Kanj (Migration)

[2021] AATA 4103

Kanj (Migration) [2021] AATA 4103 (31 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Maha Kanj
Mr Toufic El Chami
Mr Moatassem El Chami

CASE NUMBER:  1912197

HOME AFFAIRS REFERENCE(S):          CLF2018/39903

MEMBER:Michael Cooke

DATE:31 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 31 August 2021 at 3:41pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –sponsor had demised in 2018 – sponsorship is no longer in force – other Australian brother meets the requirements necessary for a Carer visa– applicant is providing significant care and support to her other brother–medical evidence accepted – strong compassionate circumstances – Ministerial intervention referral –  decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.227

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 3 May 2019 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 3 April 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 836.227.

3. The delegate refused to grant the visas on the basis that cl 836.227 was not met because the applicant’s sponsor had demised in 2018 and the approved sponsorship was no longer in force.

4. The applicants appeared before the Tribunal on 20 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother - Omar Khanj.  A further hearing took place on 17 August 202. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. Following the first hearing an Invitation pursuant to s.359A was sent to the applicant as follows:

   INVITATION TO COMMENT ON OR RESPOND TO INFORMATION – MS MAHA KANJ, MR TOUFIC EL CHAMI AND MR MOATASSEM EL CHAMI

   I am writing on instruction from the Member conducting your review, in relation to the applications for review made by you in respect of decisions to refuse to grant Other Family (Residence) (Class BU) visas.

   In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decisions under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·The primary visa applicant’s (Ms Kanj) date of birth (1 April 1961) is on or after 1 January 1957. Therefore, she would have to wait until she turns 67 years old to receive the aged pension under the Social Security Act 1991.

   ·According to the primary visa applicant’s (Ms Kanj) visa application and her oral evidence in the hearing, she has 7 brothers and sisters living in the Lebanon.

   This information is relevant to the review because Ms Kanj was born after January 1957 and is not yet 67 years old. Therefore, she is not eligible to be granted an age pension which is an essential requirement for an ‘Aged Dependent Relative’ visa.

   The above information is further relevant to the review because, to be eligible for a ‘Remaining Relative’ visa, Ms Kanj cannot have any ‘near relatives’ (as so defined in r.1.15(2)) (such as brothers and sisters) who reside in the same country (the Lebanon) as she does.

   If the Tribunal relies on this information in making its decision, it may find that the primary visa applicant (Ms Kanj) does not meet essential criteria for grant of an Other Family (Residence) (Class BU) visa.

   You are invited to give comments on or respond to the above information in writing.

6. The primary applicant responded to the Invitation on 26 August 2021 as follows:

   Thank you sincerely for the invitation to comment or respond on the information you stated in your letter, that is as follows:

   The primary visa applicant's (Ms Kanj) date of birth (1 April 1961) is on or after January 1957. Therefore, she would have to wait until she turns 67 years old to receive the aged pension under the Social Security Act 1991.

   According to the primary visa applicant's (Ms Kanj) visa application and her oral evidence in the hearing, she has 7 brothers and sisters living in Lebanon.

   You also mentioned that the above information is further relevant to the interview because, to be eligible for a "Remaining Relative" visa, Ms Kanj (cannot have any near relatives: (as so defined in r.1.15(2) (such as brothers and sisters) who reside in the same country (Lebanon) as she does.

   We are fully aware that Ms Kanj is not of the age for the aged pension, however we have our own circumstances and reasons that forces us to remain permanently in Australia. These reasons would like to express them in our response. We ask you to consider them carefully and passionately as they seriously affecting me and my family.

   I (Maha Kanj) came to Australia to visit my siblings and my husband's brothers. I came with my son Moatassem after what we experienced in Lebanon. My eldest son (Mohammad) had a car accident and he died on 25 June 2015. His death has a bad impact on me. My brother applied for us to come to Australia as visitors. My husband Taoufic remained in Lebanon to look after his business.

   Ten days after my arrival my brother was hospitalized, and I stayed with him to assist him. His condition was bad. When he was discharged, I stayed with him at his residence ([address deleted]). I continued helping him in his daily needs, such as cooking, assist in his shower, shopping, dressing, administering his medications and other things that he needs.

   I continued helping him as such for two months when he visited his doctor. He then asked me to stay in Australia. I told him that my husband is still in Lebanon. He has a real estate business, and we live comfortably in Lebanon.

   After some discussions my husband left his work and came to Australia. We were granted "Carer visa".

   We rented a house for him, and our son and I continued helping my late brother Abdulkarim. We were granted a Medicare card from 3/4/2019 until 5/6/2021. At the same time, I also was helping my brother Ghazi. Abdulkarim passed away. The Department of Immigration told us that I can appeal. I don't know the law. So, we remained in Australia. They also advised me to contact them if I needed assistance. I thought it is a financial assistance and I thanked them for that, as we receive money from our savings in Lebanon.

   The financial situation in Lebanon deteriorated and money disappeared from the Lebanese banks. Since then, there was no dollars available, and we were left without income.

   I was advised to apply for a working visa. The application was rejected after seven months of waiting. During this time, we were paying rent and our daily expenses. I have again been advised to apply for 1005 visa, but it was rejected as well, after we rang them. The Department of Immigration did not notify us of the refusal until we contacted them. They asked me to apply to renew the Medicare. I went to the Merrylands (NSW) office to apply for Medicare renewal. They said that I must email the application. No answer was received until now.

   In fact, they supposed to inform us that I withdraw the renewal application and get a health insurance. COVID-19 is a serious pandemic and me and my family should insure and care for our health.

   As I mentioned the situation that we have been through, we have been in Australia for four (4) years. We spent the money that we brought with us and the money that been transferred to us. More stress and uncertainty been added to our original stressed conditions.

   We been waiting for your response about two years and four months, during which we were not permitted to work, during this time of being in Australia, my brother Abdulkarim passed away. My other brother Ghazi is extremely sick, and he requires daily assistance in his daily life needs. His medical condition is in a bad condition. I provide this assistance for him on daily basis. Such situation, my brother's death and my other brother's medical bad condition added more stress and fear for the potential of losing him. Not to forget that my first arrival was to relief my stress because of my son's death in Lebanon. Medical report and medical assessment for my brother Ghazi enclosed.

   Ghazi medical condition is like Abdulkarim's condition. Abdulkarim died and my father passes away also, seven months after him, and Ghazi is very worried that he will end up like his brother. Although I care for Ghazi and assist him in administering his medications and many other daily needs, yet he is extremely worried for his fate.

   My son, Moatassem was enrolled in TAFE college in Lebanon. He quit the college in Lebanon and enrolled in TAFE in Australia. He attended English course to enable him to find a decent work in Australia. He also obtained a security license, but no work is available because of the current situation of the pandemic COVID-19.

   My husband lost his work in Lebanon and his money in the Lebanese banks. That has created problems regarding his land in Daria Estate area - Lebanon. The owners of the adjacent land tried to take control of it. A claim was made at the governor department in the North and they evacuated the land. After some time, they returned to control the land and my husband lodged another claim. They are threatening him, as they are influence people in Northern Lebanon.

   In addition to the said above, current situation in Lebanon is very instable and people there lacking all means of living. No power, no oil, no petrol, no medications, no hospitals and even lack of food and bread. Political tension is at its extreme tension and no safety available in Lebanon.

   My husband's intention was to start an export import business between Australia and the Gulf countries. COVID-19 and the lockdown and not having a working permit hindered him from starting this business, as well as not granting him the visa that allows him staying in Australia.

   Conclusion:

   Further to the mentioned and according to the information you mentioned in your letter, I ask for a Ministerial Intervention in my application. That intervention we ask for is for a compelling and compassionate reasons. The reasons were clarified in describing my brother's medical condition, our psychological condition regarding our bad experience in Lebanon and what happened to my family in Australia.

   In case you refused what I explained in my humble and true response, I kindly ask you to refer this matter to the Honorable Minister hoping that His intervention could help us staying in Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether at time of decision the applicant still met the definition of ‘carer’

9. The applicant submitted the delegate’s decision record to the Tribunal.

   The Hearing

10. The primary visa applicant explained her situation to the Tribunal. She had been initially a visitor to Australia to see her family members. Subsequently with the discovery of the serious ill health of her elder brother (Abdul Karim) she applied to be his ‘carer’. She insisted that her other brother, Omar Kanj, now found himself in a similar medical predicament. She now wished to be his ‘carer’ replacing her deceased brother. The Tribunal explained that this was not possible as she was not able to ‘swap’ sponsorships.

11. Her brother, Omar, then claimed to the Tribunal that he had put in a further application. The Tribunal noted that the applicant had sent in medical information on him. The Tribunal informed the family members present that it was only dealing with the present case. If the decision were affirmed, they needed to speak to the Department about their continuing status. Ms Kanj explained that due to issues with the banks in Lebanon they could not get funds to maintain themselves indicating their financial situation was precarious. None of the other witnesses asked to give evidence when invited.

    The Second Hearing

12. The Tribunal asked the applicant if she had understood what had happened at the previous hearing. The applicant’s responses appeared to show she was confused between the role of the Tribunal as a reviewer of Departmental decisions and the Departmental role of granting visas. The Tribunal explained that they were separate bodies with separate functions. The role of the Tribunal was not to grant visas but to decide if a Departmental refusal was affirmed or set aside.

13. The applicant and her husband indicated their annoyance that they had left everything behind in the Lebanon to come to care for her brother. Now they were being refused a visa which would mean they had to return to the Lebanon. Their homeland was in ruins with people fighting in the streets over petrol supplies. They had used their own funds to maintain themselves in Australia. Mr Kanj had foregone his employment 4 years previously, so he had nothing to which to return.

14. They indicated that they could not understand what they had done wrong. Why had the Department granted them a visa in the first place when it would now be refused? They had not cost the Australian Government anything and now faced the threat of being forced to return to the disastrous situation in the Lebanon. They asked why the Department could not grant them a work visa so that they could survive. Her son was studying at TAFE.

15. The Tribunal explained that the problem was that the visa applicant (Ms Kanj) had been granted the visa to care for her brother who had to be ‘usually resident in Australia’ but who had since died. Therefore, effectively she no longer had a person to care for which was the basis of the visa grant. The Tribunal had to assess the ability of an applicant to meet the visa criteria and she no longer met them due to the death of her brother who had been her sponsor.

16. The Tribunal then raised (pursuant to requirements of s.359AA of the Act) the applicant’s inability to meet other subclasses within the same visa family.

17. It noted that, for instance, due to her age and birthdate she was ineligible for an Aged Dependent visa.

18. The Tribunal alerted her that the Department file indicated she had 7 brothers and sisters still living in the Lebanon. She confirmed this was so. The Tribunal explained that these people were her ‘near relatives’ under the regulations so this would prevent her from being eligible for a Remaining Relative visa.

19. She was asked whether she wished to comment on the Tribunal’s observations or would she like time to respond. She indicated she wanted time to respond. The Tribunal informed her that in that case she would receive a letter which would explain what the relevance of what it had said. She could respond in the time allowed for the response or ignore the Invitation.

20. The applicant and her husband thanked the Tribunal and Australia for the generosity it had shown them.

    APPLICANT CLAIMS TO BE CARER

    Whether the applicant has claimed to be the ‘carer’

21. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the ‘carer’ of the applicant’s brother.

22. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

23. Therefore, at the time of application, the evidence (in the delegate’s decision) indicates that the applicant claimed to be the ‘carer’ of an Australian relative and satisfied the requirements of cl 836.212 at time of application.

    Whether the applicant is a carer

24. 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.

25. The applicant informed the Department (on 27 March 2019) according to the delegate’s decision record (submitted by the applicant) that her sponsor, Abdul Karim Kanj, had demised. A death certificate informing of this fact was submitted to the Department on 29 March 2019.

    Conclusion on ‘Carer’ criterion

26. The Tribunal notes that reg.1.15AA(1) requires that an applicant for a Carer visa is a ‘carer’ of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen usually resident in Australia.

27. The Tribunal finds that because of his demise, the ‘person who is an Australian citizen’ is no longer ‘usually resident in Australia’.

28. Given these findings, at the time of decision the applicant is not, therefore, a ‘carer’ of the Australian relative, being the sponsor and, does not satisfy cl 836.221.

    Other Visa Subclasses

29. The applicant’s birth details are found on the delegate’s decision record. This indicates that the applicant was born on 1 April 1961. One of the criteria for the Subclass 838 (Aged Dependent Relative) is that she be eligible for the pension age. If the visa applicant’s birthdate is on or after 1 January 1957, she will have to wait until she turns 67 to receive the aged pension. As the applicant is thus not old enough to be granted an age pension under the Social Security Act 1991, she is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa.

30. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for cl.838.212 of Schedule 2 to the Regulations.

31. The Tribunal has further examined the ability of the applicant to meet the requirements for a Remaining Relative visa.

32. One requirement of that visa subclass at time of application is cl.835.213.

    835.213

    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;

33. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s ‘near relatives’, as defined in r.1.15(2), reside in the same country (the Lebanon) as the applicant they being (according to the visa application) her 7 brothers and sisters.

34. This information indicates that the applicant is not, therefore, a ‘remaining relative’ of the ‘Australian Relative’ and, therefore, is unable to meet cl.835.212.

35. 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.

36. Regarding the secondary visa applicants, the Tribunal finds that the secondary applicants do not continue to be ‘members of the family unit’ of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 835 visa.

1. Therefore, the secondary visa applicants do not meet the time of decision criteria in cl.835.321.

   Ministerial Intervention Request

2. The Tribunal has examined the case and the circumstances faced by the family. The primary visa applicant initially came out from the Lebanon to visit her family after the tragic death of her son. Observing the health status of her brother she decided to act as a ‘carer’ for one of her two Australia-based brothers. Unfortunately, the sponsor brother demised before the grant. As a result, the whole family had relocated to Australia but the primary visa applicant (Ms Kanj) finds herself now ineligible for the ‘Carer’ (or any other visas in that visa Class). This is after years of residence in Australia. Her husband, in turn, had left his successful business life to make a new life in Australia. Their son is presently a TAFE student having left his own TAFE like studies in the Lebanon.

3. The Tribunal acknowledges that it is a publicly known fact that the Lebanon is in a state of total economic and political crisis - if appearing to be near collapse. The chaos is accompanied by unstable government and recent a run on the banks. The applicants have relied thus far on their own Lebanese funds to remain in Australia. They claim they have not (at this stage) sought assistance from the Australian Government. However, the economic circumstances in the Lebanon (collapse of the banks) have made their financial situation dire as explained by the primary visa applicant in her submission. Returning to the Lebanon would involve major family hardship - but particularly to the visa applicant’s Australian brother who is in bad health - according to medical advice. There is also the added aspect of the COVID19 pandemic, and its repercussions should the applicants have to return home. The visa applicant’s husband has disposed of his business to come to Australia and he has nothing to which to return they inform.

4. The visa applicant’s other Australian brother now finds himself in poor state of health and needing his sister’s care. He has provided the Tribunal with the required official paperwork which indicates he meets the requirements necessary for a Carer visa.

5. The Tribunal requests the Minister to intervene based on the below Ministerial Intervention Guideline protocols.

   ·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

   ·Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person

   DECISION

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

   Michael Cooke
   Senior Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   1.15AA Carer

   1.15AA (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.