Hussein (Migration) - [2023] AATA 334

Hussein (Migration) [2023] AATA 334 (13 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammed Iqbal Hussein
Ms Asifa Zavia Hussein
Master Huzaifa Bin Iqbal
Miss Almaira Bint Iqbal
REPRESENTATIVE:  Ms Sai Priya Sivalohan
CASE NUMBER:  1927978
HOME AFFAIRS REFERENCE(S):          CLF2018/49867
MEMBER:Mila Foster
DATE:13 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 13 January 2023 at 5:39pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –rating exceeds the impairment rating of 30 specified by the relevant instrument – evidence about the nature and extent of the assistance – not satisfied that the first named applicant is willing and able to provide substantial and continuing assistance of the kind needed – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 836.221

CASES
Bader v MIBP [2018] FCCA 485
Ignatious v MIMIA [2004] FCA 1395
MIMIA v Hidalgo [2005] FCAFC 192
Perera v MIMIA [2005] FCA 1120
Scargill v MIMIA [2003] FCAFC 116
Xiang v MIMIA [2004] FCAFC 64
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 23 September 2019 to refuse to grant the 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 24 May 2018. 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 applicants are seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa which are set out in Part 836 of Schedule 2 to the Regulations. The first named applicant is seeking to satisfy the criteria on the basis that he is the carer of his mother, Jamila Bibi Hussein, and the other applicants are seeking to satisfy the criteria on the basis that they are members of his family unit. It is claimed that the first and second named applicants are spouses and that the third and fourth named applicants are their children.
The delegate refused to grant the visas on the basis that the criterion in cl 836.221 was not met by the first named applicant because it had not been demonstrated that the care Ms Hussein requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The first and second named applicants appeared before the Tribunal on 28 October 2022 to give evidence and present arguments. The Tribunal also took evidence from the first named applicant’s brother-in-law, Reaj Khan.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal…

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 Hussein (Migration)

Details

AGLC: Hussein (Migration) [2023] AATA 334
Case: [2023] AATA 334
Decision Date: 13 January 2023

CaseChat Overview and Summary

This matter concerned an application for Other Family (Residence) (Class BU) visas, specifically a Subclass 836 (Carer visa), by applicants who were citizens of the United States. The primary issue was whether the first named applicant, who claimed to be the carer of his mother, Ms Hussein, an Australian citizen, was willing and able to provide the necessary substantial and continuing assistance. The Tribunal was required to determine if the applicants met the prescribed criteria for the visa sought.

The legal issues before the Tribunal were whether the first named applicant qualified as a "carer" of Ms Hussein under regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether Ms Hussein had a medical condition causing significant impairment, whether she required direct assistance for at least two years, whether such assistance could not reasonably be provided by other Australian relatives or obtained from community services, and crucially, whether the first named applicant was willing and able to provide the required substantial and continuing assistance.

The Tribunal considered evidence including the Department file, oral testimony, written submissions, documentary evidence, and movement records. It found that while the first named applicant was a relative of Ms Hussein, the evidence did not satisfy the requirement that he was willing and able to provide substantial and continuing assistance of the kind needed. The Tribunal noted that the impairment rating specified by the relevant instrument was not met. Consequently, the Tribunal affirmed the decision not to grant the applicants the visas.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the first named applicant is a carer of Ms Hussein, specifically whether he is willing and able to provide to Ms Hussein substantial and continuing assistance of the kind needed. This issue was raised at the hearing and the first named applicant was given the opportunity to provide further evidence and present arguments about the issue. Background information It is claimed that Ms Hussein is a 70-year-old Australian citizen by grant. She had migrated from Fiji in 2010 on the basis of her marriage to an Australian citizen. Two years later that marriage ended by divorce. It is claimed that Ms Hussein has relatives who are Australian citizens or permanent residents but are unwilling or unable to provide her with assistance to meet her daily living needs. Those relatives are her daughter Sharine Bano Khan, her eldest son Mohammed Arif Hussein, her four adult grandchildren (Zayna Zeenat Hussein, Zohaib Arif Hussein, Mohammed Rehaan Khan, Sheriza Saista Khan), and her sister Man Bi Munaf. It is claimed that the applicants are citizens of the United States (US) and resided there before coming to Australia on visitor visas and applying for the carer visa. The first named applicant claims he has been caring for his mother since visiting her in Australia in February 2016. He claims that when doctors declared his mother needed a full-time carer, he decided to stay in Australia. According to Department movement records, the first named applicant last entered Australia on 22 December 2017 on a Subclass 601 Electronic Travel Authority visa. Movement records indicate that the third and fourth named applicants last entered Australia on Subclass 601 Electronic Travel Authority visas on the same date. The visa application lodged on 24 May 2018 originally included the first, third and fourth named applicants. It is claimed that the second named visa applicant remained in the US until she came to Australia in November 2018 and was added to the visa application on 29 November 2018. Movement records indicate that the second named visa applicant entered Australia on Subclass 601 Electronic Travel Authority visa on 29 November 2018 and has since only departed once on a bridging visa from 11-25 July 2022. It is claimed that after the second named visa applicant’s arrival in November 2018, the applicants have resided together with Ms Hussein at a residence in Rooty Hill, New South Wales (NSW). Prior to that it is claimed that the first named applicant lived at his brother’s residence in Mount Druitt, NSW where Ms Hussein was also residing. Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the visa 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 the first named applicant applicant’s mother, Ms Hussein The Tribunal has before it the first named applicant’s birth certificate, his marriage certificate Ms Hussein’s birth certificate, and Ms Hussein’s previous Fijian passports. On the basis of these documents the Tribunal finds that Ms Hussein is the first named applicant’s biological mother. The first named applicant is thus a ‘close relative’ as defined in reg 1.03 and hence a ‘relative’ of Ms Hussein.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The evidence before the Tribunal includes the Department file relating to the visa application,[1] the oral evidence given at hearing, and written submissions and documentary evidence submitted to the Tribunal before and after the hearing. The Tribunal also has before it Department movement records relating to the applicants and Ms Hussein and Department records relating to Ms Hussein’s previous Partner visa application. [1] Department file number CLF2018/49867 (DF). Clause 836.221 requires that at the time of decision, the visa 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. The issue in the present case is whether the first named applicant is a carer of Ms Hussein, specifically whether he is willing and able to provide to Ms Hussein substantial and continuing assistance of the kind needed. This issue was raised at the hearing and the first named applicant was given the opportunity to provide further evidence and present arguments about the issue. Background information It is claimed that Ms Hussein is a 70-year-old Australian citizen by grant. She had migrated from Fiji in 2010 on the basis of her marriage to an Australian citizen. Two years later that marriage ended by divorce. It is claimed that Ms Hussein has relatives who are Australian citizens or permanent residents but are unwilling or unable to provide her with assistance to meet her daily living needs. Those relatives are her daughter Sharine Bano Khan, her eldest son Mohammed Arif Hussein, her four adult grandchildren (Zayna Zeenat Hussein, Zohaib Arif Hussein, Mohammed Rehaan Khan, Sheriza Saista Khan), and her sister Man Bi Munaf. It is claimed that the applicants are citizens of the United States (US) and resided there before coming to Australia on visitor visas and applying for the carer visa. The first named applicant claims he has been caring for his mother since visiting her in Australia in February 2016. He claims that when doctors declared his mother needed a full-time carer, he decided to stay in Australia. According to Department movement records, the first named applicant last entered Australia on 22 December 2017 on a Subclass 601 Electronic Travel Authority visa. Movement records indicate that the third and fourth named applicants last entered Australia on Subclass 601 Electronic Travel Authority visas on the same date. The visa application lodged on 24 May 2018 originally included the first, third and fourth named applicants. It is claimed that the second named visa applicant remained in the US until she came to Australia in November 2018 and was added to the visa application on 29 November 2018. Movement records indicate that the second named visa applicant entered Australia on Subclass 601 Electronic Travel Authority visa on 29 November 2018 and has since only departed once on a bridging visa from 11-25 July 2022.

Decision

Reasons for decision

In respect of the other visa subclasses there is no material which would permit a finding that the first named applicant or any of the other applicants meet the prescribed criteria for the visa sought. DECISION The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.Mila FosterMemberATTACHMENTMigration 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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