Thapa (Migration) - [2021] AATA 227

Thapa (Migration) [2021] AATA 227 (8 January 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Subash Thapa
CASE NUMBER:  1801332
HOME AFFAIRS REFERENCE(S):          CLF2016/86968
MEMBER:Christine Kannis
DATE:8 January 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.

Statement made on 08 January 2021 at 6:14am

CATCHWORDS
MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – adult child of sponsor – dependent or incapacitated for work for substantial period before application made – wholly or substantially reliant for financial support – bank statements show salary and amounts from parents – dependent at time of applying for last substantive visa – mental health, alcohol dependency, suicide attempt and student visa refusal – living with parents since hospitalisation – ongoing mental health treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Regulations 1994 (Cth), rr 1.03(1)(b), 1.05A(1), Schedule 2, cls 802.211(b), 802.212
CASES
Cole v MIBP [2018] FCAFC 66
Huang v MIMA [2007] FMCA 720
Vo v Minister for Home Affairs [2019] FCAFC 108
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 January 2018 to refuse to grant the applicant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 9 November 2016. 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). The criteria for a Subclass 802 visa are set out in Part 802 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.
The visa was refused because the delegate found that the applicant did not meet the requirements of cl.802.211 and cl.802.212.
The applicant provided the Tribunal with a copy of the delegate’s Decision Record.
The applicant appeared before the Tribunal by video on 15 December 2020 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of dependent child as required by cl.802.211 and cl.802.212. These are time of application criteria.
Background
The applicant first arrived in Australia on 27 July 2013 as the holder of a Subclass 573 Student visa which ceased on 11 September 2016. On 21 July 2015 he applied for a Subclass 573 Student visa. The visa was refused on 16 November 2015.
On 9 November 2016 the applicant lodged the application for the Subclass 802 (Child) visa, which is the subject of this review. At the time of lodging, the applicant was 28 years of age and held a Bridging visa. The applicant has not departed Australia since arriving on 27 July 2013.
The sponsor is the applicant’s father. At the time of application the sponsor was the holder of a permanent visa which was granted on 6 July 2012 and ceased on 28 June 2017.
Cl.802.211
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 s.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.
On 21 July 2015 the applicant applied for a Subclass 573 Student visa which was refused. At the time of this visa application on 9 November 2016, the applicant was the holder of a Bridging visa and had not departed Australia since the refusal of the Subclass 573 visa. Therefore, s.48 of the Act applies to the applicant. For this reason, the applicant must meet the requirements of cl.802.211.
Clause 802.211(a) requires that the applicant has not been refused a visa or had a visa cancelled under s.501 of the Act. There is nothing to indicate that the applicant has had a visa refused or cancelled under s.501 and the Tribunal is satisfied that he meets cl.802.211(a).
Clause 802.211(b) requires the applicant to have become a dependent child of an Australian citizen, the holder of a permanent visa or an eligible New Zealand citizen since applying for his last substantive visa. The definition of dependent child is set out in r.1.03 and if the applicant has turned 18 they must be dependent on that person (r.1.03(1)(b)(i)) or be incapacitated for work due to the total or partial loss of the child’s bodily or mental functions (r.1.03(1)(b)(ii)).
Regulation 1.05A(1) says a person is dependent on another person if:
(a) at the time when it is necessary to establish whether the first person is dependent on the other person:
(i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b) the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
Prior to the hearing the applicant provided Commonwealth Bank statements for account number #### 8809 in his name. He also provided Commonwealth bank statements for an account in his father’s name and an account in his mother’s name.
The applicant’s Commonwealth Bank statements for account number #### 8809 show salary deposits from:
·    Furniture Spot commencing on 13 January 2014 and ending on 6 May 2014
·    Jewel Bay (Coco’s Restaurant) commencing on 7 October 2014 and ending on 24 March 2015
·    HRO Initiatives (Due South) commencing on 8 July 2015 and ending on 18 November 2015.
The applicant’s Commonwealth Bank statements for account number #### 8809 for the period from 29 July 2013 to 7 June 2016 show the following cash deposits:
·$600 on 29 July 2013
·$1,150 on 13 August 2013
·$1,000 on 29 August 2013 (noted to be FROM MUM)
·$700 on 6 September 2013 (noted to be FROM DAD)
·$400 on 25 September 2013
·$400 on 9 October 2013
·$500 on 24 October 2013
·$500 on 19 November 2013
·$600 on 3 December 2013
·$400 on 20 December 2013
·$200 on 7 January 2014
·$270 on 14 January 2014
·$1,160 on 16 February 2014
·$6,000 on 12 March 2014
·$3,040 on 5 May 2014
·$1,730 on 19 June 2014
·$500 on 25 July 2014
·$5,000 on 16 September 2014
·$6,000 on 24 September 2014
·$400 on 26 September 2014
·$1000 on 29 April 2015
·$1,000 on 29 May 2015
·$600 on 9 July 2015
The applicant told the Tribunal that prior to arriving in Australia in July 2013 he lived in Nepal for six or seven months and prior to that he worked in the United States for four years. He said he brought savings of $1,500 to Australia and he used those savings to pay for his living expenses until he obtained employment in January 2014. He said his parents also helped him with his living expenses including paying his rent which was $125 per week. In January 2014 he moved to shared house accommodation at Edgewater and paid rent of $100 per week from his employment income. The Tribunal noted the bank statements do not show debit transactions for rent in the period commencing January 2014. The applicant said he paid his landlord in cash. The applicant said he stayed at Edgewater until July/August 2014 when he moved to South Perth. In response to the Tribunal asking how he supported himself from the end of his employment with Furniture Spot in May 2014 until he commenced employment with Coco’s Restaurant in October 2014, he said he worked as a cleaner and was paid in cash. The Tribunal noted that this employment was not listed in his employment history in his Form 80 signed on 1 November 2016. He said he also used savings from his employment with Furniture Spot. The Tribunal pointed out that he worked for Furniture Spot for only four months.
The applicant ceased his employment with Coco’s Restaurant in March 2015. He told the Tribunal that from March 2015 until November 2015 he paid his living expenses from his savings from working at Coco’s Restaurant and when his mental health deteriorated in February/March 2016, his parents financially supported him. The Tribunal notes that he was also employed from July 2015 to November 2015. He said his parents paid his rent in March and April 2016. The Tribunal noted, as did the delegate, that the applicant’s tax return for the financial year 1 July 2014 to 30 June 2015 showed he was employed by Coco’s Restaurant and his net income from this employment was $16,609. The delegate also noted that the applicant’s tax return for the financial year 1 July 2015 to 30 June 2016 showed his net income was $13,361. The Tribunal put it to the applicant that it is unlikely that this income was sufficient to meet all his living expenses from October 2014 until February/March 2016. He said he was living on the bare minimum during this period. The Tribunal referred the applicant to his bank statements for this period which show continuous significant expenditure on alcohol.
The applicant told the Tribunal that after he was hospitalised in May/June 2015 he went to live with his parents in June 2015 and has remained there since. In July 2015 he applied for a Subclass 573 visa because his mental health had improved and he intended to return to study.
The Tribunal referred the applicant to the numerous cash deposits made into his bank account from 29 July 2013 to 7 June 2016. The applicant told the Tribunal that his parents also gave him cash in hand in addition to the cash deposits paid into his bank account. The Tribunal cross-checked the deposits with the applicant’s parents’ bank statements and noted that the majority of the payments were made by his parents. After he arrived in Australia his parents made cash deposits every month in 2013 and continued to make deposits during 2014 and 2015. The applicant told the Tribunal that his parents paid for his tuition. He said he bought a car in August 2014 for $2,000 and his parents paid $1,500 of the purchase price. The Tribunal noted that some cash deposits including those made in May and June 2014 did not appear to have been made by his parents. The applicant said these were cash payments for the cleaning work he undertook after ceasing work with Furniture Spot. There was no documentary evidence to substantiate the source of these deposits.
The Tribunal asked the applicant about the reason his parents deposited $1,000 on 29 April 2015 and $1,000 on 29 May 2015. He said he did not have any funds and he asked his parents to pay for his living expenses which included $150 per week to stay at backpacker’s accommodation. He said he stayed at this accommodation from February 2015 to April 2015.
The Tribunal noted that the applicant’s bank statements identified very few debit transactions as payments of rent. He said he paid cash a lot of the time and said utilities costs were included in the rent.
The Tribunal referred the applicant to a letter dated 25 October 2016 from the applicant’s parents to the Department in which they stated:
Ever since Subash’s arrival in Australia for the pursuit his higher education he had been finically reliant on us. ….. Since June 2015, Subash has been living with us in Albany and has been dependent on us not only for basic necessities such as food, clothing and housing, but also for emotional support to seek counselling and proper treatment for his mental health.
The applicant agreed with the information provided by his parents.
The Tribunal noted that the applicant’s parents provided financial support in relation to his Subclass 573 visa granted on 20 July 2013. The applicant agreed that they provided financial support at that time.
The Tribunal noted that in a Form 47CH signed by the applicant on 20 October 2016 he said his father had been his main financial support since June 2015 and indicated this support included support for housing, money, food, clothing, medical and all needs. At hearing the applicant confirmed that his father provided this financial support.
In an undated statement the applicant said after his arrival in Australia in July 2013, he spiralled into a cycle of sorrow, sadness and despondency. In 2014 his situation deteriorated, and he could not concentrate at school and began to increasingly depend on alcohol. During the latter part of 2014 he was barely attending any classes. In 2015 he did not enrol for school as he was oblivious to what was going on or where he wanted to go ahead in life. In March 2015 he quit his part time job and started drinking as soon as the liquor store opened. On 9 June 2015, he tried to end his life however he was found and taken to hospital for treatment. He said he was admitted to the psychiatric ward of a Perth hospital for a few weeks and then transferred to Albany hospital to be close to family support. The medical evidence indicates that the applicant was hospitalised for 12 days.
Clause.802.211(b) requires that at the time of application on 9 November 2016, the applicant had become a dependent child since applying for his last substantive visa on 21 July 2015. As noted, as the applicant was over 18 he must be dependent as defined in r.1.05A (r.1.03(1)(b)(i)) or be incapacitated for work due to the total or partial loss of his bodily or mental functions (r.1.03(1)(b)(ii)).
The definition of dependent requires that the person has been ‘wholly or substantially reliant’ upon the other person for financial support in relation to their basic needs. The leading authority on this definition, Vo v Minister for Home Affairs,[1] does not expressly engage with the question of whether the definition specifically requires substantial reliance on the other person to meet all three basic needs identified in reg 1.05A(a)(i) (food, clothing or shelter) or whether substantial reliance to meet one or two of those needs will suffice. However, the Court adopted a holistic approach suggesting the overall position should be considered. The Court held a ‘meaningful degree’ of financial reliance is required, and found ‘it must be sufficient that without the extent of the support provided by the other person the dependent person would be in a position where their overall basic need for food, clothing and shelter though aided by others would not be met.’[2]
[1] Vo v Minister for Home Affairs [2019] FCAFC 108.
[2] Vo v Minister for Home Affairs [2019] FCAFC 108 at [17].
In addition, the person must be wholly or substantially reliant upon the other person at the relevant time and for a substantial period immediately before the relevant time. There is no definition in the Regulations of what constitutes a ‘substantial period’, but in the context in which ‘substantial’ is used in reg 1.05A it has been held that it should be understood to mean a lengthy period.[3] According to Department guidelines “substantial period” means at least 12 months however while the Tribunal may have regard to Departmental policy, it is not binding on the Tribunal .
[3] Huang v MIMA [2007] FMCA 720 at [43]. This finding was made in the context of considering the definition of ‘aged dependent relative’ in reg 1.03 which refers to a relative who ’has been dependent on that person for a reasonable period, and remains so dependent’ and how it should be reconciled with the definition of dependent in reg 1.05A that the person should be wholly or substantially reliant upon the other person for a substantial period. His Honour went on to state at [44] that, by contrast, a ‘reasonable period’ need not be lengthy.
In the present matter the Tribunal is satisfied that the applicant was dependent on his parents at the time he applied for his last substantive visa on 21 July 2015 and continued to be dependent at the time of application for the current visa on 9 November 2016. In a Form 47CH signed by the applicant on 20 October 2016 the applicant said his father had been his main financial support since June 2015 and indicated this support included support for housing, money, food, clothing, medical and all needs. Accordingly, the applicant was wholly or substantially reliant’ upon his parents for financial support in relation to his basic needs at the time of applying for his last substantive visa. There was nothing to indicate that the applicant was reliant on any other person for financial support to meet his basic needs for food, clothing and shelter on 21 July 2015.
The Tribunal is satisfied that that applicant was dependent on his parents for a substantial period before 21July 2015. It is possible for this element of the definition to be satisfied even if there have been breaks or changes in the level of reliance during the period being considered, the definition does not require constant and immediate reliance.[4] In this present matter the applicant’s parents provided financial support to him from the time he arrived in Australia. He arrived with savings of only $1,500 and was not employed for the first six months. His parents provided financial support in relation to his Subclass 573 visa granted in 2013. In their letter dated 25 October 2016 they said since his arrival in Australia the applicant has been financially reliant on them. The applicant agreed with this information at hearing. The applicant’s bank statements show ongoing cash deposits from his parents from the time he arrived in Australia up to June 2016 and his oral evidence was that he has lived with them and they have financially supported him since June 2015. The Tribunal acknowledges that during the period from January 2014 to November 2015 the applicant had brief periods of employment however the Tribunal decided that his tax returns, bank statements and oral evidence at hearing indicate that when considering the applicant’s overall position, his parents provided a meaningful degree of financial support over a lengthy period and without this support the applicant would not have been able to meet his food and shelter needs. The Tribunal decided that the applicant’s reliance on his parents’ financial support from the time he arrived in Australia has at all times been greater than his reliance on his own income from employment.
[4] Vo v Minister for Home Affairs [2019] FCAFC 108 at [37].
The Tribunal decided that the applicant was a dependent child of his parents (the sponsor and his spouse) on 21 July 2015 and for a substantial period prior to that application. Although he commenced employment for four months in July 2015 he had not been employed since March 2015.
Therefore, as the applicant was a dependent child of his parents at the time of applying for his last substantive visa and for a substantial period before that, he does not meet cl.802.211.
Cl.802.212
As the applicant was over 25 at the time of application, cl.802.212 requires that he demonstrate at the time of application he was a dependent child of the sponsor due to being incapacitated for work due to the total or partial loss of his bodily or mental functions.
The term ‘incapacitated for work’ is not defined in the Act or Regulations, however it was considered in Cole v MIBP[5] in the context of reg 1.03(b)(ii), which states that a child may be considered a dependent child if they are incapacitated for work due to the total or partial loss of their bodily or mental functions. The Full Federal Court in Cole held that the word ‘incapacitated’, whether for work or otherwise, does not mean totally incapacitated, and is capable of including substantially incapacitated.[6]
[5] [2018] FCAFC 66.
[6] Cole v MIBP [2018] FCAFC 66 at [24]. This decision overturned the decision of the lower court in Cole v MIBP [2017] FCCA 2234, which had held that ‘incapacitated’ means totally incapacitated for work.

The applicant told the Tribunal that after a suicide attempt and hospitalisation in May/June 2015, he was initially treated for his mental health by his general practitioner. He said he saw a psychologist, Mr Barry Critchison, from February 2016 to February 2017. He was then referred to a psychiatrist, Dr Piet Claassen. He saw Dr Claassen intermittently in 2017, 2018 and 2019. He has not been able to see him in 2020 because he does not have a valid Medicare card and because of the COVID-19 pandemic. The applicant told the Tribunal that he takes medication for his mental health condition.
Reports dated 25 October 2016 and 6 July 2017 from Mr Critchison, were before the Tribunal. In his earlier report Mr Critchison said the applicant was referred to him in May 2016 to help him cope with depression and symptoms of bipolar. He said the applicant had been admitted to the “Sir Charles Gairdner Psych ward” and that he was transferred to the “psych ward” at Albany Regional Hospital. He said the applicant would like to work or study but he had only been well enough for short periods of time due to his mental health condition. He said it was his opinion that the applicant’s condition would prevent him from working for the foreseeable future.
In his later report Mr Critchison that he first met the applicant on 12 May 2016 and said the applicant had been trying to study and trying to work however he could do these activities for a short period, perhaps two months, before becoming severely depressed for several months. Mr Critchison said for this reason the applicant had been unable to sustain employment or study. Mr Critchison said it had become quite clear to him that the applicant has bipolar 1 and he said this was in his notes on 19 May 2016. He referred to the fluctuating moods of mania and depression and said the applicant has severe bipolar which means that when depressed he cannot function and cannot work and be fully responsible.
The delegate referred to the applicant having been assessed on 18 July 2017 by a Medical Officer of the Commonwealth (MOC) as meeting Public Interest Criteria (PIC) 4007 for the visa. The MOC stated that there is not any physical or mental condition which may prevent the applicant from attending a mainstream school, gaining full employment or living independently now or in the future. The Tribunal was not provided with the MOC report. The Tribunal asked the applicant whether he wished to comment on the MOC report. He said the MOC was partially right because he can function normally in between episodes of mania and depression. He told the Tribunal that he believes he can be a functioning contributing individual and said his illness will not cost the Australian government any money. The Tribunal explained that the visa had not been refused on those grounds.
The Tribunal considered the medical evidence provided. Mr Critchison’s earlier report is dated two weeks before the time of application. His later report and the MOC report are dated several months after the time of application.
The Tribunal notes there is no evidence before it indicating that the applicant’s conditions of depression and bipolar disorder 1 have been diagnosed by a psychiatrist or a clinical psychologist. The only reference to a diagnosis is from Mr Critchison who describes himself as a General Psychologist. The Tribunal is prepared to accept the diagnosis made by Mr Critchison and accepts that at the time of application the applicant’s disability was his mental health conditions of depression and bipolar disorder 1. The Tribunal also accepts the evidence in the reports provided with respect to the applicant’s incapacity to work during periods of depression and his ability to work for only short periods when not unwell. Although Mr Critchison’s later report is dated several months after the time of application, in the Tribunal’s view the later report is consistent with the earlier report and this suggests a continuity of the status of the applicant’s mental health during the intervening period, including the time of application.
As noted, the Tribunal was not provided with the MOC report and therefore it cannot know whether the MOC considered whether the applicant was incapacitated for work at the time of application on 9 November 2016. Accordingly, the Tribunal has placed no weight on the MOC report when considering the time of application criteria.
The Tribunal decided the written and oral evidence supports a finding that at the time of application the applicant was a dependent child of the sponsor because he was incapacitated for work due to the total or partial loss of his bodily or mental functions. The Tribunal notes the evidence was that the applicant experienced periods of depression resulting in an inability to function and finds that he was substantially incapacitated for work at the time of application. Accordingly, he meets cl.802.212.
Although the Tribunal has found the applicant meets cl.802.212, for the reasons above, the criteria for the grant of a Subclass 802 visa are not met because he does not meet cl.802.211. There have been no claims advanced in respect of the other visa subclass in Class BT (Subclass 837).
DECISION
The Tribunal affirms the decision not to grant the applicant a Child (Residence) (Class BT) visa.
Christine Kannis
Member
ATTACHMENT – RELEVANT LAW
Migration Regulations 1994
1.03     Definitions
…
dependent child, of a person, means the child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:
(a)has not turned 18; or
(b)has turned 18 and:
(i)       is dependent on that person; or
(ii)      is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.
…
step-child, in relation to a parent, means:
(a)a person who is not the child of the parent but who is the child of the parent’s current spouse or de facto partner; or
(b)a person who is not the child of the parent but:
(i)       who is the child of the parent’s former spouse or former de facto partner; and
(ii)      who has not turned 18; and
(iii)     in relation to whom the parent has:
(A)a parenting order in force under the Family Law Act 1975 under which the parent is the person with whom a child is to live, or who is to be responsible for the child's long-term or day-to-day care, welfare and development; or
(B)guardianship or custody, whether jointly or otherwise, under a Commonwealth, State or Territory law or a law in force in a foreign country.
1.05A Dependent
(1)Subject to subregulation (2), a person (the first person) is dependent on another person if:
(a)at the time when it is necessary to establish whether the first person is dependent on the other person:
(i)       the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing and shelter; and
(ii)      the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing and shelter; or
(b)the first person is wholly or substantially reliant on the other person for financial support because the first person is incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions.
…