Okoye (Migration)

[2019] AATA 3940

Okoye (Migration) [2019] AATA 3940 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mike Okoye

VISA APPLICANT:  Mr Cajetan Ikechukwu Okoye (the first named applicant)

CASE NUMBER:  1730213

HOME AFFAIRS REFERENCE(S):           F2014/052373 OSF2014/052373

MEMBER:Stavros Georgiadis

DATE:7 February 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the first named visa applicant, Cajetan Ikechukwu Okoye, a Child (Migrant) (Class AH) visa.

The Federal Circuit Court of Australia has dismissed the application on 24 November 2017 in respect of all remaining visa applicants.

Statement made on 7 February 2019 at 5:25pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) – Subclass 101 (Child) – Federal Circuit Court – study requirements – engaged in full time work – decision under review affirmed  

LEGISLATION

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

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 18 June 2015 to refuse to grant the visa applicants Child (Migrant) (Class AH) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visas on 21 August 2014. 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 relating to these proceedings 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.101.213(1) relating to time of application criteria and cl. cl.101.221(2) for time of decision criteria.

4. The delegate refused to grant the visas on the basis that cl.101.213(1) was not met because the delegate was not satisfied that the applicants met the study requirements for the grant of the visa - specifically whether the visa applicants had undertaken formal study as required by cl.101.213(1)(c). The delegate also raised concern regarding birth certificates produced to establish dates of birth and parentage.  However, the matter of parentage is no longer in issue as the Tribunal accepts from Mr Okoye’s DNA evidence provided, that he is the biological father of the visa applicants.

5. The Tribunal's decision on review in AAT casefile 1511717 refusing the visas, was the subject of an appeal before the Federal Circuit Court of Australia. On 24 November 2017 the Court allowed the appeal in part but otherwise dismissed the appeal in respect of all combined applicants with the exception of Cajetan Ikechukwu Okoye (the applicant). This was on the basis of not putting adverse information to the applicant (in accordance with the procedure set out in s.359A) from a third party witness.   The Federal Circuit Court remitted, by consent in the nature of a writ of certiorari, directing that the application for review be heard and determined by this Tribunal in respect of the first named visa applicant, Cajetan Ikechukwu Okoye, according to law.  The decision in respect of the other named visa applicants Arister Damian Egosikeya Okoye, Maria-Tha Ezinne Okoye, and Maureen Chioma Okoye remains as determined in case number AAT 1511717 by Member, K Millar.

6. The review applicant appeared before the Tribunal on 7 February 2019 to give evidence and present arguments.

7. The review applicant was represented in relation to the review by his registered migration agent.  The Tribunal was assisted in the hearing by an interpreter of the English and Igbo languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The review applicant is now an Australian citizen. The background to this matter is that Mr Mike Okoye came to Australia in 2008 and one of his sons, Augustus Naz Okoye, joined him in 2010. Mr Mike Okoye seeks the four children named as the visa applicants who are still in Africa: Cajetan, Maureen, Maria-Tha and Arister, to join him in Australia. On 21 August 2014 they made a joint application for Child (Migrant) (Class AH) visas.

10. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As they apply to the applicant in this case, they require at the time of the visa application:

    • That the applicant is a dependent child of an Australia citizen (cl.101.211(1)(a));
    • The applicant has not turned 25 years of age (101.211(1) (b));
    • The applicant is the child or step child of the Australian citizen (cl.101.211(1)(c));
    • If the applicant has turned 18 the applicant is not engaged to be married and does not have, and has never had, a spouse or defacto partner (101.213(1)(a));
    • Is not engaged in full-time work (cl.101.213(1)(b); and
    • Since turning 18, or within 6 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 (cl.101.213(1)(c)).

    The visa applicants must continue to meet these requirements (other than the requirement discussed below not to have turned 25 years of age) at the time of this decision (cl.101.221).

11. A requirement at the time of application is that the visa applicant must not have turned 25. However, this does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the total or partial loss of bodily or mental functions: cl.101.211(1)(b) (2). There is no suggestion here of any circumstances on this latter point.

12. The application lists the date of birth of Cajetan Ikechukwu Okoye (and his sibling, Maureen Chioma Okoye) as 25 August 1989.  The Tribunal places weight on the certified birth certificate document No: 1184 from the Anambra State Government, Nigeria, Africa. This means that at the time of application on 21 August 2014, the applicant was 24 years of age and therefore, met the requirement to not have turned 25 by just a few days.

13. The Tribunal finds that although the applicant’s age at time of decision is not met (given he is now 29 years of age) the required criteria for the visa may be met relevantly, if the applicant in this case, despite turning 25 meets certain other criteria (discussed below) relating to study and /or work requirements.

    Criteria for applicants over 18

14. An issue in this case is whether a) the applicant since turning 18, or within 6 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 (cl.101.213(c)); separately, b) has been working full time.

15. If, at the time of application, the visa applicant has turned 18, he will need to meet certain requirements relating to relationships, work and study: cl.101.213. As mentioned earlier, these requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    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) - not evident here.

18. Relevantly, where cl.101.213(1)(c) applies, it must continue to be met at the time of decision: [cl.101.221(2)(b)].  The case of Hussain v MIBP [2017] FCCA 3247 stands as authority for the proposition that for the time period from the commencement of study until the time of decision characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study.

19. The review applicant’s evidence is that his son, Cajetan Ikechukwu Okoye was undertaking a Generator Engineering course of study as part of an apprenticeship program agreement with IK-Don Multi Concept over a five year term commencing 11 September 2013. At the hearing, the review applicant confirmed that this course and apprenticeship program ended in December 2018. This is consistent with documentary evidence before the Tribunal from IK-Don Multi Concept confirming the dates of the 5 year program. Accordingly, the Tribunal accepts the review applicant’s oral evidence that the course program ended in December 2018.  The Tribunal also accepts the review applicant’s oral evidence that following the completion of the course in December 2018, Cajetan Ikechukwu Okoye ‘continued on with his Master’ at IK-Don Multi Concept working full time in Generator Engineering.  When asked what duties he was undertaking in this work, the review applicant told the Tribunal that the applicant was repairing generators and also training other apprentices engaged by the company. The review applicant reconfirmed when asked, that this was full time work.

20. The review applicant’s evidence was provided in a spontaneous and direct manner without any apparent attempt to evade questions and for this reason, the Tribunal accepts and places weight on the review applicant’s oral evidence about the work undertaken by the applicant, and accepts that it was full time work carrying out the duties described above.  The Tribunal is also satisfied that this is ordinarily remunerated work, noting that the applicant has specifically undertaken training and completed a 5 year apprenticeship program for this work.

21. Clause 101.221(2)(b) requires that at the time of decision, the applicant ‘continues to satisfy’ the study requirement set out in the relevant time of application criteria. As noted earlier, up until the time of decision,[1] the visa applicant must be undertaking a full-time course.

    [1] The Tribunal erred by adopting this construction: Hussain v MIBP [2017] FCCA 3247 (Judge Barnes, 20 December 2017) at [114].

22. The Tribunal has had regard also to the case of Opoku-Ware v MIBP (2015) 297 FLR 416. The Court in that case held that the provision in cl.101.213(1)(c) does not permit an end to the study within the decisional time frame, and considered that the phrase ‘has been undertaking’ describes an action that has already commenced and remains ongoing. In this particular case, the full time course program that was commenced in November 2013 does not remain ongoing as it ended in December 2018. There is no evidence before the Tribunal that the visa applicant has continued with any renewed full time study at the time of this decision, noting in particular the review applicant’s oral evidence, which is accepted, that the visa applicant is now aged 29 years and remains engaged in full time employment.

23. Accordingly, the undertaking study requirement that must continue to be met at the time of decision is not satisfied for the purposes of cl.101.221(2)(b).

    Not engaged in full-time work

24. 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 decision: cl.101.221(2)(b).

25. As already discussed, the Tribunal accepts the review applicant’s initial oral evidence that following completion of the course program in December 2018, the visa applicant continued at IK-Don Multi Concept engaged in full time work maintaining generators and providing training to other apprentices.  The Tribunal considers this is remunerative work.

26. Subsequently, the Tribunal raised with the review applicant the further criterion that in addition to the time of application, the requirement that the visa applicant is not be engaged in full-time work must continue to be the case at the time of decision: [cl.101.221(2)(b)]. The review applicant then changed his evidence telling the Tribunal that the visa applicant only attends at IK-Don Multi Concept in a voluntary capacity “to volunteer a service” and to fill in time asserting that he is not working there full time. The Tribunal noted to the review applicant this is in contrast to the initial and spontaneous oral evidence provided during the earlier part of the hearing on the point of full time work.  For the reasons outlined earlier, the Tribunal prefers the spontaneous initial oral evidence and the Tribunal is not persuaded by the review applicant’s incoherent attempt to explain the discrepancy. 

27. The Tribunal does not accept the submission by the review applicant’s representative that the visa applicant is engaged in a ‘work trial’ only as there is no evidence of this and the accepted oral evidence from the review applicant is inconsistent with this.  As aforementioned, the Tribunal has found that the visa applicant continued with IK-Don Multi Concept in a full time employed capacity from the end of December 2018 and accordingly, does not accept that the applicant has not yet received his first monthly pay cheque (explained as only now coming up to one compete month since employers returned to work between 10 and 15 January 2019) after the recent holiday break.

28. Accordingly, cl.101.213(1)(b) does not continue to be met at the time of decision. As a result, the Tribunal finds that the first named visa applicant does not meet cl.101.221(2)(b) of Schedule 2 of the Regulations, and the decision in relation to Cajetan Ikechukwu Okoye is affirmed.

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

    DECISION

30. The Tribunal affirms the decision not to grant the first named visa applicant, Cajetan Ikechukwu Okoye, a Child (Migrant) (Class AH) visa.

31. The Federal Circuit Court of Australia has dismissed the application on 24 November 2017 in respect of all remaining visa applicants.

    Stavros Georgiadis
    Member