Hindi (Migration)

[2017] AATA 2525

Hindi (Migration) [2017] AATA 2525 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Fadia Hindi

VISA APPLICANT:  Ms Roukaya Chaaban

CASE NUMBER:  1619860

DIBP REFERENCE(S):  OSF2015054907

MEMBER:Kira Raif

DATE:28 July 2017

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 28 July 2017 at 7:50am

CATCHWORDS
Migration – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – Independent doctor’s medical assessment – Ability to lead an independent life and engage in studies – Nature of work
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 101.211, 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 on 17 October 2016 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 is a resident of Lebanon, born in 1988. She applied to the Department of Immigration for the visa on 10 July 2015. The delegate refused to grant the visa on the basis that cl.101.211 was not met because the delegate found that the visa applicant was over the age of 25 when the application was made and the delegate was not satisfied the applicant was a dependent child within the meaning of subparagraph (b)(ii) of the definition of ‘dependent child’. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 11 July 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s children. 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 by her registered migration agent. 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). The criteria for a Subclass 101 visa are set out in Part 101 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. The criterion in cl.101.211 essentially requires that at the time of application, the visa applicant is a ‘dependent child’, is under 25 years of age or incapacitated for work, and is in a relevant child-parent relationship. These requirements must continue to be met at the time of decision, or if they are not met, it is only because the visa applicant has turned 18 (or if already 18, only because the visa applicant has turned 25): cl.101.221(1) or (2)(a).

   Is the visa applicant a dependent child?

6. The review applicant confirmed in oral evidence that the visa applicant was born in November 1988 and was 26 years of age at the time the application was made. Regulation 101.211(1)(b) requires that the applicant has not turned 25 but that provision does not apply to an applicant who, at the time of making the application, was a dependent child within the meaning of subparagraph (b)(ii) of the definition of dependent child. The Tribunal must consider whether the visa applicant is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

7. The review applicant provided with her daughter’s visa application a medical certificate relating to her own condition. The Tribunal does not consider that the sponsor’s condition assists in determining the visa applicant’s incapacity.

8. There is medical evidence submitted with the primary application concerning the visa applicant’s health. A medical certificate dated 18 November 2015 refers to the visa applicant attending ER with reported vomiting and epicgastric pain and it indicates that the visa applicant was admitted several times after the death of her father. It refers to the visa applicant suffering from stress and gastritis. In the Tribunal’s view, that is not sufficient to establish incapacity for work. This evidence indicates that at a particular period in time, the visa applicant suffered from a particular ailment. It does not establish that the condition is serious or ongoing or that it affects the visa applicant’s bodily or mental functions to the extent that she is incapacitated for work.

9. The visa applicant also submitted with her application evidence of her ongoing studies. The Attestation of Enrolment from The Lebanese University issued in April 2015 indicates that the visa applicant is enrolled in a third year of a Bachelor degree, majoring in Linguistics in 2014/2015 academic year and has continued her studies regularly up to date. The visa applicant’s academic transcripts show that she has passed several subjects in 2009 – 2012 academic years. The visa applicant provided a statement indicating she is studying in the third year of university and does not work and is dependent on her mother. No mention was made at that time of the visa applicant’s incapacity or inability to work.

10. In her submission to the Tribunal of 21 July 2017 the review applicant refers to the medical evidence and the Departmental policy which indicates that it may be useful for the decision maker to consider the answer to questions on the medical form. The Tribunal considers that submission unhelpful. Firstly, a distinction may be made, in the Tribunal’s view, between a medical assessment undertaken by an independent doctor conducting health checks for visa purposes and the applicant’s treating medical practitioner. Putting aside the issue of medical independence, a doctor conducting a health assessment for visa purposes is likely to be aware, and possibly consider, the health criteria that are relevant to the grant of the visa. It may not necessarily be the case in relation to the applicant’s health provider. Secondly, the policy cited by the applicant does not indicate that the medical opinion is binding on the decision-maker. It is simply evidence to be considered. The Tribunal has considered the various medical reports that have been submitted throughout the application and review process and accepts, as noted below, the medical advice from the applicant’s treating doctor, Dr Allam, but it is a matter for the Tribunal to determine the weight to be given to that evidence insofar as it establishes the visa applicant’s incapacity to work.

11. The review applicant provided to the Tribunal a further medical certificate relating to the visa applicant dated 23 November 2016. The Certificate by Dr Allam and refers to the visa applicant suffering from acute and severe stress gastritis, depression and anxiety leading to abdominal and epicgastric pain and severe cases of continuous vomiting for days or weeks that makes the visa applicant unable to work. The report refers to the symptoms and treatment undertaken by the visa applicant. The report refers to several hospital admissions and multiple psychological tests. A further medical report by Dr Allam dated 18 July 2017 also refers to the visa applicant suffering from acute and severe stress gastritis, depression and anxiety leading to abdominal and epicgstric pain and vomiting.

12. The Tribunal finds that evidence problematic insofar as it establishes evidence of the visa applicant’s incapacity. The Tribunal notes that Dr Allam’s report does not explain the visa applicant’s capacity to successfully engage in full-time study for a number of years, lead an independent life and care for her younger siblings before their migration to Australia when he claims that the visa applicant’s condition is so severe as to make her incapacitated for work. The review applicant explained to the Tribunal that when her daughter is sick, she is really sick but when her daughter is okay, she is fine. The Tribunal acknowledges that the ability to lead an independent life and engage in studies does not necessarily establish the visa applicant’s capacity to work but it is at least relevant. Dr Allam’s medical report fails to address the visa applicant’s capacity to lead what appears to be a normal life in circumstances where the doctor claims her condition is so severe as to affect the visa applicant’s ability to engage in work. It is not apparent from the report, and the Tribunal is not convinced, that in forming his opinion, Dr Allam necessarily had regard to all the circumstances of the visa applicant and for that reason, the Tribunal considers the medical report to be of limited probative value insofar as it relates to the visa applicant’s capacity to meet the requirements for visa grant.

13. Further, it is not apparent that Dr Allam turned his mind to the type of work that the visa applicant could be doing. It is not sufficient to broadly state that she is incapacitated to work due to a medical condition. The medical condition may prevent the visa applicant from doing all type of work or only some type of work. The Tribunal acknowledges the representative’s submission that the report refers to incapacity to work and that should be sufficient. The Tribunal does not accept that this is so because the Tribunal is not satisfied that by referring to the visa applicant being incapacitated to work, the doctor has necessarily considered the relevant statutory requirements. Nor is the Tribunal satisfied that the visa applicant’s treating doctor is necessarily qualified to offer an opinion as to incapacity to work, as it is defined in the migration legislation, as opposed to an opinion about the visa applicant’s health.

14. Ultimately, The Tribunal accepts Dr Allam’s evidence about the visa applicant’s health condition. The Tribunal accepts that the visa applicant suffers from a number of ailments. The Tribunal accepts that she has been hospitalised on occasions and has received treatment for a number of years. The Tribunal accepts the description of the condition provided by the review applicant in oral evidence and the various medical reports. The Tribunal accepts that the visa applicant’s health condition had affected her ability to engage in full-time study and delayed the completion of the course. The Tribunal is prepared to accept that when the visa applicant is ill, her condition is of sufficient severity as to render her incapacitated for work. However, the review applicant’s evidence is that the nature of the condition is sporadic. The review applicant told the Tribunal the visa applicant may be ill for a few days or up to ten days at a time. Her condition roughly occurs for ten days a month, according to the review applicant, and at other times the visa applicant is capable of doing anything, including engaging in employment. While the Tribunal accepts that the visa applicant may also suffer from stress and anxiety and depression, the Tribunal is mindful that these conditions do not appear to prevent her from leading an independent life and successfully engaging in full-time study. In such circumstances, the Tribunal is not satisfied that the visa applicant is incapacitated for work due to total or partial loss of her bodily or mental functions. The Tribunal finds that the visa applicant may be prevented from doing certain type of work but the Tribunal is not satisfied she is incapacitated for work because she is capable of doing work at times when she is not ill, which is the majority of the time. That is, the visa applicant may be limited, due to her condition, in the nature of work she may be able to perform but the Tribunal does not accept she is incapacitated for work.

15. The Tribunal is not satisfied that the visa applicant meets cl. 101.211(2). As she has turned 25 at the time the application was made, the Tribunal is not satisfied the visa applicant meets cl. 101.211.

16. The Tribunal acknowledges evidence of financial support provided by the sponsor to the visa applicant. The Tribunal accepts that such support is being provided but it does not establish the child’s incapacity. The review applicant provided in her submission to the Tribunal of 21 July 2017 evidence relating to her daughter’s study and financial dependence. Having found that the visa applicant does not meet cl. 101.211, it is not necessary for the Tribunal to consider the remaining criteria for visa grant.

17. There is no evidence that the visa applicant is an orphan relative or that she is an adopted child of the review applicant. The Tribunal is not satisfied the visa applicant meets the key criteria for the grant of the other visas in Class AH.

    Conclusion

18. 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

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

    Kira Raif
    Senior Member