Ajouz (Migration)

[2018] AATA 1173

Ajouz (Migration) [2018] AATA 1173 (5 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Ajouz

CASE NUMBER:  1706995

DIBP REFERENCE(S):  CLF2016/39979

MEMBER:Helena Claringbold

DATE:5 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 April 2018 at 1:09pm

CATCHWORDS
Migration – Child (Residence) (Class BT) visa – Subclass 802 (Child) – Holder of a Bridging visa – Whether an applicant is a dependent adult child – Psychologist reports – Cognitive impairment – Applicant gave oral evidence to the Tribunal without difficulty – Mental health issues – Worked for his father’s business in Lebanon – Commenced an English language course – Did not study full time – Does not meet cl.802.221(2)(b)

LEGISLATION
Migration Act 1958, s 48
Migration Regulations 1994, Schedule 2 cls 802.211, 802.214, 802.221

CASES
Sok v MIMIA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 June 2016, Mr Ahmad Ajouz, the applicant applied for a Child (Residence) (Class BT) visa.  The application was made on the basis of him being the dependent child of the Ms Fadia Ismail, sponsor.

2. On 27 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant met cl.802.211, cl.802.214(1)(c) and cl.802.214 of Schedule 2 to the Migration Regulations 1994 (the Regulations) of the Migration Act 1958 (the Act).

3. 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).

4. On 28 March 2018, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Ms Ismail. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The applicant was represented in relation to the review by his registered migration agent. The migration agent did not attend the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence, individually and as a whole, in the Department’s file and the Tribunal’s file and the evidence provided at the Tribunal hearing.

   ISSUE

   The first issue in this case is whether the applicant since last applying for a substantive visa has become a dependent child of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand citizen.  The next issue in this case is whether the visa applicant was undertaking full-time study since turning 18 years of age and if not whether at the time of application and at the time of decision the applicant was incapacitated for work due to the loss of bodily or mental functions.

   BACKGROUND ON THE EVIDENCE

7. On 21 November 1993, the applicant was born in El Minieh, Lebanon. His father and two siblings live in Lebanon.  His mother and four siblings live in Australia. 

8. On 21 May 2012, the applicant entered Australia as the holder of a Subclass 456 Temporary Business Entry visa.  On 21 January 2014, the applicant entered Australia as the holder of a Subclass 300 Prospective Marriage visa. On 9 July 2014, the applicant applied for a Protection (Class XA) visa.  On 11 November 2014, the Protection (Class XA) visa was refused. At the time of this visa application on 29 June 2016, the applicant was the holder of a Bridging visa and had not departed Australia since the refusal of the Protection (Class XA) visa. 

9. In 1973 the sponsor was born in Hilan, Lebanon. She first entered Australia in 2010 as the holder of a Tourist visa. On 14 July 2014, she was granted a Protection visa.

   CLAIMS AND FINDINGS

   Does Section 48 of the Migration Act 1958 (the Act) apply?

10. If an applicant does not hold a substantive visa and has had a visa refused or cancelled since their last entry to Australia, they will be subject to section 48 of the Act. This section bars them from applying for another visa while in Australia, except for certain prescribed visa classes, for example Child (Residence) (Class BT) visas.

11. On 9 July 2014, the applicant applied for a Protection (Class XA) visa. On 11 November 2014, the Protection (Class XA) visa was refused. At the time of this visa application on 29 June 2016, the applicant was the holder of a Bridging visa and had not departed Australia since the refusal of the Protection (Class XA) visa. Therefore section 48 of the Act applies to the applicant.

12. Clause 802.211 of Schedule 2 to the Regulations requires that since the applicant last applied for a substantive visa he has become a dependent child of an Australian citizen, or the holder of a permanent visa, or an eligible New Zealand citizen.

13. The Tribunal accepts the applicant’s and sponsor’s evidence that the applicant was dependent on the sponsor since his arrival in Australia on 21 January 2014. Third party statements also attest to the applicant’s dependency on the sponsor. On 9 July 2014, the applicant applied for a Protection (Class XA) visa, this is approximately six months after he was dependent of the sponsor. On that basis the Tribunal is not satisfied that the applicant became a dependent on the sponsor since his last application for the Protection (Class XA) substantive visa on 9 July 2014 because on his evidence he was dependent on the sponsor from January 2014. Therefore the applicant does not satisfy cl.802.211 of Schedule 2 to the Regulations.

    Additional criteria for applicants over 18

14. At the time of application the applicant was 22 years old. There are additional requirements relating to relationships, work and study to be satisfied if, at the time of application, the applicant has turned 18: cl.802.214. These requirements must continue to be met at the time of decision: cl.802.221(2)(b) of Schedule 2 to the Regulations.

    Relationship status

15. 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).

16. The applicant provided evidence that in 2012, he entered Australia as the holder of a Visitor visa. He then returned to Lebanon and applied for a Prospective Marriage Visa. When he returned to Australia in January 2014, his fiancé didn’t want to enter into the marriage. He then applied for the Protection visa. After his arrival in Australia he became dependent on his mother. On this evidence the Tribunal is satisfied that cl.802.214(1)(a) of Schedule 2 is met at the time of application, and continues to be met at the time of decision.

    Full-time study (or incapacitated for work)

17. At the time of application, the applicant must have, since turning 18, or within six 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). However, this requirement does not apply in the case of applicants who, at the time of making the application, were incapacitated for work due to the loss of bodily or mental functions: cl.802.214(2). This requirement must continue to be met at the time of decision: cl.802.221(2)(b).

18. 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]. In determining what is a ‘reasonable time’ for this requirement, 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 [28].

    Is the visa applicant incapacitated for work?

19. At the beginning of the Tribunal hearing, two psychologist reports were handed to the Tribunal.  One report dated April 2016 informs that testing of the applicant was inconclusive and considered invalid.  The author further stated that the applicant’s history is that he failed to advance beyond a class of six or seven and left school at 15 years old and this suggests that the applicant had learning difficulties.  Other information is that the applicant had an accident and was unconscious for ‘about an hour’ and this could also have had a negative impact on his cognitive function.  The author stated that the applicant has borderline functioning and when this is combined with his poor English, it led the author to state the applicant’s capacity to appear at court would be compromised. An addition report dated March 2018, informs that the applicant has minimal cognitive ability and minimal working history and is substantially dependent on his mother. The author concludes that the applicant could pursue a role in the automotive profession where his learning difficulties would have minimal impact. 

20. Having considered all of the evidence including the psychologist reports, the Tribunal is not satisfied that at the time of application or this decision, that the applicant was or is incapacitated for work because of loss of bodily or mental functions. The applicant’s evidence is that he was actively working in his father’s business since he was 15 years old.  His work included cleaning cars, dismantling cars and spray painting cars.  His hours of work depended on the demands of the business and he sometimes worked for a week or some days in a week and he received pocket money for his work.  His involvement in his father’s business continued until he came to Australia in January 2014.  The applicant told the Tribunal that he had been given permission to work 20 hours a week and had looked for work but as yet had not found anything suitable.

21. The Tribunal is not satisfied that at the time of application, the applicant meets cl.802.214(2) of Schedule 2 to the Regulations or cl.802.221(2)(b) of Schedule 2 to the Regulations, at the time of decision.

    Was the visa applicant undertaking full-time study?

22. The Tribunal considered the evidence individually and as a whole.  It is satisfied that the applicant was a full-time secondary school student at Mahad Nadir School (high school) in El Miieh, Lebanon, until 30 June 2009. On the applicant’s evidence, from July 2009 to January 2014 he was helping in his father’s scrap metal family business. However he entered Australia in January 2014 and became dependent on the sponsor. 

23. The applicant’s other evidence is that from 4 September 2016 to 18 December 2016 he received private English tuition. He provided confirmation of enrolment for courses in general English at the Global English College from 6 February 2017 to 28 July 2017 and from 31 July 2017 to 19 January 2018.  However, the applicant told the Tribunal that he attended the English studies two days a week, for one to one and half hours each day, for a period of only three months and didn’t continue English study because it was too expensive.

    Other considerations

24. The applicant told the Tribunal that he is depressed and takes a tablet each night before bed to assist his condition.  The sponsor elaborated and stated that the breakdown with the applicant’s prospective spouse has been detrimental to him and the applicant has been sad.  She stated that the applicant is dependent on her and she cares for him.  The Tribunal is sympathetic to the applicant’s circumstances.  It encourages him to seek assistance from his health professionals during any time of anxiety and or depression.

25. As the Tribunal wanted to take evidence from the applicant without the sponsor being present in the hearing room, it requested that the sponsor leave the hearing room.  The Tribunal told the sponsor that she would be invited back into the Tribunal hearing and the Tribunal would then take her evidence. The sponsor was hesitant to leave the hearing room and stated that she was the one who cared for the applicant.  The applicant appeared to the Tribunal to be coherent and he told the Tribunal that he was almost 25 years old.  On second request the sponsor left the Tribunal hearing and returned and gave her evidence to the Tribunal, which is recorded in this decision record.

26. Regarding the psychologists comment that the applicant’s capacity to ‘attend court’ would be compromised because of his cognitive ability and English language skills, the Tribunal hearing was assisted by the services of an interpreter.  At the beginning of the Tribunal hearing, the applicant was told that if he had any difficulty in understanding the interpreter or any difficulty understanding any of the Tribunal’s questions that, he should raise this with the Tribunal and any difficulties he might have would be addressed.  The applicant told the Tribunal that he understood the interpreter clearly.  The applicant appeared to the Tribunal to be lucid.  He responded to the Tribunal’s questions spontaneously and without hesitation.  He did not appear to have any reluctance or difficulty providing his evidence to the Tribunal. The applicant did not raise any matter of any difficulty either in understanding the interpreter or the Tribunal’s questions during the Tribunal hearing.

27. The Tribunal considered the evidence individually and as a whole. It is not satisfied that since turning 18, or within six months or a reasonable time after completing high school on 30 June 2009 the applicant undertook any full-time study. After completing high school the applicant was involved in his father’s scrap metal business for approximately five years. Then in 2014, he entered Australia and was dependent on the sponsor.  Even after considering the applicant’s English studies in Australia, the Tribunal does not accept that these studies were a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

28. The Tribunal is not satisfied that the applicant since turning 18, or within six months or a reasonable time after completing the equivalent of year 12 in the Australian school system, the applicant had been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification. 

29. Accordingly, cl.802.214(1)(c) of Schedule 2 to the Regulations is not met at the time of application, and does not continue to be met at the time of decision cl.802.221(2)(b) of Schedule 2 to the Regulations.

30. There is no evidence before the Tribunal that the applicant satisfies any of the alternate criteria for the grant of the visa.

31. For the reasons above, the criteria for the grant of a Subclass 802 visa is not met.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

    Helena Claringbold
    

    Member