PAIYALA (Migration)

[2017] AATA 1170

PAIYALA (Migration) [2017] AATA 1170 (7 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr EMBON PAIYALA

VISA APPLICANT:  Miss CASSIDEY PAIYALA

CASE NUMBER:  1613635

DIBP REFERENCE(S):  OSF2013/089636

MEMBER:Kira Raif

DATE:7 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 07 July 2017 at 8:46am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Full-time study requirements not met – No evidence that applicant meets definition of dependent child – Has not meaningfully explored further study opportunities

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 101.213, cl 101.221

CASES
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 on 27 July 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 applicant is a national of the PNG, born in October 1989. She applied to the Department of Immigration for the visa on 30 April 2013. The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate was not satisfied the applicant met the study requirements. The sponsor (the review applicant) seeks review of the delegate’s decision.

3.    The review applicant appeared before the Tribunal on 14 June 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Relevant law

4. 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).

5. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the visa applicant has turned 18: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

6. 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). However, 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). This requirement must continue to be met at the time of decision: cl.101.221(2)(b).

7.    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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

Is the visa applicant a dependent child of the sponsor?

8.    The review applicant’s evidence to the Tribunal is that the visa applicant depends on him for daily living expenses. He said he and his former wife own a property and the rental income from that property is used for the visa applicant’s expenses. The review applicant provided to the Tribunal and the delegate evidence of property ownership and of money transfers to the visa applicant. The review applicant told the Tribunal the property is owned jointly by him and his ex-wife.

9.    The visa applicant in her oral evidence to the Tribunal said that her primary source of income is her father. The visa applicant told the Tribunal that her parents own a property but her father has a greater share and he gives her greater income than her mother, who does not work. The Tribunal is mindful that such evidence is inconsistent with the review applicant’s evidence to the Tribunal when he stated that he and his ex-wife own the rental property equally and that their contribution to the children from that property is equal. The visa applicant eventually told the Tribunal that she was not really familiar with these arrangements. The Tribunal prefers the evidence of the review applicant and finds that the income from the rental property is derived equally by both parents.

1. The review applicant told the Tribunal that in addition to the rental income, he sends the visa applicant about $100 – 200 a month for various expenses. The review applicant suggested the visa applicant’s mother also contributes to the daughter’s expenses but he was not sure how much or how often. The review applicant then told the Tribunal that the mother does not give much. The visa applicant said that if she needs extra money, she asks her father and not her mother. In his post-hearing submission to the Tribunal the review applicant notes that the visa applicant’s bank statements only show deposits from him and from the property and there are no deposits from the visa applicant’s mother. The Tribunal is mindful that this evidence contradicts the review applicant’s oral evidence at the hearing indicating that the visa applicant does receive some financial support from her mother. The bank statements which the review applicant presented to the Tribunal confirm that the visa applicant receives funds but the evidence of deposits does not specify the source of funds. These deposits could represent contributions from the review applicant, as well as the visa applicant’s mother or any other source. There is also a possibility that any financial support from the mother, if it was given, would be provided by cash and not shown through the bank records. Given the review applicant’s initial oral evidence to the Tribunal that he was uncertain about the mother’s contribution, the Tribunal is not satisfied the visa applicant receives no income from her mother.

2. The Tribunal accepts that the visa applicant receives financial support from her father. The Tribunal accepts evidence of transfers and also accepts that the visa applicant receives money from the rental property which is owned equally by her parents. However, the Tribunal is not satisfied on the evidence before it that the visa applicant has no other source of income and, significantly, the Tribunal is not satisfied that the visa applicant’s reliance on her father for basic needs is greater than her reliance on any other source, such as her mother. There is no evidence of the visa applicant’s incapacity. The Tribunal is not satisfied the visa applicant is the dependent child of the sponsor.

3. The Tribunal acknowledges the representative’s submission that the visa applications made by the visa applicant’s siblings have been approved on the basis of the same evidence. The Tribunal is unable to comment on the visa decisions relating to other family members whose circumstances may have been entirely different from those of the applicant. The fact that other siblings have been granted visas does not satisfy the Tribunal that the visa applicant meets the requirements for visa grant.

Does the visa applicant meet the study requirement?

1. 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’.

2. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the visa applicant stated on the application from that she completed secondary schooling in December 2008 and was enrolled in a Bachelor course at the University of PNG between August 2010 and October 2013. In January 2015 the sponsor informed the delegate that the visa applicant had completed her university study in April 2013 and was actively looking for employment. The delegate noted that the applicant was not enrolled in full-time study between December 2008 and August 2010 and was not enrolled in any study at the time of the primary decision. The delegate also noted that there was limited evidence of the visa applicant’s financial dependence on her father.

3. The review applicant provided a written submission to the Tribunal on 6 June 2017 (which is dated 3 May 2016). With respect to the study requirement, the review applicant claims that the visa applicant completed Year 12 in December 2008 and from 2009 she attended the University of PNG, first to upgrade her HSC and she then enrolled in a Bachelor course from which she graduated in April 2014. The review applicant argues that the delegate was incorrect to find that the visa applicant was not enrolled after December 2008. The review applicant notes that since graduating, the visa applicant had attempted for three years to enrol in a Masters program but was unsuccessful mainly due to lack of scholarships and she has never worked since graduation.

4. The Tribunal has considered the evidence of the visa applicant’s study. There is evidence that the visa applicant did enrol in a course since completing high school in 2008 and that course was necessary to enable the visa applicant to pursue university study. Having completed that course, the visa applicant obtained the requisite results to enable her to enter the university. The Tribunal is therefore satisfied that the visa applicant continued with her studies since turning 18 or since completing the equivalent of Year 12 and until she graduated with her bachelor degree.

5. However, the review applicant’s evidence to the Tribunal is that the visa applicant completed her studies in 2014 and has not been studying since. In his oral evidence to the Tribunal the review applicant stated that the visa applicant has not been able to enroll in a Masters course in Australia because there are no scholarships available. The review applicant said they would have to pay over AUD 100,000 for a Masters course in an Australian institution. There is very little evidence before the Tribunal about the attempts the visa applicant made to enrol in any full-time course and whether she may have been able to enrol in a course without a scholarship. There is no evidence before the Tribunal to show, for example, that the visa applicant had applied for courses and had been refused enrolments.

6. The review applicant told the Tribunal that his daughter wants to do an Environmental Engineering course and there are no suitable courses in PNG and she has been looking for a course in Australia but such courses are expensive. The review applicant said the visa applicant has not considered doing a course in PNG because there are no suitable courses available. The visa applicant told the Tribunal that she has been looking at Australian universities and was accepted into the University of Southern Queensland but she could not get the scholarship. She said that she did not believe there are suitable courses in PNG and she has not looked at courses at PNG. The visa applicant said she preferred studying in Australia because the quality of a Masters course in PNG was low and she did not want to waste money on such a course.

7. The Tribunal finds the evidence about the visa applicant’s study problematic. The Tribunal does not accept the review applicant’s evidence that there are no suitable courses available in PNG. The Tribunal is mindful that courses in environmental science are offered by University of PNG (for example Following the hearing, the review applicant provided to the Tribunal a statement from the School of Natural and Physical Sciences at the University of PNG stating that Master in Environmental Engineering is not available at that institution, however, the University’s website indicates there is a variety of courses offered by the School of Natural and Physical Sciences at that university and there may be other courses in the relevant field, offered by other institutions. There are also courses offered at a lower level, for example, graduate diplomas rather than the Masters courses. Thus, even if a particular course is not offered at the institution, the Tribunal is not satisfied there are no suitable courses available in the country. The review applicant told the Tribunal that his daughter wanted to do a Maters in Environment Engineering and not any other course however the Tribunal does not consider that the legislation contemplates that visa applicants would not engage in studies for a lengthy period simply on the basis that they prefer to enroll in a particular course and would not contemplate any other. It may be that a Master of Environmental Engineering is not available in PNG or at an institution of the applicant’s choice but the Tribunal is not satisfied there are no courses that are relevant to the visa applicant’s undergraduate study that would be suitable for her. It is not sufficient to state that the visa applicant wants to do a particular type of course and nothing else. The Tribunal is not satisfied that the visa applicant has meaningfully explored study opportunities in PNG, having made the decision that she prefers to migrate to Australia and study in Australia. While the Tribunal accepts that she does, and that Australian courses are expensive, the Tribunal is not satisfied that the visa applicant could not have engaged in appropriate study in PNG since completing her bachelor course in 2014.

8. The Tribunal finds that the last time the visa applicant engaged in full-time study was around April 2014 when she graduated from her bachelor program. The visa applicant has not engaged in any study or study related activity since that time. She has not engaged in any activity, such as training or pre-requisite courses, that would enable her to enroll in post-graduate studies. She claims to have attempted to enroll in a Masters course in Australia but given the expense of such courses, it does not appear that doing a course in Australia was a realistic option before the visa applicant is granted the Australian visa. The Tribunal is not satisfied that since April 2014 the visa applicant has taken meaningful steps to explore study options in PNG or that she has done anything to enable her to engage in further study in PNG. The Tribunal does not consider that a period exceeding three years when the applicant had not engaged in any formal study on the basis that she only wanted to do a particular (and very limited) type of course which was not offered at her preferred institution, is a reasonable period for the applicant not to engage in study.

9. The representative submits that the length of the application process needs to be considered as the reason why the visa applicant was not enrolled. The representative submits that there was little point in the visa applicant starting a course in PNG which she could not complete if she was granted the Australian visa. The Tribunal acknowledges that the entirety of the circumstances needs to be considered but the Tribunal does not accept that the visa applicant could not have engaged in studies while waiting for visa grant. She has certainly done that to complete her bachelor course after the visa application was made. She could have similarly pursued post-graduate studies after completing the bachelor course, or she could have undertaken another undergraduate course. While the Tribunal acknowledges that the family made the decision that the visa applicant should pursue further study in Australia and not in PNG, the Tribunal is not satisfied that the visa applicant had no opportunities to study in the PNG. The Tribunal finds that cl. 101.221 requires the visa applicant to continue to study despite the fact that the visa application has been made.

10. In such circumstances, the Tribunal is not satisfied that the applicant has, 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 qualifications. The Tribunal is not satisfied the visa applicant continues meets cl. 101.213(1). There is no evidence to indicate that the visa applicant, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. She does not continue to satisfy the criterion in cl. 101.213. The Tribunal finds that the visa applicant does not meet cl. 101.221.

11. The visa applicant told the Tribunal that all her siblings are in Australia and that she wants to be reunited with her family. The Tribunal acknowledges that evidence but, having found that the visa applicant does not meet one of the requirements for the grant of the visa, the Tribunal has no option but to affirm the decision under review.

12. There is no evidence that the visa applicant is an adopted child of the sponsor or that she is an orphan relative of the sponsor. The Tribunal is not satisfied that she meets key criteria for the grant of the other visas in Class AH.

Conclusion

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

2. 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

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

Kira Raif
Senior Member