Sheriff v (Migration)

[2020] AATA 3605

Sheriff V (Migration) [2020] AATA 3605 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Makeme Sheriff V

VISA APPLICANT:  Ms Mawa Dorleh

CASE NUMBER:  1818501

HOME AFFAIRS REFERENCE(S):          OSF2017049812

MEMBER:Justin Owen

DATE:19 August 2020

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 19 August 2020 at 10:05am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – full-time study requirement – commencement of studies within ‘a reasonable period’ of completing secondary education – outbreak of Ebola in West Africa – provision of care to ill father – ability to enrol in a course of study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Home Affairs on 18 June 2018 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 23 June 2017. 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.101.213(1)(c) which requires, subject to subclause (2), that the visa applicant has, since turning 18 years of age, or within 6 months or a reasonable time after completing the equivalent of Year 12 un 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.

4. The delegate refused to grant the visa on the basis that cl.101.213(1)(c) was not met because he found, based on the evidence before him, that the visa applicant was not a full-time student at the time the application was lodged and she had not been in full-time continuous study since she turned 18 years of age.   He found that she was not a full-time student either at the time of application or at the time of decision so she also did not meet cl.101.221(2)(b).  The delegate also found that the applicant had not provided any evidence of dependency due to incapacitation for work due to the total or partial loss of the applicant’s bodily or mental functions, the delegate was satisfied that they did not meet cl.101.213(2).

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the review applicant and the visa applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the review applicant was given a fair opportunity to give evidence and present arguments.

6. The review applicant appeared before the Tribunal on 11 August 2020 via teleconference to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant’s sister Aicha Dorleh and the Registrar of the visa applicant’s current university, Mr Habibu Passaway.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandinka and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for applicants over 18

9. 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).

   Full-time study (or incapacitated for work)

10. 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).

11. 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).

12. 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.

13. There was no claim, or evidence, that at the ‘time of application’ the review applicant’s daughter, the visa applicant, was incapacitated for work because of loss of bodily or mental functions.

14. At the commencement of the hearing the Tribunal put information formally (and in accordance with the Act) as it related to folios that were subject to a s.375A certificate.  The Tribunal noted a certificate had been issued on the basis that disclosure of the material would be contrary to the public interest because the information may reveal the Department’s internal methodologies of verifying documents, which were undertaken in conjunction with the International Organisation for Migration.  The Tribunal provided a copy of the certificate to the review applicant and invited the review applicant to make submissions on the validity of the certificate and why the folios should be released. 

15. The Tribunal considered that the certificate contained a valid ground of public interest immunity not to disclose the information.  The Tribunal nevertheless provided the gist of the information to the review applicant,  noting that the folios pertained to the investigation into the validity and genuineness of the visa applicant’s school records and the death certificate for the visa applicant’s father.  The Tribunal noted that the investigation found the documentation in relation to her schooling and her father’s death was indeed valid and genuine, and the Tribunal would therefore obviously be putting no adverse weight on the documents and this information.

16. The Tribunal spent a considerable time discussing the visa applicant’s study history with the review applicant and her witnesses at the Tribunal’s hearing.  

17. The Tribunal has also considered a range of documentation that the applicant previously supplied to the delegate and outlined in the decision record that the applicant supplied the Tribunal.  These included:

    ·     A Letter of Attestation dated 28 July 2020 from the Office of the Dean of Admissions, Records & Registration at the African Methodist Episcopal University (AMEU) attesting that the visa applicant registered as a Freshman in 2017, has completed seven semesters and one hundred three credit hours of course work;

    ·     The visa applicant’s Official Transcript dated 29 July 2020 from AMEU that outlines her academic performance between her commencement in her Bachelor of Business Administration degree through to Semester 2 of the 2019/2020 Academic Year.

    ·     The visa applicant’s AMEU Student ID card issued on 8 April 2019.

    ·     A Certificate of Spinsterhood dated 30 July 2020 purportedly issued by the Office of the Registrar of Marriages of the Republic of Liberia in the name of the visa applicant.

    ·     A written submission by the review applicant’s representative dated 2 August 2020 and the review applicant’s previous representative dated 8 June 2017.

    ·     A copy of financial transactions from the review applicant to the visa applicant between 2016 and 2020.

    ·     A Certificate dated 19 December 2016 from the Liberia Returnee Network Vocational Training Program that states the visa applicant has satisfactorily completed the courses of Entrepreneurship Development and Vocational Training in the area of Event & Interior Decoration.  

    ·     Correspondence from AMEU dated 27 March 2017 stating the visa applicant is an incoming student having successfully completed the University Placement Entrance Examination in March 2017 with her courses to commence in August 2017.

    ·     A Diploma from the Pentecost International School dated 28 June 2014 in the visa applicant’s name confirming she had completed the secondary school curricula as well as a Letter of Recommendation and an Official School Transcript of the visa applicant’s results in 2014.   

18. The Tribunal has considered on the evidence before it whether the visa applicant has demonstrated that at the time of application she was validly enrolled in, and actively participating in, a full-time post-secondary course of study leading to a professional, trade or vocational qualification.  The Tribunal has also considered whether the visa applicant has been undertaking such a course since turning 18 years of age or have commenced the studies within six months or a reasonable period of completing secondary education.

19. The review applicant submits that the visa applicant successfully completed her secondary schooling at the Pentecost International School on 28 June 2014.  The Tribunal accepts on the evidence before it that the visa applicant successfully completed her secondary schooling at this time.  The Tribunal notes that the visa applicant turned 18 years of age a few days (on 1 July 2014) after she completed her secondary schooling.

20. The Tribunal notes that the visa applicant’s application was lodged on 23 June 2017.  The Tribunal notes the correspondence from AMEU between 2017 and 2020 relating to the visa applicant’s initial University Placement Examination in March 2017, her commencement as a student in August 2017 and her academic transcripts through until 2020.  The Tribunal recognises the oral testimony of the University Registrar Mr Passaway in relation to the visa applicant’s existing enrolment. The Tribunal is satisfied that at the time of application the visa applicant was validly enrolled in her course of study at AMEU.  The Tribunal is satisfied that since she commenced the course in August 2017 that she has been actively participating in a full-time post-secondary course of study leading to a professional, trade or vocational qualification up until the time of decision.

21. The Tribunal must consider however whether the visa applicant has been undertaking such a course since turning 18 years of age or have commenced the studies within six months or a reasonable period of completing secondary education.  There is no evidence before the Tribunal to suggest she has been undertaking such a course since turning 18 years of age.  There is no evidence to suggest she was undertaking such a course within six months of completing her secondary education.  The Tribunal must therefore consider whether she commenced her studies within ‘a reasonable period’ of completing her secondary education in 2014.         

22. The review applicant claimed that the visa applicant gained admission to AMEU to commence her studies in 2015.  In her representative’s written submission she claims that an outbreak of Ebola in West Africa resulted in her study commencement date being moved to August 2017. 

23. The review applicant furthermore claimed through the written submission that schools and colleges were closed in Guinea, Liberia and Sierra Leone for two calendar years as a result of Ebola so there was no new intake for the 2015 and 2016 academic years. 

24. The review applicant claims that the visa applicant was not enrolled earlier due to circumstances beyond her control.  She blames the Ebola outbreak  which she claims compelled the governments of Guinea, Liberia and Sierra Leone to ‘shutdown all schools, colleges and borders’.  The review applicant claims it was impossible therefore for the visa applicant to pursue her education.  She claims the visa applicant did however use this opportunity to pursue a 9-month apprenticeship in events, decorations and design between February and November 2016.

25. The Tribunal has considered the review applicant’s submissions as well as the testimony of the review applicant’s witnesses. The Tribunal does not on the evidence accept the review applicant’s claims in relation to the visa applicant and her inability to enrol in a course of study within ‘a reasonable time’ as required by the relevant Migration Regulations.

26. The Tribunal notes from the delegate’s decision record the review applicant provided, that the visa applicant had provided a letter from the review applicant stating that the visa applicant stopped studying to look after her father until he passed away in 2015.  The review applicant at the hearing stated that the visa applicant had finished school and was looking after her father when he became terminally ill and passed away in early 2015.  The witness Miss Dorleh, daughter of the review applicant, provided similar testimony.  The Tribunal accepts the review applicant’s testimony on this matter.  Whilst obviously accepting the illness and death of her father was very difficult for the visa applicant. the Tribunal does not consider the care the visa applicant was providing her gravely ill father in late 2014 impacted upon her ability to enrol in a course of study within  ‘a reasonable time’ of completing her secondary school studies. The Tribunal notes in fact that the review applicant has claimed that the visa applicant ‘gained admission’ to commence her post-secondary studies in 2015.         

27. At the hearing the Tribunal subsequently noted that the review applicant’s written submission stated that the visa applicant ‘gained admission’ to the AMEU to commence her studies in 2015.  The submission claims the visa applicant’s commencement date was moved to August 2017 because of the pandemic.  The Tribunal queried where the evidence was for this offer of an admission from the university to commence studies in 2015.  The Tribunal queried the lack of any corroborative evidence of both an ‘admission’ for 2015 at AMEU and any formal deferral of admission to August 2017 that might have been granted by the university in the circumstances of the Ebola pandemic.   

28. The review applicant instead stated that the visa applicant was ‘asked’ to go to Liberia to do the entrance test but she did not in fact go in 2015 because the border was closed and they were scared due to the pandemic.  She claimed the Liberia border did not reopen until 2016.  The Tribunal notes the contradiction between the review applicant’s claim in oral testimony that the visa applicant did not go to Liberia to do the AMEU entrance test in 2015 (that is, she was still to actually undertake the university admission test) as opposed to the claim in her written submission through her representative where it is stated the visa applicant had in fact already ‘gained admission’ to AMEU to commence her studies in 2015. 

29. There is no evidence whatsoever before the Tribunal that the visa applicant ‘gained admission’ and had been offered a place to commence her studies at AMEU in 2015.  The Tribunal does not accept the claim as contained in her written submission and considers it to be both deceptive and disingenuous.  The Tribunal considers the evidence strongly suggests that the visa applicant never ‘gained admission’ to study at AMEU in 2015 as the review applicant claimed through her written submission.

30. The review applicant has blamed border closures and closures of education providers in West Africa during the Ebola pandemic as factors that precluded the visa applicant from commencing her post-secondary-school studies in Liberia.   The Tribunal enquired as to what evidence the review applicant had of such long-term closures of education providers.  The review applicant replied that she was told this was the case but she was not in fact there in the country. 

31. The Tribunal at the hearing noted a range of media articles concerning Ebola and the education sector in West Africa.  The Tribunal noted a January 2015 media release by United Methodist News which indicated the United Methodist University in Liberia was set to re-open in February 2015, stating ‘United Methodist University has set 16 February as the date for students to return to school’.  The Tribunal also noted World Education News and Reviews which states ‘tertiary institutions re-opened with the rest of Guinean schools in January 2015’.  The Tribunal put this information to the review applicant formally under the relevant provisions and invited the review applicant to consult with her representative.  The review applicant decided to comment on or respond at the Tribunal hearing.  The review applicant stated that sometimes what appeared on the internet (in relation to the media articles pertaining to educational institutions) was different to what was on the ground in West Africa.  She stated in 2015 it was too late for the visa applicant to do the entrance examination whilst in 2016 the visa applicant was enrolled in a course in Event & Interior Decoration.  She stated that it was in early 2017 that she successfully completed the enrolment test at AMEU.  The review applicant also stated that the period to commence studies each year was very narrow.  She said that a student had to commence at the start of the year and they couldn’t commence their studies at another point later in the year.    

32. The Tribunal has considered the review applicant’s response but does not accept her claim that the visa applicant was simply precluded from enrolling in and actively participating in a full-time post-secondary course of study leading to a professional, trade or vocational qualification until 2017 due to the Ebola pandemic.

33. The Tribunal accepts that the Ebola pandemic caused some disruption to the education sector in West Africa between 2014 and 2016 which included some periods of closure.  The Tribunal, whilst noting that borders did close temporarily and educational institutions did close temporarily during the Ebola pandemic, does not accept that there was widespread mass closures for two ongoing years which resulted in the visa applicant being unable to seek enrolment and undertake her post-secondary studies at an education provider until enrolling at AMEU in 2017.  Evidence suggests that education providers did continue to operate during this period.    

1. The Tribunal has taken into account the oral testimony of witness Mr Habibu Passaway who is the Registrar at AMEU.  Mr Passaway confirmed that the visa applicant successfully enrolled at AMEU in 2017 – which the Tribunal accepts.  He explained that AMEU was open in 2015 and in 2016, though in 2016 AMEU did not take in new students.  He explained that the Ebola pandemic had had a challenging impact upon the university.  The Tribunal accepts that AMEU’s enrolment processes did sometimes change during the Ebola pandemic and accepts the visa applicant was unable to enrol at AMEU in the 2016 academic year.  It does not however consider that AMEU’s processes precluded the visa applicant from  enrolling in and actively participating in a full-time post-secondary course of study leading to a professional, trade or vocational until 2017 at another education provider if AMEU was unavailable.  The Tribunal again notes the review applicant’s original claim that the visa applicant  had already ‘gained admission’ to study at AMEU in 2015.  This would suggest the visa applicant undertook the entrance examination to commence her studies in 2015: which she clearly did not.  There is no evidence of this admission or any offer to the visa applicant from AMEU to study from this period.    

2. Even if the Tribunal was to accept the claim that there was no possibility whatsoever due to the Ebola pandemic for the visa applicant to commence her studies until 2017 at AMEU, the Tribunal does not accept that this prevented the visa applicant from enrolling in and actively participating in an alternative full-time post-secondary course of study leading to a professional, trade or vocational qualification in 2015 and 2016.

3. The Tribunal has taken into account the course the review applicant claims the visa applicant undertook between February and November 2016.  The review applicant through her representative’s submissions describes it as a ‘9-month apprenticeship in Events, decorations and design’.

4. The only evidence before the Tribunal in relation to this course is a copy of a certificate purportedly from the Liberia Returnee Network Vocational Training Program stating the visa applicant has satisfactorily completed the courses in Entrepreneurship Development and Vocational Training as prescribed.  The Tribunal questioned the review applicant who claimed the course was a full-time, Monday to Friday, face to face course.  There was no evidentiary basis for such a statement.   The Tribunal asked what evidence was there of the visa applicant’s participation in the course.  The review applicant said she had received oral confirmation from her daughter the visa applicant about her participation in the course and its hours but nothing further had been communicated. 

5. The Tribunal is not satisfied that the applicant’s studies at the Liberia Returnee Network Vocational Training Program in Entrepreneurship Development and Vocational Training during 2016 were a full-time course of study between February and November 2016 as claimed by the review applicant.  There is no corroborative evidence before the Tribunal to suggest that these courses were full-time.  There is no evidence of the visa applicant’s participation in the course beyond the certificate of completion.  The Tribunal is not satisfied that the visa applicant was undertaking a full-time post-secondary course of study leading to a professional, trade or vocational qualification as required by the Regulations through the Event & Interior Decoration course she completed at the Liberia Returnee Network Vocational Training Program. 

6. The Tribunal notes that the review applicant has claimed the visa applicant was able to undertake a full-time, face to face course of study for 9 months in 2016.  Given this claim, the Tribunal questioned her written submission that ‘schools and colleges were closed in Guinea, Liberia and Sierra Leone for two calendar years’ in 2015 and 2016.  The Tribunal raised the contradiction with the review applicant who again claimed the visa applicant couldn’t enrol at AMEU until 2017 after successfully undertaking the entrance examination.  The Tribunal does not on the evidence accept the review applicant’s claim that schools and colleges were closed for two calendar years in 2015 and 2016.  The Tribunal does not accept that the visa applicant was precluded from enrolling and participating in a full-time course of study as required by the Regulations until 2017.     

7. The Tribunal accepts that the visa applicant had been offered enrolment in a full-time course of study at an educational institution – her Bachelor course at AMEU - leading to the award of a professional, trade or vocational qualification at the time of application in June 2017.  She commenced this course a few months later in August 2017.  The Tribunal accepts she remains enrolled and participating in the course today at the time of decision.  The Tribunal accepts it is a full-time course of study leading to a professional, trade or vocational qualification. 

8. The Tribunal is not satisfied however that the visa applicant was undertaking such a course since turning 18, or within 6 months or a reasonable time after completing the equivalent of year 12 in the Australian school system. 

9. The visa applicant was nearly 21 years of age at the time of application.  The Tribunal has therefore considered, on the evidence before it, whether the visa applicant was undertaking a full-time post-secondary course of study in a ‘reasonable time’ after she completed the equivalent of year 12 in the Australian school system in June 2014.  

10. The Tribunal has considered the review applicant’s submissions concerning the Ebola epidemic in West Africa between 2014 and 2016.  The Tribunal accepts that the epidemic had a detrimental impact upon the education sector in this period and resulted in the periodic closures of some universities and schools.  The Tribunal does not however consider the epidemic precluded the visa applicant from commencing their studies as required in this visa subclass before 2017, that is within ‘a reasonable time’.  As the Tribunal has discussed previously in this decision and put to the review applicant under s.359AA, the review applicant’s claims that education providers were closed for the two calendar years of 2015 and 2016 are not grounded in corroborative evidence and fact.  The claim the review applicant makes that the visa applicant was studying full-time between February and November 2016 in a course leading to a vocational qualification highlights the deficiencies in her claim. 

11. The Tribunal accepts that the Ebola pandemic had an adverse impact on the education sector and in enrolling in some courses in West Africa between 2014 and 2016.  The Tribunal does not however consider they precluded the visa applicant from commencing a full-time post-secondary course of study leading to a professional, trade or vocational qualification for almost three years.  The Tribunal does not on the evidence before it considers that the visa applicant’s challenges (as claimed by the review applicant) in commencing her studies due to pandemic-related enrolment difficulties meets the definition of a ‘reasonable time’.   

12. The Tribunal notes that cl.101.213(1)(c) states the visa applicant must have been undertaking ‘a full-time course of study’.  The Tribunal notes that whilst the review applicant claims the visa applicant completed a full-time course of study between February and November 2016, the Tribunal does not accept this claim.  There is no evidence of the visa applicant’s participation in the course.  There is no corroborative evidence before the Tribunal to suggest that this Event & Interior Decoration certificate course was full-time.  The Tribunal does not accept the review applicant’s oral claims in relation to such details of this course of study.   The Tribunal is not satisfied furthermore that this course was as required by the Regulations. The Tribunal is satisfied that the visa applicant only commenced undertaking a full-time course of study in August 2017 at AMEU. 

13. The Tribunal does not consider the review applicant’s claims in relation to the Ebola pandemic in West Africa between 2014 and 2016, the claimed closure of educational institutions in 2015 and 2016, and the various purported challenges faced by the visa applicant - justify a finding that the almost three-year delay between the visa applicant completing her secondary schooling and commencing a full-time course of study is ‘a reasonable time’.  

14. The Tribunal does not on the evidence consider the visa applicant meets cl.101.213(1)(c) on the basis that the visa applicant has since turning 18, 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 aware of a professional, trade or vocational qualification.

15. Accordingly, cl.101.213(1)(c) is not met.

16. At the time of decision, cl.101.213(1)(c) does not continue to be met. Accordingly, cl.101.221(2)(b) is not met.

17. The review applicant confirmed in oral testimony that the visa applicant does not have any mental or physical incapacities, and no total or partial loss of mental or bodily function that precludes her from working.  There is no claim or evidence before the Tribunal to suggest the visa applicant is mentally or physically incapacitated.  The visa applicant does not meet cl.101.213(2).  

18. 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

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

    Justin Owen
    Senior Member