Atallah (Migration) - [2023] AATA 1499

Atallah (Migration) [2023] AATA 1499 (25 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Zahia Kamel Bishara Atallah
VISA APPLICANT:  Mr George Nagy Kamel Beshara
CASE NUMBER:  2204097
HOME AFFAIRS REFERENCE(S):          OSH2019/021632
MEMBER:Peter Emmerton
DATE:25 May 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.221 of Schedule 2 to the Regulations

Statement made on 25 May 2023 at 11:30am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – other relatives – estrangement – work and family commitments – community services – specific language and cultural requirements – willing and able – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cl 116.221
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
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 18 January 2022 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).
The visa applicant applied for the visa on 19 March 2019. 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 applicant has not demonstrated that the assistance required by the resident cannot reasonably be provided by her relatives in Australia. Consequently, they found that regulation 1.15AA(1)(e)(i) within the definition of ‘carer’ is not met. In addition, they found that the resident requires care, but they did not find that it has been demonstrated that the care the resident requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Consequently, regulation 1.15AA(1)(e)(ii) is not met.
The review applicant was not represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether or not the requirements of cl 116.221…

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 Atallah (Migration)

Details

AGLC: Atallah (Migration) [2023] AATA 1499
Case: [2023] AATA 1499
Decision Date: 25 May 2023

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, George Nagy Kamel Beshara, against a decision regarding an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The core dispute revolved around whether the applicant met the definition of a 'carer' as prescribed by the Migration Regulations 1994, specifically in relation to providing assistance to an Australian relative, Zahia Kamel Bishara Atallah. The decision was made by a Member of the Administrative Appeals Tribunal (AAT).

The legal issue before the Tribunal was whether the applicant, George Nagy Kamel Beshara, satisfied the criteria of subclause 116.221 of Schedule 2 to the Migration Regulations 1994, which defines a 'carer' for the purposes of the Subclass 116 visa. This involved determining if the Australian relative had a medical condition causing impairment, a continuing need for direct assistance, and if such assistance could not reasonably be provided by other relatives or obtained from community services in Australia, and if the applicant was willing and able to provide the necessary assistance.

The Tribunal considered a substantial amount of documentary evidence, including medical reports, aged care plans, statements from community and religious organisations, financial statements, and statutory declarations from various individuals. The Tribunal concluded that the evidence presented indicated that the Australian relative had a medical condition requiring ongoing care and that assistance could not reasonably be obtained from other sources. However, the Tribunal found that further consideration was required regarding the applicant's willingness and ability to provide substantial and continuing assistance, as well as the inability of other relatives to provide such care.

Consequently, the Tribunal remitted the application for the Subclass 116 visa back to the Minister for reconsideration. The direction was that the criteria under cl 116.221 of Schedule 2 to the Regulations were met, implying that the Tribunal was satisfied on the balance of probabilities that the applicant qualified as a 'carer' for the purpose of the visa application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 issue in the present case is whether or not the requirements of cl 116.221 are met. The Tribunal has read and carefully considered the following evidence presented to the Department and the delegate.·Department notice of invalid application, 31 May 2019·Department acknowledgement of application, 31 May 2019·Department internal visa application summary·Department request for signatures – with signatures provided·Department/Applicant progress queries/updates·Department Application forms·Bupa Medical Visa Services Certificate·Photos and biometrics·Australian Citizenship Certificate of Zahia Kamel Bishara Atallah, 13 October 2018·Department request for more information, 18 August 2021·Birth Registration, George Nagy Kamel Beshara, issued 24 April 2016·Statement of Coptic Orthodox Patriarchate, 18 August 2021·Family documents and Department personal particulars forms·Aged Care Support Plan, Zahia Atallah, Action on Disability, 20 August 2021·St George’s Coptic Orthodox Church statement, V Rev Fr Samuel Elias, 22 August 2021·Centrelink income statement, Zahia Atallah, 19 August 2021·Prior statutory declarations (all declarants included on updated AAT file with new copies)·Department request for more information, 16 November 2021·Letter from Fr Sourail, St Marks Coptic Orthodox Church, 8 December 2021·Statutory Declaration of Girgis Abdelmalek, 30 November 2021 The Tribunal has read and carefully considered the following evidence presented to the Administrative Appeals Tribunal, (AAT).·Submission of Nirmen Beshara, 20 March 2022·Letter from Fr Peter Agaibi, St George’s Coptic Orthodox Church, 20 March 2022·Statement of Hany Faltas, 20 March 2022·Statement of Nader Faltas, 21 March 2022·Aldi Mobile statements 28 September 2020 to 10 March 2022·Account Statement, Zahia Atallah, ADEC, November 2021·Statement of Nadia Christofidis, Family Therapist, 26 February 2022·Sale of Business Agreement. 1 November 2021·Medical Statement, Edwardes Street Medical Family Clinic, 22 November 2021·Email enquiries regarding lack of appropriate care/supports available·Outline of submissions from Mina Beshara·Correspondence from care providers regarding lack of services, 2022·Caritas Egypt – confirmation of employment of George Nagy Kamel Beshara, dated 16 May 2023·Support letter from Fr Peter Agaibi, Parish Priest, St Georges’ Coptic Orthodox Church, 17 May 2023·Resume of George Beshara·Statutory Declaration of Hany Faltas, Correctional Officer, 18 May 2023·Statutory Declaration of Mina Beshara, Administrator, 7 May 2023·Statutory Declaration of Nader Faltas, Cable Technician, 17 May 2023·Statutory Declaration of Nirmen Beshara, Learning Support Officer, 18 May 2023·Statutory Declaration of Sami Sami Hakim, Disability Support Worker and Community Volunteer, 10 May 2023·Academic Records of George Nagy Kamel Beshara, including secondary schooling and Tourism coursesWhether the visa applicant is a ‘carer’

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.DECISION The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 116 (‘carer’) visa are met:·cl 116.221. of Schedule 2 to the RegulationsPeter EmmertonMemberATTACHMENTMigration Regulations 19941.15AA ‘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’.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.