2018468 (Refugee)

[2022] AATA 527

Ibaida (Migration) [2022] AATA 5273 (1 September 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Ms Sultana Ibaida

VISA APPLICANTS:  Mr Khaled Ibaida Ms Ghadeer Ibaida

REPRESENTATIVE:  Mr Mohammed Mirza (MARN: 0747557)

CASE NUMBER:  1923774

HOME AFFAIRS REFERENCE(S):           OSF2015/036044

MEMBER:  Margie Bourke

DATE:  1 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 01 September 2022 at 6:49pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of the Australian relative – no response to s.359 invitation – loss of entitlement to a hearing – primary visa applicant deceased – assistance cannot reasonably be provided/obtained – other relatives – adult grandchildren – other services – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359C. 360, 363A

Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

CASES

Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 26 June 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The visa applicants applied for the visa on 28 June 2015. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). At the time of application there was a primary visa applicant and two secondary visa applicants. Prior to the decision of the Department, the Department was advised that primary visa applicant was deceased. The first named visa applicant who had been a secondary visa applicant, then advised that the Department that he sought to meet the primary criteria. In the present case, the first named applicant is seeking to satisfy the primary criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221.

1. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the first named applicant met the definition of carer in r.1.15AA.

1. The applicant lodged an application for review of the Department’s decision record with the Tribunal on 26 August 2019, and provided the Tribunal with a copy of that Department’s decision record dated 26 June 2019.

1. The CVAC (Carer Visa Assessment Certificate) provided to the Department was dated 21 April 2015. In correspondence with the review applicant dated 29 July 2021, the Tribunal invited the review applicant to advise if she wished to obtain an updated CVAC. The review applicant advised the Tribunal of her intention to provide an updated CVAC in a response dated 10 August 2021. Subsequently an updated certificate dated 16 January 2022 was provided to the Tribunal. In correspondence with the review applicant dated 24 March 2022, the Tribunal advised the matter was being prepared for allocation to a Tribunal member.

Loss of entitlement to the hearing

1. The Tribunal sent correspondence by email to the review applicant, addressed to her nominated representative at his email address, dated 26 July 2022, advising the matter had been constituted to a member and will shortly be listed for hearing. In the email dated 26 July 2022, the Tribunal invited the review applicant to provide information in writing, including details of any operations or surgeries the review applicant had undergone since the application for the visa was made, and a list of all the review applicant’s siblings, children, nieces, nephews and grandchildren, including advice in relation to whether these relatives were Australian permanent residents, Australian citizens or citizens of another country, and a list of all the review applicant’s close relatives who are Australian citizens or Australian permanent residents or eligible New Zealand citizens within the meaning of r.1.03 (with an invitation to contact the Tribunal if the review applicant required clarification of the meaning of close relative).

1. In the email dated 26 July 2022 the Tribunal stated the information should be received by 9 August 2022. The Tribunal advised that if the review applicant cannot provide the information by 9 August 2022, the review applicant can ask the Tribunal for an extension of

time in which to provide the information. In the email dated 26 July 2022, the Tribunal stated that any request for an extension of time must be received by the Tribunal by 9 August 2022.

1. In the email dated 26 July 2022 the Tribunal advised that if it did not receive the information within the period allowed, or as extended, the Tribunal may make a decision on the review without taking any further action to obtain information. The Tribunal also advised in the email dated 26 July 2022, that if the information was not received within the period allowed, or as extended, the review applicant would lose any entitlement she might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

1. The Tribunal did not receive any information from the review applicant by 9 August 2022. The Tribunal did not receive a request for an extension of time from the review applicant by 9 August 2022 in which to provide the information.

1. On 4 August 2022 the Tribunal sent an hearing invitation to the review applicant by email to her nominated representative inviting her to attend a hearing scheduled for 25 August 2022.

1. On 15 August 2022, the Tribunal received a response to the invitation to provide further information, from the review applicant’s representative. The information provided included a list of the review applicant’s children and grandchildren and their citizenships, a medical report in relation to the review applicant and a brief submission advising the review applicant had undergone two operations since the time of application.

1. The review applicant was invited under s.359 of the Act to provide information, and had not given the information to the Tribunal before the time for giving it had passed. S.359C(1) sets out that if a person (a) is invited in writing under section 359 to give information; and (b) does not give the information before the time giving it has passed; the Tribunal may make a decision on the review without taking any further action to obtain the information.

1. S.360(1) of the Act states that the Tribunal must invite the review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. S.360(2) states that subsection (1) does not apply if (c) subsection 359C(1) or (2) applies to the applicant. S.360(3) states if any of the paragraphs in subsection

   (2) of this section apply, the applicant is not entitled to appear before the Tribunal. In this review s.359C(1) applies to the review applicant, and therefore pursuant to s.360(3), the review applicant is not entitled to appear before the Tribunal.

1. S.363A provides that the Tribunal does not have power to allow a person to do something that he or she is not entitled to do. This section states that if a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then unless the provision expressly provides otherwise, the Tribunal does not have the power to permit the person to do that thing, or be assisted or represented by another person. Accordingly, as the applicant is not entitled to appear before the Tribunal because of the provisions of s.360(2)(c) and s.360(3), then pursuant to s.363A, the Tribunal does not have the power to allow the review applicant to appear before it.

1. The Tribunal sent correspondence to the review applicant by email, to her nominated representative, dated 15 August 2022. In the correspondence dated 15 August 2022, the Tribunal explained the contents of the email dated 26 July 2022 (as set out above), and that the applicant had not provided information to the Tribunal by the due date of 9 August 2022.

1. The Tribunal advised the review applicant in its correspondence dated 15 August 2022, for the reasons set out in the preceding paragraphs, that the applicant had lost the entitlement she might otherwise have had to appear before the Tribunal. The Tribunal advised the

review applicant that the hearing scheduled for 25 August had been cancelled, and the Tribunal would make a decision on the information available to it, including the information provided by the applicant on 15 August 2022.

1. The Tribunal perceived a request from the review applicant’s representative to exercise its discretion and reinstate the hearing. The Tribunal, advised the review applicant by email sent to her nominated representative dated 22 August 2022, that the applicant had lost her entitlement to the hearing pursuant to s.360(3) of the Act, and that the Tribunal does not have the power to reinstate the hearing pursuant to s.363A of the Act. The Tribunal advised the review applicant she was invited to provide further submissions and information for the member to consider in relation to the review, and in relation to a request for an extension of time, the Tribunal acceded to the request and extended the due date for any further submissions and information to be provided by 29 August 2022.

1. The review applicant’s representative requested disclosure pursuant to s.362A of the Act on 19 August 2022, and disclosure was provided by the Tribunal to the review applicant on 22 August 2022.

1. The review applicant provided further information to the Tribunal including a statement from the first named visa applicant and statutory declarations in support of the review, received by the Tribunal on 25 August 2022 and 29 August 2022.

1. As the review applicant has lost her entitlement to a hearing, the Tribunal has considered all the information provided by the applicant and the information available to it. The Tribunal has made a decision without proceeding to a hearing pursuant to s.360(2)(c) and s.360(3) of the Act.

1. The following are the written reasons that the Tribunal has concluded that the decision under review should be affirmed.

Background circumstances to the application

1. The application for the visa was made on 28 June 2015, and the review applicant sponsored the first named visa applicant and the second named visa applicant as dependents or secondary visa applicants in the application for the visa. The primary visa applicant was the son of the review applicant, Jamal Ibaida. The secondary visa applicants in the initial application were Ghadeer Ibaida, the wife of the primary visa applicant, and Khaled Ibaida, the son of the primary visa applicant.

1. At the time of application the first named visa applicant, Khaled Ibaida, was 15 years of age, having been born in October 1999.

1. At the time the Department undertook an assessment of the application in February 2018, the first named visa applicant, Khaled Ibaida, was assessed as a dependent child aged over 18, studying at the University of Jordan and dependent on his parents.

1. In March 2019 the Department was advised that the primary visa applicant, Jamal Ibaida, was deceased, and that the then 19 year old visa applicant Khaled Ibaida would provide the care the review applicant (his grandmother) requires.

1. The decision of the Department was that the first named visa applicant, Khaled Ibaida, did not meet the requirements of r.1.15AA(1)(f), because there was no statement from this visa applicant himself in relation to whether he was willing and able to provide his grandmother substantial and continuing assistance of the kind needed and as the case required. For this reason the delegate found that the applicant did not meet the requirements for carer for the

purposes of cl.116.221. In the Department’s decision record, the delegate did not consider whether the visa applicant met the requirements of r.1.15AA(1)(a) – (e). The issue of whether the visa applicant, Khaled Ibaida, meets the requirements for carer as set out in r.1.15AA(1) for the purposes of meeting the requirements of cl.116.221, is the matter to be determined in this review.

CONSIDERATION OF CLAIMS AND EVIDENCE

APPLICANT IS A CARER

Whether the visa applicant is a ‘carer’

1. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision.

Applicant is a relative of the resident – reg 1.15AA(1)(a)

1. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s paternal grandmother.

1. Based on the birth certificate of the visa applicant Khaled, I am satisfied that he is the son of Jamal Ibaida. Based on the birth certificate of Jamal Ibaida, I am satisfied that his mother is the review applicant Sultana Ibaida. I am therefore satisfied that the visa applicant Khaled is the grandson of the review applicant. Based on the certificate of Australian citizenship issued 19 June 2010 I am satisfied that the review applicant is an Australian citizen.

1. For these reasons the Tribunal finds that the visa applicant Khaled Ibaida, is a relative within the meaning of r.1.03 of the review applicant who is an Australian citizen. Therefore, the visa applicant Khaled is a relative within the meaning of r.1.03 of the Australian relative.

1. Accordingly, the Tribunal is satisfied that visa applicant Khaled is the grandchild of the Australian relative, and the visa applicant Khaled is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

Certification – reg 1.15AA(1)(b)

1. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of

   reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

1. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in the legal instrument IMMI 14/085 - or issued by a specified health provider in relation to a review of such an opinion.

1. The Tribunal has considered the carer visa assessment certificate (CVAC) dated 16 January 2022. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv).

Accordingly, Tribunal is satisfied that the visa applicant, Khaled meets the requirements of r.1.15AA(1)(b).

Residency status of person with medical condition – reg 1.15AA(1)(ba)

1. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

1. In the present case, the person with the medical condition is the review applicant who is an Australian citizen. Accordingly, visa applicant Khaled meets the requirements of r.1.15AA(1)(ba).

Impairment rating – reg 1.15AA(1)(c)

1. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.

1. In the present case, the impairment rating specified in the certificate is 60. This rating exceeds the impairment rating specified by the relevant instrument and therefore the visa applicant Khaled meets the requirements of r.1.15AA(1)(c).

Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

1. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

1. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

1. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

1. In the CVAC dated 16 January 2022 it is recorded that the review applicant requires assistance with mobility, bathing and showering, toileting, dressing and grooming, eating and feeding, supervising medication, supervision for personal safety and transportation. The CVAC records the review applicant is fully dependent upon another to undertake these activities of daily living. The CVAC records that the review applicant has functional impairment with conditions limiting exertion and stamina, with conditions impacting her lower limbs, with conditions impacting the spine, and with brain function.

1. The Tribunal is satisfied based on the information provided in the CVAC that the assistance required by the review applicant is constant supervision to assist with all aspects of daily living.

1. The Tribunal is satisfied that the review applicant was born in 1938 and has multiple chronic conditions. The Tribunal is satisfied that the review applicant’s husband is wheelchair bound,

and also has multiple chronic conditions and he is unable to provide the care that the review applicant requires.

1. Based on the information provided to the Tribunal, I am satisfied the review applicant had six children, four sons and two daughters. Of the four sons, Jamal is now deceased, and Mohammad was deceased at the time of application. The remaining surviving two sons include Ayman who is married, employed full-time and resides with his parents (including the review applicant) in Australia, and Omar who is married, employed and has some physical disabilities as a result of an accident. The review applicant has two daughters, including Amal who is married and lives in Jordan, and Afaf who has children and suffers from MS. I am satisfied that the two sons and one daughter who reside in Australia, and are Australian citizens, namely Ayman, Omar and Afaf, cannot reasonably provide the care that the review applicant requires due to health or employment reasons and commitments.

1. The review applicant has, through the application for the first named applicant, Khaled Ibaida, requested the Department and the Tribunal to consider her adult grandchildren as appropriate carers. In that the statement from the first named visa applicant, Khaled, he states that it is culturally appropriate for the care to be provided to the review applicant by her grandchildren. The Tribunal accepts the first named visa applicant Khaled submits that it is culturally appropriate for either grandsons or granddaughters to provide the care required by the review applicant.

1. The definition of relative in r.1.03 (b) (which refers to any other case (not including a Subclass 200 (Refugee) visa or a protection visa)), states that a relative of a person includes

   (i) a close relative; or (ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or step grandparent, step grandchild, step aunt, step uncle, step niece or step nephew. Therefore the Tribunal finds that the requirement in r.1.15AA(1)(e) that the assistance cannot reasonably be provided by any other relative of the Australian relative (the review applicant) who is an Australian citizen permanent resident or eligible New Zealand citizen, necessarily includes an assessment of whether the assistance cannot reasonably be provided by the review applicant’s nieces or nephews or grandchildren who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

1. The Tribunal did not receive a list of the nieces and nephews of the review applicant, but did receive information about the grandchildren of the review applicant. In the list provided by the review applicant’s representative it was not specified whether the grandchildren were adults, and their dates of birth were not provided.

1. The Tribunal is satisfied based on the information provided by the review applicant that her deceased son Mohammed, has two children who are Canadian citizens, and therefore as they are not Australian citizens, Australian permanent residents or eligible New Zealand citizens, they are not considered in this review in relation to whether they can reasonably provide the care required by the review applicant for the purposes of r.1.15AA(1)(e).

1. The Tribunal is satisfied that the review applicant’s daughter Amal has children who are Jordanian citizens, and therefore as they are not Australian citizens, Australian permanent residents or eligible New Zealand citizens, they are not considered in this review, in relation to whether they can reasonably provide the care required by the review applicant for the purposes of r.1.15AA(1)(e).

1. The Tribunal is satisfied, based on the information contained in the statutory declarations that refer to the children being taken to school, that the review applicant’s son Ayman has school aged children, and therefore these grandchildren are minors. The Tribunal does not consider it appropriate to consider whether children aged under 18 can provide the care for the review applicant. The Tribunal is satisfied that the children of the review applicant’s son

Ayman cannot reasonably provide the care required by the review applicant for the purposes of r.1.15AA(1)(e), due to their age.

1. The Tribunal has considered that there are adult Australian grandchildren of the review applicant’s daughter Afaf, and the review applicant’s son Omar. The information provided by the review applicant, is that the children of Omar and Afaf are Australian citizens. The Tribunal has not been provided with sufficient information to assess whether the assistance cannot reasonably be provided by other relatives of the review applicant, namely her Australian citizen adult grandchildren, that the review applicant requires.

1. In his statutory declaration, dated 24 August 2022, Omar Ibaida declares “my children live far away, have their jobs, families, children and mortgages to take care of[f] and have no ability to help”. In his statutory declaration dated 20 August 2022, Ayman Ibaida declares “Ali and Mohammed Ibaida are Omar’s sons. They are both married, and they both have children. They both work full time and are busy with their family and jobs, so they cannot help us take care of their grandparents. Jamal is Omar’s youngest son and he is currently studying IT while working. He is fully busy with his job and studies. He tries his best to help but can’t due to his life at university.”

1. The Tribunal does not find the statements of the review applicant’s sons Ayman and Omar, to provide sufficient information about the details of Omar’s three sons. Based on the information provided, the Tribunal is satisfied that the three sons of Omar, are adults. The Tribunal notes that in his statutory declaration, Omar does not record information in relation to his youngest son, whom his brother Ayman declares is single, and studying and has employment.

1. There is no information about the age, occupation or commitments in relation to the review applicant’s grandchildren, who are the children of Afaf.

1. Based on the insufficient information provided, the Tribunal is not satisfied that the assistance required by the review applicant cannot reasonably be provided by adult grandchildren who are Australian citizens.

1. The Tribunal has not received any information as to the existence or otherwise of nieces and nephews of the review applicant.

1. Based on the information provided, the Tribunal is not satisfied that the assistance required by the review applicant cannot reasonably be provided by Australian relatives of the review applicant. The Tribunal is not satisfied that the visa applicant meets the requirements of r.1.15AA(1)(e)(i).

1. The CVAC records that the care services engaged by the applicant at the time of the assessment in January 2022 are informal / family support. The certificate records that no formal support services have been engaged by the review applicant to provide the care that she requires.

1. Based on the evidence and information provided to the Tribunal including the medical report from the review applicant’s treating doctor, I am satisfied the applicant has attended her doctor and hospital for assistance with ongoing medical conditions. The applicant’s representative advised the Tribunal that the applicant had undergone an operation in 2015 and 2019 and continued to consult her local doctor. The Tribunal accepts that the review applicant has obtained assistance when required through hospital services in Australia.

1. The applicant provided a printout from the Victorian Arabic Social Services website, which listed assistance that it’s aged care and disability support services could provide. In a

submission from the review applicant’s representative dated 23 June 2015, it was submitted that community services in the review applicant’s area included social interaction support and minor support such as transport to attend cultural groups and purchase groceries through the Victorian Arabic Social Services. In the submission dated 23 June 2015 the representative indicated the review applicant would be eligible to receive two hours per fortnight of general housekeeping services through the local council. In this submission it was recorded that the available local community services of the Victorian Arabic Social Services and the local council could not provide 24-hour assistance which the review applicant required.

1. There is no information before the Tribunal that the applicant has obtained assistance from welfare, nursing or community services in Australia, over the last three years, since the date of the Department’s decision record in June 2019. The Tribunal is satisfied based on the current CVAC that the applicant has not engaged any formal services to provide any assistance, and relied on informal / family to provide support at the time of the assessment in January 2022.

1. The Tribunal is not satisfied based on the lack of information before it, that the assistance required by the review applicant, cannot be reasonably obtained from welfare, hospital, nursing or community services.

1. For all the above reasons, the Tribunal is not satisfied based on the information available to it that the assistance required by the review applicant cannot reasonably be provided by an Australian relative of the review applicant, or obtained from welfare, hospital, nursing or community services in Australia. The Tribunal is not satisfied that the visa applicant Khaled meets the requirements of r.1.15AA(1)(e)(ii).

1. The Tribunal is not satisfied that the visa applicant Khaled meets the requirements for carer in r.1.15AA(1)(e)(i) or (ii). The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and the visa applicant Khaled does not meet the requirements of r.1.15AA(1)(e).

Willing and able – reg 1.15AA(1)(f)

1. Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

1. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

1. The Tribunal has not made findings in relation to whether the visa applicant meets the requirements of r.1.15AA(1)(f), as the Tribunal found that the visa applicant did not meet the requirements of the preceding criteria in r.1.15AA(1)(e).

1. Given these findings the Tribunal concludes that at the time of decision the visa applicant Khaled is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy the requirements of cl.116.221.

Secondary visa applicant

1. The second named visa applicant applied for the visa on the basis of meeting the secondary criteria. In the Department’s decision record dated 26 June 2019 the delegate found that the second named visa applicant, Ghadeer Ibaida, did not meet the requirements of cl.116.321.

1. Clause 116.321 requires that the secondary visa applicant continues to be a member of the family unit of a person who is a holder of a subclass 116 visa.

1. As the Tribunal is not satisfied that the first named visa applicant Khaled Ibaida meets the primary criteria in cl.116.221, the Tribunal concludes that the first named visa applicant does not meet the primary criteria to be granted a subclass 116 visa. Therefore, the Tribunal cannot be satisfied that the secondary visa applicant continues to be a member of the family unit of a person who is the holder of, or meets the criteria for, a subclass 116 visa.

1. For these reasons, the Tribunal finds that the second named visa applicant, Ghadeer Ibaida, does not meet the requirements of cl.116.321.

1. For the reasons above, the visa applicants do not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicants meet prescribed criteria for the visa sought.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Margie Bourke Member

ATTACHMENT

Migration Regulations 1994

1.15AA Carer

1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

(a)the applicant is a relative of the resident; and

(b)according to a certificate that meets the requirements of subregulation (2):

(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

(e)the assistance cannot reasonably be:

(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii)obtained from welfare, hospital, nursing or community services in Australia; and

(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

(2)A certificate meets the requirements of this subregulation if:

(a)it is a certificate:

(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

(ii)signed by the medical adviser who carried it out; or

(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation

(2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.