Mujibullah (Migration)

[2024] AATA 4013

Mujibullah (Migration) [2024] AATA 4013 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mujibullah Mujibullah

VISA APPLICANT:  Miss - Halaza

REPRESENTATIVE:  Mr Mohammed Anwar (MARN: 2318178)

CASE NUMBER:  2317070

HOME AFFAIRS REFERENCE(S):          BCC20224746048

MEMBER:Kira Raif

DATE:9 October 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 09 October 2024 at 9:30am

CATCHWORDS
MIGRATION – Child (Migrant) (Class AH) visa – Subclass 101 (Child) – visa applicant over 18 – study requirement – living as refugee in another country with no access to formal education – incapacity for work – mental health – medical report based on one telephone interview – no claim of mental health in application – unsafe situation in third country – possibility of applying for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 101.213(1)(c), 101.221(2)(b)

CASES
Hussain v MIBP [2017] FCCA 3247
Opoku-Ware v MIBP (2015) 297 FLR 416
Sok v MIMIA [2005] FMCA 190

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 Home Affairs on 31 August 2023 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 claims to be a stateless person, born in July 2004. She applied for the visa on 4 November 2022. The delegate refused to grant the visa on the basis that cl 101.213 was not met because the delegate was not satisfied the visa applicant met the study requirement. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 24 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Rohingya 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). Relevantly to this case, they include cl 101.213. It provides that if, at the time of application, the visa applicant has turned 18, they need to meet certain requirements relating to relationships, work and study. These requirements must continue to be met at the time of decision: cl 101.221(2)(b).

   Does the visa applicant meet the study requirement?

   Relationship status and history

6. At the time of application, the visa applicant must not be engaged to be married, and must not have or ever have had a spouse or de facto partner: cl 101.213(1)(a). This must continue to be the case at the time of this decision: cl 101.221(2)(b).

7. There is no evidence to indicate that the visa applicant is, or has ever been, engaged to be married or that she has, or has ever had, a spouse or de facto partner. Accordingly, cl 101.213(1)(a) was met and continues be met at the time of decision.

   Not engaged in full-time work

8. At the time of application, the visa applicant must not be engaged in full-time work: cl 101.213(1)(b). This must continue to be the case at the time of this decision: cl 101.221(2)(b).

9. There is no evidence to indicate that the visa applicant had ever engaged in full-time employment. Accordingly, cl 101.213(1)(b) was met and continues to be met at the time of decision.

   Full-time study (or incapacitated for work)

10. 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).

11. 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).

12. 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.

13. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was born in July 2004 and was over the age of 18 when the application was made.

14. The delegate notes that when making the application, the visa applicant claimed that she fled from Myanmar to Bangladesh in 2018 and has been living in a refugee camp since that time and she has not been able to access formal education, only engaging in informal religious study at home. The review applicant provided additional statements to the Tribunal explaining the visa applicant’s circumstances and claiming that she had no access to formal study due to her living in a refugee camp and having no rights. In oral evidence, the review applicant confirmed that his daughter has not engaged in formal study since she completed Year 4.

15. The Tribunal finds that the visa applicant was over the age of 18 when the application was made. The evidence before the Tribunal is that the visa applicant was not engaged in full-time study leading to a formal qualification since turning 18 and at the time the application was made. The Tribunal accepts the reasons as to why the visa applicant was not able to engage in formal study. That is, the Tribunal accepts that the visa applicant lives in a refugee camp where formal study was not available. In the Tribunal’s view, the circumstances in this case are not dissimilar to those discussed in Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 463. In that case, the visa applicants were also unable to access formal study due to fleeing their home country and due to the poor security situation in the country of their residence. However, the Court confirmed that, regardless of the reasons for not commencing study since completing school, or turning 18, an applicant must have commenced a full-time course of study at the time the visa application is made.

16. The Tribunal is of the view that the reasoning in Khan does not support the requirement for the decision-maker to assess the applicant’s reasons for not studying in circumstances where no study was commenced or engaged in.

17. The Tribunal finds that at the time the application was made, the visa applicant was not undertaking any full-time study and was not enrolled in any full-time study that was yet to commence. That is, when the application was made, the visa applicant was not engaged in any full-time study leading to a formal qualification since completing secondary schooling.

18. The review applicant claims in his submission to the Tribunal of 16 September 2024 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 her bodily or mental functions so that the requirement of cl. 101.213(1)(c) does not apply to her.

19. In his written submission to the Tribunal the review applicant provided a report by Dr Jonathan Carne dated 16 August 2024. Dr Carne indicates that he had interviewed the visa applicant on 15 August 2024 (a day before the report was prepared) by teleconference with the assistance of an interpreter. Dr Carne refers to the visa applicant’s description of her past experiences, noting that no treatment had been prescribed and the visa applicant claiming no treatment was available either in Myanmar or in the refugee camp in Bangladesh. Dr Carne has expressed the view that the visa applicant is suffering from severe anxiety and depression with her symptoms corresponding to the diagnoses of PTSD, major depressive episode and generalised anxiety. Dr Carne has expressed the opinion that due to the psychiatric diagnoses, the visa applicant would be unable to either study or work. The suggested treatment includes trauma-focused psychological therapy treating PTSD, psychiatric evaluation to assess medication and a safe place to live in a secure setting. The Tribunal has been provided with Dr Carne’s CV.

20. The review applicant states in his written submission to the Tribunal that the visa applicant is incapacitated for work in her present condition, in the absence of treatment and in the absence of a safe and secure place to live. The review applicant (through his representative) cites several authorities in relation to the issues of incapacity and dependence. Both the review applicant and the visa applicant provided written statements to the Tribunal, referring to the visa applicant’s financial dependence on the sponsor, as well as addressing the issue of incapacity. They also refer to the circumstances of the visa applicant’s present living arrangements and leading to her claimed depression.

21. The Tribunal has reviewed Dr Carne’s report but considers it problematic. The Tribunal considers it problematic that Dr Carne’s report is based on a single telephone interview with the visa applicant, conducted by phone with the use of the interpreter in what would have likely been through a difficult telephone connection with the refugee camp. Dr Carne refers to the ‘psychiatric assessment’ of the visa applicant, yet the only reference to any ‘assessment’ is the single telephone interview with the visa applicant self-reporting her circumstances and symptoms. There is no suggestion that Dr Carne had administered any psychometric tests or utilised any assessments tools to enable Dr Carne to reach his conclusions. There is no comparative data to establish a baseline of the visa applicant’s state.

22. The Tribunal discussed these concerns with the review applicant in the course of the hearing. In response to these concerns, the review applicant provided additional evidence and a further submission on 8 October 2024. In a further statement from Dr Carne dated 27 September 2024 he refers to his professional qualifications and training and states that as a medical practitioner, he does not rely on ‘tools’ but his knowledge based on training and experience to make a diagnosis. Dr Carne reiterates the diagnosis of a major depressive episode and generalised anxiety as stated in the earlier report.

23. The Tribunal accepts that Dr Carne is well placed to make the diagnosis, however, the Tribunal remains concerned about the limited opportunity that Dr Carne has had in “examining” the visa applicant, noting the single telephone interview conducted through an interpreter, that formed the basis of the diagnosis.

24. There are other areas for concern. The visa applicant stated on the application form that she was undertaking religious study at home and the review applicant confirmed in oral evidence that the visa applicant is undertaking informal study in English and religion. In the initial report, Dr Carne has not addressed the visa applicant’s capacity to undertake that study. In the second report of 27 September 2024 Dr Carne states that he has no information about the nature, frequency or the rigour of the courses in which the visa applicant took part, no evidence how well she was able to accomplish such studies or her success in doing so, so that information does not change his opinion ‘at this stage’. In the Tribunal’s view, the visa applicant’s ability to engage in some form of study at the relevant time (irrespective of her ability to succeed in such study) is significant in determining whether she was incapacitated for work and Dr Carne’s evidence in the second report suggests that he did not have adequate information about that study.

25. Also importantly, Dr Carne’s report only deals with the visa applicant’s present circumstances and does not address her circumstances at the time the application was made. In his statement of 27 September 2024 Dr Carne states that the interview took place on 16 August 2024 and he is therefore unable to make any comment about incapacity in November 2022. However, cl. 101.213(2) relevantly states that paragraph (1)(c) does not apply to an applicant who, at the time of making the application (emphasis added), is a dependent child within the meaning of subparagraph (b)(ii). Dr Carne’s assessment refers to the visa applicant’s present circumstances. There is nothing in that assessment that considers the visa applicant’s circumstances at the time of the application and Dr Carne confirms that he is not able to make any comment about the visa applicant’s capacity at the time of making the application.

26. Thus, even if the entirety of Dr Carne’s evidence is accepted, and even if the Tribunal were to accept that the visa applicant is a dependent child within the meaning of subparagraph (b)(ii) at present, Dr Carne’s evidence does not address the visa applicant’s circumstances at the time of application and is thus unhelpful in determining whether the visa applicant met that definition at the time of making the application.

27. Added to this concern is the fact that when the application was made, there was no claim of the visa applicant’s depression, PTSD or any other ailment leading to her incapacity. Question 41 of the application form expressly deals with incapacity and the review applicant confirmed in his evidence to the Tribunal on 9 October 2024 that the visa applicant indicated ‘no’ in response to a question about incapacity on the form. The review applicant told the Tribunal that at that time he was unwell and also did not know what he had to mention. The Tribunal does not accept that explanation because the application form poses an express question about the visa applicant’s incapacity and inability to work and in the Tribunal’s view, if the visa applicant did experience incapacity to the extent that is being claimed now, and was unable to engage in work (and studies) as a result, that answer would have been provided in response to the precise question on the application form. It is unclear to the Tribunal why the review applicant was able to provide answers to other questions on the form but feel he was unable to provide an accurate answer to this one specific question. The Tribunal acknowledges that on 9 October 2024 the review applicant submitted the notification of incorrect answers stating that the answer to that question was incorrect on the application form. The Tribunal considers that document to be entirely self-serving, and its purpose is solely to address the concerns raised in the course of the review. The Tribunal does not consider that the submission of that form supports in any way the claims of the visa applicant’s incapacity at the time of the application. 

28. In his submission of 8 October 2024 the applicant invited the Tribunal to make an assessment of, and infer, incapacity at the time of application on the basis of the present evidence, referring to other areas of the law. The Tribunal acknowledges that it is open to it to determine that the visa applicant was incapacitated at the time the application was made on the basis of the present evidence, and her present circumstances, but the Tribunal has formed the view that, on the basis of the evidence before it, it is unable to make a positive finding of incapacity at the time of application. In the Tribunal’s view, the presented evidence does not support such a finding. Firstly, this is because, as noted above, the visa applicant did engage in some form of study at the time of the application and was able to do so, whatever form such study took. Although capacity to study does not equate to capacity to work, it is a relevant consideration which has not been adequately addressed by the presented evidence. Secondly, this is because no claims of incapacity were made when the application was made and the Tribunal does not accept the review applicant’s explanation for such a significant omission. In the Tribunal’s view, the information in the primary application more accurately and truthfully reflects the visa applicant’s circumstances at the time the application was made and, at the time, there was no claim of incapacity and no evidence to support such a claim. Thus, on the evidence before it, the Tribunal is not satisfied the visa applicant was incapacitated at the time the application was made.

29. On the evidence before it, the Tribunal is not satisfied that at the time of making the application, the visa applicant was incapacitated for work due to the total or partial loss of her bodily or mental functions. The Tribunal is not satisfied the visa applicant was, at that time, 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, and had not engaged in any formal full-time study at the time of application, the Tribunal is not satisfied the visa applicant meets cl. 101.213(c) and cl. 101.213.

30. As the visa applicant was over the age of 18 at the time of application, she does not meet the definition of orphan relative and the requirements for the grant of the Orphan Relative visa. There is also no evidence to indicate the visa applicant is adopted and the Tribunal is not satisfied she meets the requirements for the grant of the Adoption visa.

31. The review applicant repeatedly referred to the unsafe situation in Bangladesh and kidnappings. The Tribunal acknowledges that evidence but is unable to grant a visa on humanitarian grounds. The review applicant has the option of seeking Ministerial intervention.

    Conclusion

32. 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

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

    Kira Raif
    

    Senior Member