Jabr (Migration) - [2023] AATA 1839

Jabr (Migration) [2023] AATA 1839 (13 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Jamilah Jabr
VISA APPLICANTS:  Mr Gerios Jabr
Ms Hanan Merhej
Mr Jubran Jabr
Ms Joelle Jabr
CASE NUMBER:  2212042
HOME AFFAIRS REFERENCE(S):          OSF2019/021709
MEMBER:Kira Raif
DATE:13 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met by the first, second and third named visa applicants:
·cl 116.221 of Schedule 2 to the Regulations
The Tribunal affirms the decision not to grant the fourth named visa applicant the Other Family (Migrant) (Class BO) visa.

Statement made on 13 June 2023 at 1:02pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of Australian relative – sponsor’s daughter/applicant’s sister currently caring informally for both sponsor mother and father – home care package for limited hours – physical and mental health – other specified relative studying and caring for own parent – assistance reasonably obtained from service providers – sponsor distrustful of strangers and unwilling to enter nursing home – applicant willing and able to provide substantial and continuing assistance required – members of family unit – oldest child over 23 and financially dependent on father at date of decision – not member of family unit as defined and decision affirmed – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(2), 1.15AA, Schedule 2, cls 116.221, 116.321
CASES
Perera v MIMIA [2005] FCA 1120
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 24 June 2022 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants are nationals of Lebanon. The first named visa applicant (the visa applicant) is the son of the sponsor. The application includes his partner and two children.
The visa applicants applied for the visa on 15 September 2019. The delegate refused to grant the visas on the basis that cl 116.221 was not met as the delegate was not satisfied the visa applicant was a carer of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant and the visa applicant appeared before the Tribunal on 13 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to all the visa applicants except Ms Joelle Jabr.
Relevant law
Carer visa
At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining…

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: Jabr (Migration) [2023] AATA 1839
Case: [2023] AATA 1839
Decision Date: 13 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by visa applicants concerning applications for Other Family (Migrant) (Class BO) visas, specifically Subclass 116 (Carer) visas. The dispute centred on whether the applicants met the criteria to be granted these visas as carers for an Australian relative, with the sponsor’s daughter, who was informally caring for both parents, facing challenges in meeting the requirements.

The primary legal issue before the Tribunal was to determine whether the applicants satisfied the criteria for a Subclass 116 (Carer) visa, particularly in relation to the definition of a "member of the family unit" and the requirement for assistance to be reasonably obtained from service providers. The Tribunal also had to consider the specific circumstances of the oldest child, who was over 23 and financially dependent, in relation to their eligibility.

The Tribunal reasoned that while the sponsor’s daughter was providing informal care, the assistance required by the parents, who were experiencing physical and mental health issues and had specific needs regarding strangers and nursing homes, was substantial and ongoing. The Tribunal found that the applicants were willing and able to provide this necessary assistance. However, the Tribunal determined that the oldest child, being over 23 and financially dependent on the father at the time of the decision, did not meet the definition of a "member of the family unit" for the purposes of the visa.

Consequently, the Tribunal remitted the applications for the Other Family (Migrant) (Class BO) visas to the Minister for reconsideration, with a direction that the criteria for a Subclass 116 (Carer) visa were met by the first, second, and third named visa applicants. The Tribunal affirmed the decision not to grant the fourth named visa applicant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met by the first, second and third named visa applicants:·cl 116.221 of Schedule 2 to the Regulations The Tribunal affirms the decision not to grant the fourth named visa applicant the Other Family (Migrant) (Class BO) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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