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…

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 2112913 (Migration)

Details

AGLC: 2112913 (Migration) [2022] AATA 2524
Case: [2022] AATA 2524
Decision Date: 10 June 2022

CaseChat Overview and Summary

This matter concerned an application for a Child (Migrant) (Class AH) visa, subclass 101. The applicant, who was over 18 years of age, was seeking to satisfy the criteria for this visa subclass. The dispute centred on whether the applicant met the requirements relating to full-time study or incapacity for work after turning 18, as stipulated by clause 101.213 of the Migration Regulations 1994. The Administrative Appeals Tribunal, constituted by Member David Crawshay, was tasked with reviewing the delegate's decision to refuse the visa.

The primary legal issues before the Tribunal were whether the applicant, having turned 18, was undertaking a full-time course of study leading to a professional, trade, or vocational qualification, or alternatively, whether the applicant was incapacitated for work due to the total or partial loss of bodily or mental functions, as contemplated by clause 101.213(1)(c) and clause 101.213(2) respectively. The Tribunal was required to consider evidence presented regarding the applicant's physical and mental health, and whether this evidence established an incapacity for work that would exempt them from the full-time study requirement. The Tribunal also considered the relevance of this evidence to a potential referral for ministerial intervention.

The Tribunal considered medical certificates and an employment certificate submitted by the applicant, which purported to demonstrate incapacity for work due to nervous and mental health issues, amnesia, and resulting difficulties in performing job duties and learning skills. However, the Tribunal found this evidence, while noted, to be insufficient on its own to establish the required incapacity for work under the regulations. Consequently, the Tribunal affirmed the delegate's decision not to grant the visa. The Tribunal did, however, encourage the parties to make their own request for ministerial intervention, supported by further evidence and submissions.

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 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”;

Decision

Reasons for decision

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 CrawshayMember

Ratio Decidendi

Legal Principle Established

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