Butrus (Migration)

[2023] AATA 4145

Butrus (Migration) [2023] AATA 4145 (4 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Abeerah Hirmiz Minas Butrus
Mr Stefhan Francis Stefhan Bardakjian
Master Gabrial Stefhan Francis Bardakjian
Master Danial Stefhan Francis Bardakjian

REPRESENTATIVE:  Ms Karyn Anderson, Clothier Anderson Immigration Lawyers

CASE NUMBER:  1915606

HOME AFFAIRS REFERENCE(S):          CLF2018/360517

MEMBER:Michael Ison

DATE:4 December 2023

PLACE OF DECISION:  Melbourne

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 requirements of reg 1.15AA(1)(a), (1)(b), (1)(ba) and (1)(c) to be a ‘carer’ for the purposes of cl 8236.221 of Schedule 2 to the Regulations for the grant of a Subclass 836 (Carer) visa.

Statement made on 04 December 2023 at 4:29pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – no carer visa assessment certificate at time of delegate’s decision – certificate provided to tribunal – multiple permanent physical and mental health conditions and need for assistance – no consideration of possibility of assistance by other specified relatives or service providers – evidence from all available witness not heard – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(a), (b), (ba), (c), Schedule 2, 826.221

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 27 May 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).

   Background

2. The first named applicant in this review is Ms Abeerah Hirmiz Minas Butrus who is 44 years of age and is a national of Jordan. Ms Butrus is referred to as the applicant or first named applicant in these reasons for decision.

3. The applicant first arrived in Australia on 15 August 2018 as the holder of a Visitor (Class FA) (Subclass 600) visa that was valid to 15 November 2018.

4. On 15 November 2018 the applicant applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) Carer visa while in Australia on the basis the applicant is a relative of her sponsor Ms Lailah Mano Shabo, who is the applicant’s mother. Mr Stefhan Francis Stefhan Bardakjian (the applicant’s husband), Master Gabrial Stefhan Francis Bardakjian (the applicant’s eldest son) and Master Danial Stefhan Francis Bardakjian (the applicant’s youngest son) were also included in this Other Family (Residence) (Class BU) (Subclass 836) Carer visa application as members of the family unit of the applicant.

5. Mr Bardakjian and Masters Gabrial and Danial Bardakjian are referred to as the second named applicant, the third named applicant and the fourth named applicant respectively or collectively as the secondary applicants in these reasons for decision.

6. The visa applications were refused on 27 May 2019. It is the refusal to grant the applicants’ primary and secondary Carer visas that is the subject of this review.

7. Ms Shabo, who is 78 years of age, is an Australian Permanent Resident.  On 24 June 2022 Ms Shabo applied for conferral of Australian citizen and that application has not been finally determined at the time of this decision. Ms Shabo is referred to as the resident and the sponsor in these reasons for decision.  

8. According to a Carer Visa Assessment Certificate (CVAC), the resident in this matter, Ms Shabo has been assessed as having an impairment rating of 40 under the relevant Impairment Tables. The CVAC is dated 12 May 2023. The CVAC states the resident has been diagnosed with Ischemic Heart Disease, Type 2 Diabetes, Hypertension, Bilateral Knee Osteoarthritis, Lumbar Disc Degeneration, Osteoporosis, Bilateral Shoulder Tendinitis, Adjustment Disorder with Anxiety and Depressed Mood and Somatic Symptom Disorder.

9. The resident’s conditions have been assessed as adversely and permanently impacting the resident’s ability to attend to the practical aspects of daily life. These assessments include functional impairments being present for the following impairment tables:

   ·Table 1 conditions limiting exertion and stamina: ischaemic heart disease, shortness of breath, impacts distances the resident can walk;

   ·Table 2 conditions impacting upper limb function: bilateral shoulder tendinitis, limited range of movement;

   ·Table 3 conditions impacting lower limbs: bilateral knee osteosrthritis, uses walking stick, unsteady on her feet, needs to rest every 10 metres when walking;

   ·Table 4 conditions impacting the spine: lumbar spine degeneration with back pain; and

   ·Table 5 mental health conditions: diagnosed with adjustment disorder with anxiety and depressed mood and somatic symptom disorder.

10. The examining doctor who prepared the CVAC stated the impairments caused by the resident’s medical conditions are permanent, which means the resident has, and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life. The assessing doctor found the resident has a need for constant supervision or monitoring because they may be a danger to themselves or another.

11. The resident was assessed as not having any functional impairment present in relation to impairment tables six to 15, inclusive.  

12. At the time the applicants applied for the Carer visas, they were granted Bridging A (Subclass 010) visas on 15 November 2018, which they continue to hold at the time of the decision. The applicant’s Bridging A visa has condition 8101 (No Work) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached.

    The primary decision of a delegate of the Minister

13. The applicant provided the Tribunal with a copy of the primary decision.

14. At the time the applicants applied for the Carer visas, Class BU contained three subclasses of visa, being: Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative) per item 1123B of Schedule 1 to the Regulations. In the present case, the applicants are seeking to satisfy the criteria for the grant of Subclass 836 Carer visas.

15. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. The first named visa applicant, as the primary applicant, must satisfy the primary criteria set out in cl 836.21 at the time of application and the primary criteria set out in cl 836.22 at the time of decision.

16. The second, third and fourth named applicants must satisfy the secondary criteria for the grant of a Carer visa which are set out in cl 836.3 of Schedule 2 to the Regulations. Clause 836.31 sets out the secondary criteria the second, third and fourth named applicants must satisfy at the time of application. Clause 836.32 sets out the secondary criteria the second, third and fourth named applicants must satisfy at the time of decision.

17. The delegate refused to grant the visas on the basis that the first named visa applicant did not meet cl 836.221 because that clause requires that at the time of decision the primary applicant is a ‘carer’ of a person referred to in cl 836.212. Clause 836.212 requires that the first named applicant as the primary visa applicant claims to be the ‘carer’, as that term is defined in reg 1.15AA, of an Australian relative, being the resident in this case, at the time of application for the visa.

18. At the time of the delegate’s decision there was no CVAC for the resident which meant the first named applicant did not meet the requirements of reg 1.15AA(1)(b) and therefore was not the ‘carer’ of the resident at the time of decision. This in turn meant the second, third and fourth named applicants were not the members of the family unit of a person who had satisfied the primary criteria for the grant of a Carer visa, which in turn meant they as secondary applicants did not satisfy the requirements of cl 836.32 at the time of decision.

19. In addition, the delegate was not satisfied sufficient evidence had been provided to the Department to demonstrate that the first named applicant was a relative, in this case the daughter, of the resident. This meant the delegate could not find, as required by clause 836.221 of Schedule 2 to the Regulations, that the first named applicant is the carer of an ‘Australian relative’.  

    Tribunal hearing on 6 September 2023

20. The first named applicant appeared before the Tribunal on 6 September 2023 to give evidence and present arguments, in person.

21. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

22. The second named applicant and the resident also both attended the Tribunal hearing in person.

23. The applicants were represented in this review by Ms Karyn Anderson of Clothier Anderson Immigration Lawyers. Ms Anderson is referred to in these reasons as the applicants’ representative or the representative. The representative attended the Tribunal hearing in person.

    Directions hearing held on 4 October 2023

24. The Tribunal held an administrative hearing on 4 October 2023 at which no evidence was taken. The purpose of this hearing was for the Tribunal to discuss with the first named applicant and the representative the future management of this review.

25. The directions hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

    Pre and post hearing submissions

26. The representative provided extensive submissions and documentary evidence prior to the Tribunal hearing and also provided written submissions prior to the directions hearing.

27. The representative’s oral and written submissions provided throughout this review were of considerable assistance to the Tribunal in the conduct of this review.

    Tribunal decision

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. The issue in the present case is whether the resident has a CVAC and whether the first named applicant is a ‘carer’ as that term is defined in reg 1.15AA and as required by clause 836.221.

    Whether the applicant is a carer

30. Clause 836.221 requires that at the time of decision, the 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)

31. 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 applicant’s mother.

32. The first named applicant has not provided a copy of her birth certificate or a certified translation of that certificate. The first named applicant has provided a certified copy of a page of her Iraqi passport showing her biometric information and on this page it is stated that the first named applicant’s mother is ‘Lailah Mano’.

33. The first named applicant has also provided a certified copy of a page of her Jordanian passport showing her biometric information. On this page of her passport it is stated that the first named applicant’s mother is ‘Leyla’, which the Tribunal accepts is an alternate spelling of Lailah.

34. The first named applicant has further provided a colour copy of an Australian Migration Status card known as an ImmiCard for her mother, the resident, and a colour copy of two pages of her mother’s Iraqi passport, including the page which includes the resident’s biometric information. In both of these documents the resident’s name is recorded as Lailah Mano Shabo Shabo.

35. These personal identifying documents are supported by statutory declarations declared by the first named applicant on 31 August 2023 and the resident on 1 September 2023 in which they both attest to their mother-daughter relationship.

36. The Tribunal finds that the first named applicant is the daughter of the resident. Therefore, as the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

37. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

38. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).

39. A CVAC has been issued in this case. The CVAC has been issued by a registered medical practitioner employed or contracted by Bupa who signed the certificate on 12 May 2023.

40. According to the CVAC, the resident has been assessed as having an impairment rating of 40 under the relevant Impairment Tables. The doctor who completed the CVAC stated that the resident has been diagnosed with the medical conditions set out in paragraph 8 of these reasons. These conditions were assessed as adversely and permanently impacting the resident’s ability to attend to the practical aspects of daily life causing the specific impairments set out in paragraph 9 of these reasons. The examining doctor stated the resident’s medical condition has resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions and the resident is in need of constant supervision or monitoring because she may be a danger to herself of others. The doctor diagnosed those care needs as being permanent (at least 2 years).

41. The Tribunal finds that the Certificate provided meets the requirements of reg 1.15AA(2). Further, the Certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

42. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

43. In the present case, the person with the medical condition is the resident whose Australian government movement records, obtained by the Tribunal on 13 July 2023, show has held a Subclass 202 Global Special Humanitarian visa since 31 May 2016. The Global Special Humanitarian visa grants the holder the right to stay in Australia permanently. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

44. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.

45. In the present case, the impairment rating specified in the CVAC is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

46. The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

47. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

48. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

49. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

50. This aspect of the definition of the term ‘carer’ for the purposes of cl 836.221 which requires that at the time of decision the primary applicant is a ‘carer’ of a person referred to in cl 836.212 was not assessed by the primary decision maker because at the time of the primary decision a certificate (CVAC) which meets the requirements of reg 1.15AA(2) had not been provided to the Department.

51. After the first Tribunal hearing the Tribunal was concerned that it may find that reg 1.15AA(1)(e)(i) and (ii) may not be met by the applicant which would then require the Tribunal to affirm the decision under review. The Tribunal was concerned that this would be procedurally unfair to the applicant because it would deny the applicant the opportunity to submit evidence in relation to these requirements to the primary decision maker.

52. The Tribunal held an administrative hearing on 4 October 2023 to discuss its concerns with the applicant and the representative with the assistance of an interpreter in in the Arabic and English languages.

53. The Tribunal invited the applicant to provide written submission before the administrative hearing addressing the issues to be discussed during the administrative hearing.

54. On 3 October 2023 the representative, for and on behalf of the applicant, provided a six-page submission to the Tribunal which stated, in part:

    We refer to your letter dated 25 September 2023 and to the presiding Member’s concern that a procedural fairness issue may arise should this review be affirmed on a basis other than the narrow factual issue relied on by the delegate as the basis for the refusal decision, ie whether sub-reg. 1.15AA(1)(b) of the Migration Regulations 1994 (Cth) is satisfied.

    We reiterate our previous submission that the definition of a ‘carer’ according to Regulation 1.15AA is a composite definition, and not a disjunctive definition. Put another way, all the limbs of reg. 1.15AA must be met in order for the definition of ‘carer’ to be satisfied, and thus for sub-regs. 836.212 and 831.221 to be assessed (as would be required prior to grant of this visa).

    In light of the fact that a Carer Visa Assessment Certificate (CVAC) which meets the relevant requirements of regs. 1.15AA(1)(b), 1.15AA(2) and 1.15AA(3) is now before the Tribunal, should the Tribunal undertake a full assessment as to whether Ms Butrus meets the definition of a ‘carer’ under Regulation 1.15AA, the remaining criterion to be assessed is sub-reg. 1.15AA(1)(e).

    Sub-reg. 1.15AA(1)(e) requires consideration of whether the assistance that Ms Shabo requires can be provided by any other relative of hers, being a relative who is an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.

    However, our position in response to the Tribunal’s concern is that the appropriate course of action for this Tribunal would be to hear evidence on all limbs of reg. 1.15AA, and, if satisfied that reg. 1.15AA is met, in its entirety, to remit this matter for reconsideration with a direction that sub-regulations 836.212 and 836.221 are satisfied.

    If the Tribunal hears that evidence and is not satisfied that sub-reg. 1.15AA(1)(e) is met, we invite the Tribunal to remit the matter on the basis that sub-reg. 1.15AA(1)(b) is satisfied (ie the narrower basis, effectively overturning the finding of the delegate only). This would allow the delegate to assess the other matters set out in sub-reg. 1.15AA, avoiding prejudice and unfairness to the review applicant.

1. The Tribunal finds there is considerable force to these submissions, which were consistent with the oral submissions of the representative during the administrative hearing on 4 October 2023. The representative’s oral and written submissions in this regard were of considerable assistance to the Tribunal in deciding the future conduct of this review.

2. Despite the force of the representative’s submissions, the Tribunal’s concerns about potential procedural unfairness to the applicant have not been allayed. The Tribunal is not satisfied it would be reasonable in the circumstances of its specific concerns in this matter for it to adopt the course of action proposed by the representative. The Tribunal has deliberately refrained from documenting its concerns about the evidence presently before it because at the time of this decision it has not heard evidence from all available witnesses. The Tribunal is mindful in those circumstances to not prejudice the consideration of whatever evidence the applicant may put before the delegate of the Minister who considers this criteria.

3. For these reasons the Tribunal does not make any finding about whether the assistance the resident requires cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia for the purposes of reg 1.15AA(1)(e)(i) and (ii).

   Willing and able – reg 1.15AA(1)(f)

4. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In the circumstances set out above the Tribunal did not proceed to consider this requirement.

   Conclusion on ‘Carer’ criterion

5. The Tribunal finds that at the time of this decision the applicant meets the requirements of reg 1.15AA(1)(a), (1)(b), (1)(ba) and (1)(c) to be a ‘carer’ for the purposes of cl 836.221 of Schedule 2 to the Regulation.

6. Given these findings, the appropriate course of action is for the Tribunal to remit the primary and secondary applications for Carer visas back to the Minister for consideration of the remaining requirements of reg 1.15AA and the criteria for the grant of a Carer visa.

   DECISION

7. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the requirements of reg 1.15AA(1)(a), (1)(b), (1)(ba) and (1)(c) to be a ‘carer’ for the purposes of cl 8236.221 of Schedule 2 to the Regulations for the grant of a Subclass 836 (Carer) visa.

   Michael Ison
   Senior Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   1.15AA 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.