AL-SABIRI (Migration) - [2023] AATA 1668

AL-SABIRI (Migration) [2023] AATA 1668 (31 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Wasfi AL-SABIRI
Ms Dalia AL-SABIRI
Ms Ilana AL-SABIRI
Ms Sara AL-SABIRI
Ms Afrah Mohanad BATTY
REPRESENTATIVE:  Miss Sai Priya Sivalohan
CASE NUMBER:  1903440
HOME AFFAIRS REFERENCE(S):          CLF2017/122746, CLF2019/5404
MEMBER:Mila Foster
DATE:31 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:
·cl 836.212 of Schedule 2 to the Regulations
·cl 836.221 of Schedule 2 to the Regulations

and that the second, third, fourth and fifth named applicants meet the following criterion for a Subclass 836 (Carer) visa:
·cl 836.311 of Schedule 2 to the Regulations

Statement made on 31 May 2023 at 10:08am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance could not reasonably be provided by relatives in Australia – strict Mandean religious practice – welfare, hospital, nursing or community services in Australia – member of the family unit – secondary applicant dependent on the family head – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.221, 836.311, 836.321; rr 1.03, 1.05, 1.12, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Bader v Minister for Immigration and Border Protection [2018] FCCA 485
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 5 February 2019 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 20 December 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. In the present case, the first named applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa on the basis he is the carer of his mother, Rasmia Fezaa. The primary criteria for that visa include cl 836.212 which requires that the applicant claims to be the carer of an Australian relative and cl 836.221 which requires that the applicant is a carer of a person referred to in cl 836.212. The other applicants applied for the visa on the basis that they were members of the family unit of the first named applicant being his wife (the fifth named applicant) and his children (the second, third, and fourth named applicants).
The…

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.

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Details

AGLC: AL-SABIRI (Migration) [2023] AATA 1668
Case: [2023] AATA 1668
Decision Date: 31 May 2023

CaseChat Overview and Summary

This case concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The primary applicant, Wasfi Al-Sabiri, sought to be recognised as a carer for his mother, Mrs Fezaa, an Australian citizen who required full-time care due to medical conditions. The dispute arose when the Tribunal considered whether the applicants met the criteria for the visa, particularly concerning the ability of other relatives and Australian services to provide the necessary care, and the familial relationship between the applicants.

The legal issues before the court were whether the first named applicant, Wasfi Al-Sabiri, was the carer of his Australian citizen mother, Mrs Fezaa, and whether assistance could reasonably be provided by other relatives in Australia or by Australian welfare, hospital, nursing, or community services. Additionally, the court needed to determine if the other named applicants were members of the family unit of the first named applicant, as required for their inclusion as secondary applicants. A significant aspect of the determination involved establishing the familial relationship between Wasfi Al-Sabiri and Mrs Fezaa, given the documentary evidence presented.

The court reasoned that while the Tribunal had before it evidence suggesting the familial relationship, it had not made a definitive finding on this crucial aspect. The Tribunal also had not adequately considered whether assistance could reasonably be provided by other relatives or Australian services, which is a key criterion for a Carer visa. Consequently, the Tribunal had not properly assessed the primary applicant's eligibility. The court found that the secondary applicants met the criterion of being members of the family unit, but their eligibility was contingent on the first applicant being granted the visa.

Therefore, the court remitted the applications for reconsideration. The direction was that the first named applicant met specific criteria for the Subclass 836 visa, namely clauses 836.212 and 836.221. The court also directed that the second, third, fourth, and fifth named applicants met the criterion of being members of the family unit under clause 836.311, and their applications were also remitted for the Minister to consider the remaining criteria.

Orders

Orders of the court

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Background

Background to the litigation

The evidence before the Tribunal includes Department of Home Affairs files relating to the visa application,[1] Department movement and ISCE records, documentary evidence provided on review, a written pre-hearing submission made by the representative, and the oral evidence given at the hearing. [1] CLF2017/122746 (DF1), CLR2019/5404.Background and summary of claims It is claimed that the applicants are Swedish citizens – that the first and fifth named applicants were born in Iraq and acquired Swedish citizenship by naturalisation; the second, third and fourth named applicants were born in Sweden and are Swedish citizens by birth. The applicants have been living in Australia since they arrived here on visitor visas on 4 October 2017. It is claimed Mrs Fezaa was born in Iraq, settled in Australia in 2006 and acquired Australian citizenship in 2009. It is claimed that Mrs Fezaa is a widow – that her husband and the first named applicant’s father, Mjali Sami, died in Australia on 29 September 2017. It is claimed that Mrs Fezaa requires full time care due to various medical conditions. Mrs Fezaa previously sponsored her daughter, Nadia Al-Sabiri, to provide her with assistance but, it is claimed, her daughter is no longer able to care for Mrs Fezaa due to her own medical condition. It is claimed that the first named applicant is willing and able to provide Mrs Fezaa with the care she needs. It is claimed that other members of Mrs Fezaa’s family in Australia are not able to care for Mrs Fezaa and she cannot obtain the assistance she requires from services in Australia. Whether the first named applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the first named applicant is the carer of his mother, Mrs Fezaa. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. The definition of ‘relative’ in reg 1.03 includes a parent. The Tribunal does not have before it the first named applicant’s birth certificate. The Tribunal has before it what the first named applicant claims is his Iraqi identity card. The identity card is issued to Wasfi Al-Sabiri, it states that his ‘Father’s Name and Grandfather’s Name’ is Sami Maie, and that his mother’s name is Rasmia Salim. The Tribunal has before it what is claimed is Mrs Fezaa’s Certificate of Iraqi Nationality and her husband’s/the first named applicant’s father’s Iraqi identity card. The Iraqi Nationality Certificate is issued to Rasmia Fezaa Salim and states that her father is ‘Salim Fezaa’. It is claimed that Mrs Fezaa subsequently omitted using ‘Salim’. The Iraqi Identity Card is issued to Sami Al-Sabiri and states that his ‘Father’s Name and Grandfather’s Name’ is Sami Mjali, and that his wife’s name is Rasmia Salim Fezaa. The first named applicant has also presented what he claims is his Swedish citizenship certificate and Swedish passport issued to Wasfi Sami Maie Al-Sabiri and Wasfi Al-Sabiri, respectively. It is claimed that when it came time to be issued the passport the first named applicant was asked whether he wanted his full name or to shorten it and he chose the latter.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The primary issue in the present case is whether the first named applicant is the carer of his mother. The evidence before the Tribunal includes Department of Home Affairs files relating to the visa application,[1] Department movement and ISCE records, documentary evidence provided on review, a written pre-hearing submission made by the representative, and the oral evidence given at the hearing. [1] CLF2017/122746 (DF1), CLR2019/5404.Background and summary of claims It is claimed that the applicants are Swedish citizens – that the first and fifth named applicants were born in Iraq and acquired Swedish citizenship by naturalisation; the second, third and fourth named applicants were born in Sweden and are Swedish citizens by birth. The applicants have been living in Australia since they arrived here on visitor visas on 4 October 2017. It is claimed Mrs Fezaa was born in Iraq, settled in Australia in 2006 and acquired Australian citizenship in 2009. It is claimed that Mrs Fezaa is a widow – that her husband and the first named applicant’s father, Mjali Sami, died in Australia on 29 September 2017. It is claimed that Mrs Fezaa requires full time care due to various medical conditions. Mrs Fezaa previously sponsored her daughter, Nadia Al-Sabiri, to provide her with assistance but, it is claimed, her daughter is no longer able to care for Mrs Fezaa due to her own medical condition. It is claimed that the first named applicant is willing and able to provide Mrs Fezaa with the care she needs. It is claimed that other members of Mrs Fezaa’s family in Australia are not able to care for Mrs Fezaa and she cannot obtain the assistance she requires from services in Australia. Whether the first named applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the first named applicant is the carer of his mother, Mrs Fezaa. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. The definition of ‘relative’ in reg 1.03 includes a parent. The Tribunal does not have before it the first named applicant’s birth certificate. The Tribunal has before it what the first named applicant claims is his Iraqi identity card. The identity card is issued to Wasfi Al-Sabiri, it states that his ‘Father’s Name and Grandfather’s Name’ is Sami Maie, and that his mother’s name is Rasmia Salim. The Tribunal has before it what is claimed is Mrs Fezaa’s Certificate of Iraqi Nationality and her husband’s/the first named applicant’s father’s Iraqi identity card. The Iraqi Nationality Certificate is issued to Rasmia Fezaa Salim and states that her father is ‘Salim Fezaa’. It is claimed that Mrs Fezaa subsequently omitted using ‘Salim’. The Iraqi Identity Card is issued to Sami Al-Sabiri and states that his ‘Father’s Name and Grandfather’s Name’ is Sami Mjali, and that his wife’s name is Rasmia Salim Fezaa. The first named applicant has also presented what he claims is his Swedish citizenship certificate and Swedish passport issued to Wasfi Sami Maie Al-Sabiri and Wasfi Al-Sabiri, respectively. It is claimed that when it came time to be issued the passport the first named applicant was asked whether he wanted his full name or to shorten it and he chose the latter.

Decision

Reasons for decision

Although the Tribunal is satisfied that the second, third, fourth and fifth named applicants continue to be members of the family unit of the first named applicant, the Tribunal cannot find that they meet cl 836.321 because the first named applicant is not the holder of a Subclass 836 visa nor is it appropriate to make a finding on the criterion given it has decided to remit the first named applicant’s visa application for further consideration. Instead, having found that the second, third, fourth and fifth named applicants meet cl 836.311, the appropriate course is to also remit their applications for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.DECISION The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer):·cl 836.212 of Schedule 2 to the Regulations ·cl 836.221 of Schedule 2 to the Regulationsand the direction that the second, third, fourth and fifth named applicants meet the following criterion for a Subclass 836 (Carer):·cl 836.311 of Schedule 2 to the Regulations Mila FosterMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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