Elias (Migration) - [2021] AATA 3583

Elias (Migration) [2021] AATA 3583 (30 August 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Michael ELIAS
Mrs Nawal IBRAHIM
CASE NUMBER:  1804923
HOME AFFAIRS REFERENCE(S):          CLF2017/23496
MEMBER:Mireya Hyland
DATE:30 August 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decisions not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 30 August 2021 at 5:21pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –sponsor had passed away in 2017 – sponsorship is no longer in force – relatives are in Australia and no relatives remain in Lebanon – strong compassionate circumstances – unique and exceptional compassionate circumstance – Ministerial intervention referral – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,351
Migration Regulations 1994, r 1.03, Schedule 2, cls 836.212, 836.213, 836.227

CASES
Chaddha v MIMA [2002] FCA 92
Farook v MIBP [2014] FCCA 1000
Palanisamy v MIBP [2013] FCCA 1779
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 Immigration to refuse to grant the applicants, Michael Elias and his wife, Nawal Ibrahim, Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (the Act).
Mr Elias and Mrs Ibrahim applied for the visas on 21 March 2017 on the basis that Mr Elias was the carer of their sponsor, Hind KABALAN (aka Hind Koblan FAKHR), Mr Elias’ mother. At the time Class BU contained three subclasses: Subclass 835 (Remaining Relative); Subclass 836 (Carer); and Subclass 838 (Aged Dependent Relative). In the present case, Mr Elias is seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa. Mrs Ibrahim claims to be his wife and is seeking to satisfy the secondary criteria as a member of his family unit. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visas on 15 February 2018 on the basis that cl.836.227 was not met because the sponsorship mentioned in cl.836.213 was not approved by the Minister or still in force. A copy of that decision was provided to the Tribunal by Mr Elias with his review application.
Mr Elias and Mrs Ibrahim are represented in relation to the review by their solicitor. On 26 May 2021, the Tribunal wrote to them by letter addressed to Mr Elias through his authorised recipient, their solicitor, advising that it had considered all the material before it relating to their application but was unable to make a favourable decision on that information alone. The Tribunal invited Mr Elias and Mrs Ibrahim to give oral evidence and present arguments at a hearing on 29 June 2021 at the Tribunal’s Sydney Registry. On 9 June 2021, Mr Elias advised the Tribunal that they would attend the hearing to give oral evidence. However, on 23 June 2021, it was necessary to cancel that hearing due to the closure of the Tribunal’s Sydney Registry as part of a general lockdown of the Greater Sydney area caused by an outbreak of the novel corona virus, SARS-CoV-2 (Covid-19). On 24 June 2021, the Tribunal was advised in writing that Mr Elias and Mrs Ibrahim did not wish to reschedule a hearing to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear before it. This advice was provided in an email from their solicitor.
Mr Elias asked that the Tribunal refer the matter to the Department of Home Affairs (the Department) for consideration by the Minister pursuant to s.351 of the Act. He requested until 27 July 2021 to make submissions, which the Tribunal granted.
This matter has, therefore, been determined on the evidence available to the Tribunal.
The issue in this case is whether Mr Elias is sponsored by his mother, Ms Fakhr, as her carer. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed, however it will refer the matter for the Minister’s consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Clause 836.212 is met if, at the time of application, an applicant claims to be the carer of an Australian relative. Clause 836.213 requires that the applicant is sponsored by that Australian relative, or the spouse or de facto partner of the Australian relative. Clause 836.227 states that, at the time of this decision, the sponsorship mentioned in cl.836.213 must have been approved by the Minister and still be in force.
At the time of application, on 21 March 2017, Mr Elias claimed to be Ms Fakhr’s carer and she was his sponsor. Therefore, cl.836.212 and cl.836.213 are met. However, according to the delegate’s decision, on 24 January 2018, Mr Elias provided the Department with a death certificate recording that Ms Fakhr had passed away on 25 May 2017.
Clause 836.227 requires that the sponsorship referred to in cl.836.213 must still be in force at the time of decision. Regulation 1.20(1) states that the sponsor of an applicant for a visa is a person who undertakes the obligations stated in subregulation (2) in relation to that applicant. At the time of this decision Ms Fakhr, who is deceased, cannot undertake those obligations and, therefore, her sponsorship is not still in force. Mr Elias does not meet cl.836.227 of the Regulations.
For the reasons above, Mr Elias 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 Mr Elias meets prescribed criteria for an Other Family (Residence) (Class BU) visa. The Tribunal finds that Mr Elias is not entitled to the grant of a Subclass 835 (Remaining Relative) visa because he did not make a valid visa application for that subclass. Item 1123B(2)(ii) in Schedule 1 to the Regulations requires that to make a valid application a fee of AUD3,870 must be paid at the time of application. Mr Elias only paid a fee of AUD1,595, being the fee for a Subclass 836 set out in Item 1123B(2)(i) of Schedule 1. In Farook v MIBP [2014] FCCA 1000 at [16]-[24] the Court found that, where the same application form was used for two different subclasses and the application fee for one subclass was lower than the other, if the applicant only paid the lower application fee it was clear beyond any doubt that the applicant had only applied for that subclass of visa and had unquestionably never applied for the subclass of visa with the higher application fee: see also Palanisamy v MIBP [2013] FCCA 1779 and Chaddha v MIMA [2002] FCA 92 at [27]-[28]. In these circumstances there was no error in only assessing the applicant against the subclass with the lower fee. As such, Mr Elias cannot be assessed against the criteria for a Subclass 835 visa. The Tribunal also finds that he is not entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa since he is not dependent upon Ms Fakhr, who is deceased, as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore, cl.838.221 is not met.
Mrs Ibrahim claims to be Mr Elias’ wife and applied for a Subclass 836 visa on the basis that she is a member of his family unit. Clause 836.321 requires that at the time of this decision she be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa. Based on its findings above, the Tribunal finds that Mr Elias is not a person who has satisfied the primary criteria for the visa. Therefore, Mrs Ibrahim does not meet cl.836.321 of the Regulations.
For the reasons above, Mrs Ibrahim 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 Mrs Ibrahim meets prescribed criteria for an Other Family (Residence) (Class BU) visa. The Tribunal finds that Mrs Ibrahim is not entitled to a Subclass 835 (Remaining Relative) visa because, for the reasons above, there was no valid visa application lodged for a Subclass 835 visa. Nor is she entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa because, as indicated above, Mr Elias does not satisfy the primary criteria for a Subclass 838 visa. Therefore, similar to Subclass 836, Mrs Ibrahim does not meet cl.838.321.
MINISTERIAL REFERRAL
Mr Elias has requested that the Tribunal refer his case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered Mr Elias’ case and the guidelines for when a matter should be referred to the Minister set out in the Department’s Procedures Advice Manual PAM3: Minister’s guidelines on ministerial powers (s351, s417 and s501J) (the Guidelines). There is nothing before the Tribunal that indicates that Mr Elias or Mrs Ibrahim have not complied with the conditions of previous visas, provided false or misleading information to the Department or any other authority, or ever been unlawful non-citizens. Therefore, it is not inappropriate for the Tribunal to bring their case to the Minister’s attention.
Mr Elias is from Northern Lebanon and is 59 years of age. His parents are deceased and he has ten siblings. Three siblings have passed away and seven siblings are Australian citizens living in Australia with their families. Mrs Ibrahim is also from Northern Lebanon and is 58 years of age. Her parents, who are elderly and unwell, are Australian citizens living in Australia. She has seven siblings who are all Australian citizens living in Australia with their families. Mr Elias and Mrs Ibrahim have five children together who all live in Australia and are either citizens or permanent residents. They also have six Australian grandchildren. These are the only relatives they have in any country. On 10 October 2016, Mr Elias and Mrs Ibrahim entered Australia as the holders of Visitor (Class FA) Subclass 600 Tourist visas to attend a family event. At the time Ms Fakhr was very ill and required care that Mr Elias and Mrs Ibrahim were willing and able to provide, so they applied for a Subclass 836 (Carer) visa. They were granted Bridging A (Class WA) Subclass 010 visas on 21 March 2017 in relation to that application and have been in Australia with their family since arriving in 2016.
Cases that should be brought to the Minister’s attention are set out in Part 4 of the Guidelines, unique or exceptional circumstances. They include strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident. The Tribunal notes that other relevant information set out in Part 5 includes circumstances that may bring Australia’s obligations under the International Covenant on Civil and Political Rights into consideration, particularly issues of family unity. Part 5 also includes as relevant the level and nature of the person’s integration into the Australian community and the length of time he or she has been in Australia.
Article 23 of the International Covenant on Civil and Political Rights states that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. Family unity is an important part of Australian society and consistent with Australia’s migration program. All Mr Elias’ and Mrs Ibrahim’s children and grandchildren live in Australia and they have no immediate family in Lebanon. Separating them from all their close relatives will obviously be distressing and cause significant anxiety for their children. It will also deny their grandchildren the opportunity to properly know their grandparents since, given the steadily deteriorating country conditions in Lebanon, it is currently unreasonable to expect a family to take children into Lebanon for a visit. Returning the couple to a place where they would be alone and without any family would clearly result in serious, ongoing and irreversible harm not only to them, but to Australian citizens and an Australian family unit. This is particularly the case given they do not have any extended family to return to either since they too are all Australian citizens living in Australia. Mr Elias and Mrs Ibrahim would be alone in Lebanon further adding to the harm to their children of worry and loss, not least because of the risks to their parents in Lebanon as an aging couple given Lebanon’s civil collapse and security situation.
Both the extended Elias family and Ibrahim family have provided statutory declarations about the assimilation of Mr Elias and Mrs Ibrahim into those families over the five years since their arrival as well as the impact on the families if the couple are returned to Lebanon. It is clear that they are well integrated into the extended family and there would be some ongoing irreversible harm to their Australian citizen siblings, nieces, and nephews, if they were required to leave. The fact that all Mr Elias’ and Mrs Ibrahim’s relatives are in Australia and no relatives remain in Lebanon is what makes their situation a particularly unique and exceptional compassionate circumstance.
Part 4 of the Guidelines also refers to compassionate circumstances regarding the age, health or a psychological state of a person that would result in serious, ongoing and irreversible harm and continuing hardship. Mr Elias and Mrs Ibrahim have young grandchildren. Their children have come to rely on them to assist with their grandchildren’s care and, due to their age, the sudden unexplained loss of their caregiving grandparents will likely result in some additional psychological harm to the grandchildren. Mrs Ibrahim has elderly parents who are unwell. They, and her siblings, have come to depend on her to assist and care for them. Due to their age and health, Mrs Ibrahim’s removal from Australia will negatively affect her Australian parents’ health and wellbeing.
As well as the age and health related compassionate circumstances of the Australian grandchildren and parents, if returned to Lebanon Mr Elias and Mrs Ibrahim will be left isolated and without the assistance of their children as they themselves age and become more infirmed. Lebanon does not have an operating government or civil society and is experiencing financial collapse with critical shortages of food, fuel, medicine, and access to services like health care. Political unrest both before and since a large amount of ammonium nitrate stored at the Port of Beirut exploded on 4 August 2020 make future strikes and protests likely. While the situation in Lebanon does not itself raise Australia’s protection obligations, nonetheless it can only put Mr Elias and Mrs Ibrahim at increased physical and mental health risk, and raise the anxiety and stress of their Australian children and close-knit extended Australian family unit.
Further, also set out in Part 4 of the Guidelines as unique or exceptional circumstances is circumstances not anticipated by the legislation or clearly unintended consequences, and unfair or unreasonable results in a particular case. Sections 45 and 46 of the Act provide that a person applies for a particular class of visa, not a subclass of visa. Mr Elias made an application for a Class BU visa. An application for a Class BU visa, therefore, includes all the subclasses set out in item 1123B(4) of Schedule 1 to the Regulations, including Subclass 835 (Remaining Relative). Since he claims he has no relatives other than Australian citizens or permanent residents usually resident in Australia, Mr Elias may meet the definition of a remaining relative in the Regulations. The criteria for a Subclass 835 requires that he be the remaining relative of and sponsored by an Australian relative at the time of application and the time of decision, but it does not require that it be the same Australian relative. Unlike in cl.836.227 referred to above, cl.835.227 states that a sponsorship ‘of the kind’ mentioned in cl.835.213 needs to be approved and in force at the time of decision ‘whether or not the sponsor was the sponsor at the time of application’.
Therefore, it is fully possible that Mr Elias could be sponsored by and be the remaining relative of his mother at the time of application and, after her death, at the time of decision be sponsored by and be a remaining relative of any one of his siblings. This makes it plausible that he may meet the criteria for Subclass 835 of a Class BU visa. Since the Act specifically prescribes that an applicant making a valid application makes it for, and must specify, a class (not a subclass) of visa, if that applicant does not meet the criteria for one subclass in the visa class it is reasonable to assume the statute intends he be able to be assessed against the other subclasses in the visa class. That would seem the case even if the applicant did not make claims against any other subclass in the visa application, those claims being implied since they arise on the facts of the case.
That said, the Tribunal acknowledges the Court’s view in Chaddha v MIMA [2002] FCA 92 at [27]-[28] that application of a universal principle that a decisionmaker is bound to consider any subclass in the relevant class is fraught with difficulties. In fact, Mr Elias has run into precisely the difficulty considered in that case. Section 46(1)(ba)-(c) specifies that to make a valid application any ‘visa application charge’ or fee required by the Regulations has to have been paid. Visa application charges are generally set out in the relevant item in Schedule 1 for each class of visa, however where a visa class contains different subclasses on occasion each may have a different application fee. The payment of an application fee specific to a particular subclass, therefore, may result in the validity of the visa application being confined to that subclass, for instance, as in Mr Elias’ case, where the fee paid was lower than for another subclass in the same class of visa.
But this does not necessarily mean it is the intention of the legislation that Mr Elias not be able to be assessed against the Remaining Relative subclass and that it is not an unintended consequence of the government providing a lower application fee for carers. These financial prescriptions in the subordinate legislation have to be weighed against the wording in the Act and structure the Legislature chose to give to Australia’s visa scheme. It is arguable that, while the outcome is clear, the resulting invalid application from the fee not being fully paid is an unintended result that in most cases might make little difference, but in this particular case is unfair and unreasonable. Add to that, Mr Elias’ circumstances are not of his own making. It appears he only failed to obtain a Carers visa because of his mother’s death, and as a consequence is barred from applying for the subclass he may well meet. The fair and reasonable result in this case may be that, if they do meet all the criteria in Part 835 of Schedule 2, Mr Elias and Mrs Ibrahim be granted an Other Family (Residence) (Class BU) visa, or some other comparable class of visa, even though they did not, and now cannot, make a valid application for a Remaining Relative visa.
The Tribunal draws to the Department’s attention that none of the other relevant issues set out in Part 5 of the Guidelines relate to Mr Elias or Mrs Ibrahim. Nor do any of the circumstances listed in Part 7 of the Guidelines, cases that should not be brought to the Ministers attention because they are inappropriate to consider, apply in Mr Elias’ and Mrs Ibrahim’s case.

The Tribunal has considered Mr Elias’ and Mrs Ibrahim’s case and the Guidelines and has decided to refer the matter to the Department. The Tribunal believes this case involves unique or exceptional circumstances and should be referred to the Minister for possible consideration of the use of the s.351 intervention powers. There are strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm to Australian citizens and an Australian family unit, and regarding the age, health and psychological state of both an Australian family unit and the couple, as well as an unfair result not anticipated by the legislation.
It is for the Minister to determine whether the compassionate circumstances surrounding this case are in the public interest such that the Minister may exercise the power to substitute a decision that is more favourable to Michael Elias and Nawal Ibrahim.
DECISION
The Tribunal affirms the decisions not to grant the applicants Other Family (Residence) (Class BU) visas.
Mireya Hyland
Member