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

1. 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).

2. 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).

3. The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. 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 or mental functions’ under subparagraph (b)(ii) of the definition of ‘dependent child’ under reg. 1.03.  As this subparagraph was not met, the applicant did not meet cl. 802.214(2).   Given the applicant did not meet cl. 802.214(1)(c) and cl. 802.214(2), the applicant was found not to meet cl. 802.214.     

5. The Tribunal exercised its discretion to hold the hearing by teleconference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant appeared before the Tribunal on 21 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and father of the [applicant].  

7. The applicant was represented in relation to the review by his registered migration agent. The agent attended via teleconference. 

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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).

10. 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

11. At the time of application, the applicant was [Age] years old. 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

12. 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).

13. In his application to the Department in July 2018, the applicant indicated he had never married or been in a de facto relationship.

14. In a submission to the Department entitled ‘Statutory Declaration regarding [the applicant]’s previous long-term relationships’, the applicant outlines the two significant relationships in which he has been since 2010.

15. In the applicant’s personal statement dated 26 June 2018, the applicant describes the turbulent on and off again relationship he had with [Ms D] between January – August 2017. Whilst in this relationship, the applicant committed the crime of ‘using a carriage service to menace/harass/offend’ for which the applicant received an intensive correction order to be of good behaviour for 12 months and received a fine of $2,520.  The applicant explained at the hearing that his relationship with [Ms D] had been a reasonably short-term relationship. 

16. At the Tribunal’s hearing the applicant stated that he was currently not in a married or de facto relationship.  He stated that he had not been in such a relationship previously. 

17. The Tribunal has no reason to doubt the oral evidence of the applicant at face value.  The evidence was consistent with that of the applicant’s father.  Accordingly, cl. 802.214(1)(a) is met. It continues to be met at the time of decision.

    Not engaged in full-time work

18. 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).

19. With his application, the applicant submitted a statement entitled ‘Employment Record for [the applicant] Since Age 18’ listing all his places of employment since the age of 18. The applicant submitted that he was employed at:

    -[Recruitment agency] as temporary [Occupation 1], between July – August 2012. Earning a weekly average pay of £120;

    -[Named company] as [an Occupation 2], between October 2015 – January 2016. Earning a weekly average pay of £130. The applicant stated the reason for leaving this job was: “my impulsivity leads me to rash, not-thought-out decisions. Had a disagreement with my boss, walked out in a huff, and that was that”;

    -[Employer 1] in London as an [Occupation 3], between October 2015 – June 2016. Earning a weekly average pay of £350 after tax. The applicant stated the reason for leaving this job was: “let go due to unreliability, related to my condition;

    -[Company 1] as [an Occupation 4], between August 2016 – February 2017. Earning a weekly wage of $1006 before tax. This is the same company at which the applicant’s father, the sponsor, worked;

    -[Employer 2], [Occupation 5], between March – August 2017. Unsure of average weekly wage because the work was sporadic;

    -[Employer 3 staff], between November 2017 – March 2018 and again between April 2018 – July 2018 where he earned a weekly wage of $500. The applicant explained that in March 2018, he was “let go due to unreliability related to my severe depression and mood swings and anxiety (turning up late, not turning up at all, leaving work suddenly without permission)”; and

    -[Employer 4], [Occupation 6], between July – October 2018. Earning an average weekly wage of $1000 before tax. The applicant stated the reason for leaving the job was: “mental health still suffering, was not able to maintain work ethic, became unreliable again even though I really enjoyed the job and they loved me working there. They had to let me go because I wasn’t able to get medical note to them on time, 3 times in a row.”

    Information submitted by the applicant to the department in support of his employment claims includes the following:

    -Payslips in the applicant’s name from [Employer 3] December 2017 – February 2018;

    -Payslips in the applicant’s name from [Employer 2] between March – August 2017;

    -Payslips in the applicant’s name from [Employer 5] between August – September 2017;

    -Pay As You Go payment summary for the 2017 financial year from [Employer 6];

    -A series of [bank] statements in the applicant’s name from June 2016 – January 2019 highlighting deposits made into the applicant’s account; and

    -Pay As You Go payment summary for the 2018 financial hear from [Employer 3].

20. The Tribunal notes the applicant’s father wrote in an email to the Department on 14 August 2019  that the applicant “is able to do some work, but the idea that he is capable of looking after himself or live by himself with all the responsibilities that comes with that is so ludicrous it’s not funny.”

21. The Tribunal has also noted the applicant’s psychiatrist [Dr F]’s report dated 12 April 2019, where he writes, “Due to [the applicant’s] mental condition, he is unlikely to hold down a full-time job. He is therefore dependent on financial support from his father.” [Dr F] continues to hold this opinion in a letter dated 26 August 2019 where he adds that the applicant “was not capable of holding down full-time employment for any extended period of time due to his interpersonal difficulties and impulsivity (as part of his personality disorder) and his depressed/irritable mood (as part of his major depression).”

1. The Tribunal discussed with the applicant his hours of work at the time he lodged his application in July 2018.  He stated that he was generally working 15-20 hours per week at the [Suburb] outlet of [Employer 3].  The Tribunal accepts at the time of application the applicant was not engaged in full-time work. 

2. The Tribunal discussed with the applicant his employment history. He stated that he had tried to work in a full-time role, but everything would inevitably go wrong due to his psychological and mental health.  He stated he had not engaged in any full-time work since prior to the lodgement of his visa application in 2018.  In response to the Tribunal’s questions, he said that he was currently not employed, though he assisted his father, the sponsor, who is qualified [Occupation 7], with [roles] and other jobs he took on from time to time.  The sponsor’s own oral testimony was consistent with this oral evidence. 

3. The Tribunal found the applicant and sponsor’s testimony consistent and reliable.  The Tribunal is satisfied that the applicant was not in full-time employment at the time of application.  The Tribunal is satisfied that the applicant has not been in full-time employment since that time and including now, at the time of decision. 

4. Accordingly, cl. 802.214(1)(b) is met. It continues to be met at the time of decision.

   Full-time study (or incapacitated for work)

5. 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: cl. 802.214(1)(c).

6. This provision appears to contemplate a single full-time course of study at a particular institution (such as a degree or a technical college qualification), although it might well extend to cover a qualification that is obtained from an institution or accreditation body upon satisfaction of a variety of criteria, some of which may be fulfilled by undertaking courses at alternative institutions: Sok v MIMIA [2005] FMCA 190 at [15]-[16]. In determining what is a ‘reasonable time’ for cl. 802.214(1)(c), it is relevant to consider the surrounding circumstances including the actual time involved, what activities were undertaken during that time, the purpose for which those activities were undertaken and, if no relevant activities were undertaken, the reason why: Sok v MIMIA [2005] FMCA 190 at [19]. 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 loss of bodily or mental functions: cl. 802.214(2).

7. Where cl. 802.214(1)(c) applies, it must continue to be met at the time of decision: cl. 802.221(2)(b). For this purpose, the decision-maker must look at the time period from the commencement of study until the time of decision and ask whether, characterised as a whole, the visa applicant’s conduct in that period warrants the conclusion that they have been undertaking relevant study: Hussain v MIBP [2017] FCCA 3247. The visa applicant must also be studying at the time of decision: Opoku-Ware v MIBP (2015) 297 FLR 416.

8. In his application to the Department, the applicant submitted what appears to be a resume outlining his history of education and a submission entitled ‘Question 49 – ‘Education and Qualifications’. The applicant states he completed his A-Levels at [School] in 2012 and then went on to enrol in a Bachelor of [Subject] in [Specialisation 2] degree at [University 1] in 2012. The applicant completed two years of this three year degree. In the applicant’s personal statement to the Department dated 26 June 2018, he writes that after he commenced his university studies, he became increasingly reclusive, anti-social and depressed, eventually leading to the applicant’s withdrawal from university.

9. In his application form, the applicant indicated he was not currently undertaking a tertiary education course of study.

10. The applicant’s father wrote in an email to the Department on 14 August 2019, “We cannot afford to pay overseas student rates and I’m not sure [the applicant] could successfully complete any course right now anyway.”

11. At the Tribunal’s hearing the applicant discussed his Bachelor of [Subject] in [Specialisation 2] degree he undertook at [University 1].  He said he had completed the Foundations course of the degree before successfully completing the subsequent two years.  The Tribunal accepts this was a full-time course of study.  The applicant stated that as his mental health declined in 2014 he began to withdraw from and fail courses, before withdrawing from his university studies in 2015. 

12. The applicant confirmed that he was not undertaking a tertiary course of study when he applied for the visa under review in 2018.  He discussed the [Specialisation 1] subject he successfully undertook in 2020 as part of a Bachelor of [Specialisation 1] course at [University 2].  He stated that he could only study for a certain period of time due to his visa status.  The study was undertaken remotely and was to all intents a part-time course of study.  There is no evidence or claim of any further studies undertaken since this time. 

13. The evidence before the Tribunal is that the applicant has not undertaken any studies or training since withdrawing from is university studies in the United Kingdom in 2014.  The only other claim of studies is the one [Specialisation 1] subject undertaken through [University 2] in 2020. 

14. Accordingly, the evidence before the Tribunal, as provided by the applicant, is that he has not completed any full-time study leading to the award of a professional, trade or vocational qualification since withdrawing from his Bachelor of [Subject] in [Specialisation 2] in 2015 until the date of this decision.

15. The applicant therefore does not meet cl. 802.214(1)(c) at the time of application.  It continues not to be met at the time of decision. 

16. The Tribunal notes however that cl. 802.214(2) states that cl. 802.214(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.  As the applicant was over 18 years of age at the time of application, a ‘dependent child’ requires that the applicant is either dependent or, relevantly to the applicant’s claims in this case, was “incapacitated for work due to the total or partial loss of the child’s bodily or mental functions”: reg 1.03(b)(ii).   

17. The applicant has essentially made the claim they were incapacitated for work at the time of application due to their loss of mental functions.

18. The Tribunal has considered a wide range of evidence before it in the Departmental and the Tribunal file.  These include: 

    -The Opinion of the Medical Officer of the Commonwealth dated 23 May 2019 and 10 September 2019, where the applicant was assessed against Public Interest Criterion 4007 and was found to meet the health requirement for a permanent stay in Australia. The MOC accepted the applicant’s diagnosis of Major Depressive Disorder and Borderline Personality Disorder. In the MOC’s opinion however, the applicant did not have any physical or mental condition that would prevent him from attending a mainstream school, gaining full employment or living independently nor or in the future;

    -The report of Forensic Psychologist [Ms A] of 8 January 2018 that concludes “The symptoms described by [the applicant] at interview, along with his pattern of interactions with others and inability to manage his behaviour, are highly consistent with a diagnosis of Borderline Personality Disorder, with a differential diagnosis of Bipolar Disorder. It is possible for Borderline Personality Disorder and Bipolar Disorder to co-exist though they can be commonly misdiagnosed due to multiple overlapping symptoms. In addition, [the applicant] suffers from cannabis dependence, which is likely to exacerbate symptoms, thereby complicating diagnoses, along with comorbid depression and anxiety. Symptoms of anxiety and depression were within severe to extremely severe levels at the time of assessment. Such mood disorders commonly co-exist alongside BPD”.  [Ms A] goes on to say, “Mood Disorders (depression, anxiety, and Bipolar Disorder) are considered a mental illness under Section 32 of the Mental Health Act (Forensic Provisions) 1990 and Section 20BQ of the Crimes Act 1914 (Cth)”;

    -[Dr B]’s ‘Pre-Sentence Consultation – Psychology’ report dated 27 February 2018 for the NSW Department of Corrective Services where the author stated it was difficult to gauge the risk of the applicant reoffending in a similar way in the future. The report outlined the risk factors that likely contributed to the offence included: intimacy skill deficits, impulsivity, substance addiction, suicide and self-harm risk, loneliness; risks are associated with deportation as the applicant’s social supports are now in Australia rather than in the UK.  [Dr B] noted the applicant’s social support in the United Kingdom was now minimal given the applicant’s mother re-married and lives in [Country], whilst the applicant also cut ties with his mother several years ago. The report notes the positive factors reducing the risk of reoffending included: the applicant’s father providing stable accommodation and parental relationship; the applicant’s insight into interpersonal difficulties, substance use and mental health; the applicant sought assessment treatment with psychiatrist, which commenced in January 2018; at the time of writing in February 2018, the applicant held employment increasing the chance of social contact with peers; the applicant had sought dialectical behavioural therapy in the past, a framework of psychotherapy suited to treating people with borderline personality disorder; no prior offences. [Dr B] states that the key factors relating to the offence appeared to be linked with possible personality disorder and mental illness in conjunction with addition to cannabis and non-prescribed medication misuse;

    -[Ms C]’s Intensive Correction Order Assessment Report prepared for the NSW Department of Justice and dated 6 March 2018.  In this report [Ms C] stated the applicant’s risk of re-offending was assessed as a low medium risk of re-offending. The report references the CSNSW psychology report prepared by [Dr B] on 27 January 2018 which outlines the key factors relating to the applicant’s offence “as being linked with possible personality disorder and mental illness in conjunction with cannabis addiction and non-prescribed medication misuse”. [Ms C] concluded the applicant “is a single man residing with his family who have displayed support for him throughout this process. [The applicant] displayed a willingness to continue addressing his mental health issues through ongoing engagement with a psychiatrist. His psychiatrist also informed that he will be referred to a psychologist when appropriate. Additionally, he stated that he is willing to engage with appropriate service providers to address his cannabis use. [The applicant] would benefit from engagement with a psychologist and a drug and alcohol counsellor”; and

    -The applicant’s psychiatrist [Dr F]’s report dated 12 April 2019, in which [Dr F] diagnoses the applicant with borderline Personality Disorder and Major Depressive Disorder. [Dr F] states that “due to [the applicant’s] mental condition, [the applicant] is unlikely to hold down a full-time job. He is therefore dependent on financial support from is father….Major Depressive Disorder often responds well to therapy and medication. [The applicant’s] prognosis with respect to this condition is good, providing he remains adherent to the medication. Borderline Personality Disorder is a life-long condition and improvement with therapy tends to be slow and often can take years. I think [the applicant] is likely to continue to be impaired by this condition indefinitely”.

19. The Tribunal also noted that in his application to the Department in July 2018, the applicant writes that his father, the sponsor, provides him with money for food, shelter and medication.

20. The Tribunal also notes the sponsor’s email to the Department in response to the Department’s request for further information, dated 14 August 2019, where the sponsor writes, “[the applicant] is able to do some work but the idea that he is capable of looking after himself or live by himself with all the responsibilities that comes with that is so ludicrous it’s not funny”. The sponsor goes on to write that if the applicant’s visa is refused and he is forced to return to the UK, the sponsor is frightened that the applicant “will be one of the many homeless on the streets if I do not go back with him”.

21. At the Tribunal’s hearing the applicant discussed his mental and psychological health.  He firmly maintained that he was unable to hold down any full-time or in many cases part-time employment due to his mental health situation.  He claims to be totally reliant on his father, the sponsor, for financial support because he is not able to work because of his disability. 

22. The Tribunal found the applicant to be an articulate witness who spoke in considerable detail about the psychological challenges he has faced for nearly a decade, their impact upon his studies, his potential employment, his relationships and upon his father, the sponsor. 

23. The applicant held that the reports by his psychiatrist [Dr F] remain an accurate and honest account of his inability to maintain employment.  He discussed his impulsivity and his depression.  He stated that the presence of his father provided him with the stability he required to lead as normal a life as possible.  He discussed the ongoing challenges he has had over some years in trying to maintain even short-term, part-time employment.  

24. The Tribunal has reviewed the considerable medical evidence before it pertaining to the applicant’s mental health.  The Tribunal accepts the claim that the applicant has been diagnosed with and continues to try and manage two specific disorders, a Major Depressive Disorder and a Borderline Personality Disorder.  The Tribunal has placed particular weight on the evidence of his psychiatrist [Dr F] and his psychologist [Ms A].  The Tribunal notes the evidence prepared in relation to his previous criminal sentencing supports this diagnosis. 

25. In determining whether a person is incapacitated for work, the Tribunal notes that Departmental policy suggests that it may be useful to consider Form 26 (Medical examination for an Australian visa) and the subsequent MOC. If the form suggests that there are any physical or mental conditions which may prevent the applicant from attending a mainstream school, gaining full employment, or living independently now or in future, then this could be an indication that they meet reg. 1.05A(1)(b). The Tribunal notes that in this case, the Commonwealth Medical Officer in his own reports, whilst submitting the applicant was in their opinion able to seek full-time employment and live independently, accepted the diagnosis of a Major Depressive Disorder and a Borderline Personality Disorder. 

26. The Tribunal discussed the CMO reports at the hearing.  The applicant stated that he was unaware as to how the CMO concluded he was able to live independently and reiterated he was only able to support himself in the community with the full and unqualified support of his father, who supported these assertions in his own testimony.  The Tribunal has considered the MOCs, and notes, as pointed out by the applicant’s representative, that they only bind the Tribunal for the basis of Public Interest Criteria 4005 and 4007 health purposes. 

27. The Tribunal has considered that the MOC’s assessment of the applicant having the ability and capacity to work full-time and live independently is outside of this requirement.  The Tribunal obviously has great respect for the MOC and its findings.  In the circumstances of this case however, the Tribunal has treated the findings by the MOC as some of the various evidence before it pertaining to the applicant’s mental functions, and his capacity or incapacity for work. The Tribunal subsequently does not consider the MOC is of itself determinative of the key issue as to whether the applicant is incapacitated for work for the purposes of reg. 1.03. Ultimately this is a question of fact for the Tribunal having regard to all relevant claims and all the evidence before it.

28. The Tribunal discussed the applicant’s previous criminal convictions in the United Kingdom and Australia with him: these included damaging property and possessing a controlled drug in MDMA in 2015 and his conviction in 2018 for using a carriage service to menace/harass/offend.  The applicant stated that both of these adverse interactions with the law were the result of his mental health issues.  He stated the 2015 incident in the United Kingdom related to him damaging his own computer whilst living with his mother and being threatened with being made to leave the family home. He claimed the drugs discovered were not his but they were in a bag his mother dropped off to him whilst he was at the Police station.  In relation to his conviction in Australia, the matter related to his sending of a lewd and disgusting picture of his former girlfriend to her father.  The applicant stated he was ashamed of what he had done and had written to both his former partner and her father to seek forgiveness.  He stated he had completed the Restorative Justice programme and completed one day per week community service over a year as part of his sentencing.  The applicant and his father, the sponsor, each attributed the applicant’s actions to his mental and psychological health.  The Tribunal notes the applicant’s criminal conviction and recognises the appalling damage such behaviour can cause innocent parties.  The Tribunal has enormous sympathy for the applicant’s former partner and her family.  The Tribunal notes that the applicant took responsibility for his actions in his evidence and showed, in the Tribunal’s opinion, genuine contrition and distress for his actions and the hurt he caused due to his appalling behaviour.  The Tribunal accepts that his well-documented mental and psychological health challenges had a corrosive impact upon his actions.  There is no suggestion he has had any further adverse interactions with the law since this time. 

29. The Tribunal has noted the various pre-sentencing reports that were prepared in the months leading up to the lodgement of the applicant’s visa application in July 2018.  They speak to the applicant’s mental and psychological health challenges he faced.  The Tribunal considers the applicant’s mental and psychological issues speak directly to his capacity to work due to his, to use the terminology of the Regulations, loss of mental functions at the time of application in July 2018 and since that time.

30. The Tribunal considered the applicant’s evidence in the context of whether his mental health has meant he was incapacitated for work at the time of his application and since that time.  The applicant and his sponsor, his father, have plainly stated that this is the case.  The applicant stated that he had faced a number of hospital admissions due to his mental health in recent years, including in February 2021 where he was ‘sectioned’ by the NSW Police and placed in medical care for a temporary period.  He and the sponsor discussed times where with his father he had gone to the hospital due to his mental health for treatment.  The applicant stated in January 2018 he took himself to the Police station due to concerns he held for himself that he may cause harm.

31. The Tribunal notes the evidence that has been provided of the applicant’s employment record over the last decade.  The sponsor discussed the applicant’s inability to hold down any employment for any reasonable period of time due to his mental health.  The sponsor stated he noted the applicant’s mental health in decline just prior to his departure for Australia, some years before the applicant lodged his application in 2018.  He stated the applicant went off track in his second year at university and he became aware the applicant was facing some significantly deeper psychological issues at that time. 

1. The sponsor discussed the applicant’s treatment with the applicant’s psychiatrist [Dr F].  He stated that the applicant had received treatment every four to six weeks but the treatment waned due to the significant financial cost.  He stated that he personally had spent a substantial amount of time with the applicant working with him and building his confidence.  The sponsor discussed the stress of living with someone diagnosed with a bipolar disorder and the impact that had had on his marriage in Australia.  The sponsor said that the impact of the applicant had ultimately destroyed his marriage, and it was difficult for anyone outside the family to understand the patience and understanding his son needed.  He stated there was no way the applicant could have maintained a job and been independent either at the time of application or now.  He stated that he was nevertheless totally committed to looking after his son.  He stated that, despite his Australian citizenship just being granted, he would depart Australia with the applicant back to the United Kingdom if the applicant’s visa was refused.  He stated that the only relatives left in the United Kingdom that could care for the applicant were the applicant’s remaining grandparents that were very elderly and some dealing with dementia. 

2. The sponsor discussed the applicant’s treatment, that involved the constant use of Dialectical Behaviour Therapy (DBT).  The Tribunal notes DBT is a modified version of cognitive-behavioural therapy (CBT) designed to treat borderline personality disorder. It can also be used to treat other conditions, like suicidal behaviour, self-harm, substance use, post-traumatic stress disorder (PTSD), depression and eating disorders.  The applicant and sponsor discussed how this had been introduced some years ago by the applicant’s psychologist and had significantly assisted the applicant in addressing his mental health issues. 

3. There is substantial evidence before the Tribunal in relation to the applicant’s mental and psychological health challenges.  The Tribunal accepts that at the time of application he was suffering from a Major Depressive Disorder and a Borderline Personality Disorder.  The Tribunal accepts that his mental illness had a significant impact upon his ability to not only be independent, but his ability to hold down ongoing employment. 

4. It is not in dispute that the applicant has not had the ability to hold down at least part-time employment for a relatively short period of time.  At the time of application he was working in a part-time role at [Employer 3]. The applicant has supplied a wide range of documentation in relation to his past employment.  The evidence presented suggests the applicant was unable to hold down any employment for any significant amount of time. All of his past employment has been short-term and appears to have ended due to the mental health challenges of the applicant.  He has not held down full-time employment at anytime since his application.  Given the medical evidence and testimony before the Tribunal, the Tribunal has grave doubts as to the applicant having the ability to either support himself financially through ongoing employment or in a broader sense of living independently due to his mental health.  The Tribunal accepts he is highly reliant and dependent on his father, the sponsor. 

5. In such circumstances, the Tribunal has turned its attention to a decision of the Full Bench of the Federal Court: Cole v Minister for Immigration and Border Protection [2018] FCAFC 66. The Tribunal notes the term ‘incapacitated for work’ is not defined in the Act or Regulations. In Cole the term was considered in the context of reg. 1.03(b)(ii), which states that a child may be considered a dependent child if they are incapacitated for work due to the total or partial loss of their bodily or mental functions. The Court held that the word ‘incapacitated’, whether for work or otherwise, does not mean totally incapacitated, and is capable of including substantially incapacitated. The Court said at [26] :

   …we consider that “incapacitated for work” does not mean exclusively wholly incapacitated, but may extend to substantially incapacitated for work. It would not be appropriate to extend it to trivially or only minimally incapacitated for work because there would not be significant impairment of income earning ability.

6. The Tribunal furthermore notes Cole is also authority for the two stage process for assessing incapacity for work, as laid down in Re Panke and Director-General of Social Security (1981) 4 ALD 179, and approved in Annas v Director-General of Social Security (1985) 8 FCR 49 should be adopted. The Court said at [67]:

   …the decision maker should, first, plainly identify what the disabilities of the relevant person are and, in light of that finding (based on medical and related evidence), determine whether there is paid work that the person, with such disabilities, has the capacity to perform.

7. The Tribunal notes that reg. 1.05A(1)(b) is intended, as outlined in Departmental policy, to preclude full, independent functioning adults from otherwise meeting the definition of dependent.  The ‘exception’ available through cl. 802.214(2) is there for those that are unable to work to support themselves financially because of that disability, and that they should be considered dependent on the person providing them with financial support. 

8. On the totality of the evidence before it, the Tribunal is satisfied that the applicant is suffering from long-term and ongoing mental health disabilities in relation to a Major Depressive Disorder and a Borderline Personality Disorder.  On the facts before the Tribunal, these mental health disabilities at the time of application, and since that time, have precluded the applicant from engaging in paid work on an ongoing basis to the extent he is able to have any prospect of independence.  He has remained dependent and reliant upon his father, the sponsor, for his necessities of life since this time.  The applicant has illustrated the ability to acquire various part-time and low-earning jobs since prior to his application up until recent years.  He has not however been able to maintain employment, and these jobs have been terminated, often by the employer, due to the applicant’s inability to meet his obligations as a paid employee.  The Tribunal is confident on the evidence before it that this inability to maintain employment is a result of the applicant’s well-documented and significant mental and psychological health challenges.  The Tribunal is satisfied that the applicant subsequently remains dependent upon his father, his sponsor, for financial support and for his base needs such as accommodation and for the funding of food and clothing.  The Tribunal found the applicant’s father to be both a compelling witness as well as an admirable man who has made and continues to make enormous sacrifices for his son.        

9. Accordingly, on the evidence before it, the Tribunal is satisfied that the applicant is incapacitated for work due to the total or partial loss of his bodily or mental functions: reg. 1.03(b)(ii).  The applicant therefore meets the definition of a dependent child under reg. 1.03. 

10. The applicant subsequently meets cl. 802.214(2), as the applicant, at the time of making the application, was a dependent child within the meaning of reg. 1.03(b)(ii).

11. For the reasons above, cl. 802.214 is met at the time of application.

12. At the time of decision, cl. 802.214 continues to be met. Accordingly, cl. 802.221(2)(b) is met.

13. Given the findings above, the appropriate course is to remit the matter to the Minister to consider the remaining criteria for the visa.

    DECISION

14. 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 Owen
    Senior Member