Sabbagh (Migration) - [2024] AATA 22

Sabbagh (Migration) [2024] AATA 22 (3 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bassam Soufi Sabbagh
REPRESENTATIVE:  Mr Houssam Haybe (MARN: 0001536)
CASE NUMBER:  2214295
HOME AFFAIRS REFERENCE(S):          CLF2019/22600
MEMBER:Mila Foster
DATE:3 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 03 January 2024 at 4:34pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance could not reasonably be provided by relatives in Australia – welfare, hospital, nursing or community services in Australia – care for the applicant’s sister and brother-in-law – limited evidence of agency enquiries – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.221; rr 1.03, 1.15
Social Security Act 1991
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Ignatious v MIMIA [2004] FCA 1395
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241
MIMIA v Hidalgo [2005] FCAFC 192
Scargill v MIMIA [2003] FCAFC 116
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 6 September 2022 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 May 2019. 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 that visa subclass are set out in Part 836 of Schedule 2 to the Regulations. Relevantly, the primary criteria include cl 836.212 which requires that the applicant claims to be the carer of an Australian relative at the time of application and cl 836.221 which requires that the applicant is the carer of a person referred to in cl 836.212 at the time of decision. The applicant stated in his visa application form that the relatives in Australia who needed his care were Joumana Soufi Sabbagh, his sister, and Fayez Hussein Kirdi, his brother-in-law. The applicant’s sponsor for the visa was Joumana Saadallah Kirdi. It was not expressly stated but it was implied in the supporting documentation that Joumana Soufi Sabbagh and Joumana Saadallah Kirdi were the same person.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied that the assistance the sponsor required could not reasonably be provided by other members of her family or obtained from welfare, hospital, nursing or community services in Australia.
The applicant appeared before 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 Sabbagh (Migration)

Details

AGLC: Sabbagh (Migration) [2024] AATA 22
Case: [2024] AATA 22
Decision Date: 3 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant seeking an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). The applicant, a citizen of Lebanon, claimed to be the carer of his sister, an Australian citizen, and her husband. The core of the dispute revolved around whether the assistance required by the sponsor could reasonably be obtained from Australian welfare, hospital, nursing, or community services, and whether the applicant qualified as a "carer" under the relevant regulations.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant satisfied the requirement of being a "carer" of an "Australian relative" as defined by the Migration Regulations 1994. This involved ascertaining if the sponsor was indeed an "Australian relative" and if the applicant's claimed role as a carer extended to a "relative" as defined by the regulations, particularly in light of the sponsor's husband not being a relative. Secondly, the Tribunal had to assess whether the assistance the sponsor required could not reasonably be provided by other relatives in Australia or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal's reasoning focused on the definitions within the Migration Regulations. It found that while the applicant's sister was an Australian citizen and thus an "Australian relative," the applicant's brother-in-law was not considered a "relative" under regulation 1.03. Consequently, the applicant could not satisfy the criterion of being a carer for his brother-in-law. Furthermore, the Tribunal noted that the applicant had siblings residing in Lebanon, meaning he was not a "remaining relative" as required for a Subclass 835 visa, which was also considered in the context of the applicant's eligibility.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa. This outcome was based on the finding that the applicant did not meet the regulatory requirements for being a carer of an Australian relative, particularly concerning the exclusion of his brother-in-law from the definition of a relative, and the existence of other relatives in Lebanon.

Orders

Orders of the court

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Background

Background to the litigation

The issue in the present case is whether the assistance the sponsor requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.Background It is claimed that the applicant is a 60-year-old citizen of Lebanon who arrived in Australia on a visitor visa on 17 August 2018. It is claimed that he has been living with and caring for his 66-year-old sister, the sponsor, since he arrived. It is claimed that the sponsor is married to Fayez Hussein Kirdi who is 80 years old. It is claimed that the sponsor has no biological children; she has 3 step-children from her husband’s previous marriage and no other siblings in Australia. Whether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. As already noted the visa application was made on the basis that the applicant is the carer of his sister, the sponsor, and his brother-in-law, the sponsor’s husband. The applicant stated in the Form 80 he completed on 6 February 2019 that his main reason for wanting to stay in Australia was to care for his sister and brother-in-law. In a statement the applicant made on 9 November 2021 he stated he had the physical capability to render help to his sister and her husband. According to other documentation the sponsor cares for her husband[1] and the applicant stated at the hearing that the sponsor received the government Carer payment each fortnight to care for her husband. [1] For example, in a letter dated 15 August 2018, the sponsor’s GP Dr Ali El-Jaam states that she has been her ‘husband’s legal carer’ and according to the sponsor’s My Aged Care Support Plan review dated 12 May 2023 she cares for her husband. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The term ‘relative’ is defined in reg 1.03 of the Regulations to include a sister but does not include a brother-in-law. At the hearing the Tribunal put to the applicant that the definition of a relative in the Regulations did not include a brother-in-law. Initially he said he had no evidence to present on the issue but later stated that he was not his brother-in-law’s carer - he was there if his brother-in-law needed help. The Tribunal finds that as a brother-in-law is not a ‘relative’ as defined in reg 1.03, cl 838.212 is not satisfied on the basis that the applicant claimed to be the carer of Fayez Hussein Kirdi. At the hearing the applicant stated that Joumana Soufi Sabbagh and Joumana Saadallah Kirdi were the same person; she was his sister and she had changed her name from the former to the latter upon marrying Mr Kirdi. The Tribunal requested documentary evidence of this to be provided after the hearing. The Tribunal has before it an English translation of a document titled ‘Familial Extract of Vital Statistics’ issued by the General Directorate of Vital Statistics of the Lebanese Ministry of Interior and Municipalities on 19 June 2018 which indicates that Joumana Soufi Sabbagh and the applicant had the same parents. According to the Family Extract their father’s name was Saadallah. After the hearing the applicant submitted a copy of a translation of what was said to be the marriage certificate relating to Joumana Soufi Sabbagh’s marriage to Mr Kirdi. The Tribunal also has before it photocopies of an Australian passport issued to Joumana Soufi Sabbagh in 2009 and an Australian citizenship certificate granting her citizenship in 1991. The dates of birth of Joumana Soufi Sabbagh and Joumana Saadallah Kirdi are the same on all these documents. The Tribunal is thus satisfied on the evidence before it that Joumana Soufi Sabbagh and Joumana Saadallah Kirdi are the same person and that she is the biological sister of the applicant. The applicant is thus the ‘relative’, as defined in reg 1.03, of 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 evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, the oral evidence given at hearing, a written submission made by the representative on the morning of the hearing, and documentary evidence the applicant submitted to the Tribunal before and after the hearing. The issue in the present case is whether the assistance the sponsor requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.Background It is claimed that the applicant is a 60-year-old citizen of Lebanon who arrived in Australia on a visitor visa on 17 August 2018. It is claimed that he has been living with and caring for his 66-year-old sister, the sponsor, since he arrived. It is claimed that the sponsor is married to Fayez Hussein Kirdi who is 80 years old. It is claimed that the sponsor has no biological children; she has 3 step-children from her husband’s previous marriage and no other siblings in Australia. Whether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. As already noted the visa application was made on the basis that the applicant is the carer of his sister, the sponsor, and his brother-in-law, the sponsor’s husband. The applicant stated in the Form 80 he completed on 6 February 2019 that his main reason for wanting to stay in Australia was to care for his sister and brother-in-law. In a statement the applicant made on 9 November 2021 he stated he had the physical capability to render help to his sister and her husband. According to other documentation the sponsor cares for her husband[1] and the applicant stated at the hearing that the sponsor received the government Carer payment each fortnight to care for her husband. [1] For example, in a letter dated 15 August 2018, the sponsor’s GP Dr Ali El-Jaam states that she has been her ‘husband’s legal carer’ and according to the sponsor’s My Aged Care Support Plan review dated 12 May 2023 she cares for her husband. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The term ‘relative’ is defined in reg 1.03 of the Regulations to include a sister but does not include a brother-in-law. At the hearing the Tribunal put to the applicant that the definition of a relative in the Regulations did not include a brother-in-law. Initially he said he had no evidence to present on the issue but later stated that he was not his brother-in-law’s carer - he was there if his brother-in-law needed help. The Tribunal finds that as a brother-in-law is not a ‘relative’ as defined in reg 1.03, cl 838.212 is not satisfied on the basis that the applicant claimed to be the carer of Fayez Hussein Kirdi.

Decision

Reasons for decision

According to information provided in connection with the visa application the applicant has siblings residing in Lebanon. As the applicant had a ‘near relative’ as defined in r.1.15(2) in Lebanon he was not a ‘remaining relative’ and unable to meet cl.835.212. The Tribunal therefore finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa. DECISION The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Mila FosterMemberATTACHMENTMigration 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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