Jubrail (Migration) - [2024] AATA 674

Jubrail (Migration) [2024] AATA 674 (30 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Linda Jubrail
Mr Yohana Hurmez
Miss Maryana Hurmez
Miss Klodia Hurmez
Master Matias Hurmez
Mr Yousif Hurmez
REPRESENTATIVE:  Mr George Botros, lawyer, Madison Marcus (Victoria)
CASE NUMBER:  2302928
HOME AFFAIRS REFERENCE(S):          CLF2017/113083
MEMBER:Michael Ison
DATE:30 January 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application of the first named applicant for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:
·clauses 836.211(a), 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations;

The Tribunal remits the applications of the second named and fifth named applicants for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the second named and fifth named applicants meet the following criteria for a Subclass 836 (Carer) visa:
·clauses 836.311(a) and 836.312 of Schedule 2 to the Regulations; and

The Tribunal affirms the decisions under review in relation to the third named, fourth named and sixth named applicants but refers their circumstances to the Minister for the Minister to consider exercising the Minister’s power under section 351 of the Act.

Statement made on 30 January 2024 at 5:00pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsor has been assessed in the CVAC as having a “severe mental delay since birth” – applicant was sponsored as required by the legislation – applicant is the sister of the Australian relative – resident’s medical condition arose at birth is permanent, incurable and untreatable – sponsor is an Australian relative of the applicant – members of the family unit of the applicant – third, fourth and sixth named applicants are now over 23 years old – applicant is willing and able to provide to the sponsor the substantial and continuing assistance of the kind needed – decision under review remitted for the first, second and fifth named applicants – decision under review affirmed for the third named, fourth named and sixth named applicants

LEGISLATION
Migration Act 1958, ss 5, 65, 351
Migration Regulations 1994, rr 1.03, 1.12, 1.15, 1.20, Schedule 2, cls 836.211,836.212, 836.213, 836.221, 836.311, 836.312, Schedule 8

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 30 July 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

The applicant in this review is Ms Linda Jubrail, who is a 44-year-old dual Iraqi and Kingdom of Netherlands national. Ms Jubrail is referred to as the applicant in these reasons for decision.
The applicant and her husband, Mr Yohana Hurmez, according to Departmental records, applied for Subclass 202 Global Special Humanitarian visas to migrate to Australia in 2005 and 2006 and were refused on both occasions. The Department file notes that the applicant applied under the name Ms Lindy Ibrull and her husband under the name Mr Yohana Hirmez. It is further noted in the Department file that these previous visa applications and the variations to the name of the applicant and her husband were not declared in the current visa applications for Carer visas that are the subject of this review.
The applicant first arrived in Australia on 27 August 2017 as the holder of an E-Visitor (Class TV) (Subclass 651) visa that was valid to 27 November 2017.
On 21 November 2017 the applicant applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) Carer visa on the basis that the applicant claims to be a relative of her sponsor Mr Nashwan Labeeb Jubraeel Jubraeel, who is the applicant’s brother. Mr Yohana Hurmez, the applicant’s husband, and their children Miss Maryana Hurmez, Miss Klodia Hurmez, Master Matias Hurmez and Mr Yousif Hurmez accompanied the applicant to Australia and were also included in this Other Family (Residence) (Class BU) (Subclass 836) Carer visa application as members of the family unit of the applicant.
Mr Yohana Hurmez, Miss Maryana Hurmez, Miss Klodia Hurmez, Master Matias Hurmez and Mr Yousif Hurmez are referred to as the second, third, fourth, fifth and sixth named applicants respectively or collectively as the secondary applicants in these reasons for decision.
Mr Nashwan Jubraeel is 46 years old and had Australian citizenship conferred on 28 November 2022. Mr Jubraeel is referred to as the resident and also as the sponsor in these reasons for decision as the context requires.
On 24 November 2017 the applicant was granted a Bridging A (Subclass 010) visa that was valid to 23 August 2021, with conditions 8304 (Single Identity) and 8115 (Limited Activities) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.
The applicant’s Carer visa application was refused on 30 July 2018. The applicant sought review of that decision to the Tribunal, differently constituted, as explained below.
On 24 August 2021 the applicant was granted her second Bridging A visa, which the applicant continues to hold at the time of this decision. That Bridging A visa has condition 8115 (Limited Activities) from Schedule 8 of the Regulations attached.
The second named applicant has been granted a series of five Bridging A visas, the most recent of which was granted on 25 August 2021 and has no conditions attached. The second named applicant continues to hold that Bridging A visa at the time of this decision.
The third to sixth named secondary applicants were each granted second Bridging A visas at the same time as the applicant and subject to the same conditions and they each continue to hold their second Bridging A visas at the time of this decision.
According to a Carer Visa Assessment Certificate (CVAC) dated 21 June 2017, the resident in this matter, Mr Nashwan Jubraeel, has been assessed as having an impairment rating of 30 under the relevant Impairment Tables. The doctor who completed the CVAC stated that the resident has been diagnosed with severe mental delay, arising since birth and likely from Cerebral Palsy. The resident’s condition was assessed as adversely / irreversibly and permanently impacting the resident’s brain function with a functional impairment present.
The resident was noted by the examining doctor as not uttering a word during the examination but also as being unable to write on a piece of paper when the examining doctor asked him to do so. The examining doctor also stated that the resident continually needs assistance and supervision and has extreme difficulties in performing daily tasks and is not able to solve simple problems and is unable to plan his daily activities. The resident has poor awareness of his own limitations and needs continual supervision, at the time of examination from his stepmother. The examining doctor stated the resident’s medical condition has resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions and the resident is in need of constant supervision or monitoring because he may be a danger to himself or others. The doctor diagnosed the resident’s care needs as being permanent (at least 2 years).

The primary decision of the delegate

The applicant provided the Tribunal with a copy of the primary decision.
The applicants applied for the visas on 21 November 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 applicants are seeking to satisfy the criteria for the grant of Subclass 836 Carer visas. 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 836.213.
The delegate refused to grant the visas on the basis that cl 836.213 was not met because the delegate was not satisfied that the applicant’s sponsor, Mr Nashwan Jubraeel, understood his sponsorship obligations at the time the applicants applied for the Carer visas with the effect that the applicants were not sponsored as required by cl 836.213(a).

First review before the Tribunal (differently constituted)

The applicant lodged her application for review with the Tribunal on 7 August 2018.
The applicant’s application was heard by the Tribunal, differently constituted, on 15 July 2021 in Tribunal review number 1822760.
On 19 July 2021 the Tribunal, differently constituted, affirmed the decision of the delegate not to grant the applicants Subclass 836 Carer visas.

Federal Circuit Court remittal

On 18 August 2021 the applicant appealed to the Federal Circuit Court of Australia, as it then was, for judicial review of the Tribunal’s decision in Tribunal review number 1822760.
On 28 February 2023 the Federal Circuit Court, with the consent of the Minister, quashed the Tribunal’s decision dated 19 July 2021 and remitted the applicant’s application back to the Tribunal with an order that the Tribunal review the delegate’s decision according to law. The Minster consented to this remittal because (emphasis in the original):
The [Minister] concedes that the decision of the second respondent (Tribunal) is affected by jurisdictional error, as it failed to consider the medical report from Dr Magdy Shahat dated 12 January 2018 (second medical report) and fell into the kind of error identified in Minister for Home Affairs v Ogawa [2019] FCAFC 98. In circumstances where the Tribunal expressly considered and placed significant weight on Dr Magdy Shahat's medical report dated 9 November 2017 (first medical report) but did not do so for the second medical report, the Tribunal erred by overlooking the same. The first respondent accepts that this error was material because had the Tribunal considered the second medical report, it may not have evaluated the first medical report in the same way if it had read it together with the second medical report prepared by the same expert.[1]
[1] Notes from the Orders of Registrar Van Der Westhuizen of the Federal Circuit Court made at Melbourne on 28 February 2023.

Constitution to the Tribunal as presently constituted

The applicant’s remitted application for review was constituted to the Tribunal as presently constituted on 16 August 2023, over five months after the Federal Circuit Court had remitted the review back to the Tribunal.

Tribunal hearing

The applicant appeared before the Tribunal in person on 27 September 2023 to give evidence and present arguments.
The applicants were represented in relation to the review by, Mr George Botros, immigration lawyer of Madison Marcus (Victoria). Mr Botros is referred to in these reasons as the applicants’ representative or the representative. The representative attended the Tribunal hearing.
The Tribunal also received evidence from the resident, Mr Nashwan Jubraeel using gestures, and oral evidence from the second named applicant Mr Yohana Hurmez and from the representative, Mr Botros.

Representative as a witness

Mr Botros, with his clients’ consent, offered to give oral evidence to the Tribunal. On this basis the Tribunal assessed that issues of client legal privilege, often referred to as legal professional privilege, did not arise. During the Tribunal hearing the Tribunal clearly distinguished between and separated Mr Botros’ dual roles as the applicants’ representative and Mr Botros giving oral evidence to the Tribunal.
The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean and English languages.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether she could understand the interpreter and whether she had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated she could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicants that it would seek submissions from both of the applicants who appeared before the Tribunal and from the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicants’ review.

Tribunal decision

The Tribunal has had regard to the oral evidence of the applicant, Mr Hurmez and Mr Botros and the physical evidence of the resident and sponsor, all of the information in the oral and written submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s files for Tribunal reviews numbered 2302928 and 1822760 and the Department’s file provided to the Tribunal.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the resident and sponsor has the mental capacity to validly sponsor the applicants’ applications for the Carer visas as required by cl 836.213 because he has been assessed in the CVAC as having a “severe mental delay since birth (probably from cerebral palsy)” and does not speak or write.

Are the sponsorship requirements met?

Clause 836.213 provides:
The applicant is sponsored:
(a)       by the Australian relative, if the Australian relative:
(i)      has turned 18; and
(ii)  is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen ; and
(iii)     is usually resident in Australia; or …
The Tribunal has been provided with documentary evidence, which it accepts, that the resident and sponsor:

is the biological brother of the applicant;
has turned 18 years of age;
is a settled Australian citizen at the time of this decision and was an Australian permanent resident at the time of application; and
is usually resident in Australia.

These were not matters of controversy before the Department.
To be ‘sponsored’ for the purposes of cl 836.213(a) the applicants must have a ‘sponsor’. The term ‘sponsor’ is defined in reg 1.03 as having the meaning given by subregulation 1.20(1).
Regulation 1.20 provides:
(1) The sponsor of an applicant for a visa is a person … who undertakes the obligations stated in subregulation (2) in relation to the applicant.
(2)  Subject to subregulation (4), the obligations of a sponsor in relation to an applicant for a visa are the following:
(a)  if the application is for a Skilled — Regional Sponsored (Provisional) (Class SP) visa, or a permanent visa (other than a Partner (Migrant) (Class BC) or Partner (Residence) (Class BS) visa) — the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation:
(i)  if the applicant is in Australia — during the period of 2 years immediately following the grant of that visa; or
(ii)  if the applicant is outside Australia — during the period of 2 years immediately following the applicant's first entry into Australia under that visa;
including any period of participation by the applicant in the program known as the Adult Migrant English Program administered by Immigration that falls within that period;
…
A Subclass 836 visa is a permanent visa, is not a relevant Partner visa and subregulation (4) of reg 1.20 is not relevant for present purposes. This means the sponsorship obligations of the resident and sponsor in relation to the applicants are, in summary, to assist the applicants, to the extent necessary:

financially for two years after the grant of the Carer visas;
with accommodation for two years after the grant of the Carer visas; and
to participate in the Adult Migrant English Program.

The medical evidence before the Tribunal in relation to the sponsor consists of:

A letter from Dr Ibrahim Hanna, consultant physician neurologist, dated 27 February 2017;
A letter from Dr Hanna, dated 20 March 2017;
The CVAC dated 21 June 2017 completed by Dr H Roslizar;
A letter from Dr Magdy Shahat, general practitioner, of Derby Street Family Practice dated 9 November 2017;
A letter from Dr Shahat dated 12 January 2018;
A report from Dr Robert Bourke, clinical neuropsychologist, dated 11 April 2019;
A report from Dr Raju Yerra, neurologist, of Comprehensive Neurological Care Victoria dated 28 November 2018;
A letter from The Royal Melbourne Hospital General Genetics Clinic dated 28 July 2020; and
A letter from Dr Ashraf Saddik, general practitioner, of the St Kyrollos Family Clinic dated 20 September 2023.

Dr Hanna assessed the sponsor on 27 February 2017 and reported:
… from the history and the clinical examination I conclude that Mr Jubraeel was born with severe mental delay, probably due to cerebral palsy. He is completely anarthric and is not able to say any words, even in Arabic. He was not able to go to primary school in Iraq. He is fully dependent on his family and he needs full assistance from his step-mother. To me he looked severely disabled.
Dr Hanna reported on 20 March 2017 that:
… his brain MRI scan with MRA with saggital flair T2 with SCF flow study did not show any structural brain pathology. … [Mr Jubraeel] was born with severe mental delay probably due to cerebral palsy. There is nothing reversible and the damage is permanent.
Dr Roslizar, who had the benefit of reading Dr Hanna’s reports, in the CVAC dated 21 June 2017 states (errors, emphasis and abbreviations in the original):
Client is a 39 yo male from Iraq arrived in Australia seven months ago with his stepmother. He was seen by the Consultant Neurologist (Dr Hanna) who assessed him and deemed him to have severe mental delay since birth probably due to cerebral palsy. He is completely an anarthric – unable to speak. He has never attended schooling and has never worked. He requires assistance in all of his ADLs. It is otherwise physically well. He has had an MRI brain performed three months ago which revealed no structural brain pathology. His condition deemed is irreversible and permanent.
…
Table 7: Brain Function
… Severe mental delay since birth (probably from Cerebral Palsy) – Client requires continual assistance and supervision and has extreme difficulties in performing daily tasks in which he requires constant prompts/reminders/instructions. He is unable to problem–solve simple problems and unable to plan his daily activities. He has poor awareness of his own limitations and requires supervision on a constant basis from his stepmother.
Dr Shahat describes the sponsor’s medical condition in his 2017 letter as follows:
… Nashwan is suffering from severe mental delay, he is unable to talk or communicate with others.
He is severely disabled, and requires continuous (sic) care by a member of the family…
Dr Shahat describes the sponsor’s medical condition in his 2018 letter as follows (emphasis and errors in the original):
This is to confirm that Nashwan is suffering from severe Mental delay since birth (likely caused by cerbral palsy).
He understands information when it is spoken to him in his native tongue.
He can respond to questions when he is asked by visibly making hand gestures or head movements. He cannot write but he can provide a mark due to his limited movement ability.

Dr Yerra conducted a neurological assessment of the sponsor on 28 November 2018 and reported (errors in the original):
This 41-year-old has fairly severe intellectual impairments. He is basically mute, but can understand some speech if it is spoken slowly and in his own Arabic dialect, Chaldean. Just as his previous neurologist felt, Nashwan’s condition is permanent, irreversible, and is untreatable. He is in no position to live by himself and needs basically 24-hour care including for most activities of daily living. He had been cared initially by his mother and then by his stepmother and I do not think he will do very well in unfamiliar surroundings or with people who is not familiar with him such as a nursing home situation.
Dr Bourke conducted a neuropsychological assessment of the sponsor on 11 April 2019 concluding in his four-page written report:
Mr Nashwan Jubraeel is a 41-year old man of Iraqi background who has a history of developmental delay. He has no formal education, has not held any employment and has never lived independently. Mr Jubraeel’s sister provides almost 24-hour care as Mr Jubraeel requires assistance with many aspects of his daily function. He has limited expressive language abilities and has remained mute since his mother passed away in 2005.
On neuropsychological assessment, Mr Jubraeel demonstrated the ability to indicate a reliable yes/no response to questions. He also displayed the ability to comprehend and following several stage commands. Mr Jubraeel was able to reliably learn and retain new information.
Based on the available clinical information and informant history, Mr Jubraeel’s presentation likely reflects a longstanding developmental disorder. On this background, it appears additional psychological distress has resulted in Mr Jubraeel becoming selectively mute since his mother passed away in 2005.
On interview, Mr Jubraeel demonstrated a general understanding of the main points of his sponsorship obligations for his sister Linda’s application for a Carer Visa. Although it is difficult to determine his exact understanding of some of the technical details, Mr Jubraeel could in general terms consistently respond that he wants his sister to care for him, that he needs to provide financial assistance to his sister, that he cannot provide false information to the government, that his sister is unable to obtain money from the government and that the government is able to access any information about him including that pertaining to his health. On balance, I am therefore satisfied Mr Jubraeel displays a reasonable understanding of his sponsorship obligations.
The Royal Melbourne Hospital General Genetics Clinic reported in July 2020:
Nashwan had several genetic tests, the first was to examine his chromosomes. This test is called a microarray and was normal. We also looked for a condition called fragile X syndrome. This is one of the common causes of intellectual disability… .
In addition, Nashwan had a more comprehensive genetic test called exome sequencing. Unfortunately, this did not give a clear answer as to the cause of his intellectual disability. We detected several genetic variants that were of uncertain significance. We may have more evidence around what these variants mean as time goes on and I would recommend you read recontact us in two to three years’ time to revisit this information.
Dr Saddik reported in September 2023 (emphasis and errors in the original):
I am Mr. Jubraeel's GP and have been treating Mr Jubraeel since January 2022.
I have been requested to outline any changes to Mr. Jubraeel's medical conditions and cognitive abilities for immigration purposes.
There has been no adverse change in Mr. Jubraeel's medical condition or cognitive abilities since my first encounter.
My medical assessment shows that his condition has been stabilized with no further regression or progression.
His state is permanent and irreversible. His condition is PERMANENT, a complete intellectual mental disability that is irreversible and untreatable.
He cannot do anything independently; he would and MUST need a full-time carer to manage daily life activities from self-care, feeding, shopping, communication, etc.
The major traumatic event is the death of his mum in or around 2015; since then, he has become selectively MUTE.
Mr. Jubraeel understands verbal instruction when spoken in his native tongue and responds by nodding or shaking his head. I believe Mr. Jubraeel can communicate by simple facial expressions depending on his sister Linda's support.
The sponsor’s medical condition is described in various terms in the medical reports including:

severe mental delay;
severely disabled;
fairly severe intellectual impairment;
developmental delay;
longstanding developmental disorder;
complete intellectual mental disability.

What the Tribunal finds from all of the medical evidence before it is that the sponsor has had a severe intellectual impairment since birth that is permanent and irreversible.
The cause, stability and effect of the sponsor’s severe intellectual impairment on his cognition over time is less clear from the medical reports. The only medical reports before the Tribunal that pre-date the applications for the Carer visas are the two reports of Dr Hanna and the CVAC prepared by Dr Roslizar. These medical reports were completed in February, March and June of 2017 and do not provide the Tribunal with sufficient history or a long-term observation of the sponsor’s medical condition for definitive conclusions to be reached about whether there has been any change in his cognition over time.
However, the Tribunal accepts that the sponsor’s condition – arising from birth and being permanent and irreversible – has since at least February 2017 and in all likelihood considering all of the evidence before the Tribunal (not just the medical evidence) for many years before then, been stable in the terms expressed by Dr Saddik: not progressing or regressing. This causes the Tribunal to find that the sponsor’s cognition at the time of application for the Carer visas was consistent with the sponsor’s current presentation at the time of the Tribunal hearing.
This finding is important because it enables the Tribunal to make findings in this regard both at the time of application for the visas and at the time of this decision.
The resident and sponsor does not talk or write but was able to communicate with the Tribunal using specific gestures for yes, no and not sure and indicated a willingness to answer questions from the Tribunal.
Through specific questioning, taking into account recommendations from Dr Bourke as to how to communicate effectively with the sponsor, the Tribunal was able to satisfy itself that the sponsor was orientated as to time and place. The Tribunal is also satisfied the sponsor was able to express an unambiguous preference that he continue to be cared for by the applicant and her family. Finally, the Tribunal is further satisfied the sponsor was able to express an equally unambiguous preference that he not be placed in a residential aged care facility or nursing home.
The Tribunal did not attempt to assess the cognitive abilities of the sponsor and relies on the medical evidence before it in this regard.
The Tribunal gives significant weight to the assessment and report of Dr Bourke who concludes that the sponsor has a reasonable understanding of his sponsorship obligations in the context explained by Dr Bourke. However, Dr Bourke qualified his conclusion with the observation that it is difficult to know the sponsor’s understanding of some of the technical details of his sponsorship obligations. Given the broad nature of the sponsorship obligations it is not clear to the Tribunal what Dr Bourke precisely means by this observation.
The applicant gave evidence about her and her family’s history of deciding to come to Australia to care for the sponsor, their move to Australia, the sponsor moving from Sydney to Melbourne to live with the applicants and detailed evidence about the care the applicant provides to the sponsor and what daily tasks the sponsor can complete for himself. The applicant also gave evidence about her and the sponsor’s lives growing up as children in Iraq and the presentation of the sponsor’s medical condition during that time, at least up until the applicant moved out of the family home as a young woman.
The applicant gave evidence that the sponsor can communicate with his family and is able to learn and retain new information. The applicant explained to the Tribunal the effect on the sponsor of their mother dying in 2005 when the sponsor was approximately 28 years old and how the sponsor spoke before their mother died but could only be understood by family.
The applicant also gave evidence that when their father died this also caused significant distress to the sponsor. The applicant told the Tribunal the sponsor stopped eating at that time, resulting in a bowel obstruction for which he was hospitalised to be treated. It was around this time that their stepmother decided she could not care for the sponsor and the applicant and her family decided to come to Australia to care for him, because the applicant knew the sponsor would not survive without her care.
The applicant gave sometimes emotional evidence about the physical and emotional condition of the sponsor when he first came to live with them. The applicant also gave detailed evidence of how the sponsor’s physical and emotional health and general engagement with the family and the world has significantly improved over the past six years and her fears for the applicant’s quality of life if he was denied this family support.
The Tribunal found the applicant to be a credible witness who gave her evidence spontaneously and without hesitation or effect. The Tribunal accepts the applicant’s evidence.
Mr Hurmez told the Tribunal about his working history in Australia as a cabinet maker, his support of the applicant’s decision to come to Australia to care for the sponsor and their ongoing happiness as a family unit caring for and supporting the sponsor. Mr Hurmez provided a statutory declaration after the Tribunal hearing setting out in greater detail his employment and weekly earnings with each employer, supported by 46 pages of payslips with his current and previous employers. What that collective evidence demonstrates to the Tribunal is that Mr Hurmez is the primary income earner for the family and has been employed by three separate employers since being granted work rights in Australia, although it appears he did not work for almost three years between June 2019 and May 2022. The Tribunal accepts Mr Hurmez’s evidence.
The applicant and Mr Hurmez’s children, despite the eldest three children being 23 years of age or older, did not give evidence to the Tribunal.
The representative gave evidence that because the sponsor receives government benefits, he advised the applicant to apply to the Victorian Civil and Administrative Tribunal (VCAT) for a guardianship and administration order. The representative’s evidence is that this would have enabled the applicant to make decisions in relation to daily life matters for the sponsor (guardianship) and given her formal authority to manage the sponsor’s financial affairs for the sponsor’s benefit (administration). The representative represented the applicant in the VCAT application which resulted in an order of administration being granted but not guardianship.
A copy of the VCAT order of administration dated 8 January 2018 was on the Department file provided to the Tribunal and the Tribunal accepts the representative’s evidence in this regard. The representative also told the Tribunal that a guardianship order was not made because the VCAT member was satisfied that the sponsor had sufficient capacity and communication ability to make and express his life choices for himself.
The representative’s evidence in this regard is supported by a statutory declaration he declared on 1 February 2018, shortly after the VCAT order was made. The delegate in the primary decision did not accept the representative’s evidence in this regard:
… the reasons for this dismissal [of the application for guardianship] are not elaborated on in the order. In the absence of evidence to support his claims, I am unable to accept Mr Marcos’ (sic) explanation of why the application [for guardianship] was dismissed.
There is an error in the primary decision as it was the representative, not his employer at the time, Mr Morcos of Sabelberg Morcos Lawyers, who acted for the applicant in the VCAT proceedings.
The Tribunal found the oral evidence of the representative to be credible and consistent with the statutory declaration he declared shortly after the VCAT proceedings. The Tribunal is also mindful of the professional obligations of the representative as a lawyer including to assist and not mislead the Tribunal and the very serious consequences that would arise for the representative if it was found he misdescribed to the Tribunal what occurred at VCAT. The Tribunal accepts the representative’s evidence.
Mr Morcos declared a statutory declaration on 1 February 2018 in which he declared that on 15 November 2017 he assisted the applicants and sponsor to complete the applications and supporting documents for the Carer visas. Mr Morcos declared that he took considerable time to explain the sponsor’s sponsorship obligations with the assistance of an interpreter to the sponsor and Mr Morcos was able to satisfy himself that the sponsor both had the capacity to understand and did understand those obligations. It is an important ethical and professional responsibility of a lawyer to ensure a person has the capacity to and does understand a document the lawyer is assisting them to complete. If it was found that Mr Morcos failed to make proper enquiries and assessment or misled the Tribunal about those matters, then very serious professional consequences could arise for Mr Morocos. For these reasons the Tribunal accepts Mr Morcos’ written evidence, but not having had the benefit of hearing Mr Morcos’ evidence in person, the Tribunal gives this evidence only modest weight.
The applicant also gave evidence to the Tribunal that the administration order has been renewed as it expired in 2021 and that she, with the assistance of the representative, provides an annual report to VCAT showing how she has spent the government benefits the sponsor receives in the sponsor’s best interests. The Tribunal accepts this evidence.
The applicant provided evidence after the hearing that the sponsor receives a disability support pension of AUD1,221.20 per fortnight which according to evidence of receipts of those payments increased to AUD1,281.50 in October 2023. The applicant provided bank statements for the sponsor’s personal bank account from 11 July 2023 to 10 October 2023 that is consistent with the oral evidence of the applicant and the other documentary evidence provided to the Tribunal. The Tribunal accepts this evidence.
The applicant also provided a copy after the Tribunal hearing of the sponsor’s approved National Disability Insurance Scheme (NDIS) plan approval dated 29 March 2022. Under this plan the sponsor receives funding of AUD16,455.43 annually to assist with his improved daily living. The Tribunal accepts this evidence of the support the sponsor receives under the NDIS.
The Tribunal acknowledges that at the time of this decision the applicants have lived in Australia and cared for the sponsor for over six years. During that time the evidence before the Tribunal is that the applicants have been able to find and pay for suitable accommodation, including for the sponsor, and support themselves financially as well as access further education including English language courses. The Tribunal’s view is that for all practical purposes the intent and purpose of the sponsorship obligations of the sponsor have and continue to be met since shortly after the applicants arrived in Australia.
The Tribunal accepts there is some doubt about the extent to which the sponsor understands the sponsorship obligations he owes, as acknowledged by Dr Bourke. However, the sponsorship obligations are not absolute. They are expressed in conditional terms in reg 1.20(2) which is reproduced in paragraph 37 of these reasons. The specific expression is that “the sponsor undertakes to assist the applicant, to the extent necessary…” (emphasis added) for two years after the grant of the visa.
The Tribunal is confident, based on over six years of history of the applicants’ and sponsor living together in Australia, that the sponsor’s sponsorship obligations to assist the applicants, to the extent necessary, will continue to be met.
Therefore, the Tribunal finds that at the time of application, the applicant was sponsored as required by the legislation and satisfies cl 836.213.

Other criteria for the grant of a Carer visa not addressed in the primary decision

Whether the applicant is a carer

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 provides:
(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.

Regulation 1.15AA(3) provides that the Minister, in this case the Tribunal, is to take the opinion in a certificate that meets the requirements of sub-regulation (2) on a matter set out in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies the criteria that the applicant is a ‘carer’. This certificate is the CVAC.

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

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 applicant’s father.
The Tribunal is satisfied, based on the personal identification documents provided by the applicants and the resident that the applicant is the sister of the resident.
As the applicant is the sister of the Australian relative, the Tribunal finds the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

Certification – reg 1.15AA(1)(b)

Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 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.
For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).
A CVAC has been issued in this case. The CVAC has been issued by a currently registered medical practitioner employed by or contracted to Bupa who signed the certificate on 21 June 2017. The CVAC is now more than six years old largely due to a backlog of cases at the Tribunal.
According to Department policy, where a CVAC is more than two years old the decision-maker can request that the person with the medical condition undertake a fresh examination and provide an updated CVAC. This is not a legislative requirement however and the Tribunal is mindful such requests will incur additional costs for an applicant or resident.
Given a person with medical conditions that meet or exceed the required impairment rating is likely to be seeing medical professionals relatively frequently, an alternative to requesting an updated CVAC is to ask for recent reports from treating medical professionals.
The applicant provided nine medical reports for the resident from February 2017 to September 2023 as set out in paragraph 39 of these reasons. Those reports make it clear, and the Tribunal accepts, that the resident’s medical condition arose at birth, is permanent, incurable, untreatable and is neither progressing nor regressing. In those circumstance the Tribunal did not require the sponsor and resident to provide an updated CVAC.
The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the Tribunal finds the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the Tribunal finds that the requirements of reg 1.15AA(1)(b) are met.

Residency status of person with medical condition – reg 1.15AA(1)(ba)

Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition is the resident who is an Australian citizen. The applicant provided a copy of the biometric page of the resident’s Australian passport and copy of the resident’s Australian citizenship certificate.
Accordingly, the Tribunal finds that the requirements of reg 1.15AA(1)(ba) are met.

Impairment rating – reg 1.15AA(1)(c)

Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.
In the present case, the impairment rating specified in the CVAC is 30. This rating equals the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.

Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.
As the person to whom the CVAC relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia.
Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to the second limb of reg 1.15AA(1)(e) is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

100. The evidence before the Tribunal is that the sponsor (and applicant) has a stepmother who lives in Sydney, Australia who is an Australian permanent resident or citizen. However, the Tribunal accepts the evidence before it that the sponsor’s stepmother is unable to provide the assistance that the sponsor requires given the physical distance between them, the stepmother’s lack of any contact with the sponsor since late 2017 and the stepmother’s age and inability to provide the assistance the sponsor reasonably requires following the death of the sponsor’s father in 2017.

Be obtained from welfare, hospital, nursing or community services in Australia

101. The evidence before the Tribunal is that appropriate enquiries have been made on behalf of the sponsor to obtain assistance from welfare, hospital, nursing or community services. The Tribunal accepts that the sponsor receives a fortnightly disability support pension and has an approved NDIS plan that provides over AUD14,000 annually in funding to assist the sponsor. The sponsor has made contact with local service providers including support from his local council where the Access and Support Officer provides assistance to the sponsor.

102. After the hearing the applicant provided evidence of inquiries with three service providers from residential disability support service providers, each of whom responded in writing that they would be unable to accommodate and assist the sponsor. Even if that were not the case, the Tribunal accepts the medical evidence before it and the evidence of the applicant that placing the sponsor in a residential support service would likely lead to significantly adverse physical and mental health outcomes for the sponsor.

103. The Tribunal finds that it is satisfied that the assistance required by the resident sponsor cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia or some combination of them and therefore the requirements of reg 1.15AA(1)(e) are met.

Willing and able – reg 1.15AA(1)(f)

104. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

105. The applicant told the Tribunal that it is her wish to take care of her brother, she finds happiness in the sponsor thriving in their family environment and she is willing and able to care for the sponsor for the rest of his life. This evidence was supported by the applicant’s husband, Mr Hurmez. The Tribunal accepts this evidence. The Tribunal also accepts that the applicant, and her husband, have been caring for the sponsor since August 2017.

106. Therefore, the Tribunal finds that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

Conclusion – first named applicant Ms Linda Jubrail

107. The Tribunal finds that at the time of application the applicant was sponsored by a relevant Australian relative and therefore meets the requirements of clauses 836.212 and 836.213 of Schedule 2 to the Regulations.

108. The Tribunal also finds, based on the findings above, that the applicant was at the time of application and is at the time of this decision a carer of the Australian relative, being the sponsor, and therefore satisfies clauses 836.211(a) and 836.221 of Schedule 2 to the Regulations.

109. As a result of these findings the appropriate course of action is for the Tribunal to remit the application of the first named applicant for a Subclass 836 Carer visa to the Minister to consider the remaining criteria for a Subclass 836 Carer visa.

Second named applicant Mr Yohana Hurmez and fifth named applicant Mr Matias Hurmez

110. If a member of a family unit satisfies the primary criteria for the grant of a Subclass 836 Carer visa, then any other member of that family unit who satisfies the secondary criteria are also eligible for the grant of the visa.

111. Relevantly for present purposes, cl 836.31 of Schedule 2 of the Regulations provides in relation to secondary applicants for a Subclass 836 Carer visa (emphasis in original):

836.31 Criteria to be satisfied at time of application
836.311
The applicant is a member of the family unit of a person who:
(a) has applied for an Other Family (Residence) (Class BU) visa; and
(b) on the basis of the information provided in the application, appears to satisfy the criteria in Subdivision 836.21;

and the Minister has not decided to grant or refuse to grant the visa to that other person.

836.312

The sponsorship mentioned in clause 836.213 of the person who satisfies the primary criteria includes sponsorship of the applicant.

836.32 Criteria to be satisfied at time of decision

836.321

The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

112. The term ‘a member of the family unit’ is defined in reg 1.12 to include a spouse and also a child of the family head who has not yet turned 18: reg 1.12(2)(a) and (b). In this case as the primary visa applicant is the applicant, it is the applicant who is the relevant family head.

113. The applicant provided the Department and Tribunal with identification and related information sufficient to satisfy the Tribunal that the second named applicant is her spouse, and he is therefore a member of the applicant’s family unit.

114. The applicant provided the Department and Tribunal with identification and related information sufficient to satisfy the Tribunal that the fifth named applicant is her son and at the time of this decision he is 13 years of age, and he is therefore a member of the applicant’s family unit.

115. The Tribunal notes that the Form 40 ‘Sponsorship for migration to Australia’ marked by the resident sponsor on 15 November 2017 includes sponsorship of the second named and fifth named applicants as members of the family unit of the applicant.

Conclusion - second named applicant Mr Yohana Hurmez and fifth named applicant Mr Matias Hurmez

116. As the Tribunal has found that the applicant meets the requirements of cl 836.221 to Schedule 2 of the Regulations, the Tribunal also finds that the second and fifth named applicants, as members of the family unit of the applicant, meet the requirements of cl 836.311(a) of Schedule 2 of the Regulations.

117. As the Tribunal has found that the Form 40 includes the second and fifth named applicants as sponsored persons, the Tribunal finds that the second and fifth named applicants meet the requirements of cl 836.312 of Schedule 2 of the Regulations.

118. Given the findings above, the appropriate course is to remit the applications of the second and fifth named applicants for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

Third named applicant Miss Maryana Hurmez, fourth named applicant Miss Klodia Hurmez and sixth named applicant Mr Yousif Hurmez

119. At the time of this decision the Tribunal accepts the personal identification information before it that shows that third named applicant is aged 24, the fourth named applicant is aged 25 and the sixth named applicant is aged 23.

120. The representative submitted, including by written submission dated 25 October 2023, that as the third, fourth and sixth named applicants are now over 23 years old they no longer meet the definition of being members of the family unit of the applicant. The Tribunal accepts this submission.

121. There is no evidence before the Tribunal and the third, fourth and sixth named applicants do not claim that they can meet the primary criteria for the grant of a Carer visa in their own right or that they can meet the requirements for the grant of the other subclasses of visa in Class BU being a Subclass 835 (Remaining Relative) or Subclass 838 (Aged Dependent Relative) visa.

Conclusion - third named applicant Miss Maryana Hurmez, fourth named applicant Miss Klodia Hurmez and sixth named applicant Mr Yousif Hurmez

122. The Tribunal finds that at the time of this decision the third, fourth and sixth named applicants are now over 23 years old they no longer meet the definition of being members of the family unit of the applicant and therefore do not meet the requirements of cl 836.311.

123. Given these findings the Tribunal must affirm the decisions under review for the third, fourth and sixth named applicants.

Request to refer the visa applications of the third, fourth and sixth named applicants to the Minister

124. The representative requested orally and in writing that the Tribunal refer the visa applications of the third, fourth and sixth named applicants to the Minister for the Minister to consider exercising the Minister’s power under s 351 of the Act to intervene and substitute a decision that is more favourable to those applicants.

125. The Tribunal has actively considered the request to ‘refer’ the third, fourth and sixth named applicants visa applications to the Minister for consideration of the Minister exercising the Minister’s powers under s 351 of the Act. Section 351 of the Act states:

(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

…
(3)The power under subsection (1) may only be exercised by the Minister personally.
…
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

126. The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.

127. There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicants presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not.

128. In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be referred to the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court of Australia on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.

129. While the administration of the Ministerial Instructions by the Department has been ruled as unlawful by the High Court, the Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.

130. The Ministerial Instructions are not a statement of law but do make it clear that Ministerial Intervention is not part of the visa process and so the Tribunal as presently constituted does not make such ‘referrals’ lightly. It is important to note again though, that even if the Tribunal does not refer a matter to the Minister to consider the exercise of the Minister’s power under s 351, an applicant can apply to the Minister directly requesting the Minister consider the exercise of the s 351 power in the applicant’s circumstances.

131. The Tribunal has considered the third, fourth and sixth named applicants’ circumstances and has decided to refer their circumstances to the Minister for the Minister to consider the exercise of the Minister’s powers under s 351 of the Act because:

At the time of application for the visas, the third, fourth and sixth named applicants’ were aged under 23 years of age and the Tribunal is satisfied at that time they were members of the family unit of the applicant;
The third, fourth and sixth named applicants no longer meet the requirements of cl 836.311 only because of delay at the Tribunal between their application for review on 7 August 2018 and constitution to the Tribunal as constituted for Tribunal review 1822760 on 17 February 2021 and the subsequent appeal process to the Federal Circuit Court and re-constitution to the Tribunal as presently constituted on 16 August 2023;

The Tribunal accepts all of the applicants are Chaldean Christians and that it is important to the applicant and her husband, the second named applicant, that their children remain with them and together as a family unit such that separation from their three eldest children would cause the applicant, second named applicant and fifth named applicant and their Australian citizen sponsor considerable emotional harm;
It is not in the best interests of the third, fourth and sixth named applicants as adult children that they be required to return to either Iraq or the Netherlands because of delays in processing their applications for the Carer visas when those delays were entirely outside the control of the third, fourth and sixth named applicants;
The Tribunal accepts that the third, fourth and sixth named applicants being separated from the remainder of their family in the circumstances described would cause each of the third, fourth and sixth named applicants significant emotional harm;
It is not an intended outcome of the legislation that families be separated in the circumstances of the third, fourth and sixth named applicants, even though they are considered adults under Australian law; and
The Tribunal accepts that the third, fourth and sixth named applicants have lived in Australia for over six years now with their parents, remaining sibling and uncle (the sponsor) and have significant emotional, social and other attachments here.

132. The Tribunal encourages the applicants to provide additional information directly to the Minister in support of the Tribunal’s referral of the third, fourth and sixth named applicants circumstances to the Minister.

DECISION

133. The Tribunal remits the application of the first named applicant for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer) visa:

clauses 836.211(a), 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations.

134. The Tribunal remits the applications of the second named and fifth named applicants for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the second named and fifth named applicants meet the following criteria for a Subclass 836 (Carer) visa:

clauses 836.311(a) and 836.312 of Schedule 2 to the Regulations.

135. The Tribunal affirms the decisions under review in relation to the third named, fourth named and sixth named applicants but refers their circumstances to the Minister for the Minister to consider exercising the Minister’s power under section 351 of the Act.

Michael Ison
Senior Member