Mudzinganganya (Migration)

[2021] AATA 656

Mudzinganganya (Migration) [2021] AATA 656 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Chiedza Mudzinganganya

VISA APPLICANTS:  Miss GAMUCHIRAI MUDZINGANYAMA
Mr CHARLES PANASHE MUDZINGANYAMA

CASE NUMBER:  2006173

HOME AFFAIRS REFERENCE(S):          OSF2019/022296

MEMBER:Margie Bourke

DATE:10 March 2021

PLACE OF DECISION:  Melbourne

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

·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations; and

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

Statement made on 10 March 2021 at 1:28pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – study requirement for applicants over 18 – undertaking full-time study within reasonable time after completing high school – second applicant failed final high school exams – first applicant took gap year then enrolled at university – late payment of fees, state of emergency, COVID-19 restrictions and frequent power cuts – unable to study – enrolled at another university in another country, but unable to travel or study online – decision under review remitted for first applicant, affirmed for second applicant

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Reyes v MIAC [2007] FMCA 1721
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 26 February 2020 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 15 May 2019. 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 sets out the requirements for visa applicants aged 18 years and over at the time of application.

4. The delegate refused to grant the visas on the basis that cl 101.213 was not met because the delegate was not satisfied that either visa applicant met the study requirements at the time of application.

5. The Tribunal had regard to the circumstances of the review applicant and the visa applicants and the nature of the review. The Tribunal had regard to its objective is to provide a mechanism for review that was fair, just, economical, informal and quick. The Tribunal was satisfied he did not need to put a large quantity of documents to the applicant during the hearing. The Tribunal was satisfied that an appearance by the review applicant using video technology would give the review applicant a fair opportunity to give evidence and present arguments, and the Tribunal would have the opportunity to question the review applicant and visa applicants in a fair and effective manner through a video hearing. The Tribunal was cognisant the two visa applicants resided overseas, and would have the opportunity to choose to attend either by video link or telephone connection. The Tribunal was satisfied it would be able to properly make any necessary assessment of the review applicant’s credibility and the visa applicant’s credibility by conducting a video hearing. The Tribunal also considered that any delays or costs caused by waiting for an in-person hearing would not be warranted in this review. For these reasons the Tribunal determined that this was an appropriate matter that could be conducted by way of a video hearing. The review applicant was invited to attend a video hearing on 2 March 2021.

6. The review applicant appeared before the Tribunal by video on 2 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the father of both visa applicants who attended by video with the review applicant. The Tribunal received a hearing response form from the review applicant in which the review applicant advised that neither visa applicant would attend the hearing.

7. The review applicant was represented in relation to the review by her registered migration agent. The review applicant’s representative attended a test dial prior to the hearing date by video. On the hearing date the review applicant’s representative was unable to connect by video link and attended the hearing by telephone. The Tribunal offered the review applicant the opportunity to postpone the hearing to allow the representative to attend by video at a later date when the representative’s connection was re-established. The review applicant, the representative and the visa applicants’ father all advised the Tribunal that they wished the hearing to proceed on 2 March 2021, with the representative participating in the hearing by telephone connection. The representative advised that his audio connection was very clear and he was content to attend the hearing via telephone. The Tribunal advised that if at any time the review applicant wished to consult with her representative the Tribunal would adjourn the hearing temporarily and allow her this opportunity. Pursuant to the wishes of the review applicant, her representative and the visa applicants’ father, the hearing proceeded as scheduled.

8. For the following reasons, the Tribunal has concluded that the decision under review of the first named visa applicant should be remitted back to the Department for reconsideration, and the decision under review of the second named visa applicant should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

9. 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

10. 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).

11. Based on the consistent evidence of the review applicant and both visa applicants’ father, I am satisfied that both visa applicants have never been engaged to be married, have never been married and have never had a de facto partner.

12. Accordingly, I am satisfied that both visa applicants meet the requirements of cl 101.213(1)(a) and continue to meet the requirements of cl.101.213(1)(a) at the time of decision.

    Not engaged in full-time work

13. 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).

14. Based on the consistent evidence of the review applicant and both visa applicants’ father, I am satisfied that both visa applicants have never been engaged in any employment, either part-time or full-time.

15. Accordingly, I am satisfied that both visa applicants meet the requirements of cl 101.213(1)(b) and continue to meet the requirements of cl.101.213(1)(b) at the time of decision.

    Full-time study (or incapacitated for work)

16. 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).

17. 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).

18. 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.

19. There is no evidence before me that either visa applicant is incapacitated for work due to the partial or total loss of bodily or mental functions. I am satisfied that in relation to both visa applicants the criteria in cl.101.213(2) does not apply.

    The second named visa applicant

20. I have considered the evidence in relation to the second named visa applicant. I am satisfied that the educational system in Zimbabwe is similar to the Australian school system. I accept that in Zimbabwe a school student complete seven years in primary school, and then six years in secondary school. I am satisfied that at the end of six years in secondary school, a student studies the equivalent of year 12 in the Australian school system known as the Advanced level or ‘A levels’. I have considered the information provided by the review applicant that the second named visa applicant sat three subjects for his A levels in 2018, namely business, geography and accounting. The academic record shows that the second named visa applicant did not pass any of these three subjects and received a record of “ungraded”. I accept the academic record shows that this indicates the second named visa applicant did not pass, and in fact failed, his A levels. The academic record shows the second named visa applicant passed the equivalent of year 10, and then after a break in his secondary schooling, returned to study the three subjects which he did not pass.

21. I am satisfied based on the evidence of the review applicant and the second named visa applicant’s father that the second named visa applicant attended secondary school to study three year A level subjects, but did not pass his exams in the three subjects.

22. The review applicant stated that in Zimbabwe, a student could elect to study a minimum of three subjects, to sit for their A levels exams. The tribunal has considered that as a question of fact that the Australian school system requires a Year 12 student to study more than a minimum of three subjects to complete the Year 12 curriculum, although this can be done over more than one year.  There is no evidence that the second named visa applicant studied A level subjects (the equivalent of year 12 subjects) in any other secondary school years.  The tribunal has considered the judgement in the case of Reyes v MIAC [2007] FMCA 1721, that whether the educational qualification of the visa applicant is the equivalent of year 12 in the Australian school system is a question of fact for the Tribunal. The Tribunal accepts the evidence that the second named visa applicant only studied three subjects for his A levels. The Tribunal finds that studying three A level subjects in Zimbabwe is not the equivalent of studying the complete year 12 in the Australian school system.  Therefore, I am not satisfied that the second named visa applicant has completed the equivalent of year 12 in the Australian school system.  As the second named visa applicant has not completed the equivalent of year 12 in the Australian school system he does not meet the criteria in cl.101.213(1)(c).

    The first named visa applicant

23. I have considered the information in relation to the first named visa applicant. I am satisfied that the first named visa applicant completed her A levels in November 2018. I am satisfied that she completed the equivalent of year 12 in the Australian school system in November 2018. I am satisfied that the first named visa applicant turned 18 in November 2017, the year before she completed her A levels, or the equivalent of year 12 in the Australian school system.

24. I am satisfied that the first named visa applicant took a ‘gap year’ on the advice of her father. I have applied the principles in Sok v MIAC [2005] FMCA 190 and Hussain v MIBP [2017] FCCA 3247, and I am satisfied that it may be reasonable for a student to take a gap year between completing secondary school and commencing tertiary education. I am satisfied that the first named visa applicant had completed her secondary schooling with excellent results, she had completed her secondary studies in difficult conditions residing with her aunt and with her father living out of the country, and that it was reasonable for her to take a break from study before commencing her tertiary studies.  I accept the first named visa applicant intended to study a science degree, and had had studied hard during her secondary schooling towards this goal. In the circumstances of this review, I am satisfied that it was a reasonable period for the first named visa applicant to complete her secondary schooling at the end of 2018, and intend to commence her tertiary studies at the commencement of the academic year in 2020 after a year break from study.

25. The first named visa applicant’s father had written to the Department to state (email dated 4 February 2020) that the first named visa applicant would continue her studies when she arrived in Australia.  I am not satisfied that it is reasonable to not study for an indefinite period whilst waiting for the result of an application for a visa. For this reason, after the hearing the tribunal requested the review applicant provide confirmation from the University in Zimbabwe that the first named visa applicant had been enrolled to study at the commencement of the academic year in 2020, and had been unable to commence or continue study because the university did not offer online study in Zimbabwe.

26. The review applicant provided the tribunal with two letters from the University of Zimbabwe both dated 3 March 2021, received by the Tribunal on 10 March 2021. The university confirmed that due to frequent power cuts, online learning was not provided during 2020, and due to the covid-19 pandemic the university suspended classes in the first named visa applicant’s course for the whole of the 2020 year.  The university confirms the first named visa applicant is currently a first year medical student registrant in the current academic year. The university advised that it has two annual intakes in March and August, and the first named visa applicant was admitted to the course on 31 March 2020. She was a “late intake”. 

27. I have considered that the Department decision record is dated 25 February 2020, and the possibility that the fist named visa applicant’s application to the University of Zimbabwe was made after the decision in relation to her visa, and only because of the decision to refuse the application for the visa.  However, I have considered the evidence of the circumstances of the first named visa applicant, and the country of Zimbabwe at the relevant time.  I accept a state of emergency was called in Zimbabwe in February 2020, and the universities were closed to students. I accept online studying was not offered to students. I accept that the date of admission is affected by the date of payment of the fees, and I am satisfied the receipt for the first named visa applicant’s admission to the course (paid by her father) is recorded in the letter dated 31 March 2020.  I accept the evidence of the review applicant and the visa applicant’s father, that they have been affected by financial constraints.  I accept the first named visa applicant has been consistent in her plans to study the science degree.  I accept the evidence of the review applicant that the first named visa applicant had applied and was accepted to study a science degree online at a South African university, in an attempt to pursue her goal to study science, when she was unable to study online in Zimbabwe in 2020.  I accept the first named visa applicant was unable to travel across the border into South Africa to commence the degree. I am satisfied that the late commencement of her admission to the course was caused by the late payment of her course fees, and this was at a time the course was not able to be studied in any event. Therefore, I am satisfied that the first named visa applicant has been admitted to study a full time course since March 2020.  I am satisfied she has been engaged in the full time course of study, since that time, although circumstances created by the global pandemic prevented her from actually studying until 2021.

28. For these reasons, I am satisfied that the first named visa applicant intended to study in 2020, and was unable to do so because of the state of emergency in Zimbabwe which had closed the universities to students from February 2020. I am satisfied the first named visa applicant was admitted as a student to her course in the March intake in 2020, although she was a late applicant because the course fees were not paid until 31 March 2020.

29. I am satisfied that the first named visa applicant was subsequently accepted in a Bachelor of Science Honours degree in physiotherapy to commence in March 2020, at the University of Zimbabwe. I am also satisfied that due to the covid-19 pandemic the universities in Zimbabwe were closed in 2020. I am satisfied that due to extreme electricity shortages, online study or any internet courses were not offered in Zimbabwe during the pandemic. I am satisfied that the first named visa applicant applied to study a Bachelor of Science course in South Africa, and was accepted at a university in Johannesburg to commence in 2021. I am satisfied that the first named visa applicant has been unable to travel out of Zimbabwe due to border lockdowns again due to the pandemic. I accept that the first named visa applicant has been enrolled to study since March 2020, and has been unable to study through circumstances beyond her control. I accept that the first named visa applicant has been engaged in study to the best of her ability, and her admission and acceptance at two universities is evidence of her engagement to study since March 2020.  I am satisfied that the first named visa applicant is currently studying a full time course of study at an educational institution.  I accept the full time course of study will lead to the award of a professional, trade or vocational qualification.

30. For the above reasons, I am satisfied that the first named visa applicant has, since turning 18 years or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, has been undertaking a full time course of study at an educational institution, leading to the award of a professional, trade or vocational qualification. I am satisfied that the first named visa applicant met this requirement at the time of application, and continues to meet this requirement at the time of decision.

1. Accordingly, for the above reasons, cl 101.213(1)(c) is not met by the second named visa applicant. 

2. Also, for the above reasons, cl.101.213(1)(c) is met at the time of application by the first named visa applicant, and continues to be met by the first named visa applicant at the time of decision. Therefore, the first named visa applicant meets the requirements of cl 101.221(2)(b).

3. Given the findings above, the appropriate course is to remit the matter of the first named visa applicant to the Minister to consider the remaining criteria for the visa.

4. For the reasons above, the criteria for the grant of a Subclass 101 visa are not met by the second named visa applicant. There have been no claims advanced in respect of the other visa subclasses in Class AH (Subclass 102 and Subclass 117) by the second named visa applicant.

   DECISION

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

   ·cl 101.213 and cl.101.221(2)(b) of Schedule 2 to the Regulations; and

6. The Tribunal affirms the decision not to grant the second named visa applicant the Child (Migrant) (Class AH) visa.

   Margie Bourke
   Member