Habo-Karomy (Migration) - [2023] AATA 4477

Habo-Karomy (Migration) [2023] AATA 4477 (14 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Miecheal Habo-Karomy
Master Cristiano Karomy
Master Troy Karomy
Mrs Diana Adeeb Habeeb Moshi
REPRESENTATIVE:  Mr Donald Chi-Ho Chen
CASE NUMBER:  2210142
HOME AFFAIRS REFERENCE(S):          CLF2019/32979
MEMBER:Deputy President Justin Owen
DATE:14 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:
·cl 836.221 of Schedule 2 to the Regulations;

The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the second, third and fourth-named visa applicants meet the following criteria for a Subclass 836 (Carer) visa:
·cl 836.321 of Schedule 2 to the Regulations.

Statement made on 14 November 2023 at 4:31pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – assistance cannot reasonably be provided/obtained – other relatives – fully dependent – require a significant degree of care, constant assistance and supervision – welfare, hospital, nursing or community services – unsatisfactory efforts – complex psychological and mental health challenges – absence of culturally appropriate services – Chaldean Catholic – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.221, 836.321
CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 29 June 2022 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 first named applicant (‘the applicant’) is a male 47-year-old British national. The applicant applied for the grant of the visa on the basis of providing care to his Australian relative and sponsor, Ms Rajoo Tobya Oraha who is his mother. The applicants applied for the visa on 16 August 2019. His wife and two sons are secondary applicants. 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 applicant is seeking to satisfy the 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. Relevantly to this matter, the primary criteria to be met include cl 836.221.
The delegate refused to grant the visa on the basis…

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 Habo-Karomy (Migration)

Details

AGLC: Habo-Karomy (Migration) [2023] AATA 4477
Case: [2023] AATA 4477
Decision Date: 14 November 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for their Australian relative. The decision was made by Deputy President Justin Owen.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994. This involved determining if the applicant was a relative of the Australian resident, if a valid certificate established a medical condition requiring ongoing direct assistance, and if such assistance could not reasonably be provided by other relatives or obtained from community services.

The Tribunal found that the applicant was a relative of the Australian resident, satisfying regulation 1.15AA(1)(a). It was also satisfied that a Carer Visa Assessment Certificate issued by Dr Langford met the requirements of regulation 1.15AA(2), confirming the Australian relative's medical condition, the resulting impairment, and the ongoing need for direct assistance for at least two years. The Tribunal concluded that the applicant met the criteria under clause 836.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the applications for the visas to the Minister for reconsideration. The direction was that the first-named visa applicant met the criteria under clause 836.221, and the second, third, and fourth-named applicants met the criteria under clause 836.321 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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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 EVIDENCEWhether the applicant is a carer 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. Regulation 1.15AA(1)(a) requires that 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. The Tribunal is satisfied on the evidence before it that the applicant is the son and therefore a ‘relative’ of the Australian relative who is an Australian citizen usually resident in Australia. Therefore, as the applicant is the son 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). Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life. For a certificate to meet reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 1 October 2019 by Dr Langford. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 90) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person 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 Tribunal finds that the certificate provided does meet 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.

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for Subclass 836 visas.DECISION The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:·cl 836.221 of Schedule 2 to the Regulations; The Tribunal remits the applications for Other Family (Residence) (lass BU) visas for reconsideration, with the direction that the second, third and fourth-named applicants meet the following criteria for a Subclass 836 (Carer) visa:·cl 836.321 of Schedule 2 to the Regulations. Justin OwenDeputy PresidentATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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

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