JABRO (Migration) - [2020] AATA 2804

JABRO (Migration) [2020] AATA 2804 (12 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Elshoah Esho Jabro
VISA APPLICANTS:  Ms Hanan J. Bious
Mr Mazin Salim Zaya
Miss Noor Mazin Zaya
Miss Reta Mazin Zaya
Miss Raneya Mazin Zaya
CASE NUMBER:  1707431
HOME AFFAIRS REFERENCE(S):          OSF2015/038629
MEMBER:Moira Brophy
DATE:12 March 2020
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:
·cl.116.211 and cl.116.221 of Schedule 2 to the Regulations;

With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:
·cl.116.312 of Schedule 2 to the Regulations.
Statement made on 12 March 2020 at 3:01pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – Carer Visa Assessment Certificate – assistance cannot be reasonably obtained / provided – current circumstances of sponsor’s children – welfare or community services – residential care option – overnight care required – willing and able to provide ‘substantial and continuing assistance’ of the kind needed – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.211, 116.221, 116.312
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lin v MIMIA [2004] FCA 606
Perera v MIMIA [2005] FCA 1120
Rafiq v MIMIA [2004] FCA 564
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS
ISSUE

The issue in the present case is whether the first named visa applicant (the applicant), Ms Hanan J Bious, is a ‘carer’ of her mother and sponsor, Mrs Elshoah Esho Jabro.
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 February 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 23 March 2015. At that time, 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 (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. Relevantly to this matter, the primary criteria to be met include cl.116.211 and cl.116.221.
The delegate refused to grant the visas on the basis that cl.116.211 and cl.116.221 were not met because the delegate was not satisfied the applicant met the definition of ‘carer’ in relation to her mother.
The review applicant, Mrs Elshoah Esho Jabro appeared before the Tribunal on 4 March 2020 to give evidence and present arguments.…

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 JABRO (Migration)

Details

AGLC: JABRO (Migration) [2020] AATA 2804
Case: [2020] AATA 2804
Decision Date: 12 March 2020

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant, Ms. Hanan Bious, sought to be recognised as a 'carer' for her mother, Mrs. Elshoah Esho Jabro, who is an Australian citizen. The dispute before the Tribunal revolved around whether Ms. Bious met the regulatory requirements to be considered a carer, including the need for substantial and continuing assistance that could not be reasonably obtained or provided by other means.

The Tribunal was required to determine whether Ms. Bious satisfied the criteria for being a 'carer' under the Migration Regulations 1994, specifically clauses 116.211 and 116.221. This involved assessing whether she was a relative of the Australian resident, whether a valid Carer Visa Assessment Certificate had been provided demonstrating a medical condition and ongoing need for assistance, and crucially, whether such assistance could not reasonably be obtained from other relatives or welfare services in Australia, and if the applicant was willing and able to provide the necessary substantial and continuing assistance. The Tribunal also considered the eligibility of secondary applicants, Ms. Bious' husband and three children.

The Tribunal found that Ms. Bious met the initial claim to be a carer of an Australian relative (her mother) and that she was indeed a relative of the Australian resident. It also considered the Carer Visa Assessment Certificate provided. The core of the Tribunal's reasoning focused on the requirement that assistance cannot reasonably be obtained from other relatives or welfare services, and that the applicant must be willing and able to provide substantial and continuing assistance. While the Tribunal was satisfied that the sponsorship extended to the secondary applicants, it ultimately concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Other Family (Migrant) (Class BO) visas for reconsideration. It directed that the criteria for a Subclass 116 (Carer) visa under clauses 116.211 and 116.221 of Schedule 2 to the Regulations were met, and that the secondary applicants met the criteria under clause 116.312 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also taken into account the Carer Visa Assessment Certificate dated 4 September 2019 provided at the request of the Tribunal prior to hearing. Whether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of the Regulations requires that the applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is a carer of the review applicant, who is the applicant’s mother. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. There is a copy of the Carer visa application made by Ms Hanan Bious and her mother on the Department file. On that application Ms Hanan Bious claims to be the carer of her mother who is the sponsor, Mrs Elshoah Esho Jabro (the caree). The caree is an Australian citizen, as evidenced by the copy of the citizenship certificate provided. Therefore, at the time of application the applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl.116.211.Whether Ms Hanan Bious is a ‘carer’ Clause 116.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision. Whether Ms Hanan Bious is a relative of the resident – r.1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother. The Department file contains identity documents of Ms Hanan Bious and her mother. The Tribunal is satisfied on the evidence before it that Mrs Elshoah Esho Jabro is the mother of Ms Hanan Bious and meets the definition of close relative. The Tribunal is also satisfied that Mrs Elshoah Esho Jabro is an Australian citizen and is ‘usually resident’ in Australia. Therefore, as the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).Certification – r.1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

Decision

Reasons for decision

The secondary applicants are Ms Bious’ husband and three children. The Tribunal is satisfied that the sponsorship mentioned in cl.116.213 of the person who satisfies the primary criteria includes sponsorship of the family members. Consequently, the secondary applicants meet cl.116.312. 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:·cl.116.211 and cl.116.221 of Schedule 2 to the Regulations;With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:· cl.116.312 of Schedule 2 to the Regulations. Moira BrophyMemberATTACHMENTMigration 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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