Nkrumah (Migration)

[2019] AATA 2006

Nkrumah (Migration) [2019] AATA 2006 (25 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Michael Nkrumah

VISA APPLICANT:  Mr Richmond NKRUMAH

CASE NUMBER:  1713419

HOME AFFAIRS REFERENCE(S):           OSF2016/046934

MEMBER:Russell Matheson

DATE:25 March 2019

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.

Statement made on 25 March 2019 at 7:59am

CATCHWORDS

MIGRATION ­– Child (Residence) (Class AH) visa – subclass 101 (Child) visa – applicant meets the study requirements– documents provided are genuine – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65,

Migration Regulations 1994, r 1.03, 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 8 June 2017 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 is a national of Ghana, born in September 1996. He applied to the Department of Immigration for the visa on 24 May 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 and 101.221(2)(b): that the visa applicant is a full-time student at the time of application and decision.

4. The delegate refused to grant the visa on the basis that cl.101. 213(1)(c) was not met because the delegate was not satisfied the visa applicant met the study requirements. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

5. The sponsor appeared before the Tribunal on 24 July 2018 to give evidence and present arguments. The Tribunal was unable to contact the applicant by telephone. The sponsor also tried to contact the applicant using his personal telephone to no avail.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has before it the Department’s file relating to the visa applicant; its own file; and a copy of the Department’s decision provided by the review applicant to the Tribunal.

   ISSUE

8. The issue in this case is whether the visa applicant has, 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.

   Dependency

9. The visa applicant was born in September 1996 and the Tribunal finds that he had turned 18 by the time the application was made. There is no evidence before the Tribunal that the applicant was, at the time of making the application, a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’ as defined in r.1.03.

   Criteria for applicants over 18

10. 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

11. 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).

12. The sponsor informed the Tribunal that the visa applicant is not engaged to be married and has never had a spouse or de facto partner. He further stated that he is not in a relationship at the present time. There is no evidence before the Tribunal to indicate that the visa applicant is in any type of relationship. The Tribunal accepts the evidence of the sponsor and is satisfied the visa applicant wasn’t engaged at the time of the visa application, and has never been engaged, including at the time of this decision.

13. Based on the evidence provided the Tribunal is satisfied the visa applicant does not have, and has never had, a spouse or de facto partner and therefore meets the requirements in cl.101.213(1)(a)(ii) and (iii) at the time of application, and continues to meet those requirements at the time of this decision.

14. Accordingly, cl.101.213(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

15. 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).

16. The sponsor informed the Tribunal the visa applicant is not working at moment. There is no evidence before the Tribunal that the visa applicant is or has been in engaged in full time work. The Tribunal accepts the evidence of the sponsor and is satisfied the applicant is not, and has never been, engaged in full-time work.

17. Accordingly, cl.101.213(1)(b) is met. It continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

18. 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).

19. 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).

20. 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.

    Does the visa applicant meet the study requirement?

21. The review applicant provided to the Tribunal information and documentation including (but not limited to) the following:

    ·A letter from the director of Academic at Executive Business and Professional College stating the applicant was admitted to the Marketing Management Program from 27 August 2012;

    ·A terminal report from Kinbu Secondary  Technical School dated 7 August 2009;

    ·Transcripts from the Executive Business and Professional College;

    ·Tuition fee receipts from the Executive Business and Professional College;

    ·A letter from the Headmistress of Kinbu Senior High Technical School dated 10 April 2017;

    ·A student ID card in the name of the applicant issued for the period September 2008 to August 2012;

    ·A copy of a DNA test confirming the sponsor is the biological father of the applicant.

22. On 5 April 2017, the Department contacted the applicant through the sponsor in regards to additional school records, specifically his Senior High School certificate issued from the West African Examinations Council (WAEC). Information available to the Tribunal provides that in Ghana, examinations are undertaken at the completion of primary, junior, and senior high school and certificates are issued by WAEC in support of examination results.

23. The applicant provided feedback to the Department through the sponsor who stated that the applicant was being handled by his single mother at that time and facing extreme hardship, and the applicant never had the opportunity to undertake any WAEC exams, and he has no records from WAEC. The sponsor further stated that the applicant’s primary school (Shinny Kumbo Star Junior High School), where he received his primary education, no longer exists.

24. The sponsor gave evidence that the applicant attended Kinbu Senior High Technical School to acquire further school records but was unable to obtain them from the school because they do not keep records. The sponsor gave evidence that the applicant lost his school records because he was moving from place to place. The Tribunal accepts that the applicant’s primary school no longer exists. The Tribunal does not accept the sponsor’s evidence that the applicant lost his school records because he was moving from place to place with his mother. The Tribunal does not accept the sponsor’s explanation because the applicant was able to produce one school term document from 2009 and his student ID card issued in September 2008 as evidence. The sponsor provided at the hearing a copy of a letter from the headmistress of Kinbu Senior High Technical School dated 10 April 2017 which states that the applicant was a student of Kinbu Senior High Technical School from 2008 to 2012. She further states that the applicant pursued Technical Science and she has no objection to recommending him to anyone who may give him assistance. The Tribunal places little weight on the document as it only states that the applicant had been a student between 2008 and 2012; it does not state that the applicant has completed his studies as required under the relevant legislative provisions.

25. On 7 March 2019, the Tribunal wrote to the sponsor  requesting that he provide further information from the headmistress of Kinbu Senior High Technical School as to whether the applicant had completed the equivalent of year 12 in the Australian school system  to satisfy cl.101.213(1)(c). The sponsor provided a transcript of the applicant’s school years from his admission year in October 2008 until his completion year in June 2012. The Tribunal notes the transcript provides the applicants results for each term for core subjects English, Integrated Science, Social Studies and Mathematics between 2008 and 2012. The Transcript is signed by the Assistant Headmistress and dated 12 March 2019. The review applicant also provided a copy of the applicant’s Leaving Certificate and Testimonial dated 11 March 2019. The Tribunal acknowledges the applicant had previously been unable to provide the appropriate documents to show that he had completed the equivalent of year 12 of the Australian school system. The Tribunal is satisfied the documents provided are genuine. The Tribunal would have had concerns if the documents were dated earlier based on previous evidence provided by the sponsor and applicant. The Tribunal, when considering the evidence provided accepts the applicant completed his secondary studies and then commenced full-time study with the Executive Business and Professional College studying a Marketing Management Program from 27 August 2012. The Tribunal is satisfied the applicant’s study will result in a professional, trade or vocational qualification.

26. Based on the evidence provided the Tribunal is satisfied, the applicant has, 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. Therefore the applicant meets the requirements of cl.101.213(1)(c) at the time of application and at the time of decision.

27. For the reasons above, as the applicant meets the requirements of cl.101.213 (1)(a), (b) and (c), cl.101.213 is met at the time of application.

28. Further, at the time of decision, the applicant continues to meet the requirements of cl.101.213.

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

    DECISION

30. 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.

    Russell Matheson
    Member