NEBO (Migration)

[2020] AATA 4118

NEBO (Migration) [2020] AATA 4118 (15 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ruth Boyea Nebo

VISA APPLICANT:  Mr Abraham Musa

CASE NUMBER:  1930882

HOME AFFAIRS REFERENCE(S):          CLF2019/64518 F2016/075928

MEMBER:Moira Brophy

DATE:15 July 2020

PLACE OF DECISION:  Sydney

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

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

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

Statement made on 15 July 2020 at 12:34pm

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – not a full-time student at time of delegate’s decision – study history – reasons for and nature and duration of gap in study – university study disrupted by civil unrest – enrolled in another course after delay in determination of visa application – decision under review remitted

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
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 16 October 2019 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 22 September 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).

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.101.221(2)(b) which requires that an adult child, that is that he has turned 18, and that he be a full-time student at the time of decision.

4. The delegate refused to grant the visa on the basis that cl.101.221(2)(b) was not met because the applicant had turned 18 and he was not a full-time student at the time of decision.

5. The review applicant, Ms Ruth Boyea Nebo appeared before the Tribunal on 16 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the husband of the review applicant Mr Stanley Garlodyeb Nebo. The Tribunal hearing was conducted with the assistance of an interpreter in the Liberian English and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   Background

8. The applicant, Abraham Musa, was born in Guiglovill, Ivory Coast in June 1995.  He is the holder of passport issued from Sierra Leone. On his application he states the whereabouts of his father, Saah Musa, and his sister, Asata Musa, are unknown. His mother lives in Australia with his stepfather and his three sisters and one brother.

9. At the time of application, the applicant stated he had completed his schooling at the Sierra Leone High School in Freetown Sierra Leone on 29 July 2011. He enrolled at Njala University, Tajma-Southern Province, Sierra Leone in a Bachelor of Computer Science which commenced on 1 October 2012 with the estimated date of completion being 24 August 2017.

10. Further information provided from Njala University was that the applicant had been enrolled for a four-year undergraduate course from 2012 to 2016 but the school had been disrupted due to civil unrest by the students and this led to delays and changes to the curriculum. In addition to this the applicant had failed to obtain the required set mark and had willingly repeated a set year which led to his graduating in 2018 rather than 2016.

11. The review applicant, Ruth Boyea Nebo was born in Zwedru, Grand Gedeh County, Liberia West Africa.  Ms Nebo arrived in Australia on 31 March 2010 as the holder of a s 202 visa. She acquired Australian citizenship on 22 March 2015. In the application Ms Nebo claimed to be the biological mother of the applicant Abraham Musa. A birth certificate was not provided. It was noted the applicant had been declared as the son of the review applicant during interview in Guinea on 31 July 2009.  It was claimed at the time of application the applicant was previously in the care of his aunt Siah having been separated from his biological mother during the war in the Ivory Coast in 2002. He was at the time of application in the care of his uncle who was providing additional financial support.

12. In the delegate’s decision dated 16 October 2019 it was found the applicant had last been enrolled in a course of study in November 2017 (as per the statement of results from Njala University dated 5 September 2018 which indicated date of final examination was November 2017). The applicant had been given an opportunity to provide to the delegate evidence that he was enrolled for further study in 2018 and 2019 but he had advised he had not enrolled in a further course since completing his studies at Njala University. That being the case the delegate found he was not able to meet clause 101.221(2)(b) of Schedule 2 of the Migration Regulations because he was aged over 18 years at time of application and not undertaking a full-time course of study at the time of decision.

13. On 3 February 2020 the Tribunal wrote to the review applicant and requested that evidence be provided of the applicant’s continuous study since the visa application was lodged.

14. Prior to hearing the applicant provided to the Tribunal:

    ·Receipt from American College of Science and Technology dated 30 January 2020

    ·Copy of Student ID card for the applicant from Njala University

    ·Njala University offer of admission dated 18 September 2012

    ·Receipt from American College of Science and Technology dated 25 November 2019

    ·Copy of West African Senior School Certificate issued in name of applicant and dated June 2011

    ·Copy of The Sierra Leone Grammar School record for the applicant (school years 2005 to 2011) dated 18 July 2016

    ·Njala University congregation for admission to degree dated 7 June 2018

    ·Copy of receipt from Njala University for convocation fee dated 7 June 2018

    ·Copy of undergraduate record card for applicant dated 2 November 2018

    ·Statement of Joseph Osman Dauda (signed, not dated)

    ·Statement of review applicant, Ruth Boyea Nebo (signed, not dated)

    ·Statement of Stanley Nebo (signed, not dated)

    ·Statement of Abraham Musa (signed, not dated)

    ·Submission dated 11 March 2020

    ·Further statement from Stanley Nebo (signed and dated 3 March 2020)

    Summary of Evidence given at time of hearing

15. The review applicant told the Tribunal that she and her husband were living in rented accommodation at Coffs Harbour with their children. She said at the time she applied to come to Australia she did not know the whereabouts of the visa applicant. They had been separated from each other when they were in the camps following the war. She has had three children since arriving in Australia, a daughter born in 2007, a daughter born in 2011 and a son born in 2013. Her husband’s daughter from a previous relationship also lives with them.

16. The review applicant said her husband was employed full time in the aged care and disability sector. She said she works seasonally fruit picking. They send money to the applicant each month and they pay his rent and tuition fees. They generally send him between $200 and $300. The review applicant said that since the applicant’s aunt had died, he had continued to live with his uncle, but his uncle does not financially contribute to his needs.

17. The review applicant said that when the applicant had to extend his studies as he did not pass his exams he had to move from Freetown to a regional campus and that had involved additional expenditure. This had impacted on them and meant they had to take two children here out of private education so they could meet the additional costs of the applicant’s education.

18. The applicant told the Tribunal that he had lived in Freetown all his life except for the period between 2016 and 2017 when he had lived at the regional campus of the university. He lived with his uncle and his seven children.  He said he had not been enrolled in a course of study in the period from June 2018 when he had his convocation ceremony from Njala university until November 2019 when he had enrolled in Software Engineering at American College of Science and Technology in Freetown. He said he had not enrolled earlier as he had thought his visa application would have been determined in a more timely manner and enrolling in another course would have been expensive and he considered he probably would not have finished the course as it had been his intention to come to Australia as soon as he was able to. He attended classes four days a week, attending for two hours on Wednesdays and Fridays, three hours on Mondays and one hour on Saturday.

19. The applicant told the Tribunal the continued separation from his mother and extended family were very difficult for him. He wanted to be able to get to know his younger siblings and to be able to spend time with them. He also wanted to see Australia and learn about the culture.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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).

21. 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 which provides additional requirements to be satisfied by a visa applicant who has turned 18 relating to relationships, work and study.

22. The delegate refused to grant the visa on the basis that cl.101.221(2)(b) was not met because there was no evidence that the applicant was at the time of decision, a full time student or undertaking a full time course of study leading to the award of a professional, trade or vocational qualification. There was no evidence before the delegate that he continued to be a full-time student beyond November 2017.

23. The issues in this case are whether the visa applicant meets cl.101.213 and clause 101.221.

    Criteria for applicants over 18

24. 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

25. 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).

26. The Tribunal accepts the oral evidence of the review and visa 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

27. 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).

28. The Tribunal accepts, on the oral evidence of the review and visa applicants, and evidence of regular remittances provided by the review applicant, that the visa applicant is not, and has never, 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)

29. 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).

30. 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).

31. The Tribunal observes no claims have been made, and there is no evidence to suggest the applicant was incapacitated for work due to the loss of bodily or mental functions, and therefore cl.101.213(2) is not met in the present case.

32. 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. These cases are discussed further below.

33. In the material before the delegate, including the application form and Form 80 subsequently provided, no evidence was provided that the applicant was undertaking a course of study at the time of decision (16 October 2019). The information provided was that he had completed a bachelor’s degree in Computer Science at Njala University Freetown in November 2017, and he was awarded the degree in June 2018.

34. However, before the Tribunal the applicant has provided new evidence that he enrolled in, commenced, and is now undertaking studies at the American College of Science and Technology in Freetown. Evidence was provided that he commenced this course in November 2019 and he was still undertaking that course at the time of the Tribunal hearing. The applicant told the Tribunal he had not studied in the period from June 2018 to November 2019. He had considered his visa application which was lodged on 22 September 2016 would be considered in a more timely manner and that to continue studying in South Africa would not be wise given the high costs involved and the fact that if he were to be granted a visa he would not get to complete the course as he would come to Australia immediately to be with his family. The applicant submits that because he is now studying, he can meet the requisite criteria.

35. The Tribunal discussed the visa applicant's study history with the review applicant and visa applicant during the hearing.

36. Significantly and relevant for this review, the evidence before the Tribunal is that since completing his bachelor’s degree in November 2017 with the award being conferred in June 2018, the visa applicant had not continued to study. This issue was discussed with the applicants and the representative at the hearing.

37. Case law authorities, binding on the Tribunal, squarely address the continuing to study requirement. In Opoku-Ware v MIBP, the Court held that the provision does not permit an end to the study within the decisional time frame, and considered that the phrase 'has been undertaking' in cl.101.213(1)(c) describes an action that has already commenced and remains ongoing. It stated that there are no words present in this provision to support a conclusion that the present perfect continuous tense is used to describe an action, in this case the undertaking of full-time studies, that has recently stopped. Further, the Court considered that the verb 'continues' in cl. 101.221(2)(b) is written in the present tense and requires that the applicant is still undertaking studies at the time of the decision in respect of the visa. In Hussain, Judge Barnes observed that the Court in Opoku-Ware was addressing the need for the study to remain ongoing, in the sense of not having ceased, at the time of decision, and held that Opoku-Ware did not stand for the proposition that continuous involvement in study, without a pause, is required.

38. Neither the review applicant nor his representative made any submissions addressing the above authorities or suggesting an alternative construction.

39. While the Tribunal is mindful of the difficulties for both the review applicant and the applicant in continuing to be separated and the implications for them and their extended family of their continuing to be geographically separated there is no dispute that the applicant was not continuously studying in the period from November 2017 to November 2019.

40. However, the Tribunal was mindful the facts in this case were similar to those in the case of Hussain. In that matter the Tribunal accepted the visa applicants’ claims and found they met cl.101.213(1)(c). However the Tribunal was of the view that cl.101.221(2)(b) required that the visa applicants must have been ‘undertaking study’ from the time of the application to the time of decision and because they were not continuously studying from the time they commenced their courses they did not meet the criterion. The Tribunal took this approach on the basis that the words ‘has been undertaking’ study in cl.101.213(1)(c) “implied a continuous requirement”, and because the language of the criteria in cl.101.213(1)(c) and cl.101.221(2)(b) had been held not to permit an end to the study within the decisional time frame in Opoku-Ware v MIBP (2015) 297 FLR 416. The Tribunal concluded the visa applicants did not continue to meet cl.101.213(1)(c) at the time of decision and therefore did not meet cl.101.221(2)(b). The applicant contended the Tribunal had erred in taking the view that the criteria in cl.101.213(1)(c), including when read with cl.101.221(2)(b), could be satisfied only if study were “continuous” from the time study commenced up to the time of decision.

41. The Court held the Tribunal misconstrued and misapplied cl.101.213(1)(c) when read with cl.101.221(2)(b) as requiring the visa applicants to have been “continuously involved” in study from the time of commencement referred to in cl.101.213(1)(c) up to the time of decision. The Tribunal should have looked at that period and asked whether, characterised as a whole, the visa applicants had been undertaking relevant study in that period. This would involve examining what the visa applicants had been doing in that interval, including, the nature and duration of a gap in study and any explanation for such a gap and to the fact that, of its nature, the activity of study is intermittent.

42. Therefore, on the basis of the evidence and these authorities, the Tribunal finds that while the visa applicant was studying at the time of application and although he was not continuously enrolled during the period in between, applying the test as set out in Hussain his studies were ongoing and therefore he does continue to meet the requirement in cl.101.213(1)(c) at the time of decision.

1. For the reasons above, the Tribunal is satisfied cl.101.213(1)(c) is met at the time of application and that at the time of decision cl.101.221(2)(b) is met.

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

   DECISION

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

   ·Cl. 101.213(1)(c) of Schedule 2 to the Regulations; and

   ·Cl.101.221(2)(b) of Schedule 2 to the Regulations.

   Moira Brophy
   Member