2112913 (Migration) - [2022] AATA 2524

2112913 (Migration) [2022] AATA 2524 (10 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2112913
MEMBER:David Crawshay
DATE:10 June 2022
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 10 June 2022 at 10:59am
CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – applicant aged over 18 – full-time study or incapacity for work – physical and mental health – no study and seven months of unpaid work experience in high-pressure and potentially dangerous job – illegal resident in third country beaten and tortured by authorities – consideration of suitability for referral for ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359AA
Migration Regulations 1994 (Cth), r 1.03 (b), Schedule 2, cl 101.213(1)(c), (2)
CASE
Cole v MIBP [2018] FCAFC 66
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 4 August 2021 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 9 April 2019. 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).
The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.101.213, which requires a visa applicant who has turned 18 to satisfy certain criteria related to work and study unless incapacitated for work. A full extract of the clause is given below.
The delegate refused to grant the visa on the basis that cl.101.213 was not met because the delegate found that the visa applicant had turned 18 and was not a full-time student at the time of application, nor was he incapacitated in the manner required under the applicable clause. A copy of the decision record was provided to the Tribunal by the review applicant.
The review applicant appeared before the Tribunal on 7 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, and from [Mr A], the review applicant’s husband and the visa applicant’s father. Another of the review applicant’s sons, [Mr B], attended as a support person. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The review applicant was represented in relation to the review by her representative, who attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies certain criteria for applicants aged 18 years or over relating to post-secondary studies under cl.101.213(1)(c) or whether cl.101.213(2) applies.
Criteria for applicants over 18
Clause 101.213 states as follows:
(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.
[emphasis in original]
Subregulation (b)(ii) of the definition of “dependent child” in r.1.03 states 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:
(a) …
(b) has turned 18 and:
(i)…
(ii)is incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions.
[emphasis in original]
The requirements in cl.101.213 must continue to be met at time of decision: cl.101.221(2)(b).
Full-time study (or incapacitated for work)
At the time of application, the visa 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.101.213(1)(c). 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.101.213(2).
The delegate’s decision found, among other things, that the visa applicant was not incapacitated in the manner required under cl.101.213(2), basing the finding on the lack of evidence showing such incapacity.
Before hearing, the Tribunal received several documents that sought to attest to the visa applicant’s incapacity to work based on several claimed health conditions. These documents include the following translated documents attached to an email from the review applicant’s representative dated 1 June 2022 (which are subsequently referred to as “Annexure 2” in the representative’s submissions):
·A document titled “medical certificate” given by a person described as a “neurosurgery specialist” and “spine surgery subspecialist” dated 22 November 2021, stating that the visa applicant has “amnesia due to nervous and mental diseases and he has been under medical care and treatment for several years and he has not gotten better that his work and education have been retarded due to the said disease and he is not able to work and educate properly”;
·A document titled “certificate” from a person described as a “psychology senior expert” dated 24 November 2021, stating that the applicant has “lots of problems i.e. nervous and mental that has endangered his health and has caused lots of harms due to loneliness and being away from family; currently suffers from problems such as: stress, violence, depression, insomnia, weakness in concentration as well as sudden convulsion so that he has become disable in doing his job and daily life works…”;
·Several documents titled “medical certificate” and variously dated 28 July 2015, 27 May 2016, 11 July 2017, 1 November 2018, 30 March 2019, 10 July 2020, 24 July 2021 that appear to be records of prescriptions in respect of the visa applicant. The medications featured in these documents are escitalopram, diazepam, cipralex, doxepin and levetiracetam;
·A document titled “employment certificat [sic]” dated 29 November 2021 and signed [Employer], stating that the visa applicant “had been working in this store to learn selling as of April-May up to October-November 2020 on part time basis but he could not continue his job due to nervous and mental problems as well as amnesia. His disease got worse and he couldn’t learn any skills anymore, even he caused damages to the store in last days and he got fired from learning selling and he was guided to neurologist and psychologist by assistance of charitable people”;
Originals of these translations were sought and subsequently provided at hearing. The Tribunal accepts that they are genuine.
A letter of submissions by the review applicant’s representative and dated 25 May 2022 were also attached to the above email. In these submissions, the representative relevantly stated as follows:
[The applicant] suffers from a mental health condition which causes depression, insomnia, amnesia, sudden convulsions and a lack of concentration. He has received ongoing treatment by neurological specialists and senior psychological experts and has been a patient of [Dr C] for many years, including prior to the lodgement of this application (Annexure 2). We provide the medical certificates at Annexure 2 which demonstrate that [the applicant] has been prescribed medication for this condition since approximately July 2017. Both [Dr D] and [Dr C] indicate that this condition impacts on [the applicant]’s ability to work and study, meaning that he is substantially dependent on the review application [sic] to provide for him financially to support him. As such, we submit that [the applicant] was incapacity [sic] for work or study due to a total or partial loss of his mental functions.
The delegate has noted that [the applicant] has undertaken 7 months of unpaid work experience at [Employer], a [Job task] workshop, and only undertaking some home schooling. We submit that the Review Applicant received bad migration advise [sic] from their former migration agent that it would be beneficial to her son’s case for him to undergo work experience. Regardless of this advice, he was ultimately unable to complete this work experience due to his incapacity and had his work experience terminated as a result. He has not been able to undertake any work or study since.
Consequently, we submit that if [the applicant] was unable to successfully complete unpaid work experience, he would be unable to maintain stable employment.
For the reasons above, we ultimately submit that the severity of his condition impedes on [the applicant]’s mental function and ability to study or work, making the assessment under cl.101.213(1)(c) unnecessary as he fits within the definition of a ‘dependent child’ of the Review Applicant.
…
Both specialists in Annexure 2 note that despite the several years of treatment, his condition has not improved and the separation from his family is exacerbating his condition. [Dr C] in November 2021 particularly notes that the condition prevents him from working and being able to progress with his education. [The applicant] has not been able to continue undertaking any form of work experience, work or study to support himself.
[emphasis in original]
At hearing, the Tribunal heard from the review applicant who said that she had visited the visa applicant twice in [Country 1] and he told her that he had been beaten and tortured by the [Country 1] authorities because he did not have any documents and was illegal. The review applicant told the Tribunal that the visa applicant has not worked over the years because he had depression and was unwell. She said that he did not have identity documents and that he was therefore not able to move freely or work. The Tribunal at this point to her that according to evidence provided he had worked, to which she responded that he was encouraged to do this by a lawyer but suffered from constant headaches.
The Tribunal put its concerns to the review applicant about whether a genuine effort was made to get the visa applicant to work if the work was in a high-pressure job such as [Job task], which is hard work where you deal with dangerous materials. She replied that her lawyer instructed the visa applicant to work and that she wanted him to learn some skills. She said that he became unwell. The Tribunal asked her whether he was unwell if he had worked there for six-and-a-half months in total and had worked for 28 days in his second-last month of working. She replied that he kept working until the time he could not cope and then left. The Tribunal put to the review applicant that the visa applicant would have stopped working there earlier if he were unwell. She replied that he had problems and because he missed everybody, he kept himself involved with work. The Tribunal suggested that being involved in work is a way that the visa applicant could keep himself busy and give his life meaning and asked her if this was a fair statement to make. She replied that it was.
The Tribunal told the review applicant that it considered “work” to span the spectrum between hard physical jobs (such as ones like [Job task]) to ones that may be less physically and mentally taxing, such as stacking shelves, data entry and working in a shop. It asked her if she thought the visa applicant was unable to perform any work because of his conditions. She replied that he was not working at all at the moment, and he cannot work. She said that he has depression and he misses her.
The Tribunal at this point took the review applicant’s attention to the letter from the neurosurgeon that claimed the visa applicant was unable to work, and put to her that this claim may have been influenced by the fact that the visa applicant had just finished working at a [Job task] workshop. She said that the visa applicant complains a lot about missing his family and about getting headaches.
The Tribunal put to the review applicant that there was no evidence that the visa applicant had discussed the claims of torture and beatings with medical professionals. She replied that the doctors’ reports said that he was being treated for mental illness, and he had told her that he has headache problems and has no one there. The Tribunal asked the review applicant when the torture and beatings occurred. She replied that when she met him in [Country 1], he told her about his headaches, the beatings and his back pain. Upon hearing that the review applicant was unable to list dates, the Tribunal put to her that she would remember when her son was tortured. She replied that her heart is wounded because the visa applicant told her that he had been beaten.
The Tribunal interviewed the visa applicant, who told it that he had been learning basic things in his job at the [Job task] workshop, including [Specific job task]. He said that his mental health was not good and could not perform in the job, so they let him go.
The Tribunal asked the visa applicant to list the health conditions he suffers from, to which he replied that he has mental issues, cannot sleep at night, is worried about his parents and is lonely. When asked what diagnoses he has, he replied that he becomes short-tempered because he has mental issues and was tortured. The Tribunal again sought to ascertain his diagnoses, he said that his condition is not good and he becomes short-tempered.
The Tribunal asked the visa applicant when he was tortured, and he replied that he did not remember exactly, but was beaten up by the [Country 1] police a lot. He said that he was beaten up because he was illegal and did not have identity documents.
As it did with the review applicant, the Tribunal put to the visa applicant that it considered “work” to span the spectrum between hard work and more simple work, that he might be able to undertake work, and that it might be beneficial to him. The visa applicant replied that, if the work was in a shop, then he is illegal. It asked him about whether he could undertake work that did not involve meeting with customers or clients, to which he replied that he was mentally really unwell and unable to work because of his mental wellbeing. He said that he misses his family very much.
The Tribunal asked the visa applicant how long he had been seeing medical professionals, and he replied that he did not know exactly but it began a long time ago. He said that he did not tell his family because it would have made them depressed. The Tribunal asked the visa applicant how often he currently sees medical professionals, and he replied that he saw his psychologist every week. When asked the name of the psychologist, the visa applicant said that he did not remember the name.
The visa applicant told the Tribunal that he was living alone in a rented room. When asked about whether he cooks, he replied that he mostly goes to eat outside. He said that he can cook eggs but not anything else because his mental health is not good.
At the conclusion of its questioning of the visa applicant, the Tribunal put to the review applicant two concerns it had arising from his evidence – one that it put pursuant to its obligation under s.360 of the Act, the other which it chose to raise under the specific requirements of s.359AA of the Act.
The former concern related to the fact that the visa applicant had stated that he engaged in [Job task] work during his time at the workshop. This was in issue because the review applicant’s representative had submitted that the abovementioned letter from the visa applicant’s old work had suggested that he was in “selling”. It put to her that the job was harder than what had been suggested in the letter. The review applicant replied that her son does not have balanced mental health.
The latter concern which was the subject of the s.359AA process related to the fact that the visa applicant was unable to remember the name of his psychologist, despite claiming to see health professionals every week. It put to her that the information was relevant because it suggested that the evidence of the visa applicant’s treatment may not be true or the level of treatment may be exaggerated. The visa applicant told the Tribunal that sometimes when the visa applicant needs medications, he gets them from his doctor but the doctor would not say his name. She said that she took him to the doctor on one occasion.
The Tribunal heard from the review applicant’s husband, [Mr A], who told it that the visa applicant has mental illness. When asked what specific illness he has, [Mr A] replied that he had been separated from them for a long time, and had been tortured. When the Tribunal repeated its question about what specific illness the visa applicant had, [Mr A] said that he only spoke to him on the telephone and had not seen him in 12 years.
When asked to discuss the claim that the visa applicant had been tortured, [Mr A] said that it is a known fact that you will get beaten and tortured if you do not have legal documents. When asked if he knew when this happened, [Mr A] said that he did not know exactly.
When asked what jobs the visa applicant had over the years, [Mr A] said that he did not know exactly what he had done but he had not done much work except for in the [Job task] workshop. The Tribunal asked why the visa applicant would have stayed in that job for six-and-a-half months, to which [Mr A] replied that he might have been trying to get himself a hobby or skill because [Job task] work is hard.
The Tribunal heard from the review applicant’s representative who repeated submissions contained in his letter concerning the level of financial support being given to the visa applicant. He submitted specifically that the visa applicant’s not being able to remember the name of his psychologist may have been due to the psychologist’s name not being common for Afghanis. The Tribunal responded by saying that while dialects may vary, both Hazargi and Persian use the Arabic script. It also noted that the psychologist’s name was not a long one. The representative said in reply that the visa applicant is illiterate and cannot read.
The representative repeated his written submission that the previous migration agent had provided incorrect information, and that the visa applicant was put under pressure to take up the apprenticeship and to then continue working. He submitted that the employer stated that the visa applicant was completely incapacitated.
The Tribunal has considered the information before it, including the documentary evidence on the Department and Tribunal files, the testimony given by the parties and their witnesses at hearing and the written and oral submissions of the review applicant’s representative. It has had regard to the authorities on incapacity for work, including Cole v MIBP where the Court held that there is a two-stage process for assessing incapacity for work, being that the decision-maker should firstly plainly identify what the disabilities are and secondly determine whether there is paid work for that person to perform with such disabilities.[1]
[1] [2018] FCAFC 66, [67].

In relation to the first stage of identifying the conditions suffered by the visa applicant, the Tribunal has considered the evidence in front of it, including medical evidence from the visa applicant’s psychologist and neurologist. It accepts that these people have been treating the visa applicant. It has concerns, however, about the frequency of care provided by at least the psychologist given the visa applicant’s admission that he did not know the name of this psychologist despite claiming to be treated regularly. It considers that he ought to know the name as it is not particularly long or complex ([Dr D]) and both languages – his native Hazargi and Persian – use the Arabic script. In making this finding, the Tribunal rejects the submission made by the review applicant’s representative that the visa applicant is illiterate (and therefore it would be harder for him to remember the psychologist’s name). Even though he has not undergone any formal schooling, the consistent evidence is that he has been home-schooled and so therefore has received some education.
The Tribunal finds the medical evidence provided, and indeed the testimony of the visa applicant, review applicant and other witnesses at hearing, to be vague at best. For example, when attempting to ascertain the diagnoses that had been made in respect of the visa applicant, no one was able to give the Tribunal an answer beyond “depression” or the more generic “mental illness”. Nevertheless, and having reviewed the medical evidence including the records of prescription medicines, it finds that the visa applicant is most likely suffering from mental conditions such as amnesia, stress, depression, insomnia and problems with concentration. While it notes that he was said by a psychologist to be suffering from “sudden convulsion”, it also notes that this has not been mentioned in other evidence beyond the submissions, including by the visa applicant himself.
The Tribunal has also considered claims that the visa applicant was tortured or beaten by the authorities. While it accepts that such trauma may cause or contribute to the mental and psychological conditions described, and while it is highly unlikely that there would be documentary evidence to substantiate these claimed instances, the Tribunal is concerned that neither of his treating health professionals mentioned this in the documents they authored. Indeed, the visa applicant’s psychologist instead stated that his harm was due to “loneliness and being away from family”.
The Tribunal considers that details or at least the existence of the torture or beatings would have been included in these documents if they occurred or if they caused or contributed to his conditions given their potential significance. That they were not included causes the Tribunal to doubt if the visa applicant was tortured or beaten or if the torture or beatings sustained by him at the very least were a cause or contributing factor of his conditions rather than the fact of him being away from his family for an extended period of time. For this reason, these claims are given little weight.
The Tribunal has now gone on to the second stage of determining whether there is paid work for the visa applicant to perform with his conditions. Based on documentary evidence and the testimony of the parties and witnesses at hearing, the Tribunal finds that the visa applicant worked for six-and-a-half months at a [Job task] workshop in [Country 1] in 2020. It finds based on the visa applicant’s evidence at hearing, to which it accords weight, that this work included [Job task] work.
The Tribunal has considered the contents of the employment certificate from his employer. It has considered in particular that the certificate states that the visa applicant was fired from his job due to his deteriorating condition. However, it gives limited weight to this document as evidence of the visa applicant’s inability to work for the following reason. As alluded to at hearing and as put to the visa applicant and the review applicant, a job in a [Job task] workshop would not be considered a low-pressure job either physically or mentally. On the contrary, it is a job that would require skill and is one where you are working in [a potentially dangerous environment]. It is not a job that would be suitable, indeed safe, for someone suffering from the conditions of the type claimed to be suffered by the visa applicant. Even if, as submitted by the review applicant’s representative, the visa applicant were working solely or predominantly in sales, this is a job where he is dealing with customers or clients that would also present a high risk to him given his fear of being identified by the authorities.
Having considered the above evidence and findings, the Tribunal finds that while the visa applicant may be unable to undertake work and even unpaid work at a [Job task] workshop, it is not correct to say as has been submitted by the review applicant’s representative that he was “completely incapacitated” – at least not without more information.
The Tribunal has considered certificates written by the visa applicant’s psychologist and neurologist that give their opinion about his inability to perform work. It gives weight to these opinions as they are given by health professionals who have been treating him. However, it diminishes the weight attached to the evidence as it has concerns about the extent to which these opinions are based on or influenced by the visa applicant’s unsuccessful period of work in the [Job task] workshop, which as it has found above is not suitable for a person with his conditions. It is concerned that these opinions do not take into account his ability to work in a job that may be more suitable to his conditions.
The Tribunal gives weight to evidence from the visa applicant at hearing that he has been living on his own and can perform tasks such as basic cooking. It has considered that he has been able to live in this way for an extended period since he left [Country 2] to travel to [Country 1] almost 10 years ago. It gives this evidence substantial weight as it shows that the visa applicant is able to perform tasks as needed and may therefore be expected to perform tasks in an employment context.
The Tribunal has considered the evidence in front of it when determining whether there is paid work able to be performed by the visa applicant. It notes that the test in Cole v MIBP imposes no qualification about what type of work this is except that it be paid. Read in this way, the Tribunal is obliged to consider the wide spectrum of work, ranging from more physically and mentally onerous jobs on the one hand to those which are relatively simple and straightforward such as unskilled jobs.
Having considered the evidence and the findings made above, the Tribunal is not satisfied that there is no paid work for the visa applicant to perform. Although the visa applicant has been suffering from mental conditions, it is not satisfied that these conditions render him unable to undertake work. While he may have been unable to perform work at the [Job task] workshop, the Tribunal finds that this is not representative of his overall ability to work. It finds that the visa applicant has been function as someone who has lived independently for an extended period of time in [Country 1] away from his family and considers that this indicates he would be able to perform tasks as needed including in a job. It follows that he does not meet the requirement of subregulation (b)(ii) of the definition of “dependent child” under r.1.03 of the Regulations.
Therefore, the Tribunal finds that the visa applicant does not meet cl.101.213(2) and must satisfy cl.101.213(1)(c).
The evidence in front of the Tribunal is that the visa applicant did not complete the equivalent of year 12 in the Australian school system. In a Form 80 dated 6 November 2020, the visa applicant stated that he was home-schooled and this claim was repeated by the review applicant at hearing. There is no documentary evidence to substantiate that the visa applicant had completed the equivalent of year 12 in the Australian school system. The Tribunal accepts and gives weight to this evidence in finding that the visa applicant did not complete the equivalent of year 12 in the Australian school system for the purposes of cl.101.213(1)(c).
The Tribunal has sighted a passport in respect of the visa applicant that shows he was born in December 1994. A birth certificate stated that he was 22 years old in 2016. Based on these pieces of evidence, which the Tribunal accepts as genuine, it finds that he turned 18 on or around December 2012. Because the visa applicant has not completed the equivalent of year 12 in the Australian school system, he is required to be undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification from when he had turned 18 in or around December 2012.
The Tribunal has considered that the visa applicant advised in his Form 80 that he has not completed any tertiary education or qualifications. It has also considered that he advised he was not currently (as at 9 January 2019) undertaking a post-secondary course of study It accepts this evidence and gives it weight in finding that the visa applicant had not undertaken post-secondary study from the time he turned 18 in or around December 2012 until the date of application in April 2019.
The Tribunal finds that, at the time of application, the visa applicant had not since turning 18 been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.
Therefore, the visa applicant does not meet cl.101.213(1)(c) at the time of application.
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).
MINISTERIAL INTERVENTION
Although neither the review applicant nor her representative requested a referral for ministerial intervention, given the circumstances in which the visa applicant finds himself the Tribunal has considered whether to make its own referral.
Section 351 of the Act provides that the minister can substitute for a decision of a review tribunal a decision that is more favourable to a person if he thinks it is in the public interest to do so. The Tribunal specifically notes that cases having one or more unique or exceptional circumstances may be referred for ministerial intervention.
The Tribunal has considered the minister’s guidelines when coming to a decision about whether to make a referral to him for intervention under s.351, including those relating to “unique or exceptional circumstances”. Specifically, it has considered whether there are strong, compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continued hardship to the visa applicant’s family members in Australia, of whom at least the review applicant is an Australian citizen. In this regard, it notes the testimony of the review applicant at hearing and her obvious concern for the visa applicant as displayed in her reaction during the hearing.
The Tribunal has also considered whether there are compassionate circumstances regarding the visa applicant’s health and psychological state that if not recognised would result in serious, ongoing and irreversible harm and continued hardship to him. To this end, it has considered the documents written by the visa applicant’s health professionals which detail conditions that appear to either be caused or exacerbated by his continued separation from his family. It has also considered the dire situation for Afghanis in [Country 1], where they face deportation to Afghanistan.[2]
[2] [Title, source, date, URL].
Although the Tribunal notes this evidence, it considers that it is insufficient on its own to form the basis of a referral for ministerial intervention. It would, however, encourage the parties and the review applicant’s representative to make their own request to the minister with supporting evidence and submissions.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.
David Crawshay
Member