Mousa (Migration) - [2019] AATA 3702

Mousa (Migration) [2019] AATA 3702 (12 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Steven Mousa
Mrs Sale Patroza
Master Santios Mousa
Miss Speranza Mousa
CASE NUMBER:  1805905
DIBP REFERENCE(S):  CLF2015/10276
MEMBER:Jane Marquard
DATE:12 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·Cl. 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations.

Statement made on 12 March 2019 at 2:45pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Circuit Court remittal – carer of the sponsor – assistance reasonably provided by another Australian relative – commitments of other family members – assistance provided by community services – deteriorated health of the sponsor and his wife – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 836.212, 836.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA814
Jajo v MIBP [2013] FCCA 1554
MIMA v Lim (2001) 112 FCR 589
Minister for Immigration and Border Protection v Singh [2016] FCAFC 18
Vuong v MIAC [2013] FCCA 274
Xiang v MIMIA [2004] FCAFC 64
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The first named visa applicant is a 30 year old man from Iraq, and the other visa applicants are his wife, son and daughter. The family have been living in Australia since 2015. They arrived in Australia on visitor visas.
This is an application for review of a decision made by a delegate of the Minister for Immigration (the Department) on 27 July 2015 to refuse to grant the visa applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 17 February 2015. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 Carer 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 which requires the visa applicant to be the carer of the sponsor, who in this case, is his father.
The delegate refused to grant the visas on the basis that cl.836.221 was not met, as the delegate was not satisfied that the visa applicant was the carer of his father, on the basis of the definition in reg.1.15AA.
On 9 May 2016 the Administrative Appeals Tribunal (the Tribunal), differently constituted, affirmed the decision of the Department.
On 23 February 2018 the Federal Circuit Court remitted the matter by consent to the Tribunal for reconsideration. This…

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 Mousa (Migration)

Details

AGLC: Mousa (Migration) [2019] AATA 3702
Case: [2019] AATA 3702
Decision Date: 12 March 2019

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as the carer of his father, who was an Australian citizen. The Tribunal was required to consider whether the applicant met the criteria for the visa, particularly those relating to being a carer and the sponsor's need for assistance.

The primary legal issues before the Tribunal were whether the applicant claimed to be a carer of an Australian relative, whether the applicant was sponsored by that relative, and crucially, whether the applicant was, at the time of the decision, a carer as defined by the Migration Regulations 1994. This involved assessing whether the applicant was a relative of the Australian resident, whether a medical condition of the resident or a family member necessitated assistance, and whether such assistance could reasonably be provided by other Australian relatives or obtained from community services.

The Tribunal found that the applicant had claimed to be a carer of his Australian citizen father and was sponsored by him, thus satisfying clauses 836.212 and 836.213 of the Regulations. Furthermore, the Tribunal was satisfied that the applicant was a relative of the Australian resident, meeting the requirements of regulation 1.15AA(1)(a). However, the decision text indicates that the Tribunal considered new evidence and the specific requirements of regulation 1.15AA(1)(b) concerning certification of a medical condition and the need for assistance. Given the findings regarding the initial criteria and the consideration of new evidence, the Tribunal remitted the application for the visa to the Minister for reconsideration of the remaining criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal has also taken into account new evidence provided to this Tribunal, discussed in more detail below. CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the primary visa applicant is the carer of the sponsor. Whether the applicant has claimed to be a ‘carer’ and is sponsored by the Australian relative Clause 836.212 of the Regulations requires that at the time of application 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 first named visa applicant claims to be the carer of his father. 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 r.1.03 of the Regulations. The Tribunal is satisfied that the first named applicant claimed to be a carer of an Australian relative, as his father is an Australian citizen. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212. The applicant is sponsored by the Australian relative, his father, and therefore satisfies the requirements of cl.836.213.Whether the applicant is a carer Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative. The term ‘carer’ is defined in r.1.15AA of the Regulations which is set out in the attachment to this decision.Applicant is a relative of the resident – r.1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the first named applicant’s father, and a number of documents have been provided to evidence this relationship. The Tribunal is satisfied that the primary visa applicant is a relative of the Australian relative, his father, who is an Australian citizen usually resident in Australia. Therefore, as the primary visa applicant is the son of the Australian relative, the primary visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).Certification – r.1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that the relative has a certificate from a health service provider specified by the Minister, currently Bupa, which states that the Australian relative has a medical condition which is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life. Further, the Regulation requires that 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. The Regulation also requires 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.

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 following criteria for a Subclass 836 (Carer) visa are met:·Cl.836.212. 836.213 and 836.221 of Schedule 2 to the Regulations.Jane MarquardMemberATTACHMENTMigration 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

Full text does not contain this section.