Al Bermaney (Migration) - [2024] AATA 253

Al Bermaney (Migration) [2024] AATA 253 (12 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Fawzia J Rashed Al Bermaney
VISA APPLICANT:  Mr Ihsan Ali Abd Al-Jawazery
CASE NUMBER:  2013562
HOME AFFAIRS REFERENCE(S):          OSF2017/000059
MEMBER:Michael Ison
DATE:12 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 12 February 2024 at 2:41pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care reasonably obtained from welfare, hospital, nursing or community services in Australia – assistance available from Australian family – review applicant lived lengthy periods with her other children – Australian daughter’s busy medical practice – limited evidence of inquiries about in-home assistance obtainable – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 116.221, 835.212; rr 1.03, 1.15
Social Security Act 1991, s 23
CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Biyiksiz v MIMIA [2004] FCA 814
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 25 June 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Immigration history
The visa applicant is Mr Ihsan Ali Abd Al-Jawazery who is a 45-year-old national of Iraq. Mr Al-Jawazery is referred to as the visa applicant in these reasons for decision.
On 20 August 2017 the visa applicant applied for an offshore Other Family (Migrant) (Class BO) (Subclass 116) Carer visa on the basis that the visa applicant claims that he is a relative of his sponsor Mrs Fawzia J Rashed Al Bermaney, who is claimed to be the visa applicant’s mother.
The visa application was refused on 25 June 2020. It is the refusal to grant the visa applicant a Subclass 116 Carer visa that is the subject of this review.
The review applicant is Mrs Al Bermaney who is a 78-year-old national of Australia, having acquired Australian citizenship on 8 September 2020. Mrs Al Bermaney is referred to as the review applicant, the sponsor or the resident in these reasons for decision as the context requires.
The visa applicant did not provide evidence to the Department to demonstrate that the visa applicant is son of the review applicant.
According to a Carer Visa Assessment Certificate (CVAC) dated 23 May 2017, the review applicant has been assessed as having an impairment rating of 40 under the relevant Impairment Tables. The CVAC stated that the review applicant has been diagnosed as having the following medical conditions: advanced seronegative rheumatoid arthritis, ischaemic heart disease, renal impairment, cervical and lumbosacral degenerative arthropathy/nerve impingement, glaucoma, posterior vitreous detachment, cataract and depression.
The doctor who completed the CVAC found the review applicant’s medical conditions adversely and permanently impair the review…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Al Bermaney (Migration)

Details

AGLC: Al Bermaney (Migration) [2024] AATA 253
Case: [2024] AATA 253
Decision Date: 12 February 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse to grant an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), to Mr Ihsan Ali Abd Al-Jawazery. The visa applicant claimed to be a carer for his mother, Mrs Fawzia J Rashed Al Bermaney, who is an Australian citizen. The review applicant, Mrs Al Bermaney, suffers from significant medical conditions requiring daily personal care and constant supervision.

The primary legal issue before the Tribunal was whether the visa applicant, Mr Al-Jawazery, met the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the assistance Mrs Al Bermaney required could reasonably be obtained from welfare, hospital, nursing, or community services in Australia, and if there was insufficient assistance available from Australian family members.

The Tribunal reasoned that while Mr Al-Jawazery provided extensive personal care to his mother when she was in Iraq, there was limited evidence that he had made reasonable inquiries about the availability of in-home assistance or community services in Australia. The Tribunal noted that Mrs Al Bermaney had spent significant periods in Australia living with her daughter, Dr Areej Al-Jawazery, who is a medical practitioner. The Tribunal concluded that the visa applicant had not satisfied the criteria under clause 116.221 of Schedule 2 to the Regulations, which requires that care reasonably be obtained from Australian services or that Australian family members are unable to provide the necessary care.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal has had regard to the oral evidence of the applicants and Dr Areej Al-Jawazery, all of the information in the oral and written submissions provided to the Tribunal on the applicants behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the visa applicant’s application for the Other Family (Migrant) (Class BO) (Subclass 116) visa, the documents provided to the Department in support of that application and copies of communications between the Department and the visa applicant.Background The review applicant has three children:·Dr Shema Al-Jawazery, aged 48 who according to the oral evidence before the Tribunal practices as a medical doctor, lives in Babylon, Iraq and is married with three children;·Dr Areej Al-Jawazery, aged 47 who practices full-time as a medical doctor, lives in Craigieburn in Victoria, Australia with her husband and three children and since 13 October 2011 has been an Australian citizen; and·Mr Ihsan Ali Abd Al-Jawazery, who is the visa applicant, aged 45, unemployed, unmarried and without children and lives in Baghdad, Iraq. Over the past four years, since 1 January 2020, the review applicant has spent the following periods of time in Australia where she has lived with Dr Areej Al-Jawazery and in Iraq where it is claimed she has lived with the visa applicant: The review applicant, since 1 January 2020, has spent 998 days in Iraq and 500 days in Australia. Some of this travel occurred during the COVID-19 global pandemic when local and international travel movements were restricted from time to time. Dr Areej Al-Jawazery gave oral evidence, which the Tribunal accepts, that as the only child of the review applicant in Australia she is the primary carer of the review applicant who – apart from one short period of weeks – has always lived with Dr Areej Al-Jawazery and her family when the review applicant is in Australia. The visa applicant gave oral evidence that the review applicant lived with him during her 2020-2021 and 2021-2022 trips to Iraq and during this time he was the review applicant’s primary carer. It is on this basis that the visa applicant claims to be the carer of the review applicant. The visa applicant’s evidence in this regard is summarised as follows:·He is unmarried, without children and has lived in Baghdad, Iraq for the past five years, having grown up in the family home in Babylon, Iraq;·He was engaged to be married but his fiancé did not accept his care responsibilities for his mother and so he broke off the engagement before his mother arrived in Iraq in March 2022;·When the review applicant, his mother, is in Iraq she lives with him and he does everything for her including administering medications, preparing meals and food, assisting the review applicant with personal hygiene, dressing her, washing her clothes, assisting the review applicant with her mobility including lifting her at times and sleeping in the same room together because the review applicant has become scared to sleep on her own;·Their eldest sister, Dr Shema Al-Jawazery, also lives in Iraq, still in Babylon, works as a doctor and is busy raising her three children and therefore does not provide any assistance to the visa applicant in caring for their mother save for she visits most Fridays for a few hours during which time the visa applicant goes and does the grocery shopping for the review applicant and himself;·Is trained and qualified but has never worked as a pharmacist;·Is unemployed but has an online business as a goldsmith and jeweller making and selling jewellery which he hopes to continue in Australia should he be granted the Carer visa and should his mother’s care needs afford him the time to do;·It is normal in their Arabic and Iraqi culture for the eldest son to take care of their parents because the daughters marry and move out of the family home. This includes assisting the review applicant, who the visa applicant gave evidence is shy and has a difficult temper at times, with toileting and showering which reflects that the review applicant is most comfortable with and closest to, the visa applicant; and·The review applicant receives Government benefits from Australia and the review and visa applicants use this money to support themselves in Iraq.

Evidence

Evidence Before The Court

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 visa applicant is a carer of the review applicant at the time of this decision, taking into consideration how the term ‘carer’ is defined in reg 1.15AA.Whether the visa applicant is a ‘carer’ 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 reg 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) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 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 mother. In the Tribunal’s hearing invitation dated 13 July 2023 the Tribunal requested (emphasis in the original):The Presiding Member requests the visa applicant Mr Ihsan Ali Abd Al-Jawazery and the review applicant Mrs Fawzia J Rashed Al Bermaney (the sponsor) to provide evidence of their relationship through certified birth certificates or DNA testing. The Tribunal did not receive the requested information. The Tribunal discussed this with Dr Areej Al-Jawazery during the Tribunal hearing as it was Dr Areej Al-Jawazery who completed all paperwork for the visa applicant and review applicant, provided all documentation to the Tribunal during this review and engaged in all non-hearing communications with the Tribunal. Dr Areej Al-Jawazery agreed that she could obtain the visa applicant’s birth certificate and would provide it to the Tribunal. As noted in paragraph 18 of these reasons, after the Tribunal hearing on 28 August 2023 Dr Areej Al-Jawazery provided colour copies of the pages of her and the visa applicant’s passports containing their biometric information and a copy of both sides of her Victorian drivers’ licence. On 29 August 2023 the Tribunal confirmed its request for a copy of the birth certificate of the visa applicant and other information as follows:The Tribunal confirms receipt of your email date stamped Monday, 28 August 2023 1:27 PM attaching photos of the front and rear of Dr Al-Jawazery’s Victorian drivers licence and photos of the biometric pages of Dr Al-Jawazery’s passport and the Iraqi passport of the visa applicant, Mr Ihsan Ali Abed Al-Jawazery. The Presiding Member has reviewed these photos and is satisfied with their quality. Just to confirm, the remaining documents the Presiding Member asked be provided are:1. Copy of the Iraqi birth certificate for Mr Ihsan Ali Abed Al-Jawazery and a certified translation of that certificate into English;2. Copy of the Iraqi birth certificate for Dr Al-Jawazery and a certified translation of that certificate into English;3. Copies of the last five pay statements for Dr Al-Jawazery.

Decision

Reasons for decision

The examining doctor stated in the CVAC that the review applicant’s medical conditions have resulted in the need for the review applicant to receive personal care and attention on a daily basis to carry out routine bodily functions and has a need for constant supervision or monitoring because the review applicant may be a danger to themselves or another if left unsupervised. The examining doctor confirmed the review applicant’s need for assistance is permanent.The primary decision of a delegate of the Minister The review applicant provided the Tribunal with a copy of the primary decision. The visa applicant applied for the visa on 20 August 2017. 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). In the present case, the applicant is seeking to satisfy the 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. The delegate refused to grant the visa on the basis that cl 116.221 was not met because the delegate was not satisfied that the visa applicant was a carer of the review applicant because there was insufficient evidence before the delegate that the assistance the review applicant required could not be obtained from welfare, hospital, nursing or community services in Australia.The Tribunal hearing The review applicant and the visa applicant appeared before the Tribunal on 25 August 2023 to give evidence and present arguments, by video from Turkey. The Tribunal hearing was conducted by video at the request of the applicants. The Tribunal also received oral evidence from Dr Areej Al-Jawazery, who is a daughter of the review applicant and sister of the visa applicant. Dr Areej Al-Jawazery assisted the applicants in relation to the review and attended the hearing by video from Turkey. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicants whether they could understand the interpreter and whether they had any objection to the use of the interpreter retained by the Tribunal. The applicants indicated they could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. Pre-hearing submissions Apart from correspondence in relation to administrative matters associated with this review, the Tribunal did not receive any submissions on behalf of the applicants prior to the Tribunal hearing.Post-hearing submissions

Ratio Decidendi

Legal Principle Established

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 June 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).Immigration history The visa applicant is Mr Ihsan Ali Abd Al-Jawazery who is a 45-year-old national of Iraq. Mr Al-Jawazery is referred to as the visa applicant in these reasons for decision. On 20 August 2017 the visa applicant applied for an offshore Other Family (Migrant) (Class BO) (Subclass 116) Carer visa on the basis that the visa applicant claims that he is a relative of his sponsor Mrs Fawzia J Rashed Al Bermaney, who is claimed to be the visa applicant’s mother. The visa application was refused on 25 June 2020. It is the refusal to grant the visa applicant a Subclass 116 Carer visa that is the subject of this review. The review applicant is Mrs Al Bermaney who is a 78-year-old national of Australia, having acquired Australian citizenship on 8 September 2020. Mrs Al Bermaney is referred to as the review applicant, the sponsor or the resident in these reasons for decision as the context requires. The visa applicant did not provide evidence to the Department to demonstrate that the visa applicant is son of the review applicant. According to a Carer Visa Assessment Certificate (CVAC) dated 23 May 2017, the review applicant has been assessed as having an impairment rating of 40 under the relevant Impairment Tables. The CVAC stated that the review applicant has been diagnosed as having the following medical conditions: advanced seronegative rheumatoid arthritis, ischaemic heart disease, renal impairment, cervical and lumbosacral degenerative arthropathy/nerve impingement, glaucoma, posterior vitreous detachment, cataract and depression. The doctor who completed the CVAC found the review applicant’s medical conditions adversely and permanently impair the review applicant’s following functions: conditions limiting exertion and stamina (Table 1), conditions impacting upper limb function (Table 2), conditions impacting the spine (Table 4), mental health conditions (Table 5) and vision and the eyes (Table 12). The examining doctor stated in the CVAC that the review applicant’s medical conditions have resulted in the need for the review applicant to receive personal care and attention on a daily basis to carry out routine bodily functions and has a need for constant supervision or monitoring because the review applicant may be a danger to themselves or another if left unsupervised. The examining doctor confirmed the review applicant’s need for assistance is permanent.The primary decision of a delegate of the Minister The review applicant provided the Tribunal with a copy of the primary decision. The visa applicant applied for the visa on 20 August 2017. 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). In the present case, the applicant is seeking to satisfy the 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.