Salib (Migration)

[2024] AATA 2872

Salib (Migration) [2024] AATA 2872 (16 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mari Kamel Farag Salib

REPRESENTATIVE:  Ms Lidia Soliman (MARN: 0747355)

CASE NUMBER:  2014013

HOME AFFAIRS REFERENCE(S):          CLF2020/14033

MEMBER:Kira Raif

DATE:16 July 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 16 July 2024 at 9:03am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsored by an Australian relative – carer of an Australian relative – Sponsorship Form 40 – sponsor is the brother of the person requiring care – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15AA; Schedule 2, cls 836.213, 836.221

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 1 September 2020 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).

2. The applicant is a national of Egypt, born in March 1946. She applied for the visa on 4 April 2020. The delegate refused to grant the visa on the basis that cl 836.213 was not met because the delegate was not satisfied the sponsorship requirement was met. The applicant seeks review of the delegate’s decision.

3. On 5 July 2024 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 31 July 2024. On 12 July 2024 the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   Relevant law

5. 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 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 836.213.

6. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

7. 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.

8. 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.

9. The term ‘member of the family unit’ is defined in r. 1.12 and, essentially, includes a spouse or de facto partner, a dependent child or a dependent child of a dependent child.

   Primary decision

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that when making the application, the applicant stated that the relative requiring her care was her grandson Daniel Bassily Said, born in August 2007.

11. The applicant included with her application the Sponsorship Form 40 which records the sponsor’s name as Samuel Bassily Said (born in September 1998), a brother of Daniel. The accompanying letter from the migration agent indicates that since Daniel was a minor, Samuel is acting as a sponsor. In a further statement, Samuel claimed to be an ‘official guardian’ of Daniel, although the delegate notes that no formal documentation evidencing guardianship had been provided.

12. The delegate found that Samuel was the sponsor of the applicant, having completed Form 40 and having identified himself as the sponsor in that form. The delegate also found that, for the purpose of cl. 836.213, the applicant claimed to be a carer of Daniel. The delegate found that since the person who sponsored the applicant (for the purpose of cl. 836.213) was not the same person as the person she claimed to be a carer of (for the purpose of cl. 836.212), the applicant was not sponsored by an ‘Australian relative’ and did not meet cl. 836.213.

13. The delegate also considered whether Samuel could be considered as the Australian relative. The delegate noted that Samuel claimed he could not provide assistance to his brother Daniel and therefore the need for assistance was not to assist the sponsor to care to another person but, rather, there was a need for direct assistance to be provided to another person. The delegate was further not satisfied that  Daniel was a member of the family unit of Samuel, as required by r. 1.15AA(1)(b)(i).

14. The delegate also noted that the CVAC certificate did not identify that Daniel required requisite care.

    Is the applicant the carer of an Australian relative

15. The Tribunal has reviewed the sponsorship form, which is the primary evidence of sponsorship that was submitted with the application. At Part F of the form the sponsor is identified as Samuel Bassily Said and the relative who needs the applicant’s care is identified at Part M of the application form as Daniel Bassily Said. In the covering letter that  accompanied the application, the representative also identified the sponsor as Samuel and the person requiring care as Daniel.

16. The Tribunal finds that Samuel Bassily Said is the sponsor in the present application while Daniel is the person who is identified as someone in need of care. The Tribunal finds that Samuel is the ‘resident’ for the purpose of r. 1.15AA. The Tribunal notes that if Daniel was identified as the sponsor, he was under the age of 18 when the application was made and the applicant would not have met the requirements of cl. 836.213(a)(i).

17. Regulation 1.15AA(b)(i) requires that a person, being the resident or a member of the family unit, must have the medical condition. In this case, the Tribunal finds that the resident is Samuel Bassily Said. The person in need of care in this case is Daniel Bassily Said, who is not the resident and must therefore be a member of the family unit of the resident. In this case, Daniel and Samuel are siblings. However, r. 1.12, which defines the term ‘member of the family unit’, does not include a sibling. As Daniel is a brother of Samuel, he does not meet the definition of ‘member of the family unit’ of the resident. The Tribunal is not satisfied that the requirements of r 1.15AA(b)(i) are met and the Tribunal is not satisfied the visa applicant is a carer of an Australian relative for the purpose of cl. 836.221.

18. Further, the CVAC which was provided with the application indicated an impairment rating of 10. That rating is below the impairment rating specified in the Legislative Instrument. The Tribunal is not satisfied the visa applicant meets r. 1.15AA(1)(c). For that reason also, the Tribunal is not satisfied the applicant is a carer within the meaning of r. 1.15AA and for the purpose of cl. 836.221.

19. The CVAC which was provided with the application stated that Daniel does not have a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. The Tribunal is not satisfied the Certificate meets r. 1.15AA(1)(b)(ii). The Certificate does not state that because of the medical condition, Daniel 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. The Tribunal is not satisfied the Certificate meets r. 1.15AA(b)(iv). The Tribunal finds that the applicant does not meet the definition of carer in r. 1.15AA for the purpose of cl. 836.221.

20. The Tribunal is not satisfied the visa applicant meets cl. 836.221.

21. There is no evidence before the Tribunal to indicate that the applicant meets the requirements for the grant of other visas within the relevant subclass. In particular, there is no evidence that the applicant is dependent on the sponsor and she does not meet the requirements for the grant of the Aged Dependent relative visa. She has indicated on the application form that she has relatives overseas and is not a ‘remaining relative’.

    Conclusion

22. For the reasons above, the 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

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

    Kira Raif
    Senior Member