Kamaz (Migration) - [2023] AATA 1764

Kamaz (Migration) [2023] AATA 1764 (14 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Maya Kamaz
CASE NUMBER:  1918826
HOME AFFAIRS REFERENCE(S):          CLF2018/1477
MEMBER:Deputy President Justin Owen
DATE:14 April 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 14 April 2023 at 3:22pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – other relatives – no corroborative evidence – welfare, hospital, nursing or community services – no evidence of attempts to obtain assistance – mere preference – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221
CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
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 29 May 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a female 29-year-old Lebanese national. The applicant applied for the grant of the visa on the basis of providing care to her Australian relative and sponsor, Ms Sanaa Hussein who is her aunt. The applicant applied for the visa on 8 January 2018. 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 836.221.
The delegate refused to grant the visa on the basis that cl 836.221 was not met. The delegate was not satisfied that it had been demonstrated that it would be unreasonable for the applicant’s relatives to provide the care the sponsor requires. The delegate was not satisfied the care the sponsor requires could not be reasonably obtained from welfare, hospital, nursing and community services. The delegate was not satisfied the applicant had demonstrated at the time of decision that she was willing and able to provide the assistance required by the sponsor.
The applicant appeared before the Tribunal on 28 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sanaa Hussein, who is the applicant's sponsor and aunt. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF…

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 Kamaz (Migration)

Details

AGLC: Kamaz (Migration) [2023] AATA 1764
Case: [2023] AATA 1764
Decision Date: 14 April 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant claimed to be a carer for her aunt, an Australian citizen. The Tribunal was tasked with determining whether the applicant met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the applicant qualified as a "carer" under regulation 1.15AA of the Migration Regulations 1994, and whether she met the requirements for a "remaining relative" under regulation 1.15(2) for a Subclass 835 visa. Specifically, the Tribunal had to assess if the applicant's aunt had a qualifying medical condition requiring ongoing assistance, if such assistance could not reasonably be obtained from other sources, and if the applicant was willing and able to provide that assistance.

The Tribunal found that while the applicant was a relative of the Australian citizen and a valid Carer Visa Assessment Certificate had been provided, satisfying the medical condition and need for assistance requirements, she failed to demonstrate that assistance could not reasonably be provided by other relatives or obtained from community services. Furthermore, the Tribunal determined that the applicant was not a "remaining relative" as defined by regulation 1.15(2) because she had parents and sisters residing in Lebanon who were not Australian citizens, permanent residents, or eligible New Zealand citizens usually resident in Australia.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Other Family (Residence) (Class BU) visa. The applicant did not meet the criteria for either the Subclass 836 (Carer) visa or the Subclass 835 (Remaining Relative) visa.

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 decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEWhether 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 is set out in the attachment to this Decision. Regulation 1.15AA(1)(a) requires that 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 aunt. The Tribunal is satisfied on the evidence before it that the applicant is the niece and therefore a ‘relative’ of the Australian relative who is an Australian citizen usually resident in Australia. Therefore, as the applicant is the niece of the Australian relative, 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). Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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 reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate was issued on 14 December 2021. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 30) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

Decision

Reasons for decision

The Tribunal finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa. The test in reg 1.15(2) is about whether the applicant is the remaining relative of the Australian citizen, in this case her aunt, the sponsor. In her Application for migration to Australia by other family members form dated 4 January 2018, the applicant declares her father Mr Fadie Kalal, her stepmother Ms Jamal Berjawi and her two sisters Ms Mona Kamaz and Ms Rabiha Berjawi are all living and current residents of Lebanon. As the applicant has parents and sisters who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens who are usually resident in Australia, it appears she has a near relative as per reg 1.15(2)(a) and is therefore not a remaining relative as per reg 1.15(1). As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Justin OwenDeputy PresidentATTACHMENTMigration 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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