1906399 (Migration)

[2022] AATA 3794

1906399 (Migration) [2022] AATA 3794 (7 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Li Dennis Shen

CASE NUMBER:  1906399

MEMBER:Margie Bourke

DATE:7 October 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for  Contributory Aged Parent (Residence) (class DG) visa for reconsideration with the direction that the applicant meets the following criteria for the Subclass 864 (Contributory Aged Parent) visa:

·cl.864.321 of Schedule 2 to the Regulations.

Statement made on 07 October 2022 at 2:18pm

CATCHWORDS

MIGRATION – Contributory Aged Parent (Residence) (Class DG) visa – Subclass 864 (Contributory Aged Parent) – member of family unit – secondary applicant child of primary visa holder mother – child turned 23 dependent on family head – psychiatric assessment and report – low intellectual functioning with no capacity for education or paid work – decision made without hearing necessary – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), rr 1.05A(1)(b), 1.12(2)(b)(iii), Schedule 2, cl 864.321

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 Home Affairs on 8 March 2019 to refuse to grant the visa applicant a Contributory Aged Parent (Residence) (Class DG) Subclass 864 visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 December 2016. The visa applicant applied for the visa on the basis that he met the secondary criteria, and his mother was the primary visa applicant in the application. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the visa applicant was a member of the family unit of the primary visa applicant, and therefore did not meet the requirements of cl.864.321.

3. The Tribunal has considered the information provided to the Department, and the matters recorded in the Department’s decision record dated 8 March 2019. The Tribunal has considered the information provided to the Tribunal by the applicant.

4. The Tribunal initially invited the applicant to a hearing, after considering the information available to it. The Tribunal also invited to the applicant to undertake and provide a psychiatric assessment and report. The applicant proceeded to obtain a psychiatric assessment and report, and the psychiatric report dated 6 October 2022 was provided to the Tribunal.

5. The Tribunal has decided that based on all the information available to it, including the psychiatric report dated 6 October 2022, it can make a decision favourable to the applicant, without proceeding to a hearing pursuant to s.360(2)(a) of the Act.

6. The following are the written reasons that the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Cl.864.321 is criteria to be met by secondary visa applicants at the time of decision. This subclause requires that the applicant is a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 864 (Contributory Aged Parent) visa.

8. I am satisfied based on the information provided by the applicant’s representative that the primary visa applicant in this matter, [Ms A], was granted the subclass 864 visa on 3 March 2021. I am therefore satisfied that the primary visa applicant satisfied the primary criteria and is the holder of a subclass 864 visa.

9. I am satisfied based on the translated extract of birth certificate that [the visa applicant] is the son of [Ms A], the primary visa applicant. I am satisfied based on the translated extract a birth certificate that the visa applicant’s father is [Mr B], and based on the medical documents and death certificate on the file I am satisfied the visa applicant’s father is now deceased.

10. Based on the translated extract of birth certificate I am satisfied that the visa applicant was born in [Year], and at the time of application for the visa on 2 December 2016, the visa applicant was [Age 1, between 18 and 23] years of age. I am satisfied that at the time of this decision the visa applicant is aged [Age 2, over 23].

11. R.1.12 defines member of the family unit, and at the time of application the relevant definition of member of the family unit applicable to this review in r.1.12(2) requires a person is a member of the family unit of another person (the family head) if the person: (a) is a spouse or de facto partner of the family head; or (b) is a child or stepchild of the family head or of a spouse or de facto partner of the family head (other than a child or stepchild who is engaged to be married or has a spouse or de facto partner) and: (i) has not turned 18; or (ii) has turned 18, but has not turned 23, and is dependent on the family head or on the spouse or de facto partner of the family head; or (iii) has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or the spouse or de facto partner of the family head; or (c) is a dependent child of a person who meets the conditions in paragraph (b).

12. The visa applicant submits he is a member of the family unit of the primary visa applicant, his mother, the family head, within the meaning of r.1.12(2)(b)(iii). R.1.05A(1)(b) requires that the visa applicant is wholly or substantially reliant on another 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.

13. I am satisfied based on the extract of birth certificate that the visa applicant is the child of the primary visa applicant (the family head). I am satisfied based on the written evidence before me that the visa applicant is not engaged to be married and does not have a spouse or de facto partner.

14. The visa applicant at the invitation of the Tribunal provided a psychiatric assessment and report from [Dr C] dated 6 October 2022. I am satisfied that the psychiatrist assessed the visa applicant in a face-to-face interview with the assistance of an interpreter. The psychiatrist provided an eight page report.

15. [Dr C] advises that the information provided and the consultation with the visa applicant is consistent with an individual with low intellectual functioning. [Dr C] states that the history of the visa applicant is of a man who has become dependent on his mother because of his low intellectual functioning and that his prospects for any education and work are non-existent other than the possibility of heavily supervised token type work at supported type facilities.

16. The psychiatrist opined that he did not accept the conclusion described in the psychologist [Dr D]’s report (provided to the Department and the Tribunal by the visa applicant) that the visa applicant had a personality disorder due to his dependency upon his mother. The psychiatrist recommended that as the psychologist report did not identify the intellectual functioning limitations of the applicant, it would not be appropriate that the applicant have any further therapy or assessments with that psychologist.

17. The psychiatrist concluded that the applicant will never have a capacity for paid work and will never be able to do any meaningful training with a view to work. The psychiatrist advised that the applicant’s functioning is at a level that community services, for example NDIS, urgently need to become involved to provide support and assistance to the visa applicant.

18. The Tribunal accepts the opinions and conclusions of [Dr C]. Based on the conclusions of the psychiatrist in the report dated 6 October 2022 I am satisfied that the visa applicant is incapacitated for work due to the total or partial loss of his mental functions.

19. The Tribunal is satisfied that the visa applicant is incapacitated for work due to the total or partial loss of his mental functions within the meaning of r.1.05A(1)(b).

20. I am satisfied based on the written submissions and statements provided to the Tribunal that the visa applicant resides with his mother in Australia and that his father is deceased. I am satisfied that the visa applicant’s mother, the primary visa applicant in this matter, provides the financial support for the visa applicant from her own source of income and financial means. I am satisfied that the visa applicant’s mother receives financial income from the leased family property in Vietnam. I am satisfied that the payments from this family property to the primary visa applicant are transferred by the primary visa applicant’s brother to his daughter in Australia (the primary visa applicant’s niece) who pays the primary visa applicant her share in Australian currency and in cash.

21. I am satisfied that the visa applicant is wholly or substantially reliant on his mother for financial support. I am satisfied that the visa applicant’s mother attends to all expenses and purchases for the household and provides for the visa applicant’s needs.

22. For all the above reasons I am satisfied that the visa applicant is a member of the family unit of the primary visa applicant (his mother) within the meaning of r.1.12(2)(b)(iii). I am satisfied that the visa applicant is the child of the primary visa applicant, he is not engaged to be married and does not have a spouse or de facto partner, he is over the age of 23, he is incapacitated for work due to the total or partial loss of his mental functions and he is wholly or substantially reliant on his mother for financial support.

23. Therefore, the Tribunal is satisfied that the visa applicant is a member of the family unit of the person who, having satisfied the primary criteria, is the holder of a Subclass 864 (Contributory Aged care parent) visa. The Tribunal is satisfied that the visa applicant meets the requirements of cl.864.321.

    decision

24. The Tribunal remits the application for the Contributory Aged Parent (residence) (class DG) visa for reconsideration with the direction that the visa applicant meets the following criteria for the Subclass 864 (Contributory Aged Parent) visa:

    ·cl.864.321 of Schedule 2 to the Regulations.

    Margie Bourke
    Member