Mati (Migration) - [2023] AATA 1239

Mati (Migration) [2023] AATA 1239 (27 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Jinan Mati
Mr Emanuel Mati
Mr Mattias Mati
CASE NUMBER:  2011983
HOME AFFAIRS REFERENCE(S):          CLF2018/171507 CLF2020/28390
MEMBER:Brendan Darcy
DATE:27 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that:
·     the first named applciant meets the criteria under cl 836.221 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa; and
·     the other named applicants meet the criteria under cl 836.321 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa.

Statement made on 27 January 2023 at 10:29am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – personal preference – general familiarity – complex psychological and physical conditions – cultural background – culturally appropriate services – specific ethnicity, religion and language needs – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 836.211, 836.212, 836.321
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 13 July 2020 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
For the purposes of this decision, the first named or primary applicant will be referred to as the first applicant or the applicant; the second named applicant as the second applicant or the applicant’s spouse; and the third named applicant as the third applicant or the applicant’s child.
The applicants applied for the visa on 25 June 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 836.212 and cl 836.211.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because first applicant met the definition of ‘Carer’ under part (1)(e)(ii) of regulation 1.15AA.
The applicants appeared before the Tribunal on 20 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from each of the applicants. Present at the haring was the sponsoring relative, Mrs Mary Polus Hirmiz Bebozi
In this matter, the applicants were represented by a registered Migration Agent
The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean (Assyrian/neo-Aramaic) and English languages.
For the following reasons,…

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 Mati (Migration)

Details

AGLC: Mati (Migration) [2023] AATA 1239
Case: [2023] AATA 1239
Decision Date: 27 January 2023

CaseChat Overview and Summary

This matter concerned an application for Other Family (Residence) (Class BU) visas, Subclass 836 (Carer) visas, by three applicants who were citizens of Sweden. The applicants sought to migrate to Australia to allow the first applicant to care for her mother, Mrs Mary Polus Hirmiz Bebozi, an Australian permanent resident. A delegate of the Minister refused the visa applications, finding that the criterion that the required assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia was not met. The applicants sought review of this decision before the Tribunal.

The primary legal issue before the Tribunal was whether the first applicant met the definition of a 'carer' under regulation 1.15AA of the Migration Regulations 1994, specifically whether the assistance required by the sponsoring relative could not reasonably be provided by any other relative or obtained from Australian community services. This involved considering the nature of the sponsoring relative's medical conditions and the availability and suitability of existing community services to meet her complex needs, including those related to her cultural background, ethnicity, religion, and language.

The Tribunal reasoned that the delegate had erred in their assessment of the criterion regarding the inability to obtain assistance from community services. While the sponsoring relative expressed a personal preference for care from her daughter and noted difficulties in accessing 24-hour care from community services, the delegate had not adequately considered the evidence submitted by the applicants. This evidence included a My Aged Care support plan and a letter from a Victorian Arabic Social Services indicating limitations in their ability to provide the specific support required. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The Tribunal remitted the applications for the Subclass 836 (Carer) visas for reconsideration. The Tribunal directed that the first applicant be found to meet the criteria under cl 836.221 of Schedule 2 to the Regulations, and the other named applicants be found to meet the criteria under cl 836.321 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.DECISION The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that: ·the first named applciant meets the criteria under cl 836.221 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa; and ·the other named applicants meet the criteria under cl 836.321 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa.Brendan DarcyMemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The first applciant was born on 12 September 1966 and claims to be married to the second applicant born on 1 April 1971. The first and second applciants were born in Iraq. The first applciant subsequently migrated to the Kingdom of Sweden (Sweden) in 1998 and was followed by the second applicant in 1999. Swedish citizenship was conferred upon them in 22 April 2005. The third applciant was born on 12 September 2005 in Sweden and is a Swedish citizen. The applicant visited Australia on visitor visas between December 2016 and January 2017 and between June 2017 and August 2017. They returned to Australia on 14 December 2017 on a visitor visa and were granted further visitor visa on 29 January 2018 which was set to expire on 25 July 2018. The applicants applied for Class Bu Subclass 836 Carer visas on 25 June 2018 on the basis of first applciant will be the carer of the sponsoring relative, her biological mother, Mrs Mary Polus Hirmiz Bebozi. Mrs Bebozi was born on 1 July 1943 in Iraq. She has been a widow since 2005. Along with other family members, Mrs Bebozi resettled in Australia while she and her other family members were holding Subclass 200 humanitarian visas. On Departmental file is a copy of March 2018 Carer Visa Assessment Certificate (CVAC) and Medical Adviser’s Report pertaining to Mrs Bebozi. The CVAC indicates the applciant has an impairment reading of 35 (This rating is measured against the Tables for the Assessment of Work-related Impairment for Disability Support Pension for permanent medical conditions which is part of Schedule B of the Social Security Act) A delegate acting on behalf of the Minister refused the applciants Carer visas on 13 July 2020. The delegate determined that reg 1.15AA(1)(e)(ii) within the definition of ‘Carer’ at reg 1.15AA was not met at time of its decision. The delegate found for those reasons cl 836.221 of Schedule 2 was not met. The decision record cited comments on behalf of the sponsor that she did not want to anyone else helping her or to leave the house. The representative stated on 19 June 2018 that community services in Australia do not provide 24 hours cars except for care provided in a nursing home. The agent claimed the first applciant tied to contact aged care services and was advised it was a difficult process and there is a waiting list. On 12 May 2020, the Department wrote to the applcaint stating they had 28 days to submit further evidence that the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. On 12 June 2020, the applciant provided a myagedcare support plan dated 27 May 2020 including that the assess discussed personal care assistance, in home respite, social support groups, physiotherapy sessions. A letter from the Victorian Arabic Social Services was submitted which indicated the organisation does not provide the support with the sponsor with her daily personal needs.