Awad Dit Awad (Migration)

[2023] AATA 1424

Awad Dit Awad (Migration) [2023] AATA 1424 (8 May 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Ms Warde Awad Dit Awad

VISA APPLICANT:  Mr Mahmoud Freijeh

REPRESENTATIVE:  Ms Haddad Hanan (MARN: 1461976)

CASE NUMBER:  2013490

HOME AFFAIRS REFERENCE(S):           OSF2018/005036

MEMBER:  Joseph Francis

DATE:  8 May 2023

PLACE OF DECISION:  Perth

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:

·Reg 1.15AA (1)(e)(i) for the purpose of cl 116.211 of Schedule 2 to the Regulations.

Statement made on 08 May 2023 at 1:02pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– individual circumstances of each qualifying family member – family members would be unable to provide the care required –– decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15AA, Schedule 2, cl 116.211

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 31 August 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).

1. The visa applicant applied for the visa on 21 March 2018. 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 116.211.

1. The delegate refused to grant the visa on the basis that cl 116.211 was not met because regulation 1.15AA (1)(e)(i) is not met by the applicant. Specifically, it was not considered the assistance required could not be reasonably 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. In this matter, it was not considered the care could not be provided particularly on a collective or rotational basis with other relatives.

1. The review applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

1. The review applicant was represented in relation to the review.

1. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the care required could not be provided particularly on a collective or rotational basis with other relatives.

1. It is not in dispute that the Australian citizen, who in this matter is the review applicant, requires care. An updated Bupa care assessment dated 10 December 2021 was provided to the Tribunal that the sponsor had an assessed impairment rating of fifty.

1. Clause 116.211 requires that the applicant meet each sub regulation of regulation 1.15AA. In this matter, the delegate considered the circumstances of each relative of the Australian citizen requiring care, and determined that it had not been demonstrated why her relatives could not provide the full extent of the assistance she requires on a collective or rotational basis.

1. The delegate considered the situation and evidence of each qualifying member of the family. The Tribunal, however, was provided further recent evidence addressing each of the members circumstances and considered their individual and collective ability to provide care, and considered each members ability to contribute to the collective care required of the Australian citizen.

1. Ghada Creideh is the daughter of the resident. She has provided evidence that she is not able to continue to provide care for her mother as she is providing care for her daughter who suffers from ADHD and her husband. The delegate was not satisfied that there was sufficient evidence to demonstrate the care required and provided to her other family members.

1. The Tribunal received oral and documented evidence from Ms Creideh confirming reasons as to why she cannot provide the care required to her mother. The following documents were submitted that the Tribunal considered:

·     Clarity Counsellors health report

·     Medical certificate supporting her conditions

1. The Clarity Counsellors report dated 24 August 2022 indicates Ms Creideh suffers from Complex Grief Disorder and PTSD which inhibits her ability to care for herself. The Tribunal places weight on this evidence.

1. The Medical certificate dated 26 August 2022 issued by Dr Ahmed Ali confirming Ms Creideh suffers from major depression, severe anxiety and PTSD following the death of one of her sons. The Tribunal places weight on this evidence.

1. Ayah Chreideh is the granddaughter of the resident. She provided evidence to the delegate supporting her claim that she suffers from ADHD, is also sick, and currently studying as reasons she cannot provide care for her grandmother.

1. The Tribunal received further evidence by statutory declaration and photographs in support that Ayah Chreideh is married and has purchased a property in Wombat, NSW, some four hours drive from her grandmother’s residence. The Tribunal places some weight on this evidence and accepts that it is unreasonable for Ms Chreideh to be able to contribute to the provision of substantial care for her grandmother, specifically given the distance from her residence to her grandmothers.

1. Ahmad Chreideh is the grandson of the resident. The Tribunal accepts that Mr Ahmad Chreideh is now married and has his own child, and also works full-time. The Tribunal was provided with a marriage certificate, birth certificate and employment confirmation. The Tribunal places weight on this evidence and accepts that it is not reasonable for Mr Chreideh to be able to provide a noticeable contribution towards the combined care for his grandmother. The Tribunal finds Mr Ahmad Chreideh has limited ability to contribute to the care of his grandmother.

1. Fawzi Chreideh is the grandson of the resident. The Tribunal was provided a medical report dated 26 August 2022 supporting his claim that he suffers major depression, severe anxiety disorder and PTSD. Additional evidence indicating pain relief medication for Mr Fawzi Chreideh was also provided. The Tribunal accepts Mr Fawzi Chreideh was involved in the same accident that claimed the life of his brother. The Tribunal places weight on this evidence and finds that Mr Fawzi Chreideh has a limited ability to provide care to his grandmother.

1. The Tribunal has considered the individual circumstances of each qualifying family member. Whilst it is reasonable that each may be able to make a limited contribution to the care required by the citizen, Ms Warde Award Dit Awad, the Tribunal considers that even on a collective or rotational basis, the family members would be unable to provide the care required.

1. The Tribunal therefore finds the citizen meets sub regulation 1.15AA (1)(e)(i) for the purpose of cl. 116.211of schedule 2 of the regulations.

1. The delegate refused the visa with consideration only for sub regulation 1.15AA (1)(e)(i). The Tribunal received no further evidence with regards to other sub clauses of reg 1.15AA and makes no findings with regards to any other sub clauses.

1. 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

1. 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:

   ·Sub regulation 1.15AA(1)(e)(i) for the purpose of cl 116.211of Schedule 2 to the Regulations.

Joseph Francis Member