QAZIZADA (Migration) - [2022] AATA 4854

QAZIZADA (Migration) [2022] AATA 4854 (17 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Abdul Hanan QAZIZADA
VISA APPLICANTS:  Ms Hanifa ABDUL FAZLI
Mr Fazel Bari FAZLI
Ms Gulalai FAZLI
Mr Fazel Yosef FAZLI
Mr Fazel Rafi FAZLI
Mr Fazel Nafi FAZLI
CASE NUMBER:  2000601
HOME AFFAIRS REFERENCE(S):          OSF2016/036689, OSF2016/073670
MEMBER:Mila Foster
DATE:17 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 17 November 2022 at 6:31pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– Tribunal was not satisfied that the first named visa applicant and his wife were sisters – first named visa applicant is not a carer at the time of decision – certificate provided does meet the requirements of reg 1.15AA(2) –not satisfied that assistance cannot be provided by or obtained from welfare, hospital, nursing or community services in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 376
Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 17 December 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 14 February 2016. At the time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 116 visa - the first named visa applicant on the basis that she is a carer of an Australian relative and the other visa applicants on the basis that they are members of her family unit (being her husband and children).
Relevantly, cl 116.211 requires that at the time of application the visa applicant claims to be a carer of an Australian relative and cl 116.221 requires that at the time of decision the visa applicant is a carer of the Australian relative. In the visa application form the first named visa applicant stated that she was applying for the visa to care for the review applicant who was married to her sister, Nazifa Nazifa.
The delegate found that the visa application was made on the basis that the first named visa applicant would provide assistance to the review applicant’s wife to provide direct assistance to the review applicant but did not make a finding on cl 116.211. Instead the delegate refused to grant the visas on the basis that the first named visa applicant did not meet cl 116.221 because it had…

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.

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Details

AGLC: QAZIZADA (Migration) [2022] AATA 4854
Case: [2022] AATA 4854
Decision Date: 17 November 2022

CaseChat Overview and Summary

This matter concerned an appeal by Qazizada against a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision to refuse an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer). The visa applicant, who was the first named applicant, claimed to be a carer for an Australian relative.

The Tribunal was required to determine three key issues: first, whether the first named visa applicant claimed to be a carer of an Australian relative at the time of application; second, whether the assistance required by the Australian relative could not reasonably be provided by any other relative who was an Australian citizen, permanent resident, or eligible New Zealand citizen; and third, whether the assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal also considered a non-disclosure certificate issued under s 376 of the Migration Act 1958 (Cth) by the Department of Home Affairs, which related to information relevant to two of the issues under review.

The Tribunal found that it could not confidently conclude that the first named visa applicant and the review applicant's wife were sisters, particularly in light of previous DNA testing conducted under a different name that yielded inconsistent results. Consequently, the Tribunal decided against ordering further DNA testing. Even if the applicants were sisters, the Tribunal was not satisfied that the first named visa applicant was a carer at the time of the decision, as required by cl 116.221 of the Regulations. The Tribunal also noted that a certificate provided did not meet the requirements of reg 1.15AA(2) and that it was not satisfied that assistance could not be provided by or obtained from welfare, hospital, nursing, or community services in Australia.

Accordingly, the Tribunal affirmed the decision under review.

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 EVIDENCE Three issues arise in the present case. Firstly, whether at the time of application the first named visa applicant claimed to be a carer of a person who is an Australian relative. Secondly, whether the assistance needed by the Australian relative 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. Thirdly, whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. In addition to the oral evidence given at the hearing, the Tribunal has before it the Department of Home Affairs files relating to the visa application,[1] oral and written submissions made by the representative, and supporting material the review applicant presented on review. This decision does not record or detail all the evidence presented to the Department and the Tribunal, however the Tribunal has had regard to all the evidence before it. [1] OSF2016/036689 (DF1) and OSF2016/073670 (DF2). The Department files contain a non-disclosure certificate issued under s 376 of the Act on 17 January 2020 by a delegate of the Minister of Home Affairs.[2] The certificate states that disclosure of material in certain folios of one of the files would be contrary to the public interest because it would ‘disclose lawful methods used for preventing, detecting, and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’ Section 376 permits the Tribunal to disclose material subject to such a certificate to the applicant or another person if it thinks it is appropriate. The material to which this certificate relates is relevant to the review because it relates to the two of the issues in the review. Hence, the Tribunal invited the review applicant to comment upon the validity of the certificate.[3] The representative responded that it was not possible to respond to the question of the validity of the certificate without details of the information to which the certificate related.[4] The Tribunal is satisfied that the certificate is valid and has concluded that it is appropriate to disclose information to which the certificate relates as it is relevant to the issues in the review. The relevant information is referred to in the Tribunal’s reasoning below. The Tribunal has not however invited the review applicant to comment on or respond to the information because it was not the reason or part of the reason for affirming the decisions under review. [2] DF2, f.415.[3] Letter dated 11 July 2022. [4] Email received 20 July 2022.Whether the first named visa applicant claimed to be a carer of an Australian relative As already noted, cl 116.211 of the Regulations requires that at the time of application the visa applicant claims to be a carer of another person, an Australian relative.

Decision

Reasons for decision

On the evidence currently before it, the Tribunal cannot confidently find that the first named visa applicant and the review applicant’s wife are sisters. The Tribunal decided not to request that the first named visa applicant and the review applicant’s wife undergo DNA testing because it appears the first named visa applicant previously underwent DNA testing using a different name which produced results inconsistent with the claims and evidence presented in connection with the carer visa application and on review. The Tribunal is thus not satisfied that further DNA testing involving the first named visa applicant would produce reliable results and even if they are sisters and the first named visa applicant satisfied cl 116.211, the Tribunal has concluded that the first named visa applicant is not a carer at the time of decision.Whether the first named visa applicant is a carer at the time of decision Clause 116.221 requires that at the time of decision, the visa 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. The visa applicant is a carer of the Australian relative who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the ‘resident’). In this case it is claimed, and Department movement records indicate, that the review applicant’s wife is usually resident in Australia. Thus, if the first named visa applicant and the review applicant’s wife were sisters then the review applicant’s wife would be the ‘resident’ for the purposes of reg 1.15AA. Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the visa applicant is a ‘relative’ of the resident. If the first named visa applicant and the review applicant’s wife were sisters, then the first named visa applicant would be a relative of the resident. Certification – reg 1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the 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. 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 or issued by a specified health provider in relation to a review of such an opinion. The Minister has specified Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services as the health provider in Legislative Instrument IMMI 14/085.

Ratio Decidendi

Legal Principle Established

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