Jubrail (Migration)

[2021] AATA 2604

Jubrail (Migration) [2021] AATA 2604 (19 July 2021)

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

CASE NUMBER:  1822760

HOME AFFAIRS REFERENCE(S):          CLF2017/113083

MEMBER:M. Edgoose

DATE:19 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2021 at 9:56am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s capacity to understand sponsorship obligations – cognitive impairment and limited communication – medical report at time of application given significant weight – request for referral for ministerial consideration not acceded to – applicant can apply personally – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 836.213

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 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).

2. The applicants applied for the visa 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 applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.213.

3. The delegate refused to grant the visas on the basis that cl 836.213 was not met because the delegate was not satisfied the applicant was sponsored as required by the legislation.  

4. The applicants appeared before the Tribunal on 15 July 2021 to give evidence and present arguments. The Tribunal also received evidence from Mr Nashwan Labeeb Jubraeel Jubraeel the applicant’s brother and sponsor. It is important to note that the sponsor is a mute and was only able to answers questions through an interpreter with a nod or shake. The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean and English languages.

5. The applicants were represented in relation to the review by their representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPONSORSHIP

   Are the sponsorship requirements met?

7. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

8. According to the medical assessment completed with Bupa Medical Visa Services completed by the examining doctor Dr H Roslizar on 21 June 2017, it was found that the sponsor had a number of medical issues including a severe mental delay since birth likely from Cerebral Palsy. The examining doctor found the medical reports dated 27 February 2017 and 20 March 2017 by Dr Ibrahim Hanna, a Consultant Neurologist, to be relevant to the assessment. The sponsor was found to have a rating of 30 according to Table 7 – Brain Function of the Social Security Act 1991 rating of permanent conditions. A rating of 30 at time of application, 21 November 2017, placed the sponsor in the extreme range. Being rated in the extreme range states that the person needs continual assistance and supervision. The Bupa report further stated that the sponsor:

   has extreme difficulties in performing daily tasks in which he requires constant prompts/reminders/instructions. He is unable to problem-solved 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.

   Given that the sponsor was found to be in the extreme range for brain function and the findings in the medical assessment the Tribunal is not satisfied that at time of application, 21 November 2017, he had the capacity to understand and comprehend his sponsorship obligations. 

9. At hearing the Tribunal explained to the applicant that the Tribunal would be asking the sponsor several questions which he would be able to be answered with a nod (yes) or shake (no) of the head. All questions put to the sponsor was through the accredited interpreter. The first question the Tribunal asked the sponsor was, do you remember signing for the sponsorship application? The sponsor responded with a nod of the head. The second question the Tribunal asked the sponsor was, did someone read out the form for the sponsorship application to you? The sponsor responded with a nod of the head. The third question the Tribunal asked the sponsor was, at time of application did you live with your stepmother? The sponsor responded with a nod of the head. The fourth question the Tribunal asked the sponsor was, do you still live with your stepmother? The sponsor responded with a shake of the head and pointed to the applicant. The fifth question the Tribunal asked the sponsor was, do you understand why you are here today? The sponsor responded with a nod of the head. The sixth question the Tribunal asked the sponsor was, do you understand your obligations of your sponsorship. The sponsor responded with a nod of the head. The Tribunal accepts that the sponsor was able to answer basic questions that required a nod (yes) or shake (no) of the head answer. The Tribunal gives some weight to the basic yes and no questions put to the sponsor at hearing.

10. The applicant informed the Tribunal that the sponsor lives with her family and that he watches television and eats meals with them. The applicant informed the Tribunal that the sponsor’s weakness is in his body so needs constant care and that he knows the difference between the types of clothing he should wear for different occasions. The applicant further stated that her family, especially her children, speak with the sponsor and that they have a great rapport with him. The Tribunal acknowledges that the applicant and sponsor have a sister brother relationship however the issue before the Tribunal is whether the sponsor had the capacity to understand and comprehend his sponsorship obligations at time of the visa application.

11. The Tribunal has given reqard to the letter on the Department file dated 9 November 2017 from Dr Magdy Shahat that was lodged with the visa application. The letter confirmed that the sponsor:

    is suffering from a severe mental delay, he is unable to talk or communicate with others. He is severely disabled, and requires continuous care.

    The Tribunal places significant weight on this letter from Dr Magdy Shahat at time of application that the sponsor has a severe mental delay, is unable to talk or communicate with others and that he is severely disabled and requires continuous care. Given the letter from Dr Magdy Shahat the Tribunal is not satisfied that the sponsor had the mental capacity to understand the sponsorship obligations at time of application.

12. The Tribunal has given regard to the Statutory Declarations dated 1 February 2018 made by Mr George Botros and Jimmy Morcos of Sabelberg Morcos Lawyers. The Tribunal acknowledges that Mr Botros and Mr Morcos had been engaged to act on behalf of the applicant and sponsor at time of the visa application. Mr Morcos mentioned in his statutory declaration that he explained to the sponsor his sponsorship obligations in Part L of Form 40 and that they were read out to the sponsor in both English and Arabic. Mr Morcos claims that the sponsor understood the sponsorship obligations and confirmed by the sponsors head movements. Given that Mr Morcos is the applicant’s lawyer and not a qualified medical practitioner the Tribunal gives little weight to the comments made in his statutory declaration regarding the sponsor understanding his sponsorship obligations.

13. The Tribunal acknowledges that Mr Botros had been engaged by the applicant and sponsor in relation to a VCAT matter regarding the applicant becoming the sponsor’s administrator. The Tribunal give little weight to the statutory declaration of Mr George Botros as it is not relevant to this matter.   

14. The Tribunal has given regard to the submission made on 28 April 2021 by Dr Robert Bourke (Neuropsychologist). The report from Dr Bourke was completed on 11 April 2019 and provided some information in relation to the sponsor’s circumstances, however this report was completed approximately 18 months after the application for this visa was made. For these reasons the Tribunal gives little weight to this post application report.

15. The Tribunal has given regard to the submission made on 28 April 2021 by Dr Raju Yerra (Neurologist). The Tribunal notes that this letter was completed on 28 November 2018 approximately 1 year after the visa application was made. Given that the letter from Dr Raju Yerra was completed post the visa applicant the Tribunal gives this letter little weight.   

16. On 4 May 2021 the applicant’s representative wrote to the Tribunal requesting the sponsor be given the opportunity to complete a Medical Officers of the Commonwealth (MOC) Assessment. The representative mentioned in his submission that he is a legal practitioner and is not qualified to make medical assessments. He further mentioned that the reports from Dr Robert Bourke (Neuropsychologist) and Dr Raju Yerra (Neurologist) may lend some weight to the view that the rating of 30 under Table 7 – Brain Function is not correct. At hearing the representative was informed that his request for a new MOC assessment was refused given that the Tribunal’s decision was based on evidence at time of the visa application, that being 21 November 2017. For these reasons the Tribunal gives little weight to the representative’s submission made on 4 May 2021.

17. Therefore, at the time of application, the visa applicant was not sponsored as required by the legislation and does not satisfy cl 836.213.

18. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    MINISTERIAL INTERVENTION

19. At hearing on 15 July 2021, the applicant’s representative made an oral submission towards the end of the hearing requesting that this matter be referred to the Minister pursuant to s 351. The Tribunal considered the representatives oral submission. The Tribunal informed the applicant and representative that the Tribunal would not be referring this matter to the Minister for consideration given that the medical evidence and submissions relied upon in this matter was those made at the time of the visa application. The Tribunal reminded the representative and applicant that this was a time of application criteria. The Tribunal informed the applicant that they could make a submission themselves.

    DECISION

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

    M. Edgoose
    Member