Al Mahmoud (Migration)

[2019] AATA 3790

Al Mahmoud (Migration) [2019] AATA 3790 (3 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Asia Al Mahmoud

VISA APPLICANT:  Mr MOUHAMAD ABOU LHAF

CASE NUMBER:  1705294

HOME AFFAIRS REFERENCE(S):          OSF2016/015113

MEMBER:Hugh Sanderson

DATE:3 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2019 at 9:26am

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) visa – applicant over 18 at the time of the application – criteria relating to study specified not met –no evidence provided regarding medical condition – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

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 Immigration and Border Protection on 16 February 2017 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 December 2016. 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 (the Regulations).

3. The delegate refused to grant the visa on the basis that cl.101.213 and cl.101.221 was not met because at the time of the application and at the time of the decision the applicant had already turned 18 years of age and, since turning 18, or within six months a reasonable time after completing the equivalent of year 12 in the Australian school system, had not been undertaking a full-time course of study at an educational institution leading to the award of a professional, trade or vocational qualification.

   Background

4. The review applicant was born in Lebanon and first entered Australia in 2013. She now has the right to reside permanently in Australia. She is the mother of the visa applicant. The visa applicant is currently 21 years old. He has never entered Australia and has always lived Lebanon. At the time of the application he was 19 years and four months old.

5. In his application, the applicant did not provide any details of his schooling or employment. No information was provided as to any employment or indication that the applicant had enrolled in any course of study. No information was provided which would indicate the applicant was incapacitated for any reason.

6. A certificate from the El Jadida Public School for Boys dated 29 October 2016 was provided stating the visa applicant had failed the final exams of Grade 7 during the school year 2012/2013.

7. The applicant was interviewed by an officer from the Department on 1 February 2017. During that interview the applicant provided the following information:

   ·He was not in any current employment and was relying upon his mother for financial support;

   ·He had been engaged in various part-time jobs since 2010, but was not currently working or looking for work;

   ·He was estranged from his father who does not provide him any support;

   ·He was studying at Jadida School in Tripoli, but left in 2013 because he failed two years in a row and discontinued his studies in his third year;

   ·He did not continue his studies due to problems with his parents and has not thought of returning to any study; and

   ·He has not engaged in any other study and is not engaged in any other activity.

8. The delegate who considered the application noted the applicant was over 18 at the time of the application. As the applicant was not engaged in any study at the time of the application and had not engaged in any study since then the delegate found the applicant did not meet the time of application criteria in cl.101.213(1)(c). There was no information that the applicant was incapacitated for any reason and therefore did not meet the criteria in cl.101.213(2). At the time of decision, the applicant and still not engaged in any study and therefore did not meet the time of decision criteria in cl.101.221.

   Information to the Tribunal

9. The review applicant appeared before the Tribunal (differently constituted) on 13 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and his sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

10. The review applicant said that her son was not studying or working. He was getting no support from his father and was just moving from home to home. He had not been engaged in any study since he left school in 2013 as the review applicant had left Lebanon and he could not continue his study. The visa applicant said that he left school in Grade 7 and had not returned to school since then.

11. The review applicant provided evidence that she was sending money to the visa applicant and communicating with him. She provided a letter from her doctor, Dr D’Silva, dated 26 May 2018, stating that she was suffering from anxiety and depression. This was due to her physical separation from her family and friends. It was stated her family are currently residing overseas. A medical report for the review applicant’s daughter, Amina, who lives in Australia, was provided stating she was suffering from anxiety and depression.

12. In a letter, the review applicant said the visa applicant is not able to study “because of his psychological trauma and his inability to continue his studies”. She stated the visa applicant had not been able to provide any medical report as it cost a lot of money to see a psychologist in Lebanon.

13. The review applicant appeared before the Tribunal on 1 July 2019 for a further hearing to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and his sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

14. The review applicant said that her son was not studying or working. She said that he had tried to find work, but due to his mental state, could not do any work. She said he had not sought any medical or psychological treatment of any kind as it was too expensive in Lebanon. She said that when he is not well he likes to speak to her over the phone and then he feels better. She said that his poor mental state stopped him from studying or working. She said he does nothing during the day apart from going out with his friends.

15. The visa applicant’s sister confirmed that her brother had never received any medical or other treatment for any mental health issues. She said that when she has spoken to him or seen him in Lebanon he has been depressed.

16. The visa applicant said that his eldest brother stopped going to school in fourth grade and then got work. He said that his second brother stopped school in fourth grade because he didn’t like school. He said that he stopped school in June 2013 after he failed Grade 7 on three occasions. He said that he attended two and a half years of Grade 7.

17. The visa applicant said that during the day he just goes out with his friends and has a good time. He said that they go out and eat and buy stuff. He said that his friends work. He said that he has not seen a doctor because he could not afford it. He then asked why would he go and see a doctor. He said that he was told by his auntie and friends to see a psychiatrist, but he has not done so and has not seen a doctor for any issue.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. As the visa applicant was over the age of 18 years at the time of the application, the issue in this case is whether the visa applicant meets the criteria for applicants over 18 years old.  

    Criteria for applicants over 18

20. If, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study: cl.101.213. These requirements must continue to be met at the time of decision: cl.101.221(2)(b).

    Full-time study or incapacitated for work

21. 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).

22. 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 Tribunal has first considered if the visa applicant is incapacitated for work because of the loss of bodily or mental functions or for any reason at all.

23. At the time of the application, no claims were made that the applicant was incapacitated for any reason. When interviewed by the Department, the only claim of any mental health issues was that the visa applicant said that he ceased his studies because he could not focus due to problems between his parents. The visa applicant finished his studies in June 2013 after failing Grade 7 on at least two occasions. The certificate provided from the school does not indicate the visa applicant had any mental health issues at that time and he is reported to have had good behaviour when he was at school.

24. Apart from the claims made by the visa applicant and his family, there is no independent information of the applicant having any mental health issue which would have incapacitated him for work or for any other reason at any time. He has not obtained or sought any treatment by a doctor or psychologist. He has not been required to take any medication. There is no report from any professional that would support the claim that he is incapacitated for work due to the total partial loss of his mental functions. His only activities during the day seemed to be hanging around with his friends. This does not support the claim that he is suffering from depression or any other mental health issue which would incapacitate him from work.

25. The Tribunal does not accept that the explanation that obtaining medical help for any mental health condition in Lebanon is too expensive. The review applicant claims to have been sending money to the visa applicant since she arrived in Australia. Both his brothers live and work in Lebanon and have provided him some support in the past. The Tribunal does not accept that if the visa applicant was incapacitated for work due to the total or partial loss of his mental functions he would not have obtained some treatment for that condition. There is no evidence that the applicant has sought any treatment or that he has been prevented from obtaining that treatment due to any exorbitant costs associated with any treatment.

26. In all the circumstances, the Tribunal is not satisfied the applicant was at the time of the application or at any time incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is not satisfied the applicant meets the exception for the study requirement in cl.101.213(2).

27. The Tribunal has considered whether the visa applicant meets the study requirements at the time of the application and at the time of this decision.

28. The evidence of the visa applicant and the review applicant is that the visa applicant ceased any study in June 2013 after failing Grade 7 on at least two occasions. He was 16 years old at that time and the review applicant was still living in Lebanon with him at the time. The visa applicant has not undertaken any further full-time course of study since then.

29. As the applicant was not undertaking a full-time course of study at the time of the application and has not been undertaking a full-time course of study at any time since turning 18 years old the applicant does not meet this criteria for the grant of the visa. Accordingly, cl.101.213(1)(c) is not met at the time of the application and at the time of this decision.

30. 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).

    DECISION

31. The Tribunal affirms the decision not to grant the visa applicant a Child (Migrant) (Class AH) visa.

    Hugh Sanderson
    Member