MOUSSA (Migration) - [2021] AATA 3862

MOUSSA (Migration) [2021] AATA 3862 (23 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Lar MOUSSA
CASE NUMBER:  1822884
HOME AFFAIRS REFERENCE(S):          CLF2017/35469
MEMBER:Helena Claringbold
DATE:23 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an, Other Family (Residence) (Class BU) Carer visa.

Statement made on 23 September 2021 at 4:03pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could be provided by relatives and services in Australia – collective family contribution to care – sponsor has not accessed welfare, hospital, nursing or community services – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.221; r 1.05
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 10 May 2017, Ms Lar Moussa, the applicant, applied for an Other Family (Residence) (Class BU) Carer visa. The application was made on the basis of the applicant providing assistance to her mother, Ms Naouf Moussa, the sponsor.
On 2 August 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that care could not be provided by relatives and services in Australia. Therefore, the visa applicant did not meet cl.836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958. On 3 August 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.
At the time of application, 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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.
On 10 August 2018, the Tribunal wrote to the applicant and advised her that if she wished to provide written material or any other material, she believed supported the application she should do so as soon as possible. On the 15 April 2021 and 16 June 2021, the Tribunal wrote to the applicant and invited her to provide all documents she intended to rely on to support her case. She was advised that the decision made by the Department should set out the reasons for the decision and she should have regard to these, and any changes in her circumstances, in providing documents and preparing for the hearing.
On 7 September 2021, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Lebanese and English languages. The applicant was represented in relation to the review.
For the following…

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 MOUSSA (Migration)

Details

AGLC: MOUSSA (Migration) [2021] AATA 3862
Case: [2021] AATA 3862
Decision Date: 23 September 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa, which was refused by the Department of Home Affairs. The applicant, born in Lebanon in 1962, sought to be the carer for her mother, the sponsor, who was born in Lebanon in 1937. The sponsor has several children and other relatives residing in Australia. The case was heard by Member Helena Claringbold of the Tribunal.

The central legal issue before the Tribunal was whether the assistance required by the sponsor could not reasonably be provided by any other relative of the sponsor who is an Australian citizen, permanent resident, or eligible New Zealand citizen, or alternatively, whether such assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia, as stipulated by regulation 1.15AA(1)(e) of the Migration Regulations. This required an assessment of the applicant's claim to be the sole and necessary carer for her mother's serious medical conditions and the unavailability of alternative support.

The Tribunal considered the evidence presented, including the applicant's assertions that she was the only available and committed individual to assist the sponsor, who suffered from serious medical conditions, required assistance with hygiene, food preparation, and medication, and was unable to communicate in English. While acknowledging that care may be provided collectively by multiple relatives, the Tribunal noted the applicant's previous statements and the sponsor's inability to obtain assistance from nursing homes or other sources. However, the Tribunal also noted that community services could not provide assistance seven days a week. Ultimately, the Tribunal concluded that the applicant had not demonstrated that the assistance could not reasonably be provided by other relatives or obtained from Australian services, and therefore affirmed the decision to refuse the visa.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the assistance for the sponsor cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulations.BACKGROUND ON THE EVIDENCE The applicant was born in 1962 in Karm El Mohr, North Lebanon. She was married to Mr B, who is deceased. She had four children with him, three who live in Lebanon and one in Australia. Her mother and siblings live in Australia and her half-sister lives in the USA. On 2 August 2018, the applicant was refused an, Other Family (Residence) (Class BU) Carer (Subclass 836) visa. The sponsor was born in 1937 in Lebanon. She was married to Mr M who died on 6 February 2021. She has four sons and one daughter living in Australia and one daughter living in the USA. Does the applicant claim to be the carer of an Australian relative? Clause 836.221 requires that at the time of decision the applicant is a carer of an Australian relative (or resident). The term ‘carer’ is defined if reg.1.15AA of the Regulations.Whether the assistance cannot be reasonably obtained or provided Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen as required by r.1.15AA(1)(e)(i); orthat the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by r.1.15AA(1)(e)(ii).Whether the assistance cannot reasonably be provided by any other relative of the Australian relative of the sponsor 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. In March 2018, the applicant stated the following: she is the only one available and committed to assisting the sponsor who suffers from serious medical conditions. She looks after the sponsor in all aspects and attends to her hygiene and prepares her special food. She ensures that the sponsor takes her medication on time. On the Form 80 she declared that she is the sponsor’s full-time carer and accompanies her. The sponsor is unable to communicate in English and unable to obtain assistance from a nursing home or from any other source. She is determined to remain in her home. They contacted community services and were assured that assistance could not be provided seven days a week. The assistance she provides the sponsor and the sponsor’s needs cannot be provided by other professionals. In a letter dated 3 March 2021, the applicant declared living at Inverary Street. She provided the following information: On 6 February 2021, her father died and the sponsor’s health is deteriorating and she continues to care for the sponsor. She has previously provided information about why her siblings and community services cannot provide assistance for the sponsor.

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 considered, individually and completely, the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. ISSUE The issue in the present case is whether the assistance for the sponsor cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulations.BACKGROUND ON THE EVIDENCE The applicant was born in 1962 in Karm El Mohr, North Lebanon. She was married to Mr B, who is deceased. She had four children with him, three who live in Lebanon and one in Australia. Her mother and siblings live in Australia and her half-sister lives in the USA. On 2 August 2018, the applicant was refused an, Other Family (Residence) (Class BU) Carer (Subclass 836) visa. The sponsor was born in 1937 in Lebanon. She was married to Mr M who died on 6 February 2021. She has four sons and one daughter living in Australia and one daughter living in the USA. Does the applicant claim to be the carer of an Australian relative? Clause 836.221 requires that at the time of decision the applicant is a carer of an Australian relative (or resident). The term ‘carer’ is defined if reg.1.15AA of the Regulations.Whether the assistance cannot be reasonably obtained or provided Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen as required by r.1.15AA(1)(e)(i); orthat the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by r.1.15AA(1)(e)(ii).Whether the assistance cannot reasonably be provided by any other relative of the Australian relative of the sponsor 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. In March 2018, the applicant stated the following: she is the only one available and committed to assisting the sponsor who suffers from serious medical conditions. She looks after the sponsor in all aspects and attends to her hygiene and prepares her special food. She ensures that the sponsor takes her medication on time. On the Form 80 she declared that she is the sponsor’s full-time carer and accompanies her. The sponsor is unable to communicate in English and unable to obtain assistance from a nursing home or from any other source. She is determined to remain in her home. They contacted community services and were assured that assistance could not be provided seven days a week. The assistance she provides the sponsor and the sponsor’s needs cannot be provided by other professionals.

Decision

Reasons for decision

There are no claims or evidence that the applicant meets the criteria for any of the other subclasses contained in Class BU. DECISION The Tribunal affirms the decision not to grant the applicants an Other Family (Residence) (Class BU) Carer visa.Helena ClaringboldMember

Ratio Decidendi

Legal Principle Established

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