ISSA (Migration) - [2021] AATA 1928

ISSA (Migration) [2021] AATA 1928 (30 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Marguerite Youssef ISSA
VISA APPLICANTS:  Mrs Fabiene Azo
Mr Fares EL CHEMALY
Miss Melissa EL CHEMALY
Miss Serena EL CHEMALY
CASE NUMBER:  1815486
HOME AFFAIRS REFERENCE(S):          2014006453 OSF2014/006453
MEMBER:Helena Claringbold
DATE:30 April 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 30 April 2021 at 11:50am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia – impairment rating of 40 – living alone – Home Care Package statement – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 116.211, 116.221
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 31 March 2014, Mrs Fabiene Azo, the primary visa applicant (the visa applicant), applied for an Other Family (Migrant) (Class BO) visa. The application was made on the basis she is available to act as a carer for her Australian citizen mother Ms Marguerite Youssef Issa, the sponsor and review applicant. Also included in the visa application are Mr Fares El Chermaly, the visa applicant’s partner and their two children. They are the second, third and fourth named visa applicants.
At the time of application, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.
On 21 March 2018, a delegate of the Minister for Home Affairs refused to grant the visas. The delegate was not satisfied that the visa applicant did met cl.114.211, cl.115.211 and cl.116.221 of Schedule 2 to the Regulations made under the Migration Act 1958 (the Act). On 10 April 2018, the sponsor provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.
On 10 March 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also took oral evidence from Mr SA, the sponsor’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The sponsor confirmed that she understood the interpreter clearly.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration,…

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.

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Details

AGLC: ISSA (Migration) [2021] AATA 1928
Case: [2021] AATA 1928
Decision Date: 30 April 2021

CaseChat Overview and Summary

This matter concerned an appeal before the Tribunal regarding the refusal of an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The visa applicant sought to migrate to Australia as a carer for her mother, who was an Australian citizen. The central dispute revolved around whether the assistance the sponsor required could not reasonably be provided by any other relative in Australia or obtained from Australian welfare, hospital, nursing, or community services.

The legal issues before the Tribunal were to determine if the visa applicant satisfied the requirements of regulation 1.15AA of the Migration Regulations 1994. Specifically, the Tribunal had to assess whether the assistance the sponsor required could not reasonably be provided by any other Australian citizen, permanent resident, or eligible New Zealand citizen relative, or whether such assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia.

The Tribunal's reasoning focused on the second limb of regulation 1.15AA(1)(e), concerning the availability of community services. While acknowledging the sponsor's personal circumstances and the applicant's desire to provide care, the Tribunal found that the evidence presented did not sufficiently demonstrate that the required assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal noted a lack of independent evidence from relevant service providers to support this claim, with the applicant primarily relying on statements from family members. Consequently, the Tribunal was not satisfied that this criterion was met.

As a result of not being satisfied that the criteria for the grant of the visa had been met, the Tribunal affirmed the decision not to grant the visa applicants their Other Family (Migrant) (Class BO) visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in the present case is, whether assistance for the sponsor cannot reasonably be provided, by any other relative of the sponsor, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen or whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. BACKGROUND The visa applicant was born in 1973 in Beirut, Lebanon. She declared her parents as the sponsor and Mr MA. The visa applicant is married to Mr Fares El Chemaly. They have two children who were born in Lebanon in 2002 and 2005. The sponsor was born in 1951 in Baghdad, Iraq. She is a Lebanese citizen. On 22 December 1999, she entered Australia. On 12 December 2007, she was granted Australian Citizenship. The sponsor was previously married to Mr AN. She has three adult sons living in Australia and her daughter, the visa applicant who lives in Lebanon. As detailed in the delegate’s decision record, the sponsor stated at the Departmental interview that she is divorced from her second husband Mr AN. Whether the visa applicant has claimed to be a ‘carer’ of an Australian relative Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of her mother, the sponsor, who is an Australian citizen. Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211 of Schedule 2 to the Regulations. Regulation 1.03 provides that ‘carer’ has the meaning as given in r.1.15AA of the Regulations. Regulation1.15AA provides that the assistance cannot reasonably be:(e)(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(e)(ii) obtained from welfare, hospital, nursing or community services in Australia; Whether the assistance cannot reasonably be provided by any other relative Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61]. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. The sponsor provided information relating to her family circumstances and reasons why the assistance cannot be provided by her relatives living in Australia. A letter dated October 2017, is from a psychologist who provided information about the sponsor’s health. A hospital discharge referral letter dated 5 May 2016, recorded the sponsor being admitted after having a fall. She sustained injury to her right rib with no demonstrated fracture and was discharged with analgesia. She was advised to follow up with her family doctor in view of mild renal impairment. She is recorded as living along with ‘strong family support’, ‘copes well and independent of ADLS’, ‘doesn’t want to call family as they will be overly concerned and kick up a fuss’ ‘she will call them when she gets home if discharged or to inform them of admission’.

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 Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. ISSUE The issue in the present case is, whether assistance for the sponsor cannot reasonably be provided, by any other relative of the sponsor, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen or whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. BACKGROUND The visa applicant was born in 1973 in Beirut, Lebanon. She declared her parents as the sponsor and Mr MA. The visa applicant is married to Mr Fares El Chemaly. They have two children who were born in Lebanon in 2002 and 2005. The sponsor was born in 1951 in Baghdad, Iraq. She is a Lebanese citizen. On 22 December 1999, she entered Australia. On 12 December 2007, she was granted Australian Citizenship. The sponsor was previously married to Mr AN. She has three adult sons living in Australia and her daughter, the visa applicant who lives in Lebanon. As detailed in the delegate’s decision record, the sponsor stated at the Departmental interview that she is divorced from her second husband Mr AN. Whether the visa applicant has claimed to be a ‘carer’ of an Australian relative Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of her mother, the sponsor, who is an Australian citizen. Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211 of Schedule 2 to the Regulations. Regulation 1.03 provides that ‘carer’ has the meaning as given in r.1.15AA of the Regulations. Regulation1.15AA provides that the assistance cannot reasonably be:(e)(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(e)(ii) obtained from welfare, hospital, nursing or community services in Australia; Whether the assistance cannot reasonably be provided by any other relative Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61]. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

Decision

Reasons for decision

As the visa applicant has not satisfied the criteria for the grant of the visa, it follows that the second, third and fourth named visa applicants do not meet the criteria for the grant of the visas. DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Helena ClaringboldMember

Ratio Decidendi

Legal Principle Established

The Tribunal is sympathetic to the sponsor’s circumstances. However, the Tribunal is not satisfied that the evidence provided demonstrates that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, because there is little evidence to support this claim from relevant service providers. Ultimately, other than statements given by the applicant and family members and the representative about obtaining services, the applicant has not provided any independent information that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor; rather, the sponsor has stated that she only wants the visa applicant to provide her with assistance and there is no capacity available to the Tribunal to waiver this requirement. This has led the Tribunal not to accept that assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.Other considerations The Tribunal told the sponsor of its concern regarding her comments during the Tribunal hearing about committing suicide. The Tribunal’s concern for the sponsor is paramount. It encourages the sponsor to seek assistance from her medical professionals during any time of anxiety, stress, depression or suicidal ideations. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, therefore r.1.15AA(1)(e)(ii) is not satisfied. As the Tribunal has determined that the criteria for the grant of the visa have not been satisfied, the Tribunal has not considered the remaining criteria. For the reasons above, the applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought. There are no claims or evidence that the applicant meets the criteria for any of the other subclasses contained in Class BU. As the visa applicant has not satisfied the criteria for the grant of the visa, it follows that the second, third and fourth named visa applicants do not meet the criteria for the grant of the visas. DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Helena ClaringboldMember