Allouch (Migration) - [2023] AATA 4450

Allouch (Migration) [2023] AATA 4450 (16 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Samira Allouch
REPRESENTATIVE:  Mrs Amita Kant
CASE NUMBER:  2202856
HOME AFFAIRS REFERENCE(S):          CLF2019/28410
MEMBER:Mila Foster
DATE:16 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 16 November 2023 at 2:17pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance cannot reasonably be provided/obtained – welfare, hospital, nursing or community services – partially dependent for activities of daily living (ADLs) – cultural or religious requirements – Muslim woman – preference rather than religious requirement – cost of obtaining services – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.221
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 11 February 2022 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 5 July 2019. 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). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa the criteria for which are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria include cl 836.212 which requires that the applicant claims to be the carer of an Australian relative at the time of application and cl 836.221 which requires that the applicant is the carer of a person referred to in cl 836.212 at the time of decision. The applicant applied for the visa on the basis that she was the carer of her sister, Kawsar Allouche, her sponsor for the visa.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the applicant had not demonstrated that the assistance needed by her sister could not reasonably be provided by other members of her family or obtained from welfare, hospital, nursing or community services in Australia.
The applicant appeared before the Tribunal on 24 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Raida Matar (the sponsor’s niece) and Celine Hassan (the sponsor’s granddaughter). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review. The representative attended the hearing.
For 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.

Continue reading Allouch (Migration)

Details

AGLC: Allouch (Migration) [2023] AATA 4450
Case: [2023] AATA 4450
Decision Date: 16 November 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer), made by a 64-year-old widowed Lebanese citizen. The applicant claimed to be caring for her 69-year-old sister, an Australian citizen. The Administrative Appeals Tribunal was required to determine whether the applicant met the criteria for the visa, specifically whether the assistance her sister required could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia.

The Tribunal considered whether the applicant had claimed to be the carer of an Australian relative, which was satisfied by her visa application and supporting documentation establishing her relationship as the sister of an Australian citizen. The primary legal issue revolved around clause 836.221 of the Migration Regulations 1994, which requires that the applicant be a carer of the Australian relative. This definition of "carer" includes the crucial element that the required assistance cannot reasonably be provided by any other relative or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal's reasoning focused on the evidence presented regarding the sponsor's need for assistance and the availability of alternative support. While the applicant's relationship to the sponsor was established, the Tribunal found that the applicant had not demonstrated that the assistance her sister required could not reasonably be obtained from existing services in Australia. The applicant's preference for care from her sister, influenced by cultural or religious considerations, was not deemed sufficient to meet the regulatory threshold where alternative services were reasonably available.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa, concluding that the applicant had not satisfied the requirement that the necessary assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia.

Orders

Orders of the court

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Background

Background to the litigation

The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, Department movement records, written submissions and documentary evidence presented to the Tribunal, and the oral evidence and submissions given at the hearing. Background It is claimed that the applicant is a 64-year-old widowed Lebanese citizen who arrived in Australia on a visitor visa on 31 January 2019. She claims that since February 2019 she has been caring for her 69-year-old sister. Whether the 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 applicant claimed in her visa application to be the carer of the sponsor who was her sister and an Australian citizen. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’ is defined in reg 1.03 of the Regulations and includes a sister. The Tribunal has before it an Australian passport issued to the sponsor on 20 March 2018 and an Australian citizenship certificate which states she was granted citizenship on 2 August 1989. Based on those documents the Tribunal finds that the sponsor is and was at the time of application an Australian citizen. An English translation of an extract of a Lebanese Family Registry Record issued on 17 January 2019 was presented as evidence of the relationship between the applicant and sponsor. The extract was not translated by a NAATI accredited translator. It indicates that Samira Allouche and Kawssar Allouche have the same parents. The Tribunal notes the variation in spelling of the names but presumes this is due to transliteration from Arabic to English. Although the sponsor’s passport and citizenship certificate only provide her year of birth the Family Registry Record provides the day, month and year of Kawssar Allouche’s birth. The year of birth corresponds to the sponsor’s claimed year of birth. The Tribunal accepts on the basis of this document and the statutory declarations from family members which refer to the applicant and sponsor as sisters, that the applicant is the biological sister of the sponsor. The applicant is thus a ‘relative’ as defined in reg 1.03 of the sponsor. The Tribunal therefore finds that at the time of application the applicant claimed be the carer of an Australian relative and satisfies the requirements of cl 836.212.Whether the applicant is a carer Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative referred to in cl 836.221. The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this decision. It states that the applicant is the carer of a person who is an Australian citizen usually resident in Australia,[1] Australian permanent residence or eligible New Zealand citizen (the ‘resident’) if the requirements in paragraphs (a) to (f) are met. [1] The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17].

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 assistance the sponsor requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, Department movement records, written submissions and documentary evidence presented to the Tribunal, and the oral evidence and submissions given at the hearing. Background It is claimed that the applicant is a 64-year-old widowed Lebanese citizen who arrived in Australia on a visitor visa on 31 January 2019. She claims that since February 2019 she has been caring for her 69-year-old sister. Whether the 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 applicant claimed in her visa application to be the carer of the sponsor who was her sister and an Australian citizen. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’ is defined in reg 1.03 of the Regulations and includes a sister. The Tribunal has before it an Australian passport issued to the sponsor on 20 March 2018 and an Australian citizenship certificate which states she was granted citizenship on 2 August 1989. Based on those documents the Tribunal finds that the sponsor is and was at the time of application an Australian citizen. An English translation of an extract of a Lebanese Family Registry Record issued on 17 January 2019 was presented as evidence of the relationship between the applicant and sponsor. The extract was not translated by a NAATI accredited translator. It indicates that Samira Allouche and Kawssar Allouche have the same parents. The Tribunal notes the variation in spelling of the names but presumes this is due to transliteration from Arabic to English. Although the sponsor’s passport and citizenship certificate only provide her year of birth the Family Registry Record provides the day, month and year of Kawssar Allouche’s birth. The year of birth corresponds to the sponsor’s claimed year of birth. The Tribunal accepts on the basis of this document and the statutory declarations from family members which refer to the applicant and sponsor as sisters, that the applicant is the biological sister of the sponsor. The applicant is thus a ‘relative’ as defined in reg 1.03 of the sponsor. The Tribunal therefore finds that at the time of application the applicant claimed be the carer of an Australian relative and satisfies the requirements of cl 836.212.Whether the applicant is a carer Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative referred to in cl 836.221. The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this decision. It states that the applicant is the carer of a person who is an Australian citizen usually resident in Australia,[1] Australian permanent residence or eligible New Zealand citizen (the ‘resident’) if the requirements in paragraphs (a) to (f) are met. [1] The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17].

Decision

Reasons for decision

According to information provided in the visa application form the applicant had a brother and 7 stepchildren residing in Lebanon. As the applicant had a ‘near relative’ as defined in r.1.15(2) in Lebanon she was not a ‘remaining relative’ and unable to meet cl.835.212. The Tribunal therefore finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.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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