Hermez (Migration)

[2019] AATA 2131

Hermez (Migration) [2019] AATA 2131 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Toni Nisso Hermez
Mrs Meryam Auda Yacou
Miss Martina Toni Hermez
Master Matios  Toni Hermez
Master Maarcos Toni Hermez

CASE NUMBER:  1620339

HOME AFFAIRS REFERENCE(S):           CLF2016/24503

MEMBER:Helen Kroger

DATE:8 May 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 08 May 2019 at 10:49am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – relationship between applicant and resident – sister’s husband – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.221, 836.321

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 Immigration and Border Protection on 11 November 2016 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The primary applicant is a 49 year old Belgium national. He made the application on the 20 April 2016. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate found the applicant was not a relative of the resident. The applicant seeks review of the delegate’s decision

3. The applicants applied for the visa on 20 April 2016. The primary applicant appeared before the Tribunal on 10 April 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

4. The applicants were represented in relation to the review by their registered migration agent and provided a copy of the delegate’s decision to the Tribunal for its consideration.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

6. At the time the application was made, 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 (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.

7. Relevantly to this matter, the primary criteria to be met include cl. 836.212 and cl.836.221.

8. When making the application, the primary applicant stated on the application form 470F that he was the carer of Mr Habib Bashi, who is the husband of the applicant’s sister – Layla Hurmiz.  That is to say, the applicant is the brother-in-law of the resident and is not a ‘relative’ within the meaning of r.1.03. The applicant provided the Department with a birth certificate for Layla Hurmiz as evidence that they are brother and sister along with a certified copy of a marriage certificate to support his claim that the resident is married to his sister, and that he is therefore his brother-in-law. Evidence was provided to the Tribunal to indicate the care required by the resident and the support provided by Mr Hermez. A Carer Visa Assessment Certificate, undertaken by Bupa, showing a caring rating of 35 was provided to the Department.  

9. The issue here is not the sponsor’s need of assistance, nor the applicant’s willingness to provide such assistance. The issue here is the relationship between the applicant and the resident, and that he is his brother-in-law.

10. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of his brother-in-law.

    Meaning of Australian relative

11. ‘Australian relative’ means a relative of the visa applicant who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. ‘Relative is relevantly defined in r.1.03 as a ‘close relative; or grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step grandchild, step aunt, step uncle, step niece or step nephew.

    Close Relative

12. ‘Close relative” is defined in r.1.03 of the Regulations, in relation to a person, as :

    the partner of the person; or a child (including adopted child), ‘parent’, brother or sister of the person (and their ‘step’ equivalents)

13. The applicant has not claimed to be a close relative to Mr Bashi (the sponsor and resident) as defined in the Migration Act. Both the applicant and his migration agent submitted at hearing, that the applicant complied with the requirements as set out in cl.836.212, and satisfied the definition of “relative”. He contested that under Regulation 1.15AA(1)(a) that stipulates that a carer applicant must be a relative of the resident, that Mr Hermez satisfied this requirement, as his sister satisfied the definition of ‘resident’ for the purposes of the Act with her husband sponsoring Mr Hermez to be his carer, contesting that the “resident” test should not be applied to Mr Bashi. The Tribunal has reviewed the evidence before it, including the application form, and is satisfied that Mr Hermez has always claimed to be the carer of Mr Bashi and has not claimed to be the carer for his sister (Mr Bashi’s wife). The Tribunal finds that the relevant provisions here including cl.836.212 and the definition of carer as outlined below under r.1.15AA(1)(a) requires the applicant to be a relative of the resident.

14. Whilst the Tribunal has considered this reasoning as presented at hearing, it finds that Regulation 1.15AA and Regulation 1.03, should be considered together, not separate and apart and that the following should be taken together when considering whether the applicant is a relative. At hearing the applicant consistently submitted that he was the carer for Mr Bashi (evidentiary basis being the audio file), not his sister, Layla Hurmiz. Accordingly, the Tribunal is satisfied that the applicant is the carer to Mr Bashi, not his sister Layla Hurmiz, and that he does not satisfy the definition of ‘close relative’ as defined in r.1.03 as outlined above.

15. The Tribunal is not satisfied that the applicant is a relative of the resident.

16. For the reasons above, the primary applicant does not meet the time of application 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.

17. As the primary applicant does not meet the primary criteria for a Subclass 836 visa, it follows that the secondary applicants do not satisfy the criteria for a Subclass 836 visa. For secondary applicants for a Subclass 836 visa, cl. 836.321 provides that the applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

18. As the primary applicant has not satisfied the primary criteria and there is presumably no claim that any of the secondary applicants meet cl.836.212, then the secondary applicants do not meet cl.836.321.

    DECISION

19. The Tribunal affirms the decision not to grant the applicants an Other Family (Residence) (Class BU) visa.

    Helen Kroger
    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.