Omara (Migration) - [2023] AATA 4177

Omara (Migration) [2023] AATA 4177 (27 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Suad Fayadh Omara
Mr Shayar Nihad Fadhil
CASE NUMBER:  2115704
HOME AFFAIRS REFERENCE(S):          CLF2017/37356
MEMBER:Deputy President Justin Owen
DATE:27 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 27 November 2023 at 2:04pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – care cannot be provided by specified Australian relatives or obtained from service providers – no response to hearing invitation or appearance at hearing – multiple adult relatives – previous application refused on other ground – no evidence that applicant willing and able to provide care – not eligible for other subclass visas – member of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A(5)
Migration Regulations 1994 (Cth), r 1.15AA(1)(e), (f), Schedule 2, cls 836.221, 836.321
CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
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 15 October 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 19 May 2017. 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 primary review 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 836.221.
The delegate refused to grant the visa on the basis that cl 836.221 was not met. The delegate was not satisfied that it had been demonstrated that it would be unreasonable for the primary review applicant’s Australian relatives to provide the care the Australian relative sponsor requires. The delegate was also not satisfied the care the sponsor requires could not be reasonably obtained from welfare, hospital, nursing and community services. The delegate furthermore was not satisfied the primary review applicant was willing and able to assist the Australian resident sponsor.
On 7 November 2023 the Tribunal invited the applicants through their authorised recipient to attend a hearing to give evidence and present arguments relating to the issues in the case on 22 November 2023. The invitation stated that if the applicants did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicants to appear before it.
The Tribunal sent courtesy reminders of the…

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 Omara (Migration)

Details

AGLC: Omara (Migration) [2023] AATA 4177
Case: [2023] AATA 4177
Decision Date: 27 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an appeal by the applicant against a decision not to grant them an Other Family (Residence) (Class BU) visa, specifically Subclass 836 (Carer). The dispute centred on whether the applicant met the criteria to be considered a "carer" under the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant satisfied regulation 1.15AA(1)(e) of the Migration Regulations. This regulation requires that the necessary assistance cannot reasonably be provided by any other relative of the Australian resident who is an Australian citizen, permanent resident, or eligible New Zealand citizen, nor obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the applicant was willing and able to provide the required assistance.

The Tribunal noted that the applicant had failed to provide evidence requested by the original delegate, including details about other adult relatives residing in Australia and why they could not provide the necessary assistance. The applicant's own application indicated they had ten brothers and sisters in Australia, nine of whom were Australian citizens, permanent residents, or eligible New Zealand citizens, aged between 43 and 58. In the absence of any evidence to the contrary, and given the applicant's failure to make submissions despite the lengthy review period, the Tribunal was not satisfied that the assistance could not reasonably be provided by these other relatives. Consequently, the Tribunal found that the applicant did not meet the criteria under regulation 1.15AA(1)(e)(i).

The Tribunal affirmed the decision not to grant the applicants the Other Family (Residence) (Class BU) visas, finding that the primary applicant did not satisfy the essential criteria for a carer visa. The Tribunal also noted that there was no evidence that the secondary applicant met the primary criteria for the visa.

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 EVIDENCEWhether the applicant is a carer 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. 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; or obtained from welfare, hospital, nursing or community services in Australia. The Tribunal notes from the decision record the primary review applicant provided the Tribunal that on 5 May 2021 the delegate wrote to the primary review applicant requesting the following information:·Declaration of all adult relatives in Australia of the sponsor and Australian resident Ms Kasoma G Yousif;·Evidence why the assistance required cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia;·Evidence the applicant is willing and able to provide the assistance required; and·Evidence why any other relative in Australia cannot reasonably provide the assistance the sponsor and Australian resident Ms Kasoma G Yousif requires. The Tribunal notes the primary review applicant failed to provide the delegate with any documentary evidence that the assistance could not be reasonably provided by any other Australian citizen, Australian permanent resident, or eligible New Zealand citizen relative of the primary review applicant. The Tribunal notes that in the primary review applicant’s Form 47OF ‘Application for migration to Australia by other family members’, it was stated at Question 57 that the primary review applicant has ten brothers and sisters currently residing in Australia. Nine of the ten are either Australian citizens, Australian permanent residents, or eligible New Zealand citizens. They range in ages from between 43 and 58 years of age at the time of decision. There is no evidence before the Tribunal as to why these adult relatives of the sponsor and Australian resident – five sons and four daughters who are both currently resident in Australia and either Australian citizens, Australian permanent residents, or eligible New Zealand citizens are unable to reasonably provide the assistance the resident Ms Kasoma G Yousif requires, either individually, collectively, or in conjunction with services obtained from welfare, hospital, nursing or community services. No submissions have been made to the Tribunal on this matter, despite the application for review being lodged now over two years ago. Given the lack of any satisfactory evidence before the Tribunal on this matter, and noting the multiple adult-aged children of the resident that are current residents of Australia and are either Australian citizens, Australian permanent residents or eligible New Zealand citizens, the Tribunal is not satisfied that the assistance the resident Ms Kasoma G Yousif requires 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. The Tribunal subsequently finds the primary review applicant does not satisfy reg 1.15AA(1)(e)(i).

Decision

Reasons for decision

There is no evidence, and no claims before the Tribunal, that the secondary applicant meets the primary criteria for the grant of an Other Family (Residence) (Class BU) visa. DECISION The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.Justin OwenDeputy PresidentATTACHMENTMigration 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

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