Dilawar (Migration)

Dilawar (Migration) [2022] AATA 1922 (23 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Naila Dilawar
Mr Imran Raza
Ms Zeena Raza
Ms Deena Raza
Ms Ella Raza
REPRESENTATIVE:  Mr Karl Quy, solicitor
CASE NUMBER:  1831917
HOME AFFAIRS REFERENCE(S):          CLF2017/59542
MEMBER:Jennifer Cripps Watts
DATE:23 January 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Statement made on 23 January 2022 at 4:20pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian ‘relative’ – informal or customary adoption in 1995 – lack of verifiable evidence – court document formalising the adoption in 2016 – ‘suit of declaration’ – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5CA, 65
Migration Regulations 1994 (Cth), rr 1.03, 1.04; Schedule 2, cls 836.212, 836.221

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 15 October 2018 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 visas on 21 August 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). In the present case, the first named applicant (the applicant) is seeking to satisfy the primary criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. the applicant must meet the primary criteria. To meet the secondary criteria, the second, third, fourth and fifth named applicants need only meet the secondary criteria.
The delegate refused to grant the visas on the basis that cl 836.212, which requires at the time of application the applicant claims to be the carer of an Australian relative, was not met by the applicant.
The applicant appeared before the Tribunal on 21 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor for the carer visas, Mr Abdul Khan.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing. Mr Ben Zipser, of Counsel, provided written submissions and attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
To meet the requirements of cl.836.221 at the time of decision the applicant must be the ‘carer’ of a person referred to in cl.836.212, who claimed to be the ‘carer’ of an ‘Australian relative’ at the time of application. In this case, the relationship for the purpose of meeting the definition of ‘relative’ was claimed by the applicant to be that of father and (adopted) daughter: regs 1.03 and 1.04.
Regulation 1.03, in this case, where the applicant is claimed that the ‘relative’ is her father, means:
·a ‘close relative’ (also defined in reg 1.03), which specifies
oa spouse, de facto partner, child, parent, brother, sister, step-child, step-brother or step-sister; or
·a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.
The applicant’s claim that she is the carer of an Australian relative is made on the basis of the claim that she is Mr Khan’s daughter because she was adopted by him informally or customarily in 1995 and then by Court order in 2016 formalising the 1995 informal adoption. Regulation 1.04 defines ‘adoption’ to mean, in summary and including, a legal or recognised customary adoption of a person (the adoptee, in this case the applicant) before they have attained the age of 18 years and that the adopter ‘assumed a parental role in relation to the adoptee’.
The applicant and Mr Khan gave evidence that oral declarations were made by the applicant’s biological father and Mr Khan in 1995, in Pakistan, in front of relatives including the applicant’s grandmother; on the basis of the claim that the two men had reached agreement that Mr Khan would adopt the applicant, born in 1981, and provide financial support for her education and living expenses.
The claimed informal and formal adoptions
In 1995, the applicant and Mr Kahn have given evidence that the applicant’s grandmother facilitated an adoption of the applicant by Mr Khan. It was pronounced by the applicant’s biological father, in front of family members, that ‘she is your (Mr Khan’s) daughter’ and Mr Khan responded by saying, ‘Naila is my responsibility from now’. This is said by the applicant to have been the ‘practice at the time’ and is characterised as having been an informal or cultural adoption and that there was no need to legally formalise the arrangement at the time.
The applicant claims Mr Khan sent money to her biological father for her education and living expenses and that some of the money was for the benefit of the applicant’s biological father to help him buy a minicab so he could earn a living. However, the applicant and Mr Khan claim that the primary purpose for any money remitted was to support the applicant and that any money used by her biological father was only to be accessed once the applicant’s education costs and living expenses were taken care of.
In 2016, a document was obtained by the applicant and Mr Khan, a Pakistani Court judgment handed down in January 2016. The Judge essentially appears to have formally ‘verified’ the 1995 informal adoption. At the time the order was made, the applicant, who was born in 1981, had already turned 18.
The review of the refusal of the applicant’s visa because she did not satisfy the primary criteria turns on whether the Tribunal is satisfied that facts and circumstances relating to the claimed 1995 adoption as they have been described by the applicant, and Mr Khan, support a finding that the informal adoption took place in 1995. If the Tribunal is satisfied that the 1995 informal adoption did take place as claimed, the Tribunal will consider whether Mr Kahn assumed a parental role in the applicant’s life before the applicant turned 18. In 1995, the applicant was 14 years of age.
If the Tribunal is not satisfied the 1995 informal adoption took place, there is no need to consider the validity or otherwise of the 2016 Pakistani Court judgment because in 2016 the applicant was over the age of 18; for the purposes of Australian migration law, an adoption is not regarded as an adoption (as described in reg 1.04(1)) if it took place after the adoptee turned 18 years of age.
At the time of application, recent and contemporaneous written statements were provided and in most of them the applicant is referred to as Mr Khan’s adopted daughter. There is no indication that any of the supporting documents were written by people who have first-hand knowledge of the 1995 informal ceremony in Pakistan; the opinion they each have that the 1995 adoption took place appears to have been formed and held because of what they have been told by the applicant and/or Mr Khan.
While it appears, on the evidence, that the applicant and Mr Khan share a close and supportive relationship, there is little verifiable evidence that the claimed informal or customary adoption in 1995 took place, other than in statements made by the applicant and Mr Khan. In a sense, the evidence of one validates the other. However, both the applicant and Mr Khan are highly motivated to ensure the applicant remains living in Australia so she can continue to care for Mr Khan and, without further verifiable evidence, the Tribunal is unwilling to accept their statements alone as evidence that the 1995 informal adoption took place.
While their statements are generally consistent and there are people in Australia who describe the applicant as Mr Khan’s adopted daughter, the Tribunal is not satisfied that anyone referring to the applicant and Mr Khan as father and daughter, in documents provided in support of the 2017 visa application, has first-hand knowledge of the 1995 adoption agreement and declarations that are claimed to have been made between Mr Khan and the applicant’s biological father.
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 at the time of application.
Clause 836.221 requires that at the time of decision the applicant is a carer of the Australian relative (or ‘resident’).
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 applicant claimed at the time of application to be the adopted daughter of Mr Khan.
The Tribunal has no discretion to waive the ‘relative’ requirement for the purpose of meeting the subclass 836 carer visa primary criteria.
The material issue to be decided by the Tribunal
Essentially, the Tribunal must be satisfied that the person requiring the care, Mr Khan, is an Australian ‘relative’ (as defined in reg 1.03 of the Regulations) of the applicant. The applicant claims that the ‘relative’ who is an Australia resident, the sponsor in this case, is her adoptive father. The applicant provided a copy of a ‘Certificate of Registration as an Australian Citizen, in the name of Abdul Jabbar Khan (the sponsor), certifying that Mr Khan fulfilled the conditions for the grant of citizenship, under the Nationality and Citizenship Act 1948-1960, on 28 April 1965. It is accepted by the Tribunal that Mr Khan is Australian; he must also be the applicant’s ‘relative’, as defined, for the purpose of satisfying cl.836.212 and cl.836.221.
Ms Dilawar was born in 1981 in Pakistan. Her biological parents are Muhammad Khan Dilawar (born in 1947) and Habib Fatima (born in 1952); they still reside in Pakistan. In October 2008, the applicant married the second named applicant, Imran Raza, at which time she was 27 years of age. When the claimed adoption was formalised by a court in Pakistan in 2016, the applicant was by then 35 years of age and married to the second named applicant. The applicants have lived in Australia for over 10 years, or since the year of their birth in the case of the three younger of the applicant’s four children, who were all born in Australia.
The second named applicant arrived in Australia holding a student visa in October 2009. The applicant followed a couple of months later, in February 2010, also holding a student visa. Their first child was born in Australia in March 2010. The applicant was granted another student visa on 3 July 2014, as a member of her husband’s family unit. In January 2016, a court in Pakistan formalised Mr Khan’s claimed informal 1995 adoption of the applicant when she was 14 years of age. On 23 March 2016, Mr Khan appointed the applicant, who he described for the purpose as his ‘adopted daughter’, as his Enduring Guardian. The applications for a subclass 836 carer visa were made on 21 August 2017, a few days before their student visas (granted in July 2014) ceased.
Mr Khan migrated to Australia from Pakistan over 60 years ago. He has a number of siblings and six adult children who are Australian citizens and who live in Australia. He resides in Sydney with the applicant and her family.
The Tribunal has considered the information contained in documentary evidence provided in support of the visa and review applications. The Tribunal referred earlier to there being what appears a close relationship between the applicant and sponsor. Reliable evidence was provided for the assessment of Mr Khan’s Carer Visa Assessment Certificate (CVAC) in 2017.
On 30 May 2017, the applicant and Mr Khan attended an interview with a registered clinical and forensic psychologist for the purpose of obtaining a report to provide in relation to the CVAC application. The report was written following the interview and was provided by the applicant (at Department folio 99). It is included in the report that Mr Khan ‘claimed that Ms. Dilawar’s parents agreed for him to adopt the applicant. The report includes, among other things, that ‘it is apparent that Mr Khan is highly dependent on Ms Dilawar and her husband for his daily needs’, and that the applicant was able to give comprehensive details of Mr Khan’s medical history.
The Tribunal has also observed, in the report, the psychologist expresses her views in a manner that indicate she is satisfied the applicant has provided an ‘intensive level of care’ to Mr Khan since she arrived in Australia and that he and the applicant and her family have ‘established a genuine, positive and loving connection with each other’. The support the applicant provides is described by the psychologist in the report as ‘essential and meaningful’.
The psychologist has provided a very detailed report that tends to lend support for the assertion by the applicant that she cares for Mr Khan, and attends to the practical aspects of his daily life consistent with the assistance he requires as it was identified in the 2017 CVAC. In his evidence, Mr Khan confirms, consistent with evidence given by the applicant, this to continue to be the case.
There is evidence that tends to support the claim by the applicant that she has been providing assistance to Mr Khan attending to the practical aspects of daily life for many years. The applicant and her family have been residing with Mr Khan for more than 10 years. Mr Khan’s evidence is that he would like the current arrangement to continue.
In statements provided by the applicant and Mr Khan, they include, relevantly, details about the claimed 1995 informal adoption, and have been considered by the Tribunal. Relevant information included in their statements is as follows:
The applicant’s recent written statements – September and October 2021
With regard to the applicant’s written statement, signed on 15 September 2021, the following information and claims are included:
·The applicant’s family and Mr Khan and his wife were close and, when Mr Khan and his wife visited Pakistan ‘every year’, while they were there the applicant would take care of them, including doing their cooking, cleaning house, serving food and washing and ironing their clothes. Mr Khan kept a house that he had built next door to her family in ‘around 1996’ and the applicant had a set of keys given to her by Mr Khan.
·Mr Khan told the applicant’s biological father that his children in Australia were not ‘looking after’ him and his wife, they were neglecting him and his wife, and told the applicant that he saw in her a daughter ‘he did not find in his 3 daughters in Australia’.
·Mr Khan and the applicant’s father discussed Mr Khan adopting the applicant in 1995. At that time, it is claimed by the applicant that her father had taken her elder siblings out of school and was intending the same for her because he could not afford to pay for their education. In 1995 when she was 14 years of age, Mr Khan asked her father not to take her out of school and offered to pay for her education.
·The applicant’s grandmother asked Mr Khan what he intended to do with the applicant and Mr Khan said, ‘I want to adopt her and one day I may take her to Australia so she can take care of me’
·It was pronounced by the applicant’s biological father, in front of family members, that ‘she is your (Mr Khan’s) daughter’ and Mr Khan responded by saying, ‘Naila is my responsibility from now’. This is said by the applicant to have been the ‘practice at the time’.
·From 1995, the applicant remained living with her family in Pakistan, and Mr Khan paid for all her living expenses and education’ by remitting money to her biological father.
·Mr Khan did not visit from about 1998 onwards because his wife was suffering ill health, but he continued to send money and talk regularly to the applicant on a community phone in the village.
·Mr Khan’s wife died in 2006 and in 2007 Mr Khan travelled to Pakistan; the applicant cared for him in the same manner as she had before during his six month stay.
·In 2008, Mr Khan returned to Pakistan and ‘found a husband’ for the applicant, Imran Raza (the second named applicant). A copy of a certified Nikah Nama containing details confirming that the applicant and second named applicant were married in October 2008 has been provided. The name, and signature, of the Vakil appointed by the bride is that of Abdul Jabbar Khan, the sponsor.
·In 2009, the second named applicant was granted a student visa and arrived onshore on 24 October 2009; he moved in with Mr Khan.
·The applicant was granted a student visa in 2010 and arrived onshore on 28 February 2010 and her first child was born a few days later
·The applicant assists with Mr Khan’s care, manages his finances, collects rent on his behalf and pays Mr Khan’s bills.
·Mr Khan still wants to pursue the property dispute (settled in 2014) in court.
The applicant provided the Tribunal with a further written statement, dated 8 October 2021, additional information about Mr Khan’s adult Australian children, including:
·When Mr Khan’s children were growing up he ‘enjoyed a positive relationship with them all’, but the relationships deteriorated after they got married.
·Mr Khan’s wife died in 2005 following a six year period of ill health; none of Mr Khan’s six children, spouses or grandchildren assisted or visited during this six year period.
·Mr Khan requested that his children return properties he owned, including a shop with two flats, and the home he lives in which he had put in his sons’ names and that were held under trust; the sons refused the request and in 2012 there was a court case which went on for two years.
·The legal dispute over the house Mr Khan lives in was settled by Mr Khan who signed ‘an agreement stipulating that he can live in the house until he dies, after which his children will inherit the property.’, a Deed of Settlement executed on 12 May 2014 (provided).
·The applicant has witnessed abuse of Mr Khan by his children; she too has been physically and verbally abused by them; about ‘6-7 years ago’ the applicant reported an incident to the police and obtained an Apprehended Violence Order.
·The applicant’s ‘role as Abdul’s carer has added to the animosity between him and his children, as a threat to their inheritance.’
·Mr Khan has little if any contact with his five Australian siblings and their families.
·Mr Khan noticed that, since the applicant’s arrival in Australia in 2010, the relationship with his biological children as deteriorated further.
·A detailed account of the care and assistance, including about his health and mobility, that the applicant provides to Mr Khan.
·The applicant has looked into the costs of a full time private nurse and nursing homes for Mr Khan but for various reasons they are no suitable.
Mr Khan provided the Tribunal with written statements signed on 15 September 2021 and 15 October 2021. He gives essentially the same version of events as the applicant did in her written statements, referred to above, and includes in addition:
·His friendship with the applicant’s father started in 1947, before the partition (India and Pakistan).
·In addition to providing money for the applicant, Mr Khan sent money to her father to buy a mini bus to drive and earn an income.
·When the applicant grew older, Mr Khan opened a bank account in their joint names ‘so she could withdraw money when she needed’; he trust her with the money and she ‘has not disappointed’ him.
·Mr Khan helped the second named applicant apply for his student visa in 2009.
·Mr Khan wanted the applicant to come to Australia and care for him; she arrived in February 2010 holding a student visa and also came to live with Mr Khan
·That he, the applicant and her family are planning to travel to Pakistan to visit the applicant’s parents, as soon as they can when COVID-19 restrictions permit.
·He loves the applicant’s children and considers them to be his grandchildren.
·Mr Khan wishes for the applicant to continue to care for him, with details provided of what care and assistance is provided.

While it is claimed that the oral declaration and acceptance of adoption occurred in 1995, between the applicant’s biological father and Mr Khan, the adoption was not formalised in any other way until 2016 by the Pakistani Court. There is general consistency to the evidence provided by the applicant and sponsor relating to the circumstances surrounding the claimed 1995 adoption. However, the only verifiable evidence that has been provided is the Pakistani Court order made some 21 years later, in 2016.
The court document from Pakistan formalising the adoption in 2016
The applicant provided a document translated into seven pages of English, entitled ‘In the Court of civil judge chichawatni District sahiwal’, as evidence of the formalising of Mr Khan’s 1995 adoption of the applicant, who was 14 (that is, under 18 years of age).
The plaintiff is Mr Khan. Defendants No. 1, 2 and 3 are the applicant and her biological parents.
The ‘suit for declaration’ as it is described in the order, has eight paragraphs. In summary, they include the following:
·In 1995 Mr Khan was ‘issue less’
·The applicant’s biological parents offered her to Mr Khan for adoption, and delivered her into Mr Khan’s custody or guardianship to be ‘looked after’ and educated
·The applicant’s biological parents withdrew their guardianship in favour of Mr Khan
·When the applicant reached ‘persona majora’, Mr Khan had arranged for her to marry Imran Raza (the second named applicant)
·The marriage of the applicant was solemnised on 16 August 2008 and registered on 17 October 2008
·Mr Khan arranged her education
·Mr Khan and the applicant are citizens of Australia
·Words to the effect that to achieve confirmation of citizenship, the applicant needs a ‘decree’ (that the applicant was adopted by Mr Khan in 1995 and is his adopted daughter)
·‘That 1 week ago defandets (sic) 1 and 2 refused to accept that Naila dilawar is plaintiffs adopeted (sic) daughter (sic) hence this suit is filed.’
In is indicated in the court documents that the ‘suit of declaration’ was verified by Mustafa Muzimmal, Advocate High Court, Tahsil Court Chichawatni’ on behalf of Abdul Jabbar Khan, who also signed the document. The paragraphs in the ‘suit for declaration’ are verified variously, by the Judge, as correct or legal. The verification by the Judge is this: ‘It is prayed that defandants No. 1 to 3 (the applicant and her biological parents) has no objection if the suit is decreed in his favour against the defendants’, dated ‘4.1.16’. Under the verification are what appear to be a number of signatures and a stamp, ’13 Jan 2016’.
The verification by the Judge is on the basis of the information included in the suit of declaration and the applicant’s parents not objecting. However, there are some factual inaccuracies in the suit of declaration. Mr Khan is described as ‘issue less’ which in common usage refers to a person without children; in 1995 (and 2016) he had six biological children. It is evident that the applicant was not in Mr Khan’s custody from 1995 until she reached ‘persona majora’. Nor did he arrange her education. The applicant’s education, on her evidence, was arranged by her biological parents. The applicant and Mr Khan claim he paid for her education, however there is no verifiable evidence of this that has been provided to the Tribunal.
On the evidence of the applicant, from 1995 she remained living in Pakistan with her family and was educated there. Mr Khan resided in Australia caring for his wife, who was in ill health, up to 2005 or 2006 and visited the applicant’s family in Pakistan occasionally. On the evidence provided by the applicant, during the relevant time period, Mr Khan visited each year from 1995 to 1998 and then there was a period of about nine years when Mr Khan did not travel to Pakistan at all. After his wife died, Mr Khan travelled to Pakistan in 2007. In 2008, the applicant married Imran Raza and there is documentary and photographic evidence indicating Mr Khan attended the wedding and signed the Nikah Nama as the applicant’s father or Vakil in October 2008.
The is little, if any, verifiable evidence that an informal or customary adoption, as it has been described by the applicant and Mr Khan, took place in 1995. It is acknowledged that the biological parents of the applicant were defendants in the 2016 Pakistani Court matter, but this does not satisfy the Tribunal that the applicant’s biological father participated in the oral declarations claimed to have been made relating to the claimed adoption, in front of family members, in 1995.
The Tribunal, having carefully considered evidence and information provided relating to the claimed 1995 adoption of the applicant by Mr Khan, is not satisfied that the adoption took place in 1995 because of a lack of verifiable evidence to be persuaded otherwise.
The Pakistani Court documents, including the ‘suit of declaration’, have been considered because they contain claims or information about the 1995 informal adoption.
As the Tribunal is not persuaded that the 1995 informal adoption took place, the applicant would need to rely on the 2016 formal adoption verified by the Pakistani Court for Mr Khan to be an ‘Australian relative’ for the purpose of satisfying primary criterion cl.836.221 at the time of this decision. The 2016 Pakistani Court order appears to have been made, at least in part, relying on the plaintiff’s ‘suit of declaration’ which contains claims that there was an adoption of the applicant by Mr Khan in 1995; the Tribunal has found that there was no adoption in 1995 and therefore the Court has verified the 1995 informal adoption relying on information that the Tribunal does not consider to be correct or reliable. In any event, by 2016, the applicant had already turned 18 years of age and could not, because of her age, be the adopted daughter of Mr Khan because reg 1.04 requires, essentially, that an adoptee must not have turned 18, for the purpose of Australian migration law.
Written submissions
Written submissions dated September 2021 refer to the question of whether or not Mr Khan is a ‘relative’ of the applicant (regs 1.03 and 1.04) being a ‘threshold question’. To satisfy cl.836.221 at the time of decision, the Tribunal must be satisfied that the applicant is the carer of an Australian relative. On the basis of evidence of Mr Khan’s Australian citizenship, which has been provided, the Tribunal is satisfied he was an Australian citizen at the time of application. The question then remains, is Mr Khan a ‘relative’ of the applicant, as described in the Regulations. In the submissions, the Tribunal is asked to consider the meaning of ‘parent’ and ‘child’ in ss.5(1) and 5CA of the Act, respectively.
The Tribunal has had regard to the written submissions. However, as the Tribunal has found that the 1995 informal adoption did not take place and and reasons are given for the decision. there was no formal or informal adoption, Mr Khan is not an ‘Australian relative’ of the applicant. It is unnecessary to examine the question of whether Mr Khan played a parental role in the applicant’s life before she was 18 years of age.
At the conclusion of the Tribunal hearing, the applicant was informed that in the event of the Tribunal making a favourable on the issue of the applicant’s claim to be the daughter of Mr Khan, it would then go on to make findings against all relevant matters in reg 1.15AA. The Tribunal requested that the applicant provide evidence addressing their claims against all of the relevant requirements of reg 1.15AA and appreciates that the applicant provided the evidence. The Tribunal has had regard to the additional documentary evidence and considered information relating to the claimed 1995 informal adoption.
After carefully considering all evidence and other relevant information material to the issue of whether Mr Khan is a ‘relative’ of the applicant, for the reasons given the Tribunal is not satisfied that he is the applicant’s ‘relative’.
As the applicant does not satisfy cl.836.221, the Tribunal had no need to request that the applicant attend a further hearing to provide evidence about the reg 1.15AA matters to make findings about whether she is a ‘carer’.
For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.
Secondary applicants
The Tribunal has affirmed the decision to refuse the applicant’s Subclass 836 visa. The second, third, fourth and fifth named applicants do not therefore meet the cl.836.321 secondary criteria at the time of this decision, as they are not members of the family unit of a person who has satisfied the primary criteria and who holds a Subclass 836 visa.
There is no evidence before the Tribunal that any of secondary applicants is able to meet the main criteria.
Ministerial intervention
The Tribunal acknowledges the applicants have indicated that in the event of an unfavourable decision by the Tribunal they may apply to the Minister to exercise his or her public interest intervention power to substitute the Tribunal’s decision with a decision more favourable to the applicants.
The applicants will have an appropriate decision from the Administrative Appeals Tribunal (Migration and Refugee Division), which will enable them to make a direct request to the Minister if they chose to do so.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Jennifer Cripps Watts
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.

[2022] AATA 1922

23 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction