Sadiq (Migration)

[2018] AATA 79

Sadiq (Migration) [2018] AATA 79 (8 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Sadiq

VISA APPLICANT:  Miss Kausar Fatima

CASE NUMBER:  1709117

DIBP REFERENCE(S):  OSF2013/031152

MEMBER:Helena Claringbold

DATE:8 January 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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 08 January 2018 at 10:01am

CATCHWORDS

Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Visa applicant – Breaks in study – Civil unrest  in home city – Health condition  – Reasonable timeframe between finishing school and commencing further study – Full time University student

LEGISLATION

Migration Regulations 1994, Schedule 2 cls101.213(1)(a)(i), 101.213(1)(a)(ii), 101.213(1)(a)(iii), 101.213(1)(a)(b) ,101.213(1)(c), 101.221(2)(b)

CASES
Sok v MIMA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 22 April 2013, Miss Kauser Fatima, the visa applicant, applied for a Child (Migrant) (Class AH) visa.  The application was made on the basis of her relationship with her father, Mr Muhammad Sadiq, the sponsor and review applicant.

2. On 30 June 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the visa applicant not meeting cl.101.213 and cl.101.221(2)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate was not satisfied that the visa applicant had been undertaking a full-time course of study. This is a review of the delegate’s decision.

3. 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).

4. On 31 August 2015, the sponsor appeared before the Tribunal, differently constituted.  He provided the Tribunal with a copy of the delegate’s decision record. On 23 October 2015, the Tribunal affirmed the delegate’s decision.  On 19 April 2017, the Federal Circuit Court remitted the matter to the Tribunal for reconsideration.

5. On 24 October 2017, the sponsor appeared before the Tribunal to give evidence and present arguments. Prior to the Tribunal hearing the interpreter advised the Tribunal that he and the review applicant know each other.  The interpreter stated that he and the review applicant were English community teachers in Pakistan and would meet about twice yearly at different events.  He stated that they would greet each other but did not have a close relationship.  The Tribunal adjourned the Tribunal hearing and sought an interpreter not known to the applicant.

6. On 21 November 2017, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Miss Fatima. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department’s file OSF2013/031152, folios numbered 1-180 and the Tribunal files 1412380, folios numbered 1-130, 1709117 folios numbered, 1-135 and the evidence provided at the Tribunal hearing.

9. The issue in this case is whether the visa applicant was undertaking full time study at the time of application and at the time of this decision.

   BACKGROUND TO THE EVIDENCE

10. Miss Fatima was born on 18 September 1988 in Quetta, Pakistan.  Her mother, Safia Bibi, born in 1963 and her father, Muhammad Sadiq born in 1956 and four of her siblings live in Australia. 

11. At the time of application the visa applicant she declared the following:  she continued to live with her brother Muhammad, in a house in Quetta owned by her father. She had never been married or been in a de facto relationship and had never been employed.  She relies on the sponsor for financial support. She stated that because of the environment she lives in and due to being separated from her parents, her psychological well-being has been adversely affected and she is upset and anxious.

12. Mr Sadiq entered Australia on 12 December 2009.  At the time of application, he provided evidence that he financially supported the visa applicant.  He stated that he organised the visa applicant to access his bank account in Pakistan and transfers money to her. He stated that his ongoing concern is for the safety of the visa applicant.  He indicated as a result of being separated from his daughter he and his wife have been suffering from depression and anxiety for which they are receiving treatment.

    Is the visa applicant a full-time student?

13. 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).

14. 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). However, this requirement does not apply in the case of an applicant 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).

15. 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 incapacitated for work?

16. There is no evidence before the Tribunal that the visa applicant was or is incapacitated for work because of loss of bodily or mental functions.

    Was the visa applicant undertaking full-time study?

17. Prior to and at the Tribunal hearing the review applicant provided information about the visa applicants her circumstances including the following.

18. From January 2000-January 2008, she attended the Government Girls High School Inter College Sardar Hassan Musa and completed the Higher Secondary School Certificate.  For the years 2005-2008 she provided copies of Higher School Certificate Result Card of Humanities Group Part l & ll, Balochistan Board of Intermediate & Secondary Education Quetta for Examination 2008 dated 13 September 2008.

19. In March 2011 she began study at the Government Girls Degree College Sardar Hassan Musa, Quetta, Pakistan (GGDCSH), in a Bachelor of Arts (BA).  In March 2012, she stopped going to the college because as a Shia Hazara woman, it was too dangerous for her to be outside.    At the Tribunal hearing she stated that she wanted to finish the study but she didn’t attend the studying because of security reasons.

20. For the years 2011-2013, the visa applicant provided a statement from the GGDCSH dated 28 February 2012, the document showed that the visa applicant was a regular student in sessions 2011-2013 with subject combinations of Psychology and Sociology.  Another document from GGDCSH dated 23 February 2013.  The document stated that the visa applicant was a regular student in BA sessions 2011-2013. This information is inconsistent with the visa applicant’s statement that she stopped attending this course because of tensions in Quetta making it impossible for her to pursue her studies or any form of vocation.

21. For the years 2014-2016, the visa applicant provided a document dated 6 April 2015 from GGDCSH, addressed ‘To Whom It May Concern’.  This document certifies that the visa applicant was a regular student in BA sessions during 2014-2016 with a subject combination of Psychology and Sociology Session.

22. For 2016, the visa applicant provided a copy of a certificate from Tanzeem College certifying that the visa applicant was a regular student in Bachelor of Education (B.E.) academic evening sessions in 2016.

23. For the years 2016-2017, the visa applicant provided a copy of a certificate from the University of Balochistan Quetta: a BA, 2016 Marks Certificate dated 31 January 2017. The document is not certified. Another document dated 18 August 2017, stated that the visa applicant is a regular student of beautician class ‘13th batch’ and the course commenced from 17 July 2017 with an expected completion date in January 2018. A student card is also provided.

    FINDINGS

24. The question before the Tribunal is whether the time between the visa applicant finishing the equivalent of year 12 and commencing further study is ‘reasonable time’.  The review applicant’s migration agent submits that the compelling circumstances of the visa applicant at the time of her breaks in study should be considered reasonable gaps in her study and any inconsistences in evidence should be attributed to the visa applicant’s failing mental health. The Tribunal considered the medical and psychological information provided and accepts that the visa applicant suffers from the conditions as claimed.

25. The applicant told the Tribunal that she has never been in a relationship, either engaged, de facto or married, with another person. In an affidavit the visa applicant stated that she is a virgin and has never married anywhere in any district of Pakistan.  

26. The Tribunal is satisfied that the visa applicant completed a Higher School Certificate in January 2008. When the Tribunal asked the visa applicant about her study between 2008 and 2011 she stated the following: she has been mentally disturbed and does not remember a lot of things and sometimes cannot focus.  She attends a cardiologist because she gets scared and her heart starts pumping but she does not have a heart condition.  The sponsor stated that between 2008 and 2011 Quetta Colleges closed. He said that the visa applicant’s breaks in study were due to the security situation in Quetta.  The Tribunal accepts that the visa applicant suffers from the health and psychological conditions as detailed by her health professionals. The Tribunal is not satisfied that the visa applicant was undertaking full-time study between January 2008 and 2011.

27. In Sok v MIMA[1] circumstances that may justify a finding that periods of time beyond six months would be reasonable include civil unrest interrupting studies. The Tribunal considered the circumstances in Quetta during the relevant time.  Information before the Tribunal is that in Quetta, during the relevant time, Quetta was in a state of civil unrest.

    [1] [2005] FMCA 190 (Riethmuller FM, 4 March 2005) at [21].

28. According to the Human Rights Commission of Pakistan (HRCP), between 2003 and 2009, over 260 members of the Hazara community in Quetta were killed in targeted killings, and more than 1000 people suffered some form of injury.  In December 2011, Human Rights Watch stated the following: at least 275 Shias, mostly of Hazara ethnicity, were killed in sectarian attacks in Balochistan since 2008.  According to Human Rights Watch in September 2012, more than 100 people were killed in Balochistan province in 2012 alone, the majority were from the Hazara ethnic community. The Australian reported in April 2010 that a senior official in Pakistan’s Federal Investigation Agency informed the paper that in Quetta: ‘eight to ten Hazaras are being murdered every week’. In March 2013 The Australian reported: ‘Quetta’s days as a safe haven are also over. Hazaras are fleeing the city in the face of almost daily killings by Sunni terrorists. The 500,000-strong Hazara community is confined to two suburbs, Mehr Abad and Hazara Town’.

29. Considering the circumstances of civil unrest and security in Quetta, the Tribunal is satisfied that the time between the visa applicant finishing the equivalent of year 12 in January 2008 and commencing further study in 2011 is a ‘reasonable time’.

30. The next question before the Tribunal is whether at the time of the visa application, the visa applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

31. There is inconsistent evidence before the Tribunal about the visa applicant’s study in the years 2011-2013.  On one hand, a statement from the GGDCSH provides information that the visa applicant was a regular student in BA sessions during 2011-2013. On the other hand, the visa applicant stated that she stopped attending this study in March 2012, because of security circumstances. Therefore at the time of the visa application on 22 April 2013, on the visa applicant’s evidence she ceased study because of security concerns.  Another document from GGDCSH informs the Tribunal that the visa applicant commenced BA studies in 2011 until March 2012. On this evidence the Tribunal is satisfied that the visa applicant did not study between March 2012 and March 2014.  The evidence is that the visa applicant then recommenced study in 2014 and completed her study in 2016 with results declared on 31 January 2017.  Therefore, in April 2013, at the time the visa application was made the visa applicant was not studying because she had delayed her studies in March 2012.  

32. Having again considered the situation in Quetta between March 2012 and March 2014, and having considered the civil unrest and security in Quetta, the Tribunal is satisfied that the time between the visa applicant delaying her studies in March 2012 and recommencing her studies in March 2014, is a ‘reasonable time’.

33. For the years 2014-2016, the visa applicant provided a document dated 6 April 2015 from GGDCSH, addressed ‘To Whom It May Concern’.  This document informs that the visa applicant was a regular student in BA sessions during 2014-2016 with a subject combination of Psychology and Sociology Session.  Other information shows that, the visa applicant completed an arts degree in 2016 with the results published on 31 January 2017.

34. The Tribunal has been provided with a copy of a certificate dated 3 October 2017, from Tanzeem College which states that the visa applicant was a regular student in B.E. academic evening sessions with an examination in 2016.  It also informs that the college is affiliated with the University of Balochistan Quetta.

35. Also provided is a copy of a statement dated 18 August 2017, from Balochistan Institute of Technical Education, Quetta.  This document it is states that the visa applicant is a regular student of beautician class of ‘13th batch’ and that the course commenced on 17 July 2017 and is expected to be completed in the second week in January 2018. It states that the routine class times are Monday-Thursday 08:30-14:00 and Friday 08:30-12:30.  A student card is also provided.

36. The evidence before the Tribunal is that the temporary interruptions to the visa applicant undertaking study were due to civil unrest in Quetta.  Other evidence is that the visa applicant recommenced her studies and completed an arts degree in 2016.  She also continued study undertaking a B.E. at Tanzeen College and is currently engaged in other study due to conclude in January 2018.

37. While the visa applicant was not actively undertaking full-time studies from 2008 to 2011 and from March 2012 to March 2014 she did not cease study altogether, rather once she has regained equilibrium and felt safe and secure she continued undertaking full-time study within her chosen field and is on her intended trajectory towards qualifying in the arts and education and in the cosmetics industry. Therefore, the visa applicant meets cl.1988 of Schedule 2 to the Regulations.

38. Furthermore, there is no evidence before the Tribunal that the visa applicant is engaged to be married or has a spouse or de facto partner or has ever had a spouse or de facto partner. Additionally, there is no evidence before the Tribunal that the visa applicant is engaged in full-time work. Therefore the visa applicant meets cl.101.213(1)(a)(i), cl.101.213(1)(a)(ii), cl.101.213(1)(a)(iii) and cl.101.213(1)(a)(b) of Schedule 2 to the Regulations.

39. The Tribunal is satisfied that the visa applicant had been undertaking full-time study since turning 18 or within six months (or a reasonable time) after completing the equivalent of year 12 in the Australian school system, at an educational institution leading to the award of a professional, trade or vocational qualification. 

40. This leads the Tribunal to conclude that at the time of application and at the time of decision the visa applicant was undertaking full time study since turning 18 or within six months (or a reasonable time) after completing the equivalent of year 12 in the Australian school system, at an educational institution leading to the award of a professional, trade or vocational qualification. 

41. Accordingly, cl.101.213 of Schedule 2 to the Regulations is met at the time of application. At the time of decision, cl.101.213 continues to be met. Accordingly, cl.101.221(2)(b) of Schedule 2 to the Regulations is met at the time of decision.

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

    DECISION

43. The Tribunal remits the applications 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.

    Helena Claringbold
    Member