Menzalji (Migration) - [2018] AATA 1929

Menzalji (Migration) [2018] AATA 1929 (10 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Ahmad Issam Menzalji
VISA APPLICANTS:
Mr Nasser Manzelgi

Mrs Maha El Dib

Mr Omar Manzalji

Miss Jana Manzalji

Mr Bachar Manzalji
Miss Hiba Manzalji

CASE NUMBER:  1714548
DIBP REFERENCE(S):  OSF2015/054825 OSF2017/055622
MEMBER:Helena Claringbold
DATE:10 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Statement made on 10 May 2018 at 3:26pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Impairment rating of 50 – Several adult children in Australia – Other family members able to provide care either individually or collectively – Other care services available – Decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15AA Schedule 1 Item 1123A Schedule 2 cls 116. 211, 116.221
CASES
Anveel v MIBP [2013] FCCA 2181
Jajov MIBP [2013] FCCA 1554
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 6 June 2015, Mr Nasser Manzelgi, the primary visa applicant (the visa applicant) applied for an Other Family (Migrant) (Class BO) visa. The application was made on the basis of him being the carer for Mr Ahmad Issam Menzalji, his father and the sponsor in this application. Mrs Maha El Dib, Mr Omar Manzalji, Miss Jana Manzalji, Mr Bachar Manzalji and Miss Hiba Manzalji, are secondary visa applicants.
On 10 May 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visas. The refusal was based on r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(b)(iv) or (d) of the Migration Regulations 1994 (the Regulations) and cl.116.221 of Schedule 2 to the Regulations not being satisfied. This is a review of the delegate’s decision.
At the time of application, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.
On 2 May 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Manzelgi, Ms Joumana El Jamal and Mr Mohammad Manzalji. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese), Arabic and English languages. The sponsor was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence given at the Tribunal hearing.
ISSUE
The issue in the present case is, whether assistance can be reasonably provided to Mr Menzalji,…

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 Menzalji (Migration)

Details

AGLC: Menzalji (Migration) [2018] AATA 1929
Case: [2018] AATA 1929
Decision Date: 10 May 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding the refusal to grant Other Family (Migrant) (Class BO) visas, specifically the Subclass 116 (Carer) visa. The visa applicant claimed to be a carer for his Australian citizen father, the sponsor, who had an impairment rating of 50 and required assistance with various daily activities. The core dispute revolved around whether the necessary care could reasonably be provided by other family members residing in Australia or obtained through Australian welfare, hospital, nursing, or community services.

The Tribunal was required to determine if the requirements of regulations 1.15AA(e)(i) and 1.15AA(e)(ii) were satisfied. These regulations stipulate that assistance cannot reasonably be provided by another relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, nor can it be reasonably obtained from Australian welfare, hospital, nursing, or community services. The Tribunal considered whether the sponsor's several adult children and ten grandchildren in Australia could collectively provide the required care, and whether such care could be sourced from available community services.

The Tribunal reasoned that while cultural obligations to care for parents were acknowledged, the sponsor's family in Australia was capable of collectively providing the necessary assistance. Furthermore, the Tribunal was not satisfied that the sponsor could not reasonably obtain the required support from welfare, hospital, nursing, or community services available in Australia. Consequently, the Tribunal concluded that the visa applicant did not satisfy the criteria for the Subclass 116 visa, specifically clause 116.221 of Schedule 2 to the Regulations.

As a result of these findings, the Tribunal affirmed the decision not to grant the visa applicants the Subclass 116 (Carer) visas. The Tribunal also noted that no claims or evidence were presented to suggest the visa applicants met the requirements for any other subclasses within the Other Family (Migrant) (Class BO) visa category.

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 EVIDENCE The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence given at the Tribunal hearing.ISSUE The issue in the present case is, whether assistance can be reasonably provided to Mr Menzalji, the sponsor by family members who are living in Australia, or reasonably be obtained through welfare, hospital, nursing or community services in Australia. Claims and findingsHas the visa applicant claimed to be a ‘carer’ of the sponsor? Clause 116.211 of Schedule to the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the visa applicant applied for the visa based on claiming to be the carer of his father, who is an Australian citizen. Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211.Are the requirements of r.1.15AA(e)(i) and r.1.15AA(e)(ii) satisfied? Regulation1.15AA provides that the assistance cannot reasonably be:(e)(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(e)(ii) obtained from welfare, hospital, nursing or community services in Australia; Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61]. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.Can assistance reasonably be provided by another relative? The sponsor was born on 15 March 1935. He is an Australian citizen. According to the primary decision, the sponsor has two adult children and ten grandchildren living in Australia. The visa applicant, is his son. The sponsor previously lived in Riverwood. He subsequently moved to public housing accommodation in Market Street, Condell Park and told the Tribunal he has lived there for approximately three years. He said he is happy living there, as it is a modern ground floor flat. In May 2015, Bupa Medical Services assessed the sponsor with an impairment rating of 50 and as needing assistance with hygiene, toileting, dressing, preparing food, with mobility and with transport. Bupa Medical Services recorded him as suffering from medical conditions including peripheral vascular disease, ischemic heart disease, emphysema and myositis. Bupa Medical Services recorded him at the Riverwood address for 13 years. Other information is that, at that time and because he needed more care, he was spending most of his time at his daughter’s place. Additionally, Bupa Medical Services stated that when he slept at his own home, his daughter ensured someone stayed with him.

Decision

Reasons for decision

There are no claims or evidence before the Tribunal that the visa applicants satisfy the requirements of the other subclasses within Other Family (Migrant)(Class BO).DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Helena ClaringboldMember

Ratio Decidendi

Legal Principle Established

The visa applicant told the Tribunal that the idea of ‘throwing our parent’ into an elderly facility is excluded by cultural stigma and obligation to one’s parents. The Tribunal accepts that people are culturally different; however, as detailed above, it does not accept that the sponsor’s family in Australia cannot collectively care for the sponsor. Neither is it satisfied that the assistance for the sponsor cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.Other considerations At the end of the Tribunal hearing, the sponsor’s migration agents challenged the interpreting during the Tribunal hearing. The Tribunal invited the sponsor’s migration agent to obtain a copy of the recording of the hearing. It invited the sponsor’s migration agent to provide the Tribunal with a translated record by a relevant person of the Tribunal hearing and to present arguments about the inconsistencies in interpreting. The sponsor’s migration agent stated that he would not provide a translation of the Tribunal hearing, as the inconsistencies were minor. The Tribunal notes that the sponsor and the visa applicant told the Tribunal that they had understood the interpreter. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the sponsor cannot reasonably obtain assistance from community services in Australia; therefore r.1.15AA(1)(e)(ii) is not satisfied. As the Tribunal has determined that the criterion for the grant of the visa has not been satisfied the Tribunal has not considered the remaining criteria. As the Tribunal is not satisfied that assistance cannot reasonably be provided to the sponsor by his family members or that the sponsor cannot reasonably obtain assistance from community services in Australia, so r.1.15AA(a)(e)(i) and r.1.15AA(a)(e)(ii) are not met. As a result, the visa applicant does not satisfy cl.116.221 of Schedule 2 to the Regulations. As the Tribunal has determined that cl.116.221 is not met it has not gone on to consider the other requirements for the grant of the visas. As a result of the above the Tribunal is not satisfied that at the time of decision, the visa applicant, is the carer of his Australian relative who is the sponsor; therefore, the visa applicant does not meet cl.116.221 of Schedule 2 to the Regulations. It follows that as the visa applicant does not meet the requirements for the grant of the visa, Mrs Maha El Dib, Mr Omar Manzalji, Miss Jana Manzalji, Mr Bachar Manzalji and Miss Hiba Manzalji, the secondary visa applicants do not meet the requirements for the grant of visas. For the reasons above, the visa applicants do not meet the criteria for a Subclass 116 visa. There are no claims or evidence before the Tribunal that the visa applicants satisfy the requirements of the other subclasses within Other Family (Migrant)(Class BO).DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Helena ClaringboldMember