Tribunal is that at the time of the application the visa applicant was not undertaking any course of study and had completed his studies in August 2014. Accordingly, the applicant does not meet the criteria in cl.101.213(1)(c) at the time of the application. As there is no evidence that the applicant is at the time of this decision undertaking any course of study the visa applicant does not meet the criteria in cl.101.221(2)(b) at the time of this decision.

20. There is no information before the Tribunal that the visa applicant has at any time been incapacitated for work due to the loss of bodily or mental functions. The fact that he was able to complete a Bachelor of Arts in 2010 would indicate that the applicant does not suffer from any incapacity. The review applicant confirmed that his son is not incapacitated for any reason.

21. Accordingly, cl.101.213(1)(c) and cl.101.221(2)(b) are not met.

22. 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).

    DECISION

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

    Hugh Sanderson
    Member