1928559 (Migration) - [2021] AATA 5229

1928559 (Migration) [2021] AATA 5229 (27 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1928559
MEMBER:SM Justin Owen
DATE:27 October 2021
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for a Child (Residence) (Class BT) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 802 visa:
·cl. 802.214 of Schedule 2 to the Regulations; and
·cl. 802.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 27 October 2021 at 4:37pm

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) – Subclass 802 (Child) – dependent child – over 18 at time of application – relationships, study and work – two significant relationships not de facto or married – incapacitated for work due to loss of mental functions – borderline personality and major depressive disorders – not working or studying full-time at time of application or since – limited part-time work and study – drug use and criminal offences – intensive corrections order, restorative justice and mental health treatment – medical, psychological and corrective services reports – sponsor/father’s and step-family’s stability and support in Australia – mother now living in third country unable or unwilling to provide support – minimal support available in home country – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03(b)(ii), cls 802.214(1), (2)(b), 802.221(2)(b)
CASES
Annas v Director-General of Social Security (1985) 8 FCR 49
Cole v MIBP [2018] FCAFC 66
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Re Panke and Director-General of Social Security (1981) 4 ALD 179
Sok v MIMIA [2005] FMCA 190
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 by a delegate of the Minister for Home Affairs on 19 September 2019 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s. 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 2 July 2018. 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 only been made in respect of Subclass 802 (Child).
The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that cl. 802.214(1)(c) was not met because the delegate was not satisfied that the applicant demonstrated he was enrolled in and participating in full-time education at the time the application was lodged. The delegate furthermore was not satisfied that the applicant had a medical condition that met the definition of being ‘incapacitated for work due to the total or partial loss of the child’s bodily…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1928559 (Migration)

Details

AGLC: 1928559 (Migration) [2021] AATA 5229
Case: [2021] AATA 5229
Decision Date: 27 October 2021

CaseChat Overview and Summary

The applicant, who was over 18 at the time of application, sought a Child (Residence) (Class BT) visa, Subclass 802. The core dispute concerned whether the applicant qualified as a "dependent child" under regulation 1.03(b)(ii) of the Migration Regulations 1994, specifically by demonstrating incapacitation for work due to the loss of bodily or mental functions, and consequently satisfying clause 802.214(2) by being reliant on the sponsoring parent for financial support. The applicant's circumstances involved significant mental health challenges, including borderline personality and major depressive disorders, leading to an inability to work or study full-time. This was compounded by drug use, criminal offences, and a period of intensive correction and mental health treatment. The applicant's father, the sponsor, and his step-family reside in Australia and provide support, while the applicant's mother lives in a third country and is unable or unwilling to offer assistance. Minimal support was available in the applicant's home country.

The Tribunal was required to determine if the applicant's claimed incapacitation for work due to mental health issues was sufficiently established to meet the definition of a dependent child. This involved assessing the evidence presented, including medical, psychological, and corrective services reports, alongside statutory declarations from the applicant, his father, and his former stepmother. The Tribunal also considered the applicant's limited part-time work and study history, his relationships, and the stability and support offered by his sponsor and step-family in Australia, contrasted with the lack of support in his home country and from his mother.

The Tribunal reasoned that the applicant's extensive documented mental health issues, supported by various expert reports and personal statements, indicated a significant loss of mental functions rendering him incapacitated for work. The Tribunal acknowledged the applicant's struggles with mental health and substance abuse, his engagement with treatment and restorative justice processes, and the lack of viable support structures in his home country. Crucially, the Tribunal found that the applicant's father and step-family in Australia provided a stable and supportive environment, which was essential for the applicant's well-being and potential recovery. The Tribunal concluded that the applicant met the criteria for being a dependent child due to his incapacitation for work.

Consequently, the Tribunal remitted the application for a Child (Residence) (Class BT) visa for reconsideration. The remittal was directed with the finding that the applicant meets the criteria under clause 802.214 of Schedule 2 to the Regulations and clause 802.221(2)(b) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant can demonstrate that he is a dependent child within the meaning of reg. 1.03(b)(ii) of the definition of dependent child: requiring the applicant to be a dependent child due to being incapacitated for work due to the total or partial loss of the applicant’s bodily or mental functions. The applicant must show he is reliant on the sponsoring parent for financial support because he is not able to work because of his disability and therefore satisfy cl. 802.214(2). The Tribunal has noted a wide range of documents in the Departmental file including: -A number of identification documents and certificates including copies of: the applicant’s UK police check; the applicant’s birth certificate; the applicant’s UK passport; the applicant’s mother’s [Country] residence permit; the applicant’s mother’s marriage certificate to her new husband (the applicant’s stepfather); the applicant’s former stepmother’s Australian passport; the applicant’s former stepmother’s UK passport; the applicant’s former stepmother’s Australian Citizenship certificate; the sponsor’s birth certificate; the sponsor’s Australian police check; the sponsor’s NSW driver’s licence and Medicare card; the sponsor’s UK passport and the sponsor’s updated UK passport;-NSW Police Facts Sheet dated [September] 2017;-The applicant’s court attendance notice stating the applicant was required to attend [a] Local Court [in] September 2017 for committing the offence of using a carriage service to menace/harass/offend;-ACRO Subject Access Request – Police National Computer Nominal Report dated [December] 2017 outlining the applicant’s criminal offence history in the UK stating the applicant was arrested [in] September 2015 for Destroy or Damage Property and Possessing a Controlled drug – class A – MDMA;-A psychologist report prepared by Forensic Psychologist [Ms A] of [named Psychologists] dated 8 January 2018;-NSW Department of Corrective Services Case Note Report entitled ‘Pre-Sentence Consultation – Psychology’, prepared by [Dr B] dated 27 February 2018;-NSW Department of Justice: Intensive Correction Order Assessment Report signed by [Ms C] dated [March] 2018;-Local Court of NSW Intensive Correction Order addressed to the applicant dated 7 March 2018;-A statutory declaration signed by [the applicant’s mother], dated 19 June 2018 stating she supports the decision for the applicant to live in Australia to protect his emotional wellbeing; stating the applicant has no home in the UK as she lives in [Country] and she cannot provide accommodation nor the necessary emotional support that the applicant needs at her home in [Country]; that the applicant has no suitable relatives in the UK who could provide the applicant with shelter; that she understands the applicant is suffering from mental health problems and that the parental responsibility for the applicant lies with the applicant’s father (the sponsor);-A personal statement authored by the applicant dated 26 June 2018 explaining how the applicant came to Australia; his relationship with [Ms D]; the events that led to him committing the crime of using a carriage service to menace/harass/offend; his struggles with his mental health and substance abuse; that he has been seeing a psychiatrist monthly since January 2018, has been completing his community service and is attempting the process of Restorative Justice with [Ms D]; that the applicant is not fit for work, can barely feed himself or hold down a full-time job and his family are suffering the effects of his disorder as well.;-A statutory declaration signed by the sponsor and dated 26 June 2018 stating that the applicant worked at [Company 1], a company that the sponsor helped to establish and currently works, where the applicant showed great promise in the technical department and would have been employed permanently if his visa allowed; the applicant made a horrible mistake, as a reaction, while under severe strain, loneliness and depression. It was a simple click of ‘send’ on a mobile phone; the applicant had never done anything like that before and certainly never will again. He has shown true remorse, severe regret and offered a genuine apology. The sponsor believes the applicant can grow into a productive member of Australian society, he just needs some more love, care, attention and continued therapy which the sponsor is determined for the applicant to access under the sponsor’s care in Australia. The sponsor maintains if the applicant’s visa is refused, he is frightened for what would happen to the applicant if he returned to the UK with very little family, and no family who can care for him or offer him a home. The applicant’s mother now lives in [Country] and has refused the applicant any shelter or support in [Country]. The sponsor maintains if the applicant’s visa was refused, the sponsor would be forced to leave Australia, his wife and the job he loves to ensure the applicant was cared for and had shelter in the UK. The sponsor also notes the devastating impact this would have on the sponsor’s wife and his step-daughter who he has helped look after since she was five;-A statutory declaration signed by the applicant’s former stepmother [dated] 19 July 2018 stating that if the applicant is able to live in a stable family unit willing to enlist the required ongoing professional assistance he needs, then his mental capacity and understanding will improve; stating that one of the applicant’s hopes for the future is to have a meaningful job/career in Australia; if the applicant returned to the UK, he would have no family to offer him shelter; that the applicant’s mother offers the applicant no home for the applicant at her home in [Country]; that the applicant’s stepmother and father (the sponsor) are very fearful of what will become of the applicant if he is forced to return to the UK where he has no home or ability to function and support himself; and that the applicant’s improvement can only be made with his Australian family at their home where there is love and support;-A report signed by psychiatrist [Dr F] dated 12 April 2019;-The applicant’s Australian police check dated [May] 2019 indicating the applicant was charged with the offence of using a carriage service to menace/harass/offend with the court result being an intensive correction order to be of good behaviour for 12 months and a $2,520 fine;-An email dated 14 August 2019 from the applicant’s father to the Department in response to the Department’s request for further information; -A letter from psychiatrist [Dr F] dated 26 August 2019 in response to the Department’s request for further information;-An email from the applicant’s representative [to] the Department in response to the Department’s invitation to comment on information dated 6 September 2019;-A submission entitled ‘Statutory Declaration regarding [the applicant]’s previous long-term relationships’, undated, where the applicant outlines the two significant relationships in which he has been since 2010;-A submission entitled ‘Details of Criminal Conviction for 802 Visa’ outlining that the applicant has been charged with the offence of ‘use of a carriage service to menace/harass/offend’ under section 474.17(1) of the Criminal Code Act 1995. The sentence for the offence was a 12 month Intensive Corrections Order, served in the community – 30 hours of community service/month, commencing March 2017 and ending March 2018;-A letter of apology to [Miss D]’s father apologising for the crime he committed against [Miss D], undated;-A letter of apology to [Miss D], undated;-A submission containing a series of answers related to the applicant’s places of residence, employment, AFP Police Check, education and qualifications and details of the applicant’s conviction and court proceedings;-A series of the sponsor’s payslips from [Company 1] from January 2017 and May 2018;-The sponsor’s [Bank] Statement for the period of 21 December 2017 – 21 March 2018 with annotations indicating withdrawals and transfers to the applicant;-An Electricity account summary in the sponsor and the sponsor’s wife’s name from January 2018 – April 2018;-A series of the applicant’s payslips and PAYG payment summaries from his various employers;-The applicant’s [Bank] Statement for the period of 11 June 2016 – 9 January 2019 highlighting deposits made into his account;-A copy of the applicant’s curriculum vitae and cover letter; and-Photos of the applicant with his family in Australia.Documents provided to the Tribunal include, but are not limited to:-A copy of the Delegate’s decision record and notification letter;-A copy of the applicant’s UK passport;-A copy of the sponsor’s UK passport;-A submission from the applicant’s representative;-Correspondence dated 21 June 2021 confirming the approval of the sponsor’s application for Australian citizenship; -An application to NSW Health for the release of all records pertaining to the applicant’s mental health between 1 January 2018 and October 2021;-The applicant’s Certificate of Credit from [University 1] where he was a student between 2013 and 2014; and-The applicant’s results from [University 2] where he completed a course in the Fundamentals of [Specialisation 1] in 2020.Criteria for applicants over 18

Decision

Reasons for decision

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 criteria for a Subclass 802 visa:·cl. 802.214 of Schedule 2 to the Regulations; and·cl. 802.221(2)(b) of Schedule 2 to the Regulations.Justin OwenSenior Member

Ratio Decidendi

Legal Principle Established

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