Germanos (Migration)

[2024] AATA 257

Germanos (Migration) [2024] AATA 257 (15 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sabah Germanos

VISA APPLICANT:  Mr Michel Bou Nassar

CASE NUMBER:  2200786

HOME AFFAIRS REFERENCE(S):          2019002802

MEMBER:Kira Raif

DATE:15 February 2024

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 15 February 2024 at 2:41pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 years – not engaged in study at visa application – visa applicant withdrew from his course – incapacitated for work – financial dependence on parents – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 101.213, 101.221

CASES

Hussain v MIBP [2017] FCCA 3247
Khan v MICMA [2023] FCA 463

Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

STATEMENT OF DECISION AND REASONS

Application of review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 November 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).

2. The visa applicant is a national of Lebanon, born in March 1995. He applied for the visa on 30 September 2019. The delegate refused to grant the visa on the basis that cl 101.213 was not met because the visa applicant was not engaged in study when the application was made. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, his father and cousin. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

4. 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).

5. The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). 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).

6. 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).

7. 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 101.213(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 101.213(2).

8. Where cl 101.213(1)(c) applies, it must continue to be met at the time of decision: cl 101.221(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.

   Does the visa applicant meet the study requirement?

   Primary decision

9. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was born on 28 March 1995 and was 24 years of age when the application was made.

10. The primary decision record indicates that on the application form, the visa applicant stated that he was enrolled in a Technical Diploma at the American Universal College from October 2014 to June 2017 but he withdrew from the course. The applicant stated on the application form that he was not currently undertaking any course of study.

11. The applicant provided a statement indicating that he found study difficult and his parents decided to teach him the restaurant business instead. He stated he is ‘like an apprentice’ but is not a paid worker and relies on his parents for money. The visa applicant stated that a psychiatrist told him he might have ADHD but was able to study.

12. The delegate was satisfied that the applicant met cl. 101.213(1)(b) as there was no evidence of his paid employment on a full-time basis. However, the delegate found that the applicant was not enrolled in a course and was not undertaking any study at the time the application was lodged in September 2019. The delegate was not satisfied the visa applicant met cl. 101.213(1)(c).

    Evidence before the Tribunal

13. The review applicant provided additional evidence to the Tribunal. The review applicant provided the visa applicant’s enrolment documents from the American Universal College for 2013 – 2016 and his academic transcripts. There is a letter from the school principal confirming the visa applicant’s attendance between 1999 and 2006 and academic transcripts. The Tribunal accepts that the visa applicant had completed secondary schooling and that he was enrolled at the American Universal college between 2013 and 2016.

14. The Tribunal finds that the visa applicant has not been enrolled in any course of study since completing secondary schooling and some study towards a Diploma, which he ceased in 2016. It is not in dispute that the visa applicant  was not enrolled in any course at the time the visa application was made in 2019.

15. In Khan v MICMA [2023] FCA 463 the Federal Court confirmed the phrase ‘has been undertaking’ means an action that has already commenced and is ongoing. In order for an applicant to meet cl 101.213(1)(c) the applicant must have commenced a full-time study at the time the visa application is lodged. The Court also indicated, in obiter comments, that an applicant enrolled in a course of full-time study which would otherwise meet the requirements, except it has not yet commenced at the time of application, would still meet the requirement. In this case, the applicant was not enrolled in a course which was yet to commence, and had not been enrolled since about 2016.

16. As the visa applicant was not undertaking, and had not commenced any study at time the application was made, the Tribunal is not satisfied that the visa applicant had, 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. The Tribunal is not satisfied the visa applicant meets cl. 101.213(c).

17. The review applicant claims that the visa applicant is a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. That is, the review applicant claims that the visa applicant was incapacitated for work due to the total or partial loss of his bodily or mental functions so that the requirement of cl. 101.213(c) does not apply.

18. In her submission of 14 February 2024 the review applicant presented a letter from the American University College dated 1 February 2024. The writer confirms the visa applicant’s enrolment between 2013 and 2016, stating that he completed two years of the Technical Baccalaureate program in Accounting and Computer Science but did not fulfil the requirements for the third year. It is stated that his academic performance did not meet the expected standards and his parents disclosed the diagnosis of ADHD. It is stated that with additional support and tailored programs, the visa applicant completed the first two years of the course but his academic performance decreased in the third year which he failed as he was not able to participate in activities or respond to instructions.

19. The review applicant provided to the Tribunal a statement from Jean Menassa, cardiologist, dated December 2021 which indicates that the visa applicant has been a patient since October 2010 and is suffering from tachycardia and extrasystoles relating to anxiety and depression associated with nyctophobia. The report does not state that the visa applicant is incapacitated for study or work due to his condition. The review applicant also presented a statement from Dr Kanaan Reve, dated 2 December 2021, which states that the visa applicant has been suffering from a long history of ADHD which led  him to change many schools and go into technical study in Grade 7 but he could not proceed with his study and obtain a Diploma due to his condition that induced anxiety with many physical symptoms. Dr Reve refers to consultations with cardiologist and gastroenterologist for physical symptoms of anxiety. It is stated that the visa applicant’s situation did not allow him to do any ‘fruitful job’. It is not apparent from that statement that the visa applicant is unable to engage in any employment as opposed to a ‘fruitful’ job.

20. The review applicant provided additional medical reports in her submission of 19 December 2023.  A report from Dr Kanaan Reve, dated 13 December 2023, states that the visa applicant is suffering from long history of ADHD and had changed many schools because of his disorder. He went to technical studies without being able to finish his studies to obtain the diploma due to the ADHD and this induced anxiety symptoms (physical and psychological) and worsened his situation of not being able to study or integrate a job. It is not apparent from that statement that Dr Keenan Reve had considered the different types of employment and the report does not specify whether the visa applicant is unable to ‘integrate’ any job or specific types of jobs. The Tribunal finds that report unsatisfactory.

21. In her post-hearing submission of 14 February 2024 the review applicant presented a further statement from Dr Reve, dated 5 February 2024. Dr Reve refers to the visa applicant’s ‘mental situation’, lack of concentration and impulsivity in speech and behaviour. It is stated that the visa applicant is not able to finish a task or to learn how to do one because he cannot focus enough and for enough time to do it. His impulsivity leads him to act before thinking and worsened his problem of concentration, leading to failure in studying and working. The situation is worsened by anxiety associated with ADHD increasing his inability to concentrate and to do a useful job and increasing impulsivity. Dr Reve has not expressed the view how the visa applicant was able to complete two years of study towards a Diploma, albeit with additional help.

22. The review applicant presented a report from Dr Jabbour dated 8 December 2023 which states that the visa applicant had been suffering from ‘life stress’ since 2020 and is always following up on his health condition. The Tribunal has also been provided with a report by Dr Menassa who states that she had known the visa applicant since 2013 as he had been monitored for tachycardia and extrasystoles related to a state of anxiety, depression related to insomnia and night sweats. The report outlines consultations (three in 2013, one in 2015, three in 2019, one in 2022 and one in 2023). It is notable that since the application was made in 2019 – in about four years - the visa applicant had three consultations with Dr Jabbour. The Tribunal is of the view that such infrequent consultations do not support the claims that the visa applicant has significant and ongoing health concerns requiring medical intervention.

23. It is also unfortunate that the reports from the health professionals, presented by the review applicant, do not indicate the basis for the diagnosis, any investigations that may have been carried out, or the treatment proposed. In the Tribunal’s view, these are of limited probative value for these reasons.

24. In her written submission to the Tribunal of 19 December 2023 the review applicant has addressed the delegate’s reasoning and states that the visa applicant’s ADHD leading to a history of disrupted schooling and constant anxiety delineates the long standing impact of his conditions on academic endeavours and associated anxiety. The review applicant submits that the visa applicant’s inability to work or support himself establishes his financial dependence on his parents. The review applicant states that the visa applicant’s participation at his parents’ restaurant was not work in the traditional legal sense but was a means of re-socialising and finding purpose despite his condition and the previous application had an ‘honest mistake’ as the visa applicant’s involvement was not a form of employment.

25. In oral evidence to the Tribunal the review applicant stated that the visa applicant completed secondary schooling in June 2016. She states that the American College was part of secondary schooling and would have been equivalent to a TAFE course in Australia. He completed that course in 2016 and the review applicant said that her son has not done any study since that time. The review applicant states that her son tried to enrol in another course that would have been equivalent to a Certificate IV but he was not able to get in due to the low exam scores in his secondary schooling.

26. In the course of the hearing, the Tribunal questioned the review applicant and others about the visa applicant’s employment. The review applicant explained to the Tribunal that her family own a restaurant by the riverside and as the visa applicant was stressed, they took him to their restaurant as a helper. It was not employment, and he continues to help at present. The review applicant states that she wants to help her son to de-stress and interact with people and he sometimes helps, for example by peeling potatoes or carrying foods but he generally does very little. He is there to socialise and go for walks and not feel stressed.

27. The Tribunal has also considered the written statement of Ms Sabah Germanos, dated 6 February 2024. The statement appears to have been prepared by another person (noting, for example, that the information about Ms Germanos’ date of birth has been left unfilled). In that statement the review applicant also refers to the diagnosis of ADHD which affected her son’s behaviour, mental health and safety.

28. The visa applicant’s father Mr Nasser told the Tribunal that the visa applicant ‘comes and goes’ in the restaurant and he had never worked in the restaurant on a daily basis or on a full-time basis. Instead, he helps ‘a bit’ and goes for walks along the river.

29. In his written statement of 6 February 2024 the visa applicant’s father refers to the visa applicant’s symptoms such as depression and mood swings and states that the visa applicant finds it hard to execute tasks, affecting his ability to live independently. Mr Tony Bou Nassar states that previously the visa applicant came to his restaurant and when he asked his son for help, all attempts went in vain. Mr Bou Nasser states that his son relies on his parents and faces difficulties at work due to his illness.

30. The Tribunal has considerable concerns about the evidence in that statement as in the Tribunal’s view, it contradicts other evidence that has been provided to the Tribunal. Thus, the application form suggests the visa applicant was ‘like an apprentice’ and that is consistent with his evidence in the interview (discussed below). The review applicant’s evidence to the Tribunal is that the visa applicant helped ‘a little’ for example by peeling vegetables. In her written submission in December 2023 the review applicant also refers to her son’s participation and involvement in the family restaurant as a means of finding purpose and socialising. However, Mr Tony Bou Nasser’s most recent written evidence seems to deny that  the visa applicant has had any involvement whatsoever in the restaurant as all attempts to engage him were ‘in vain’. His present denial of evidence that was previously presented by the family strongly suggests to the Tribunal that the parties have presented untruthful evidence about the nature of the visa applicant’s engagement in the restaurant and that they deliberately sought to minimise the level of the visa applicant’s involvement in order to establish his incapacity to work. The Tribunal has formed the view that the more recent evidence about the visa applicant’s engagement in the restaurant was prepared solely to address the Tribunal’s concern about the discrepancies in evidence which were discussed during the hearing. The Tribunal considers such evidence unreliable.

31. Anthony Germanos told the Tribunal that the visa applicant suffers from ADHD and panic attacks. He states that the visa applicant attends his father’s restaurant to socialise and to go for walks in order to alleviate the stress but he had never worked full-time. He states that the visa applicant worked sporadically, for short periods of time, mainly to help himself psychologically. (This also seems to contradict the father’s evidence that all attempts to engage the visa applicant were in vain, and denials that the visa applicant had ever helped in the restaurant.)

32. In his written statement dated 6 February 2024 Anthony Germanos also stated that the visa applicant faces big challenges as a result of suffering from ADHD, which caused him several psychological and social challenges, including depression and psychological pressure. Anthony Germanos states that the visa applicant is ‘heartbroken’ for not being able to work and support his family financially and he cannot perform the simplest tasks due to his health challenges and he cannot focus and speak properly. The Tribunal acknowledges that evidence but is mindful that it is not consistent with the earlier evidence relating to the visa applicant’s engagement in employment, as noted throughout this decision record. Importantly, it is not consistent with Mr Anthony Germanos’ own oral evidence when he claimed that the visa applicant worked sporadically. Again, the Tribunal has formed the view that  the more recent evidence is deliberately untruthful and seeks to minimise the nature of the visa applicant’s engagement in the restaurant and misrepresent his ability to engage in employment.

33. The visa applicant told the Tribunal he stopped studying in 2016 as he was suffering from ADHD, could not study and had to change many schools. The visa applicant suggested that he was diagnosed with ADHD before completing schooling and the doctor told him he could not study. However, the Tribunal is mindful that on the application form he stated that he saw a psychiatrist who thought he might have ADHD but he was told that he could still engage in study. (This information was the subject of the Tribunal’s correspondence pursuant to s. 359A of the Act.)

1. When asked why the information on the visa application form suggested that he could study despite the diagnosis, the visa applicant claimed that the person who filled in the form made a mistake. The Tribunal finds that explanation utterly unpersuasive, as at no time throughout the lengthy processing of the application and despite the multiple submissions made to the Tribunal, was the claim made that the application form contained expressly incorrect or inaccurate information. This is particularly problematic as this issue was central to the delegate’s assessment. The claim that the application form contains incorrect information and that his answers were misunderstood seems to be a recent invention of the visa applicant and, in the Tribunal’s view, it reflects poorly on his credibility.

2. The Tribunal has considered the statement from the local mayor Georges Hanna Saad, dated 13 February 2024, who states that he is familiar with the applicant’s family and is aware that he visa applicant had not previously applied for any document relating to the procedure for applying to a job, and based on several facts including his parents’ he cannot work because of his health condition and has been under the care of his parents. The Tribunal finds that statement problematic. Mr Saad’s statement appears to be based on the fact the visa applicant had not applied for any job-related paperwork and the statement from his parents. In relation to the first basis, there is no evidence before the Tribunal to indicate that every job applicant for every position would seek papers from the Mayor’s office (that is, that the absence of such request indicates that the visa applicant had not held a job or, more significantly, that he is incapacitated for work). In relation to the second basis, the Tribunal does not consider the evidence of the visa applicant’s parents to be necessarily reliable, given significant credibility concerns expressed elsewhere in this statement, as well as the significant self-interest in any such assertion. To the extent that Mr Saad’s statement also relies on any personal observations, there is little before the Tribunal to indicate that Mr Saad had made any effort to assess the visa applicant’s incapacity to work due to total or partial loss of bodily or mental functions. A broad statement that a person cannot work due to ADHD, without any assessment of its severity, symptomology, effects of medication, etc is meaningless.

3. The Tribunal has also considered a number of other documents provided by the review applicant in her post-written submissions of 14 February 2014. There is before the Tribunal a letter from Father Eftim, who states that he is familiar with the family. Father Eftim states that  the visa applicant was not able to finish school ‘the way he was supposed to’ and relies on his parents. It is stated that the visa applicant is kind and friendly but inattentive, has difficulty socialising and remains isolated of his family. Father Eftim states that it is known that Michel does not work and spends time with his father at the restaurant ‘causing more trouble than good’. Putting aside the fact that the statement appears to have been obtained at the behest of the family in response to Tribunal’s concerns, and the fact that  the Tribunal has not had the opportunity to question Father Eftim to assess his knowledge of the family and to assess the veracity of his evidence, the Tribunal’s concern with that statement is that it does not seem to be consistent with the evidence provided in the primary application and by the visa applicant in his interview with the delegate. That evidence suggests that the visa applicant did engage in some employment in the past and that evidence was provided by the visa applicant himself, who would be best familiar with his own circumstances. For these reasons, the Tribunal gives Father Eftim’s evidence very limited weight.

4. The review applicant provided in her submission of 14 February 2024 country information relating to mental health care in Lebanon and the stigma associated with the diagnosis of mental health conditions. The Tribunal does not consider these helpful in determining the issues at hand, as the eligibility for the visa is not dependent on any humanitarian or best interests considerations.  Insofar as that information is relied on to explain the evidence in the interview and primary decision record, this is addressed below.

5. As noted above, the evidence in the initial application and the visa applicant’s interview is substantially different to the evidence that was provided in the subsequent submissions. Indeed, with time, there has been a significant shift in evidence, which initially suggested that the visa applicant did work (even if doing basic tasks and without pay) in his parents’ restaurant, then suggested that he helped there and worked sporadically, to the present evidence that he is completely unable to work. Such a shift in evidence suggests to the Tribunal that the parties have not been truthful in their claims which are modified in response to the concerns raised and their increasing awareness of the statutory requirements.

6. For the following reasons, the Tribunal finds the review applicant’s and the witnesses’ evidence about the nature of the visa applicant’s engagement in the restaurant unpersuasive.

7. Firstly, as noted above, the written submissions and oral evidence to the Tribunal contradict the information provided by the visa applicant in the application form and interview. Thus, 

   a.The evidence of the visa applicant’s father that the visa applicant never worked in the restaurant and has not had a regular job is inconsistent with the evidence of the visa applicant during the Departmental interview when the visa applicant referred to working in the family restaurant on a daily basis during summer holidays. The Tribunal has formed the view that the evidence of the visa applicant’s father was untruthful and created to assist with the visa application. The Tribunal prefers the evidence given at the interview as the Tribunal considers it to be more truthful.

   b.In the application form the visa applicant stated that his parents took him to the restaurant to teach him the restaurant business and that he is like an apprentice whereas in her oral evidence the review applicant and others sought to minimise the nature of the visa applicant’s involvement in the restaurant, stating that he is there to socialise and distress and the more recent evidence of the father is that any attempt to engage the visa applicant in work had been ‘in vain’.

   The review applicant explained to the Tribunal that they do not tell her son that he has mental health issues but here the issue is the evidence about the visa applicant’s capacity to engage in employment and the fact of his past employment, rather than the visa applicant’s beliefs and sensitivities. The Tribunal has formed the view that the parties’ more recent evidence is simply an attempt to present information which they believe would benefit the visa application.

8. Secondly, the evidence that is now submitted to the Tribunal is inconsistent with the information the visa applicant gave in his interview with the Immigration officer in December 2020. In that  interview, the visa applicant is reported to have stated that

   a.He helps his father at his restaurant and has been helping since the age of 21,

   b.Every day in summer he helped his father as a waiter or inside the restaurant,

   c.He has no difficulties focussing on his job in the restaurant. He has ‘no problem at all’,

   d.He saw a psychiatrist who prescribed anti-anxiety medication. He did not take medication as he was ‘fine’,

   e.When asked about his future plans, Michel Nasser stated that he planned to learn English and find work and have a business such as a restaurant with his aunt’s husband.

9. During his interview, the visa applicant presented as someone who is capable of engaging in employment, had engaged in employment in his father’s restaurant (albeit unpaid and perhaps not on a full-time basis) and who intends to engage in employment in the future. These claims contradict the evidence to the Tribunal that the visa applicant had never engaged in employment and that he is unable to work due to his incapacity. Notably, during the interview, the visa applicant’s evidence about his medical condition did not suggest incapacity. He claims that he did not take medication as he was ‘fine’ and that he was able to focus on his job in the restaurant. This is not the evidence that has been provided to the Tribunal.

10. It is also significant, in the Tribunal’s view, that when making the application, the visa applicant claimed to have been doing an ‘apprenticeship’ at his parents’ business and he referred to his work being unpaid. Contrary to the evidence of the visa applicant’s parents and others, the Tribunal has formed the view that the visa applicant’s engagement in the family business was more in the nature of employment than is now suggested (such as merely and goings for walks).

11. The review applicant addressed these matters in her submission to the Tribunal of 14 February 2024. In his statement, the visa applicant refers to his school results, stating that changes in school are related to the applicant’s condition and the applicant refers to the varying medical diagnoses that had been made over the years. The review applicant notes that only recently Dr Kenaan gave an accurate medical opinion and clarified that lack of concentration, behaviour, lack of focus, anxiety and ADHD contributed to the visa applicant’s ability to study and work. With respect to the inconsistencies, the review applicant refers to cultural disparities and individualised perceptions, family dynamics, cultural understanding of what constitutes work and communication challenges as reasons for different evidence given earlier.

12. The Tribunal does not accept the review applicant’s explanation that the visa applicant’s earlier evidence is unreliable due to the stigma in relation to such issues in Lebanon and other factors relevant to the Lebanese society. The Tribunal is mindful that the visa applicant was making the application for the Australian visa. He was under an obligation to provide truthful evidence about his circumstances. He was assisted in preparing the visa application by others who were also under an obligation to provide truthful evidence. The significance of providing truthful evidence would have been apparent to the visa applicant and others (and identified on the application form) and the Tribunal does not accept that they had provided deliberately false information to the Australian officials (for example, by stating that the visa applicant was ‘like an apprentice’ in his father’s restaurant and that he was able to study despite the ADHD diagnosis), in response to direct questions about the visa applicant’s  health and employment, simply because of the stigma associated with mental health issues in Lebanon. The Tribunal does not accept that review applicant’s suggestion that the inconsistencies are reflective of societal and social values rather than the parties’ credibility.

13. The Tribunal does not accept the review applicant’s explanations about the reasons for the inconsistencies and has formed the view that these arise because the review applicant and others had decided to provide different evidence that they considered to be more beneficial to the case. In the Tribunal’s view, the above discrepancies strongly suggest that when the application was made, the visa applicant was capable of engaging in employment and that his more recent submissions about incapacity are nothing more than an attempt to rectify the information considered to be adverse to the application.

14. Thirdly, the Tribunal has found the supporting medical evidence unsatisfactory.

15. In support of the claim of the visa applicant’s incapacity, the review applicant presented a number of documents summarised above. The Tribunal has considered that evidence but finds it unpersuasive. The Tribunal considers it significant that many of the medical reports noted above were prepared after the primary application was refused. The Tribunal is concerned that the medical reports that had been submitted to the Tribunal were prepared for the purpose of addressing the delegate’s concerns and do not accurately or truthfully reflect the visa applicant’s circumstances.

16. The Tribunal also considers it significant that the medical reports do not address the fact that the visa applicant did undertake study, some of it successfully, and at least some form of work, even if it was part-time or irregular (the Tribunal has rejected the most recent claims that the visa applicant had not worked) while he claims to have been suffering from the conditions noted above. Many of the reports refer to the visa applicant’s inability to engage in study. It is significant, however, that the statement American University College dated 1 February 2024 indicates that despite various difficulties, the visa applicant was able to complete two years of the course with additional support and a tailored study program. That strongly suggests that with appropriate support, the visa applicant might be able to overcome the challenges arising from his stated diagnosis.

17. Fourthly, the Tribunal is of the view that the visa applicant’s failure to mention his incapacity to work in the application, but rather his reference to difficulties in progressing in his study and a desire to work instead which he had expressed in his interview, is a strong indication that  the later claims of incapacity to work are a recent invention.

18. The Tribunal has formed the view that the visa applicant did engage in work in the family restaurant and the fact that it was for a family business, unpaid and for irregular hours is irrelevant in determining his capacity to work. The review applicant claims in her submission to the Tribunal that this information was a ‘mistake’ but the Tribunal finds that  explanation unpersuasive, as it appears the review applicant is simply attempting to rectify the information which she believes would result in the adverse outcome.

19. The Tribunal notes that the medical evidence does not expressly address the visa applicant’s capacity to work and the fact that he did engage in some form employment in the past (albeit unpaid). The health professionals did not engage in any assessment as whether there is any type of work that the visa applicant may be able to perform.

20. The review applicant refers to the visa applicant having heart issues, issues with his stomach, stress and panic attacks. She states that he also has ADHD (although she states he is no longer prescribed regular medication for ADHD and takes some from time to time, as well as other medication). The Tribunal accepts that the visa applicant has a number of health conditions outlined in the various reports. The Tribunal is prepared to accept that he has been diagnosed with ADHD. However, the Tribunal does not consider that such evidence establishes his incapacity to work, noting that there are different type of work in terms of nature of tasks, hours and type of employment, etc. The diagnosis of ADHD does not in itself establish inability to work (How to get and keep a job if you're living with ADHD | Expert Advice | APM) and neither do the other diagnoses to which the evidence refers. The review applicant’s evidence to the Tribunal is that the visa applicant had never sought a job and had not worked (other than his involvement in the family restaurant). It may be that the visa applicant is not able to do some type of work due to his medical condition but in the Tribunal’s view, it has not been established that he is incapacitated for any type of work.

21. On the evidence before it, the Tribunal is not satisfied that when the visa applicant was made, the visa applicant was incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal is not satisfied the visa applicant is a dependent child within the meaning of paragraph (b)(ii) of the definition of ‘dependent child’. The Tribunal finds that the requirements of cl. 101.213(c) apply to the visa applicant. As the Tribunal has found that the visa applicant was not engaged in the required study since 2016, the Tribunal is not satisfied the visa applicant meets cl. 101.213(c) and cl. 101.213.

22. There is no evidence that the visa applicant meets the requirements for the other subclasses within Class AH. There is no evidence that he is an adopted child and he was over the age of 18 when the application was made and cannot meet the definition of an orphan relative.

    Conclusion

23. 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

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

    Kira Raif
    Senior Member