1711299 (Migration)

[2017] AATA 3001

1711299 (Migration) [2017] AATA 3001 (17 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711299

MEMBER:Russell Matheson

DATE:17 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Statement made on 17 November 2017 at 8:19am

CATCHWORDS
Migration – Child (Migrant)(Class AH) visa – Subclass 101(Child) – Applicant over 25 years of age – Various medical conditions – Not incapacitated for work due to total or partial loss of bodily or mental functions – Health issues can be addressed through future management plan and medical support

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 101.211(1)(b), 101.211(2), 101.221(1) or (2)(a), rr 1.03, 1.05A

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 8 April 2017 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 are residents of England. The visa applicant born in November 1984 applied to the Department of Immigration for the visas on 5 September 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.101.211(2).

4.    The delegate refused to grant the visas on the basis that cl.101.211(2) was not met because the delegate found that the visa applicant was over the age of 25 when the application was made and the delegate was not satisfied the applicant was a dependent child within the meaning of subparagraph (b)(ii) of the definition ‘dependent child’. The sponsor (review applicant) seeks review of the delegate’s decision.

5.    The sponsor (review applicant) requested that the review be undertaken without a hearing, on the papers.

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

Relevant law

7. 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).

8.    The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

Is the visa applicant a dependent child?

9.    The applicant is sponsored by her father [who] is a permanent Australian resident. The applicant provided with the primary application a copy of her birth certificate supporting the relationship between the sponsor and the applicant. The applicant was born in London on 8 November 1984.

1. The applicant was at the time of application over 25 years of age and advised the Department she was not working. Regulation 101.211(1)(b) requires that the applicant has not turned 25 but that provision does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal must consider whether the visa applicant is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

2. The applicant has previously presented evidence to the Department that she was a victim of a sexual assault outside her work place in March 2016. The applicant informed the Department that she had been unable to work since the assault owing to anxiety, panic attacks and depression. As a result of her inability to work she struggled to meet the basic care needs for herself and her dependent daughter. The applicant provided documentation from the Criminal Justice Unit, a charitable organisation ‘Turn 2 us’ and medical documents from Shotfield Medical Practice outlining her condition.

3. The applicant further provided a Psychiatric Assessment Report made on 28 September 2016 and details of her financial situation on request from the Department.

4. In November 2016 the applicant notified the Department that her circumstances had changed and she had gained employment on 3 October 2016 with a local council. The applicant advised the Department that employment was taken out of desperation rather than an ability to work. Further stating that the other option of not working would result in her defaulting on home payments, leaving her and her daughter homeless.

5. The Tribunal requested on 3 October 2017 that the applicant provide a current Psychiatric Assessment report as the last report was over 12 months old. Further requesting the applicant to provide to the Tribunal the current status of her work situation and what support the sponsor is providing to her. The applicant responded to the Tribunal on 5 November 2017. The applicant stated;

   ·   That she is currently employed for 34 hours per week and despite her mental health issues she is not in a financial position to reduce her hours as she would not be able to meet her housing and living costs. Further stating that she is a single parent with significant mental health issues in need of family support.

   ·   The applicant also states that her father (sponsor) is currently being treated for cancer and is not in a position to help her financially and has never been in a position to support two separate households.

   ·   The applicant further states that being allowed to live with the sponsor and step mother she would receive the care and support she needs for herself and her daughter.

6. The applicant also provided to the Tribunal a current Psychiatric Assessment Report date 21 October 2017. The Tribunal has considered the evidence provided in the report (Tribunal file folios 28-32). The consulting Psychiatrist conducted a Mental State Examination and discussed a further plan of management with the applicant. The Psychiatrist diagnosis is that the applicant has had a very strained and emotional start to life, but then managed to achieve reasonable success. Further stating her life was interrupted following serious sexual assault in 2016 and since then has had severe depressive and anxiety features, along with some features of post-traumatic stress disorder and with an inability to work with men and work in London.

1. The consulting Psychiatrist Dr Kripalani discussed a plan of further management with the applicant suggesting;

• Social Interventions

• Psychological Options

• Biological Options

1. The Psychiatrist states that risks are currently low and urges the applicant to put the plan of further management in place as soon as possible. The Psychiatrist also states in his report that the applicant has not received any Psychiatric therapy since she last saw him in September 2016. Further stating the advantage of having family in Australia would be beneficial due to the financial and emotional support they could provide.

2. The Tribunal accepts that the applicant is the victim of a sexual assault and this event has had a direct negative impact on her and her daughter and her capacity to work. The applicant’s current circumstances are that she is working 34 hours a week as stated. Further stating that she is a single parent and is not in a position to reduce her hours and is working out of financial necessity. The Tribunal accepts that the applicant at times struggles to cope with her work situation and she may be limited, due to her condition, to working reduced hours but the Tribunal does not accept that she is incapacitated for work. The Tribunal is of the view her mental health issues can be addressed through a future plan of management and medical support. The Tribunal notes that the Psychiatrist assessment report addresses the applicant’s mental health issues and treatment but does not address her capacity to work.  

3. While the Tribunal accepts that the visa applicant suffers from stress and anxiety and depression, the Tribunal is mindful that these conditions do not appear to prevent her from leading an independent life and successfully engaging in 34 hours a week employment. In such circumstances, the Tribunal is not satisfied that the applicant is incapacitated for work due to total or partial loss of her bodily or metal functions.

4. The Tribunal is not satisfied that at the time of decision the visa applicant meets cl.101.211(2). As she has turned 25 at the time the application was made, the Tribunal is not satisfied the visa applicant meets cl.101.211.

5. The Tribunal acknowledges evidence that the sponsor has offered to support the applicant and her daughter in respect of food, shelter, basic needs and other costs if they reside with him at his residential address in Australia.

6. As the visa applicant does not meet cl. 101.211(2) the secondary applicant does not meet the requirements for the grant of the visa because she is not a member of the family unit of a person who satisfies the primary criteria in subdivision 101.21.

7. Having found that the visa applicant does not meet cl. 101.211, it is not necessary for the Tribunal to consider the remaining criteria for visa grant.

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

9. 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 decisions not to grant the visa applicants Child (Migrant) (Class AH) visas.

Russell Matheson
Member

ATTACHMENT – RELEVANT LAW

Migration Regulations 1994

1.03     Definitions

…

dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a)has not turned 18; or

(b)has turned 18 and:

(i)is dependent on that person; or

(ii)is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

1.05A Dependent

1. Subject to subregulation (2), a person (the first person) is dependent on another person if:

   (a)at the time when it is necessary to establish whether the first person is dependent on the other person:

   (i)the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and

   (ii)the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or

   (b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.

   …