Omara (Migration)

[2021] AATA 1884

Omara (Migration) [2021] AATA 1884 (31 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Suad Fayadh Omara
Mr Shayar Nihad Fadhil
Mr Nihad Fadhil Ghadhban

CASE NUMBER:  1809034

HOME AFFAIRS REFERENCE(S):          CLF2017/37356

MEMBER:Justin Owen

DATE:31 May 2021

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 by the first and second-named applicants:

·Regulation 1.15AA(1)(b) and (c) for the purpose of cl 836.221 of Schedule 2 to the Regulations.

The Tribunal affirms the decision not to grant the third-named applicant an Other Family (Residence) (Class BU) visa.

Statement made on 31 May 2021 at 1:56pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer visa assessment certificate not provided to department – certificate provided to tribunal – no consideration of whether assistance cannot reasonably be provided by any other relative or service provider – member of family unit – secondary applicant husband separated from primary applicant wife – decision under review remitted for first and second applicants, affirmed for third applicant

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), r 1.15AA(1)(b), (c), (2), Sch 2, cl 836.221, 836.321

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 13 March 2018 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 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 visas on the basis that cl 836.221 was not met because the applicant had not provided evidence of a Carer Visa Assessment Certificate (CVAC) for the Australian resident, the applicant’s mother.   As the applicant did not provide a CVAC or evidence that an appointment for a CVAC had been booked, the delegate found there was no evidence that the Australian resident had an impairment rating of 30 as required by Regulation 1.15AA(1)(c).  Subsequently, the delegate found the applicant did not meet 1.15AA(1)(c) for the purpose of cl.836.221 of Schedule 2 to the Regulations.

4. The first-named applicant is the primary applicant, the 51-year old Ms Suad Fayadh Omara.  The second-named applicant is a dependent applicant, her 12-year old son Master Shayar Nihad Fadhil.  The third-named applicant, 54-year old Mr Nihad Fadhil Ghadhban also applied on the basis of being a dependent of the first-named and primary applicant. He applied as the dependent spouse of the first-named and primary applicant, Ms Suad Fayadh Omara.      

5. The first-named / primary applicant appeared before the Tribunal on 19 May 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Bushra Omara who is the first-named applicant’s sister. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to the first and second-named applicants.  The decision under review should be affirmed in relation to the third-named applicant.

   RELEVANT LAW

7. At the time the application was made, 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 applicants are 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.

   Whether the applicant is a carer

8. 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.

9. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and 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.

10. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

11. On 3 February 2020 the Tribunal wrote to the applicants and asked them to provide a CVAC from BUPA Medical Visa Services (BMVS) or evidence that an appointment had been made with BMVS to obtain a CVAC by 26 February 2020. 

12. No evidence was received.  On 8 April 2020 the Tribunal again wrote to the applicants and asked them to provide a CVAC from BUPA Medical Visa Services (BMVS) or evidence that an appointment had been made with BMVS to obtain a CVAC by 19 May 2020.  No evidence was received.

13. On 6 July 2020 the Tribunal received correspondence dated 30 June 2020 stating that the applicant was unable to provide either a CVAC or evidence an appointment had been made with BMVS as BUPA had not, it was claimed, been making any appointments due to the COVID-19 pandemic. 

14. The Tribunal responded on 7 July 2020 stating that advice it had received from BUPA was that whilst appointment availability had been impacted by COVID-19, BUPA continued to make appointments and make assessments.  The Tribunal again requested that the applicant provide a CVAC from BUPA Medical Visa Services (BMVS) or evidence that an appointment had been made with BMVS to obtain a CVAC by 13 August 2020. 

15. On 13 August 2020 the Tribunal received from the applicant a doctor’s and a psychologist’s report pertaining to the Australian resident.  On 18 August 2020 the Tribunal again requested that the applicant provide a CVAC from BUPA Medical Visa Services (BMVS) or evidence that an appointment had been made with BMVS to obtain a CVAC by 10 September 2020. 

16. Evidence of an appointment being made with BMVS as well as BMVS requests for documentation from the applicant was provided by the applicant to the Tribunal on 18 August 2020 and 31 August 2020. 

17. On 9 November 2020 the Tribunal again wrote to the applicants and asked them to provide a CVAC from BUPA Medical Visa Services (BMVS), evidence that an appointment had been made with BMVS to obtain a CVAC or a timeframe for completion of the CVAC by BMVS by 23 November 2020.

18. A timeframe for completion of the CVAC by BMVS was provided to the Tribunal on 19 November 2020; and evidence an appointment to be held on 10 December 2020 was provided on 4 December 2020.

19. After being de-constituted from the previous Member allocated to this case, the matter was re-constituted to the Senior Member deciding this review on 3 December 2020.

20. On 31 December 2020 the Tribunal received from the applicant a completed BUPA assessment dated 10 December 2020, in relation to the Australian resident Ms Yousif.  The CVAC indicated that the sponsor and Australian resident has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of their daily life.  The CVAC indicates that the sponsor has a need for direct assistance in attending to the practical aspects of daily life because of the medical condition.  The CVAC indicates that because of the medical condition, the need for direct assistance in attending to the practical aspects of daily life will continue for at least two years. It is stated that the condition is permanent. 

21. The Tribunal finds that the CVAC provided dated 10 December 2020 meets the requirements of r.1.15AA(2).  Further, the Certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv).  Accordingly, the requirements of r.1.15AA(1)(b) is met.

22. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 07/012.

23. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

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.    

25. The Tribunal is mindful however that the delegate has not assessed the remaining requirements of r.1.15AA, having made a finding that there was no relevant Carer certificate.  In such circumstances, the Tribunal has formed the view, also having regard to the President’s Directions, that the most appropriate action is to remit the matter for reconsideration to allow the delegate themselves to assess the remaining criteria. Should the delegate find that the first and second-named applicants do not meet the requirements for the grant of the visa, they will have the opportunity to seek review in relation to such findings.     

    The third-named applicant

26. The third-named applicant Mr Ghadhban applied as the dependent spouse of the first-named / primary applicant 

27. On 20 February 2019 the third-named applicant wrote to the Department informing them of his wish to separate from the first-named applicant. The Tribunal notes from ICSE records that the third-named applicant is listed as “Separated” on 20 February 2019.

28. Cl.836.321 requires that an applicant continues to be a member of the family unit of a person, who, having satisfied the primary criteria, is the holder of a Subclass 836 visa. 

29. On 16 April 2021 the Tribunal made multiple telephone calls to the first-named applicant to confirm her relationship with the third-named applicant had ceased. No contact could be made. 

30. On 22 April 2021 the Tribunal wrote, under s.359A, to the third-named applicant to the last address provided by him in connection with the review: s.379A(4)(c)(i).

31. In its correspondence of 22 April 2021, the Tribunal noted that in conducting the review, it was required by the Act to invite him to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.  A copy of the correspondence was also sent to the first-named / primary applicant. 

32. The Tribunal in its correspondence noted the information was contained in the Tribunal file., namely his email dated 20 February 2019 to the Department informing them that he wished to separate from his wife, the first-named applicant. The Tribunal noted that this correspondence was forwarded by the Department to the Tribunal on 22 February 2019. 

33. The Tribunal noted the information was relevant as it suggested the third-named applicant did not meet the criteria for the grant of the visa, for as a dependent applicant of the first-named applicant Ms Omara, it appeared he was no longer a member of the first-named applicant’s family unit.  The Tribunal noted that the consequence of this information being relied upon was that if the Tribunal relied on this information in making its decision, it would lead to a finding that the Tribunal, after taking into account his response, would affirm the decision to refuse his application, given that he was no longer a member of the first-named (primary) applicant’s family unit.   The third-named applicant was invited to give comments on or respond to the above information in writing by 12 May 2021.  No response was received and no request for an extension of time to respond was made. No response has still been made at the time of decision. 

34. The Tribunal notes the third-named applicant was also on 22 April 2021 invited to appear before it on 19 May 2021 to give evidence.  He failed to appear.  In her own oral testimony at the hearing, the first-named applicant stated she had not seen the third-named applicant for a year. 

35. The Tribunal is not satisfied on the evidence before it that the third-named applicant remains the dependent spouse of the primary / first-named applicant.  As the third-named applicant is no longer a member of the family unit of the primary applicant, the third-named applicant does not meet cl.836.321 in Schedule 2 of the regulations. 

    Conclusion

36. Given the findings above, the appropriate course is to remit the applications from the first-named and second-named applicants for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

37. For the reasons above, the third-named 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 applicant meets prescribed criteria for the visa sought.

    DECISION

38. 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 by the first and second-named applicants:

    ·Regulation 1.15AA(1)(b) and (c) for the purposes of cl.836.221 of Schedule 2 to the Regulations. 

39. The Tribunal affirms the decision not to grant the third-named applicant an Other Family (Residence) (Class BU) visa.

    Justin Owen
    Senior Member

    
    

    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.