1925555 (Migration)

[2020] AATA 5898

1925555 (Migration) [2020] AATA 5898 (11 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1925555

MEMBER:Margie Bourke

DATE:11 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 11 November 2020 at 8:17am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – request for postponement declined – ‘under 25 years of age’ requirement – incapacitated for work – mental health illness – dependent personality disorder – anxiety and depression – full-time student undertaking tertiary education – unique and exceptional circumstances – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 101.211

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 4 July 2019 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 8 August 2018. 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(1)(b) that requires the visa applicant has turned 25 years at the time of application, subject to cl.101.211(2).

4. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate found the visa applicant had turned 25 years at the time of application, and that cl.101.211(2) did not apply.

5. The tribunal had regard to the objectives of providing a mechanism of review that is fair, just, economical, quick and informal.  The tribunal had regard to the nature of the review, and the circumstances of the visa applicant who is overseas and cannot attend in person at a hearing to give his evidence. The tribunal decided it was appropriate in the circumstances of this review to conduct the hearing by video.  All participants, the review applicant, visa applicant, representative, interpreter, witness and the member attended the hearing by video.

6. The hearing invitation was sent to the review applicant on 8 October 2020, inviting the review applicant to the hearing on 10 November 2020.   The tribunal received a request for postponement of the hearing dated 19 October 2020, requesting the hearing be re-scheduled between 10 and 25 December 2020.  The reason for the request was so the review applicant could return to Bangladesh and collect documents from ‘Bangladesh related persons’.  The tribunal considered the request but advised the review applicant that in the circumstances where she had provided evidence that visa applicant is an adult and currently residing in Bangladesh, if the documents needed to be obtained in person, the visa applicant could undertake to collect them.  The tribunal also considered that in the circumstances of the covid-19 pandemic it was possible the review applicant would not be permitted to travel.

7. Further the tribunal considered it was reasonable for documents to be obtained by the review applicant by email or other electronic means without the necessity of her travelling to Bangladesh to obtain them. For these reasons the tribunal advised the review applicant in its response dated 19 October 2020, that it did not consider the request for postponement was either necessary or appropriate in order for the review applicant to be able to provide the tribunal with the documents that she wished to submit in support of the review.

8. The review applicant provided the tribunal with written submissions, including a statement from the review applicant dated 3 November 2020, statement of review applicant dated 2 November 2020, statement [Ms A] (review applicant’s sister), psychological report dated 24 October 2020, the hearing response, the visa applicant’s passport and birth certificate, the visa applicant’s acknowledgement of student visa 15 March 2016, the visa applicant’s confirmation of enrolment in Australian educational institutions 2010-2012, 2013 – 2016, 2015 (two month English course), 2016 – 2018, 2017 (two month English course), the visa applicant’s health insurance cover in Australia 2016 – 2019, the visa applicant’s notification of results from [University 1], [Faculty 1], Dhaka, 2018 and 2019, the visa applicant’s student identity card, the visa applicant’s tuition fee receipt record 2017-2018, ASIC business name registration and renewal and trademark registration, review applicant’s bank statement and her Bangladesh identity card and prescription dated 7 September 2020 provided twice, the visa applicant’s bank statement opened 14 January 2018, and three childhood photos of the visa applicant and one photo of the review applicant and visa applicant.

9. The review applicant appeared before the tribunal on 10 November 2020 to give evidence and present arguments. The tribunal also received oral evidence from the visa applicant and his aunt, [Ms A]. The tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

11. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Dependent child criteria

12. 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.

    Applicant under 25 or incapacitated for work

13. At the time of application, the visa applicant must not have turned 25. However, 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 total or partial loss of bodily or mental functions: cl.101.211(1)(b), (2).

14. I have considered the visa applicant’s extract from the register of birth that records his date of birth, and his passport that records his date of birth, and his statement that commences “I am [the visa applicant] dob - [date].” All the records state the exact date of birth that I have intentionally omitted from this decision record. I have considered the evidence in the hearing, and I am satisfied that the visa applicant was born in [month, year]. The application for the visa was made on 8 August 2018.  I am satisfied that the applicant turned [age] years in [month, year], and therefore had turned 25 before the application for the visa was made.

15. At the time of application the visa applicant had turned [age].

16. I have considered whether cl.101.211(2) applies. I have considered the psychological report dated 24 October 2020 that concludes the visa applicant has a dependent personality disorder, and suffers anxiety and depression. I accept the conclusions of the psychologist.

17. I am satisfied that the visa applicant commenced a [Discipline 1] degree in 2018 at [University 1], Dhaka, and has completed the first two years of his [degree], and his evidence is that he expects to complete the [degree] in October 2021. I accept the visa applicant did not commence at the beginning of the first semester in 2018, and was approximately three months behind, but has maintained a steady involvement in the degree and attained passes in the required subjects. I accept at the time of application the visa applicant was studying first year of a [degree] on a full time basis. I accept the visa applicant continued to study his [degree] online in 2020 during the covid-19 pandemic.

18. I am satisfied the visa applicant’s father died when he was young, and he has a close bond with his mother.  I accept that the visa applicant has experienced some mental health issues when studying in Australia, which have continued since his return to Bangladesh.  I accept that the visa applicant has spent many years separated from his mother, including substantial periods of his secondary and tertiary study in Australia from 2010 to 2017, and tertiary study in Bangladesh from 2018.I accept the visa applicant’s evidence that he has sought treatment, and feels that he is recognising and managing his symptoms.  I accept that the visa applicant’s mental health issues are indicated to stem from a very close attachment and dependence upon his mother, and from years of separation from his mother since 2010 when he was [age] years of age. I accept the visa applicant suffers depression and anxiety, to the extent he fears socialisation, and I accept that separation from his mother affects his concentration, and makes him sad.  I accept the visa applicant has experienced mental health illness. 

19. I accept the evidence of the review applicant, the visa applicant and his aunt that the visa applicant is emotionally, mentally and financially dependent upon his mother the review applicant.  I accept that separation from his mother has a detrimental effect upon the visa applicant.  I accept the review applicant is concerned for her son’s safety and mental well being. I accept the visa applicant’s aunt assists the visa applicant in Bangladesh by cooking his meals and providing some support, but this is difficult because she has her own family.

20. I accept that the visa applicant is a full time student, and not employed.  I accept he is financially supported by his mother.  My assessment of his capacity to work, based on the evidence before me, is that the visa applicant is not incapacitated for work due to loss of bodily or mental functions.  I am satisfied that the visa applicant is not working because he is a full time student undertaking a [degree].

21. I discussed with the participants in the hearing that there is a difference between dependency and incapacity.  The visa applicant stated in his evidence that he was dependent on his mother, but he did not think he was incapacitated. After analysing the evidence, I am satisfied that the visa applicant is a full time [student], and is not incapacitated from work or from study.

22. I have considered the written and oral evidence before me, and my analysis of the evidence is that it does not establish that the visa applicant is incapacitated from work due to partial or total loss of bodily or mental functions.  I am not satisfied that the visa applicant is incapacitated for work due to the partial or total loss of bodily or mental functions, and is not a dependent child within the meaning of r.1.03(b)(ii).

23. For the reasons discussed above, I am satisfied that the visa applicant had turned 25 years at the time of application, and I am not satisfied that the visa applicant was incapacitated for work due the total or partial loss of bodily or mental functions.

24. Therefore the visa applicant does not meet the requirements of cl.101.211(1)(b) and cl.101.211(2) does not apply.  

25. The visa applicant does not meet the criteria in cl.101.211.

26. 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

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

    Ministerial Intervention

28. I have considered that this review exhibits unique and exceptional circumstances that warrant a recommendation to the Minister for a consideration of the exercise of his powers under s.351 of the Act to substitute a more favourable decision to the visa applicant. The relevant factors include the exceptional circumstances that the visa applicant studied in Australia for seven years, and was mistakenly not included in his mother’s successful application for an Australian permanent visa because the visa applicant was in Australia at the time.  I accept the visa applicant returned to Bangladesh to be reunited with his mother, only shortly before, ironically, she was granted the Australian visa, and departed Bangladesh. I have also considered the compassionate circumstances in relation to the visa applicant’s mental health, his commitment to study by continuing to complete his [degree], and the evidence of the impact of the separation on both the review applicant, an Australian permanent resident, and the visa applicant.

    Margie Bourke
    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 or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-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 or step-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.

    …