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

1. 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).

2. 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.

3. 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.  

4. 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. 

5. The Tribunal sent courtesy reminders of the hearing via SMS to the mobile telephone number the primary review applicant provided on 15 November 2023 and 21 November 2023.  

6. The applicants did not appear before the Tribunal on the day at the scheduled time and place. The applicants did not make any request for an adjournment or postponement of the scheduled hearing. The applicants have not provided the Tribunal with any explanation for their non-attendance at the hearing.  The applicants have not provided any evidence, submissions or information to the Tribunal concerning the substantive matters in their application since applying for review over two years ago.

7. The Tribunal has invited the applicants to a hearing through their nominated recipient. The email was not returned to sender.  Reminders of the hearing were sent five business days and one business day prior to the hearing to the mobile telephone number the applicants provided. The Tribunal is satisfied that reasonable steps have been undertaken to contact the applicants. The Tribunal is mindful that applicants have a responsibility to keep themselves informed about their applications for review. 

8. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s 379A(5) of the Act and the invitation has not been returned to sender.

9. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.    

10. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the applicant is a carer

11. 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.

12. 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.

13. 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.

14. 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. 

15. 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. 

16. 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.

17. 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).

18. The Tribunal notes that for the primary review applicant to meet reg 1.15AA(1)(e)(ii), the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital, nursing or community services.

19. The Tribunal notes that no evidence was provided to the delegate of any attempts to procure the assistance the Australian resident requires from any welfare, community, government or other external services.  The Tribunal has reviewed the primary review applicant’s Form 47OF ‘Application for migration to Australia by other family members’ and notes the primary review applicant did not answer Q71 which asks, ‘has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?’.No examples were provided of any attempts to obtain the assistance the resident Ms Kasoma G Yousif requires from welfare, hospital, nursing or community services.

20. The primary review applicant has not provided the Tribunal with any submissions, since applying for review over two years ago, that the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital, nursing or community services. There is no corroborative documentary evidence before the Tribunal to suggest that any enquiries in fact have been made whatsoever to determine if the assistance that the resident Ms Kasoma G Yousif requires is reasonably obtainable from welfare, hospital, nursing or community services.

21. Given the absence of any evidence that any attempts have been made whatsoever to ascertain whether the assistance the resident Ms Kasoma G Yousif requires cannot reasonably be obtained from welfare, hospital, nursing or community services, the Tribunal is not satisfied that the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital, nursing or community services.  The Tribunal subsequently finds the primary review applicant does not satisfy reg 1.15AA(1)(e)(ii).

22. The Tribunal would note for completeness that the primary review applicant provided oral evidence at the Tribunal’s previous review (presiding as SM Owen at that time) on 19 May 2021 where the delegate had originally refused this same visa application for reasons pertaining to the lack of evidence of a Carer Visa Assessment Certificate (CVAC).  In the Tribunal’s decision record of 31 May 2021, it noted at 24:

    At the Tribunal’s hearing, the Tribunal did discuss with the first-named applicant and her witness whether the assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.  The Tribunal notes the paucity of evidence that was provided as to any genuine attempts that had been made to acquire such services.  The Tribunal furthermore noted the first-named applicant’s claims that the sponsor cannot reasonably obtain the assistance she requires from her other children, Australian citizens and permanent relatives. There are nine other adult children of the sponsor and Australian relative that are Australian citizens or permanent residents, most living locally to the Australian relative and some living at the residence of the sponsor and Australian relative Ms Yousif.  Little corroborative evidence has been supplied to substantiate such assertions.  The Tribunal found the claims submitted dubious, unreliable and lacking in authenticity.   

23. The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are not met.

24. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

25. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

26. 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 evidence she was willing and able to provide the assistance the resident Ms Kasoma G Yousif requires.  No documentary evidence was provided to the delegate in response to this correspondence.

27. In the two years since applying for review of the delegate’s refusal at the Tribunal, no documentary evidence has been submitted to the Tribunal that the primary review applicant is both willing and able to provide to the Australian relative Ms Kasoma G Yousif substantial and continuing assistance of the kind needed.

28. In the absence of any satisfactory evidence before it that the primary review applicant is both willing and able to provide the substantial and continuing assistance required by Ms Kasoma G Yousif, the Tribunal subsequently finds it is not satisfied the primary review applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and does not meet the requirements of reg 1.15AA(1)(f).

29. Given these findings, at the time of decision the primary review applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.

30. For the reasons above, the primary review applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the primary review applicant meets prescribed criteria for the visa sought.

31. The evidence before the Tribunal is that the primary review applicant was born on 26 October 1969. The Tribunal finds that the primary review applicant is not entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa as she is not old enough to be granted an age pension under the Social Security Act 1991 (Cth). Therefore, the Tribunal is not satisfied that the primary review applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.

32. The Tribunal finds that the primary review applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa. The test in reg 1.15(2) is about whether the primary review applicant is the remaining relative of her Australian permanent resident sponsor, her mother, Ms Kasoma G Yousif. The Tribunal has considered whether the primary review applicant has no near relatives other than near relatives who are usually resident in Australia and Australian citizens, Australian permanent residents or eligible New Zealand citizens. In the primary review applicant’s Form 47OF ‘Application for migration to Australia by other family members’ dated 15 May 2017, the primary review applicant declares her son Mr Shahyar Nihad Fadhil (the secondary applicant) is an Iraqi citizen and is the holder of a United States of America passport.  Whilst the secondary applicant resides in Australia, there is no evidence or claim that he is either an Australian citizen, Australian permanent resident, or eligible New Zealand citizen.  The primary review applicant subsequently has a child who is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen who is usually resident in Australia.  The primary review applicant subsequently has a near relative as per reg 1.15(2)(b)(i) and is therefore not a remaining relative as per reg 1.15(1).   As such, the primary review applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.

    Secondary applicants

33. The application of the secondary applicant, Mr Shahyar Nihad Fadhil, was refused by the delegate on the basis that the primary review applicant’s visa had been refused. As the Tribunal has affirmed the delegate’s decision and found that the primary review applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the application of the secondary applicant.

34. The secondary applicant’s visa was refused as he does not meet cl 836.321 as he is not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.

35. 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

36. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Justin Owen
    Deputy President

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (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.