1828598 (Migration)

1828598 (Migration) [2022] AATA 1913 (26 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1828598
MEMBER:Justine Clarke
DATE:26 January 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 802 visa:
·cl 802.214 of Schedule 2 to the Regulations.

Statement made on 26 January 2022 at 5:56pm
CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – criteria for applicants over 18 – relationship status and history – not engaged in full-time work – full-time study requirement – 21-month study gap – depression – ADHD – Asperger’s syndrome – whether ‘incapacitated for work’ due to partial loss of mental functions – applicant offshore – finding restricted to time of application criteria – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 802.214
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

This is an application for review of a decision made on 10 September 2018 by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Child (Residence) (Class BT) visa under s 65 of the Migration Act 1958 (the Act).
On 22 February 2018, the applicant applied for the visa. He is a national of the United Kingdom. The evidence before the Tribunal is sufficient to satisfy the Tribunal that, at the time of application, the applicant was 24 years of age and that, at the time of this decision, he is 28 years of age.
At the time of application, the Child (Residence) (Class BT) visa contained Subclass 802 (Child) and Subclass 837 (Orphan Relative). In this case, claims have been made in respect of Subclass 802 (Child) only.
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As there is no letter of support from a State or Territory government welfare authority (cl 802.216, cl 802.226A), the criteria to be met in this case include cl 802.214.
Clause 802.214 provides:
(1) If the applicant has turned 18:
(a)the applicant:
(i)is not engaged to be married; and
(ii)does not have a spouse or de facto partner; and
(iii)has never had a spouse or de facto partner; and
(b)the applicant is not engaged in full-time work; and
(c)subject to subclause (2), 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 qualification.
(2) Paragraph (1)(c) does not apply to an applicant who, at the time of making the application, is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child.
The expression ‘dependent child’ is defined in reg 1.03.
A dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’ is as follows.
dependent child, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:
…
(b) has turned 18 and:
…
(ii)is incapacitated for work due to the total or partial loss of the child’s or step-child’s bodily or mental functions.
The applicant provided the Tribunal with a copy of the delegate’s refusal decision. The delegate was satisfied that the applicant met the criteria in cl 802.214(1)(a) and (b). However, the delegate was not satisfied that cl 802.214(1)(c) was met and refused to grant the visa on this basis. The delegate explained:
I am satisfied the applicant was a full time student on the day he lodged this visa application (and that he continues to be a full time student to present day).
However, the applicant does have 21 months (almost 2 years) gap in studies between the period of 11 June 2014 until … 31 March 2016. Departmental policy states that the gap in study periods is to cater for breaks between completing secondary education (high school) and commencing post-secondary education (university).
The applicant has had a break during his university studies and therefore does not fall into the scope of the break in studies after completing secondary education.
Policy states that consideration may be given to a ‘reasonable break’ in-between post-secondary studies if the applicant has had a change in education provider. Some weight is given to the applicant’s claims that the gap in study and eventual delay in re-commencing his studies was based on his final decision to reside in Australia and change his career pathway. However, I am not satisfied that 2 years is a reasonable period to make such career and life changes and therefore change education providers post-secondary studies.
Based on the evidence presented with the application, given that the applicant has had an approximate 2 year gap in study, I am not satisfied that the applicant has been a full time continuous student since turning 18 years of age, I am not satisfied the applicant meets sub-clause 802.214(1)(c).
I also considered clause 802.214(2), which states that the study clause will not apply for those applicants over the age of 18 years of age who are dependent due to being incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
At question 40, of the application form 47CH, - Employment details, the question states:
‘Note: if the child has a disability which stops them from working, you must provide a report from a qualified practitioner to support this claim’. The applicant responded ‘N/A’ for which I understood to be a ‘not applicable’ response.
The applicant did [not][1] provide any information which demonstrates he has an incapacity (which may also be taken as an explanation for a gap in study) therefore, I am satisfied the applicant does not meet clause 802.214(2).
[1] The Tribunal queries whether the delegate had meant to include the word ‘not’ here and that it was not included in error.
On 30 September 2018, the applicant applied to the Tribunal for review of the refusal decision. Upon applying for review, the applicant was unrepresented.
Following outreach from the Tribunal, on 25 October 2021, the applicant agreed in writing to a shortened notice period for a hearing to be scheduled. He informed the Tribunal that, at that time, he was located in [specified state], United States of America. (The Tribunal’s file contains a copy of the applicant’s movement records which show that he departed Australia [in] August 2021).
On 29 October 2021, the Tribunal invited the applicant to a video hearing to be held on 5 November 2021 (Victorian time).
On 4 November 2021, the applicant appointed his friend and support person [Mr A] to act as his authorised recipient and representative. That same day, a request was made for the hearing to be postponed.
On 5 November 2021, the Tribunal wrote to the applicant, by way of his representative, to inform him that the Member had considered the request and had postponed the hearing with a new date to be scheduled. Later that day, the Tribunal wrote again to the applicant, again by way of his representative, to invite him to a video hearing on 11 November 2021 (Victorian time).
On 11 November 2021, the applicant appeared, by video, before the Tribunal to give evidence and present arguments. The representative also attended the hearing but did not show his face on the video. He also gave oral evidence. Towards the end of the hearing, the Tribunal asked the applicant whether there was any other medical evidence that the applicant had and wished to submit to the Tribunal. The applicant noted that he had some evidence of attending doctors in Australia ‘once or twice’ for his depression which he said that he could submit. The Tribunal granted the applicant until 19 November 2021 in which to submit any further evidence.
On 16 November 2021, the applicant contacted the Tribunal to request further time to submit further evidence. On 18 November 2021, he stated that he would like to request a further two or three weeks and noted that he did not know how long he was permitted.
On 18 November 2021, the Tribunal wrote to the representative and informed him that the presiding Member had granted an extension of time until 10 December 2021 (three weeks from the original due date).
On 10 December 2021, the applicant requested a further extension of time until mid-January 2022, explaining that he had been informed that his doctor was away until ‘the new year’.
Later that day (that is, on 10 December 2021), the Tribunal wrote to the representative and informed him that the presiding Member had granted a further extension of time until 14 January 2022.
The Tribunal notes that, after the hearing, on 30 November 2021, the applicant submitted further medical evidence, being a letter confirming multiple counselling sessions the applicant attended between 27 August 2020 and 16 November 2020. Despite the Tribunal having granted a further extension of time in which to submit further evidence, no further evidence has been submitted after 30 November 2021.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, at the time of application on 22 February 2018, the applicant met cl 802.214, particularly cl 802.214(1)(c) or (2).
Criteria for applicants over 18
If, at the time of application, the applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl 802.214. These requirements must continue to be met at the time of decision: cl 802.221(2)(b).
Relationship status and history
At the time of application, the applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 802.214(1)(a). This must continue to be the case at the time of this decision: cl 802.221(2)(b).
It will be recalled that the delegate had been satisfied that these requirements had been met.
At the hearing, the applicant gave credible oral evidence that he did not have a spouse or de facto partner and that he was not engaged to be married. When asked, he told the Tribunal that he had never had a de facto partner or been married.
The Tribunal accepts the applicant’s oral evidence in this respect, noting that there is no information or evidence before the Tribunal to the contrary. Accordingly, the Tribunal finds that, at the time of application on 22 February 2018, the applicant met cl 802.214(1)(a) and that, at the time of this decision, the provision continues to be met.
Not engaged in full-time work
At the time of application, the applicant must not be engaged in full-time work: cl 802.214(1)(b). This must continue to be the case at the time of this decision: cl 802.221(2)(b).
It will be recalled that the delegate had been satisfied that these requirements had been met also.
At the hearing, when the Tribunal asked the applicant whether, at the time of application on 22 February 2018, he had been engaged in full-time work, he gave credible oral evidence that he had not. Again, the Tribunal accepts the applicant’s oral evidence in this respect.
There is no evidence before the Tribunal to suggest that, at the time of this decision, the applicant is engaged in full-time work.
Accordingly, the Tribunal finds that, at the time of application on 22 February 2018, the applicant met cl 802.214(1)(b) and that, at the time of this decision, the provision continues to be met.
Full time study? Incapacitated for work?
On 12 September 2018, which was after the delegate refused the application for the visa, the applicant emailed the Department and stated, ‘you have refused my visa due to a study gap which was due to depression which I have on my medical history and also choosing the wrong course’.
On 29 October 2019, the applicant similarly submitted to the Tribunal that his depression and the fact that he possibly has Asperger’s syndrome explains the gap in his studies.
The hearing
At the hearing, the Tribunal explained to the applicant that the requirements outlined in cl 802.214(1)(c) are ‘subject to subclause (2)’, so if the applicant is claiming to meet subclause (2), then there is no need for him to meet the requirements in cl 802.214(1)(c). The Tribunal also explained that, essentially, subclause (2) concerns 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 802.212(1)(b), (2). The Tribunal noted that it was obliged to ask the applicant whether he was making such a claim.
The applicant responded by stating that he felt that he was partially claiming that he met that provision because, since he was young, he has had a history of depression and, while in Australia, he was given medication for ADHD (Attention-Deficit/Hyperactivity Disorder).
The representative interjected to say that it was his understanding that the applicant did want to make this claim. He said that, from speaking to the applicant’s parents, there is also ‘some talk of him being on the spectrum as well’. He said that there had been some attempt to test the applicant for this.
The applicant gave oral evidence that there was also ‘the Asperger’s thing’, but he noted that he had not been formally diagnosed. He told the Tribunal that his medical history noted that he may have Asperger’s syndrome. He said that he felt that it was important to note all three things: the depression, the ADHD and the Asperger’s.
The representative and the applicant suggested that both grounds—that is, both cl 802.214(2) and cl 802.214(1)(c)—should be considered. The Tribunal responded by stating that it would ask the applicant to discuss his medical conditions as well.
The Tribunal explained that cl 802.214(1)(c) requires that, at the time of application, the 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.
The Tribunal noted that the applicant had provided evidence of various courses that he had undertaken throughout the years.
The Tribunal noted that the primary decision recorded the following history:
·On 1 June 2012, the applicant completed his secondary study at [School 1] in [Suburb 1], United Kingdom.
·Within six months, on 17 September 2012, the applicant enrolled at [University 1], UK.
·On 11 June 2014, the applicant finished studying at [University 1].
The applicant gave oral evidence that this information was correct. He said that he had been studying [Discipline 1] at the University. He said that he had finished the first year of the course and, just before finishing the second year, he had ‘dropped out’ of the course.
The Tribunal noted that the applicant had submitted some medical evidence of having seen someone about his depression during that time. The Tribunal noted the medical evidence on the Department’s file from 24 September 2013, 25 October 2013 and 26 March 2014.
The Tribunal also referred to other medical evidence such as the assessment on 25 November 2014 that the applicant was not fit for work.
The applicant gave oral evidence that, at the time, his medical condition had made it difficult for him to maintain his studies. He said that he felt that it was a mixture of not being able to focus and the depression. He said that this made it very difficult for him to complete the course. He said that he became disinterested and that the reason for this was because he found it difficult to focus on what the teachers were saying in lectures and also because of his depression.
At this point in the hearing, the Tribunal informed the applicant that it would accommodate any requirements the applicant may have so that he can fully participate in the hearing. The Tribunal explained that if the applicant required a break that he should let the Tribunal know and the Tribunal would adjourn for the time period needed. The applicant said that he would let the Tribunal know. The representative said that having some breaks would assist the applicant to ‘digest what is going on’. He requested the Tribunal to institute five-minute breaks when going through the different sections that need to be addressed so that he could speak to his friend directly to ensure that he understands. The Tribunal notes that it regularly asked the applicant whether he wanted a break and once the hearing reached the one-hour mark, the Tribunal adjourned the hearing for 15 minutes.
The applicant explained that he had needed to leave the [Discipline 1] course early because it had become too much for him. He said that the first year had not been so hard for him because it was mostly exams, which he finds easier than coursework, but that in the second year of the course he had been required to do coursework and essays and that this had been too much for him.
He said that, at the time, he had been very depressed, so he had gone to see his family. He said that he had wanted to finish the course, to obtain a degree and to impress his family but he said that it was impossible for him to continue with the course. He said that the more he tried to ‘stick with’ the course, the more depressed he became. He said that, at the time, he had tried different antidepressants which had been prescribed by a doctor but that he felt that the medication was not working. He said that, for this reason, he did not keep going back to the doctor because the treatment was not working. He said that he stopped taking the medication because he felt that it was not working, and he was getting side effects such as tiredness.
At this point in the hearing, the Tribunal noted that the refusal decision states that, later, the applicant travelled to Australia and enrolled at [Education Provider 1].
The applicant told the Tribunal that he has family roots in Australia and some family who live in Australia (an uncle and some second cousins). He said that his parents had thought that it would be a good idea for him to try to live in Australia and so they supported him financially to do so. He said that, at first, he had arrived in Australia as the holder of a Tourist visa to see whether he liked it in Australia and he said that he had liked it, preferring Australia to the UK. He said that, then, he decided to do a ‘working holiday’ so that he could spend more time in Australia to determine whether it was where he wanted to live. When asked, he said that he had not actually worked during this time.
He said that then he decided to explore undertaking a different course in Australia; not a degree course but rather a certificate course—one that he might ‘be able to handle better’. He said that he had undertaken a few different courses, including an [Subject 1] course which ‘somehow was missed out on the original application’. He said that the course was at [Education Provider 2]. He said that he had done this course during his ‘working holiday’. He said that he had ‘dropped out’ of this course as well because he still had depression, although he felt better than when he had been living in the UK. He told the Tribunal that, while he could manage the coursework, when it came to the placement part of the course, which included showering people, it became too difficult for him because it was too ‘hands on’ for him. He said that his depression worsened again. He said that, after ‘dropping out’ of this course, he had a break to think about what to do next.

He said that, after a time, he applied for the course in [Subject 2] at [Education Provider 1]. He told the Tribunal that he completed this course. The Tribunal notes the certificate entitled ‘Confirmation of Completion’ from the Institute which corroborates the applicant’s claim.
The Tribunal referred to documents that the applicant had submitted, noting that:
·from 13 January 2016 to 1 August 2016, the applicant had been enrolled at the institution for the Certificate III in [Subject 1]; and
·from 11 April 2016 to 10 April 2017, the applicant had been enrolled in the Diploma of [Subject 2] at the [Education Provider 1].
The Tribunal asked the applicant whether he could recall when he started the Certificate III in [Subject 3] at [Education provider 3]. He said that he could not recall the exact date and would need to look it up. He speculated that he might have started it three or four months after finishing the [Subject 2] course.
The Tribunal notes that the applicant submitted to the Tribunal a copy of his ‘Statement of Attainment’ from [Education provider 3] and a ‘to whom it may concern’ letter from [Education provider 3] dated 9 February 2018. The Tribunal checked the dates it had for the course in these documents with the applicant, noting that it looked like he had been enrolled in the second half of 2017 and the start of 2018 and had been enrolled in the course when he applied for the visa on 22 February 2018. The applicant said that he thought that that was correct.
The applicant told the Tribunal that he thought that he had been enrolled in the course for around one year. He said that he thought that the course went for about one and a half to two years because it encompassed Certificates III and IV. He said that, while he had passed some units, he did not complete the [Subject 3] course because ‘it was a bit hard for me’, ‘with the focussing issues’. He said that he decided that it was not the right course for him because one needs to be very fast and focused. He said that he was a bit slow at things and that he cannot focus very well. He acknowledged that that was the last course that he had enrolled in.
The Tribunal asked the applicant what he had done after leaving the course at [Education provider 3]. He said that he had been depressed, and that, after three or four months, he had left Australia to visit his family (his mother, step-father and brothers in [Country 1] and his father in the UK). He told the Tribunal that he had ‘not been feeling very well mentally’. He said that he had thought that he might be able to finish his degree or study another course in the UK but that he determined that he was actually much happier in Australia. In his own words, he had made friends and built a life in Australia.
He said that he returned to Australia ‘literally before all the COVID stuff’. He said that, at first, he had stayed with his friend [Mr A] (the representative). He said that he wanted to stay in Australia for the resolution of the present review, so he applied for a Bridging visa. He noted the difficulty of living through the lockdowns in Melbourne and not being able to visit any friends. He said that he was very depressed and that the lockdowns were making his depression worse. He said that he had not seen his family for a few years and that he really needed family support. He noted that he departed Australia about two and a half months prior to the date of the hearing. He said that he had stayed with his father. He said that, about three weeks prior to the date of the hearing, he had travelled to visit a friend in [specified state], USA. In addition, he said that he planned to visit his mother soon. He said that he had wanted to return to Australia but that it had not been possible for him because the borders are closed.
The Tribunal noted the medical evidence that the applicant had been referred to see a psychiatrist ([Dr B]) regarding ‘ADHD/ Asperger’s’ and that, on 1 December 2020, the applicant had attended a consultation with that psychiatrist. The applicant said that he had seen a psychiatrist and had completed a questionnaire for Asperger’s and ADHD but that he had not received the results. He explained that the doctor had interviewed him, had told him that he had symptoms of Asperger’s and ADHD but that he was not sure whether he had been formally diagnosed with Asperger’s or ADHD. The applicant told the Tribunal that he had an email from [Dr B] that stated that, from the questionnaire, he (the applicant) had Level 1 symptoms of Asperger’s. He said that he did not have any other evidence. The Tribunal allowed the applicant time after the hearing to submit that email but, as at the date of this decision, the applicant has not provided it.
The applicant said that the doctor had given him treatment for ADHD, namely the medication Ritalin. The applicant said that he stopped taking the medication because he had not observed any improvement in his focus and he was getting side effects such as anxiety, increased heart rate and that he had been ‘sweaty and hot’. The applicant told the Tribunal that, at the time of the hearing, he was not taking any medication ‘like that’.
The applicant gave oral evidence that, when he had been in Australia, he had undertaken about 15 sessions of counselling, but he said that he did not believe that it had been that helpful. However, he said that he felt that it had made him feel a little bit better knowing that he had someone there as a support. When the Tribunal asked the applicant when this was, he said that it would have been at the beginning of 2020.
The Tribunal asked the applicant whether, at the time of the hearing, he had a medical professional who was treating him on an ongoing basis. The applicant said that, when he returns to Australia, he plans to go back to see [Dr B] for a follow-up appointment. He said that he had seen him at least three times ‘to do the different things’.
The Tribunal asked the applicant the source of his financial support during these periods when he had been studying, trying to feel well or seeing family. He said that, while he was trying to ‘figure out what I want to do’, he has received financial support from his family. At the end of the hearing, he stated that he had the support of family and friends in Australia. The Tribunal understands that, in this respect, the applicant meant broader support such as emotional support and other practical support.
The applicant told the Tribunal that, before he left Australia and during a point in time when Melbourne was not in ‘lockdown’, he had had a part-time job delivering leaflets on foot. He said that this had been about a year before the date of the hearing. He said that he had had ‘work rights’ and that the wages had been deposited into his bank account. He said that this had been his only work.
When the Tribunal discussed the language in the relevant provisions of the Regulations—that is, that the person is incapacitated for work due to the partial loss of the person’s mental functions—the applicant noted that, in the past, he had received a certificate stating that he was not fit for work, but he acknowledged that this assessment was not on an ongoing basis. The Tribunal stated that it had noted this evidence, which was dated 2014 and would have been from the time that the applicant was studying at the University.
The applicant told the Tribunal that his mother wants him to return to Australia. He said that his mother was planning to move to Australia once his younger brother had completed his schooling (in about a year from the date of the hearing). The representative noted that the applicant’s mother was the Australian citizen sponsor for the application. The applicant said that, if his mother lived in Australia and he lived in the UK, the distance between the countries would make it be very hard for him to visit her.
He gave oral evidence that his mother had suggested that he undertake a course in caring for people with disabilities. He said that he thought that this was a good idea because he likes caring for and helping people and he thought the course may not be as ‘hands on’ as the earlier [Subject 1] course. He noted that his uncle has learning disabilities and that the applicant gets on very well with his uncle and is ‘really good with him’.
[Mr A] gave oral evidence that he had known the applicant for many years, since shortly after the applicant arrived in Australia. He said that he believed that if someone asked the applicant where he calls home, he would say Australia. He said that the applicant had friends and social support in Melbourne. He said that, during the last of Melbourne’s lockdowns, the applicant had been in Sydney so had been locked out of Melbourne. He said that the applicant had needed support so that is why he had left Australia so that he could ‘get support from someone somewhere’. He described the applicant’s progression and growth from the person who he was when he first met him to the applicant’s competent participation at the Tribunal hearing as ‘massive’ and ‘a triumph’.
Assessment
As noted above, the applicant and his representative have requested the Tribunal to consider whether the applicant meets both cl 802.214(2) and cl 802.214(1)(c).
In this review, the applicant has essentially made the claim that he meets either cl 802.214(2) or cl 802.214(1)(c) on the basis of being incapacitated for work or study due to the partial loss of his mental functions, which also explains the gaps in his post-secondary study.
As the opening words in paragraph (1)(c) are ‘subject to subclause (2)’ and the opening words in subclause (2) are that ‘[p]aragraph (1)(c) does not apply …’, it follows that the Tribunal should first determine whether the applicant meets the provision of cl 802.214(2) and if it finds that the applicant does not, only then consider whether the applicant meets cl 802.214(1)(c).
In determining this issue, the Tribunal acknowledges that it has had the benefit of greater evidence of the applicant’s personal circumstances and medical history than what was before the delegate.
The Tribunal found both the applicant and [Mr A] to be credible. The Tribunal thanks the applicant for his courage and honesty in sharing details of his mental health challenges with the Tribunal.
The Tribunal notes that the applicant has submitted the following medical evidence to the Tribunal in support of his claims.
·A printout of the applicant’s patient notes from [a named] Medical Centre, UK. Consultations listed: 24 September 2013; 25 October 2013 and 26 March 2014. These notes refer to the applicant’s depression and medication prescribed.
·A copy of a completed form entitled ‘Statement of Fitness for Work for Social Security or Statutory Sick Pay’ (UK) dated 25 November 2014 and recording that a doctor had assessed the applicant as not being fit for work for a four-week period from 25 November 2014 to 25 December 2014.
·A copy of the doctor’s letter referring the applicant to the psychiatrist ([Dr B]).
·A copy of the letter from [Dr B] to the referring doctor, dated 1 December 2020, noting:
o‘[The applicant] gives a history of inattention, impulsivity as well as restlessness, significant amount of anxiety and depression. Throughout his schooling as well as later in life, he has struggled with his level of attention and concentration’.
o‘He completed an ADHD assessment schedule, and it seems there appears to be combined ADD/ADHD signs and symptoms and therefore I have decided to give him a trial of Ritalin …’
·A copy of a letter from a named psychologist counselling service to the applicant, dated 30 November 2021, giving the name of the referring doctor and listing all the applicant’s appointments with psychologists at the service from 27 August 2020 and 16 November 2020 (18 in total).
The Tribunal notes that, in the applicant’s written statement of 9 February 2018 that was submitted to the Department, the applicant made no mention of his mental health challenges.
It may be that the lack of medical evidence before the delegate influenced the delegate’s interpretation of the applicant’s response at question 40 on the Form 47CH—Application for migration to Australia by a child.
As was noted earlier, the delegate stated
At question 40, of the application form 47CH, - Employment details, the question states:
‘Note: if the child has a disability which stops them from working, you must provide a report from a qualified practitioner to support this claim’. The applicant responded ‘N/A’ for which I understood to be a ‘not applicable’ response.
Accordingly, on the basis of the evidence before her, the delegate found that cl 802.214(2) was not applicable.
However, question 40 of the form states in full:
40 EMPLOYMENT DETAILS
Note: If the child has a disability which stops them from working, you must provide a report from a qualified medical practitioner to support this claim.
Give details of any current employment
Name and address of employer
[Blank boxes]
Date commenced [Blank box with heading ‘Day Month Year’]
Number of hours worked per week [Blank box]
Weekly earnings in local currency [Blank box]
The applicant wrote ‘N/A’ in the first box after he had been asked to provide ‘[n]ame and address of employer’. The Tribunal takes a different view of the evidence than the delegate. The Tribunal finds that the applicant was not inferring that cl 802.214(2) was not applicable. Rather, he was simply declaring that he does not have a current employer.
The Tribunal has no concerns that the applicant was seeking to mislead the Department in any way. Rather, the Tribunal is mindful that, unfortunately, for too long there has been a lack of understanding and in some cases stigma in the broader community in respect of depression, ADHD and conditions on the autism spectrum such as Asperger’s syndrome. [Mr A] gave oral evidence that the applicant’s depression and medical conditions ‘on the spectrum’ were very personal matters for the applicant. The Tribunal considers that it is entirely plausible that the applicant did not wish to disclose such personal matters to the Department until it became clear to him that it was required. Further, it is possible that the applicant’s decision not to include information about his mental health conditions with his application for the visa demonstrates that he was experiencing a partial loss of his mental functions.
At the time that the applicant applied for the visa on 22 February 2018, was the applicant incapacitated for work due to the partial loss of his mental functions?
An internet search for the meaning of the word ‘incapacitated’ states that it means ‘deprived of strength or power; debilitated’. A similar search for the meaning of the phrase ‘mental function’ results in ‘any cognitive process or activity, such as thinking, sensing or reasoning’.
Having reflected on all the evidence before it, including the applicant’s and [Mr A]’s credible oral evidence and the medical evidence from as early as 24 September 2013 and as late as his last psychological consultation in Australia on 16 November 2020, the Tribunal is satisfied that at the time he applied for the visa, the applicant was incapacitated for work due to ‘the partial loss of his mental functions’ (a phrase which, as the Tribunal acknowledged in the hearing, may have unhelpful negative connotations), namely his inability to focus and his resulting depression.
Where cl 802.214(2) applies, it must continue to be met at the time of decision: cl 802.221(2)(b).
The Tribunal does not wish to make a time of decision finding in respect of this aspect of this onshore application lest it complicate things for the applicant who is, at the time of this decision, offshore. Indeed, at the hearing, the applicant expressed his worry about this aspect of the case. It will be remembered that the applicant is not professionally represented and experiences a ‘significant amount of anxiety and depression’ (in the words of [Dr B]).
Moreover, the Tribunal is mindful of the practice direction made by the President of the Tribunal titled Conducting Migration and Refugee Reviews President’s Direction. Clause 8.2 of this direction provides:
As a general rule, where the Minister for Immigration … or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.
The delegate made findings in respect of the time of application criteria.
In the circumstances, the Tribunal limits its finding to the time of application and finds that cl 802.214(2) is met.
CONCLUSION
For the reasons above, the Tribunal is satisfied that, at the time of application on 22 February 2018, cl 802.214 was met.
Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 802 visa:
·cl 802.214 of Schedule 2 to the Regulations.
Justine Clarke
Member

[2022] AATA 1913

26 January 2022

Key Legal Topics

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

Remedies