Hussein (Migration)

[2022] AATA 862

Hussein (Migration) [2022] AATA 862 (13 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Halimo Hassan Hussein
Mr Ali Mohamed Aden
Mr Abdikhakin Ali Mohamed
Ms Rukia Ali Mohamed
Ms Hamdi Ali Mohamed
Ms Nasteho Ali Mohamed
Ms Zaynab Ali Mohamed
Mr Abdullahi Ali Mohamed
Ms Khadra Ali Mohamed
Ms Aaliyah Ali Mohamed

REPRESENTATIVE:  Ms Tania Irena Mykyta (MARN: 1575391)

CASE NUMBER:  1904081

HOME AFFAIRS REFERENCE(S):          CLF2017/62310

MEMBER:M. Edgoose

DATE:13 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 13 April 2022 at 4:14pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – not satisfied the primary visa applicant is a relative of the sponsor – insufficient evidence – applicant is not a carer of the Australian relative – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.221

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 Home Affairs on 12 February 2019 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 6 September 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 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 836.212 and cl 836.221.

3. The delegate refused to grant the visas on the basis that cl 836.221 was not met.

4. The applicants appeared before the Tribunal on 13 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Somali and English languages.

5. At the start of the scheduled hearing the interpreters telephone connection was working fine and then it suddenly dropped out. The Tribunal hearing attendant made 3 attempts to reconnect with the interpreter and was not successful on each occasion. The Tribunal informed the primary visa applicant and representative that the hearing would be adjourned until 3pm on 13 April 2022 so that the Tribunal could locate a new interpreter.

6. The Tribunal hearing recommenced at 3pm on 13 April 2022 with a new interpreter. At this time the applicant’s appeared before the Tribunal to give evidence and present arguments.  During the resumed hearing the Tribunal member dismissed the interpreter, and another interpreter came online and completed the hearing.

7. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   APPLICANT CLAIMS TO BE CARER

   Whether the applicant has claimed to be the ‘carer’

9. 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 her mother.

10. 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 terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

11. In this matter the primary visa applicant at time of her visa application claimed to be the carer of an Australian relative. The Tribunal notes that according to the delegate’s decision Departmental systems confirmed that the person requiring care, Ms Nuur, is an Australian citizen.    

12. Therefore, at the time of application the primary visa applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.

    APPLICANT IS A CARER

    Whether the applicant is a carer

13. 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.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

14. Regulation 1.15AA(1)(a) requires 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 primary visa applicant’s mother.  

15. In this matter the Tribunal has given regard to the delegate’s decision that was made on 12 February 2019. The delegate found that the primary visa applicant had not provided sufficient evidence to support her claim that she was the daughter of an Australian relative. On 25 October 2018 the Department wrote to the primary visa applicant requesting that she provide a copy of her birth certificate or any other official documents to demonstrate her relationship between herself and Ms Nuur, the sponsor. At time of the delegate’s decision being made on 12 February 2019 the primary visa applicant had not responded to that request.

16. On 22 February 2019 the primary visa applicant through her representative submitted an application of review to the Tribunal. At time of application the primary visa applicant submitted a number of documents including a copy of the delegate’s decision. Between 22 February 2019 and 13 April 2022, some further documentary evidence including a number of statutory declarations, fee reduction requests and medical reports about the sponsor were submitted. The Tribunal notes that in the evidence provided the primary visa applicant has not submitted the requested evidence that was asked for by the Department on 25 October 2018, that being a copy of her birth certificate or any other official documents to demonstrate her relationship between herself and Ms Nuur, the sponsor.

17. The Tribunal has given regard to the submissions made on 8 April 2022 by the primary visa applicants representative. The Tribunal notes that the submission made by the representative provided limited detail about the primary visa applicant’s claimed relationship with the sponsor. The representative mentioned in her submission that the primary visa applicant and the sponsor are prepared to undertake DNA testing. The Tribunal has given careful consideration to this request however given that the primary visa applicant was asked by the Department on 25 October 2018 to provide a copy of her birth certificate or any other official documents to demonstrate her relationship between herself and Ms Nuur, the Tribunal is of the view that the primary visa applicant has had a reasonable amount of time to undertake DNA testing and provide the Tribunal with requested documentation as asked for by the Department. At hearing the Tribunal informed the primary visa applicant that her request for further time has been refused. 

18. At hearing the primary visa applicant continued to claim to the Tribunal that she is the daughter of the sponsor. The Tribunal asked the primary visa applicant if she had any other documents to provide the documentation to confirm her relationship with the sponsor. The primary confirmed at hearing that she has never had a birth certificate for her entire life and that she had not had time since 25 October 2018 to have a DNA test or provide further documentation. The Tribunal does not accept that the primary visa applicant has not had the time to complete a DNA test or to provide further documentation.

19. Given that the Tribunal is not satisfied the primary visa applicant is a relative of the sponsor the Tribunal places little weight on the remaining submissions made on 8 April 2022.

20. On 12 April 2022 and 13 April 2022, the representative made further submissions to the Tribunal. These included a doctor’s letter, letter from My HomeCare Choices, an appointment at Bupa Medical Visa Services. The Tribunal carefully considered these submissions but was not satisfied that these submissions addressed the relationship between the primary visa applicant and the sponsor. For these reasons the Tribunal has given these submissions little weight. 

21. Given that the Tribunal was satisfied that the primary visa applicant is the daughter of the sponsor the Tribunal did not see it necessary to take oral evidence from Mr Ali Mohamed Aden and Ms Rukia Ali Mohamed.

22. Given there is insufficient evidence to support the claim that the primary visa applicant is the daughter of the Australian relative, the Tribunal finds the primary visa applicant is not a ‘relative’ of the resident within the meaning of reg 1.03 and does not meet the requirements of reg 1.15AA(1)(a).

23. 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.

24. 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.

    DECISION

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

    M. Edgoose
    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.