SHEDID (Migration)

[2023] AATA 4109

SHEDID (Migration) [2023] AATA 4109 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Dima SHEDID
Mr Raja Jabara
Master Jad Jabara

REPRESENTATIVE:  Mr Simar Hermis (MARN: 1464902)

CASE NUMBER:  1933583

HOME AFFAIRS REFERENCE(S):          CLF2019/45059

MEMBER:Deputy President Justin Owen

DATE:28 November 2023

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:

·cl 836.212 of Schedule 2 to the Regulations; and

·cl 836.213 of Schedule 2 to the Regulations.

Statement made on 28 November 2023 at 9:29am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – significant multiple health conditions and high dependency – first applicant daughter-in-law not a relative or sponsored as defined – second applicant son the primary carer – former representative’s advice about role of primary applicant – unintentional error – consistent and reliable evidence – departmental policy instructions – at least one member of family unit must satisfy primary criteria – applicants left professional employment in third country –decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 836.111, 836.212, 836.213(a)

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 25 November 2019 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 28 October 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 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. Relevantly to this matter, the primary criteria to be met include cl 836.212 and cl 836.213.

3. The delegate refused to grant the visas on the basis that cl 836.212 was not met because the primary applicant, Mrs Dima Shedid, was not a ‘relative’ (as per the definition of ‘relative’ at reg 1.03) of the Australian resident needing care (who is her mother-in-law, Mrs Emilie El Khoury). The delegate furthermore refused the application on the basis that Mrs Shedid as the primary applicant was not sponsored by an Australian relative (as defined at reg. 1.03) so she did not meet cl 836.213(a).

4. The delegate also considered whether the second-named applicant, Mr Raja Jabara, the son of the Australian resident needing care, was able to meet the primary criteria for the grant of the visa.  The delegate found that the second-named applicant had made no claims to be the carer of his mother, Mrs Emilie El Khoury, and subsequently did not meet the requirements of cl 836.212. 

5. The applicants appeared before the Tribunal on 15 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Ms Emelie El Khoury and Ms Christine Helen Mahrous Nassif. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

6. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether, as has been submitted by the parties, the second-named applicant, Mr Raja Jabara, is the carer of the Australian resident needing care, his mother Ms Emelie El Khoury.  

   Whether the applicant has claimed to be the ‘carer’

9. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative.

10. The circumstances surrounding this case are unusual and require some recording to provide a broader context and understanding of this case. 

11. In the present case, the visa application was made on the basis that the primary applicant is the carer of the applicant’s mother-in-law.

12. 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 terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

13. The Australian resident requiring care, Mrs Emelie El Khoury, is a 75-year-old Australian citizen.  She is widowed.  Mrs El Khoury for some years had been living with her elderly parents in Sydney providing care to them.  Mrs El-Khoury has three adult children, a daughter that resides in Israel, a son that resides in Lebanon, and her youngest son, the second-named applicant Mr Raja Jabara.  The second-named applicant, together with his spouse Mrs Dima Shedid (the first-named applicant) and their son Master Jad Jabara (the third-named applicant) were living for many years in Botswana.  Mr Jabara was chief HR Director in a multinational firm whilst Mrs Shedid was also in professional employment.       

14. Upon the death of her parents, Mrs El Khoury was informed by her brother that their parents’ home, where she was living would be sold.  At this point it was discovered the house in fact had passed in ownership to Mrs El Khoury’s brother.  Movement records indicate the second-named applicant Mr Jabara visited Australia twice in 2019 prior to his travel to Australia with his spouse and son.  At the Tribunal’s hearing Mr Jabara discussed how he had come over to help care for his mother, who was in some distress by the news that her residence was to be disposed of. 

15. The Tribunal notes the extensive medical evidence, including the Carer Visa Assessment Certificate, before it pertaining to Mrs El Khoury’s health.  Mrs El Khoury was diagnosed with nasal cancer in 1993 and the extensive treatment she subsequently received has seriously and permanently damaged her hearing and eyesight.  She no longer has tears in her eyes and has no sense of smell.  Mrs El Khoury has limited balance and has become highly dependent.  Mrs El Khoury gave evidence at the Tribunal’s hearing.  The Tribunal considered her to be a reliable and honest witness who has faced considerable hardship with dignity.  She discussed the role her son had played in providing care and support to her in 2019 prior to the arrival of the first-named applicant Mrs Shedid.  The Tribunal accepts Mr Jabara was providing the assistance his mother required in Australia prior to his family unit (himself, his wife Mrs Shedid and their son) finally arriving together from Botswana, having decided that they would take on the responsibility of caring for Mrs El Khoury.    

16. The applicants Mrs Shedid and Mr Jabara each spoke about the circumstances that led to their lodgement of the Carer visa application in October 2019 after arriving in Australia.  They explained that having arrived in Australia from Botswana, with no experience or knowledge of the Australian migration system, they engaged a law firm Philip Silver & Associates to prepare their Carer visa application. The parties stated that they were informed by their legal adviser when preparing the applications that it essentially did not matter which of them took on the role of ‘primary applicant’ and either of them could take on the role.  Mrs Shedid said it was explained that the primary applicant’s role was that of a first point of contact, and given she was looking after much of their administrative work and organisation, they simply agreed that she would “go first” on the application form. 

17. The Tribunal has considered the evidence before it, and the extensive oral testimonies of both Mrs Shedid and Mr Jabara, and accepts they are witnesses of truth.  The Tribunal accepts their explanation as to how the application came to be lodged with Mrs Shedid named as the ‘primary applicant’ rather than Mr Jabara.  The Tribunal accepts that both were providing care to Mrs El Khoury – Mrs Shedid explained how she had in fact known Mrs El Khoury since she was a young child – and the decision to list Mrs Shedid rather than Mr Jabara as the ‘primary applicant’ was done purely for simple administrative organisational purposes as a point of contact rather than on the basis Mrs Shedid was the ‘primary carer’. The Tribunal accepts that Mr Jabara was most certainly a carer of his mother at the time of application and the ‘main applicant’.  The Tribunal accepts he continues to do be the carer and the ‘main applicant’ today, particularly given Mrs Shedid is now in employment. 

18. The Tribunal accepts the explanations of the applicants as genuine and accepts the listing of Mrs Shedid rather than Mr Jabara as the ‘primary applicant’ was an unintentional error and mistake based upon the work of their former representative.  The Tribunal accepts the submission of the applicant that this was a genuine error, as the preparation of an application that would quite obviously fail on cl 836.212 and cl 836.213 would make no logical sense, particularly when the correct applicants were listed (albeit it in the wrong order) and the correct sponsor was identified.

19. The obvious evidence before the Tribunal, supported by various medical evidence and documentation (note correspondence submitted from Professor Andrew Chang dated 11 October 2023; Dr Safwan Sayyal dated 1 November 2023; and Dr Gil Kleiner dated 2 November 2023), is that Mr Jabara and Mrs Shedid at the time of application were both providing care to Mrs El Khoury, and both continue to do so today.      

20. Having accepted these contentions, the question for the Tribunal is what options are available, if any, to cure this genuine mistake.

21. The applicants have made written submissions, that were addressed in further detail orally at the Tribunal’s hearing, that the applicants can in fact be considered in the correct order with Mr Jabara being the primary applicant as the sponsored relative of Mrs El Khoury. The applicants have submitted that all the applicants met the Schedule 1 requirements, with the correct visa application charges being paid and the prescribed form 47OF submitted (with the error now advised through the requisite form 1023 ‘Notice of incorrect answers’ being submitted.) 

22. The applicants in their written submission have raised cl 836.2 that states relevantly ‘The primary criteria must be satisfied by at least one member of the family unit.  The other members of the family unit who are applicants for a visa need satisfy only the secondary criteria’.   

23. The applicants have also noted the PAM3: GenGuideA Department Policy Instructions which, when providing commentary on the meaning of ‘applicant’ in its guide for visa application procedures states:

    …."applicant", unless stated otherwise, means a person who has made a valid visa application, either by completing the form or by being listed (as an applicant) on that form. (In law, however, an applicant is a person who has made an application, whether valid or not.)

    “Primary applicant” is the applicant in whose name the form is completed (and who is sometimes called this on the form). (Certain departmental business areas prefer the terms “principal applicant”.) Although “primary applicant” is used, that applicant is not necessarily the applicant who has to satisfy primary criteria, nor the only applicant listed on that form who is capable of satisfying primary criteria. (To use only the term “applicant who has to satisfy primary criteria” could be sometimes misleading or confusing. It is recognised, of course, that in most cases the terms are interchangeable.)

24. The applicants have submitted that taking cl 836.2 in context with the definition of ‘applicant’ in the Policy Instructions demonstrates that Mr Jabara is in fact an applicant for the purposes of this visa.

25. The Tribunal has considered the evidence before it. At the hearing the Tribunal explained the challenge the applicants faced given the Australian relative requiring care, Mrs El Khoury, was not a ‘relative’ of the first-named applicant Mrs Shedid as required by the Regulations.  Mrs El Khoury was her mother-in-law.  For this reason, cl 836.212 was not met.  Furthermore, the Tribunal noted cl 836.213(a) required Mrs Shedid, as the first-named or primary applicant, to be sponsored by the ‘Australian relative’ referred to in cl 836.212.  The Tribunal explained that as Mrs El Khoury was not her Australian relative, she subsequently did not meet cl 836.213(a).

26. The applicants accepted that Mrs El Khoury was not an Australian relative of Mrs Shedid as per the relevant Regulations.

27. The Tribunal finds that Mrs El Khoury is the mother-in-law of Mrs Shedid. Mrs Shedid is subsequently not a ‘relative’ of the person needing assistance within the meaning of ‘relative’ as set out in reg 1.03 and therefore she does not meet cl 836.212.  The Tribunal furthermore finds that as Mrs El Khoury is not Mrs Shedid’s Australian relative as required by the Regulations, Mrs Shedid is not sponsored by an Australian relative and cl 836.213 is also not met. 

28. The Tribunal has considered therefore whether, as the applicants have contended, Mr Jabara can be considered to be the primary applicant for the grant of this visa given he clearly meets the primary criteria, and the ordering of himself and his wife Mrs Shedid as primary and secondary applicant was an error.

29. The Tribunal is entirely satisfied that the “order” of the applicants being listed was an inadvertent error of their former representative. The Tribunal accepts the explanation that the applicants believed the “order” as to who was listed as the primary applicant was irrelevant, based on the advice received from their then representative.  The Tribunal considers the evidence strongly indicates Mr Jabara has been a carer of his mother Mrs El Khoury since his arrival in Australia.  Mrs El Khoury has lived with Mr Jabara, Mrs Shedid, and her grandson Master Jabara since their arrival in Australia in 2019.  The Tribunal found Mr Jabara to be well-informed of his mother’s health conditions and concerns.

30. The Tribunal notes that the question of who is claiming to be the carer of an Australian relative, and effectively which of the applicants is seeking to satisfy the primary criteria is a question of fact for the Tribunal to determine. The Tribunal can have regard to the Department’s opinion as to the interpretation of statutory provisions as expressed in ‘Policy Instructions’, in determining the meaning of legislation provisions in the absence of judicial consideration. However, the Tribunal has considered the statutory context as a whole. The visa requirements specified in both Sch 1 and Sch 2 for this visa subclass, among others, are that, for the purposes of the visa grant, at least one member of the family unit must satisfy the primary criteria at the time of application; provided that is the case, the other applicants for this visa then need to satisfy only the secondary criteria.

31. The Tribunal accepts the claim that there was a genuine mistake when Mr Jabara filled out the form at the time of application, and it was the intention that he would meet the primary criteria.  The Tribunal is satisfied that at the time of application he was in fact claiming to be a carer of an Australian relative, being his mother Mrs El Khoury.  This is reflected in their correspondence just a few weeks (on 11 November 2019) after the lodgement of the application where, in seeking a request to waive Bridging visa conditions, their correspondence states that the applicants (that is, both Mr Jabara and Mrs Shedid) arrived in Australia to care for Mrs El Khoury.  These claims are supported by the evidence before the Tribunal that Mr Jabara and Mrs Shedid have together been living with and caring for Mrs El Khoury in an apartment they have rented together since 2019. 

32. The Tribunal accepts the claims of the applicants that it was always the intention that Mr Jabara together with Mrs Shedid would be carers of Mrs El Khoury at the time of application.  The Tribunal, noting the significant amount of evidence presented as to the parties’ current circumstances, accepts that this continues to be the case today.  Mrs Shedid has recently returned to full-time employment.  The parties have submitted that Mr Jabara cares for Mrs El Khoury during the day and works in a casual role in the evening when Mrs Shedid returns home.  Their son, the third-named applicant who is 11 years of age also assists in supporting Mrs El Khoury from time     

33. The question for the Tribunal remains is it satisfied that Mr Jabara met the primary criteria and claimed to be the carer of an Australian relative at the time of application.  That is a finding of fact for the Tribunal.  On the basis of all the evidence before it, the Tribunal is satisfied that this was the case. 

34. Obviously, Mr Jabara should have been listed as the primary applicant on the application form and the claim made that he was a carer of the Australian resident Mrs El Khoury.  On the first matter, the Tribunal accepts it was an honest error.  On the second matter, the Tribunal is satisfied the applicant was most certainly a carer of Mrs El Khoury at the time of application. 

35. The Tribunal furthermore notes that cl 836.2 suggests that any applicant can meet the primary criteria.  It states, ‘The primary criteria must be satisfied by at least one member of a family unit. The other members of the family unit who are applicants for a visa of this subclass need only satisfy the secondary criteria’. In the case of this review, Mr Jabara, whilst listed as the second-named applicant, most certainly meets the primary criteria for the grant of the visa at the time of application for the purposes of cl 836.21.

36. Therefore, at the time of application the second-named applicant claimed to be the carer of an Australian relative and satisfies he requirements of cl 836.212.

    Are the sponsorship requirements met?

37. 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. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

38. For the reasons outlined above, the Tribunal is satisfied Mr Jabara as an applicant meets the sponsorship requirements at the time of application.  The sponsor is his mother, who is an Australian citizen and over the age of 18. 

39. Therefore, at the time of application, the second-named applicant was sponsored as required by the legislation and satisfies cl 836.213.

40. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

41. The Tribunal would note that this has been an unusual and, in many ways, unfortunate matter due to what the Tribunal accepts was an inadvertent error made in the application process.  The Tribunal found Mrs Shedid and Mr Jabara to be witnesses of integrity.  Their testimony was consistent, spontaneous and in the Tribunal’s opinion reliable.  The evidence is that the parties left a comfortable and successful professional lifestyle in Botswana to travel to Australia to look after Mrs El Khoury at a time of urgent need.  Mrs El Khoury was widowed with no children in Australia and about to lose her residence when the applicants arrived in Australia.  Her health concerns and needs are significant, and the Tribunal is satisfied Mr Jabara and Mrs Shedid were both carers for Mrs El Khoury at the time of application.

    DECISION

1. 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:

   ·cl 836.212 of Schedule 2 to the Regulations; and

   ·cl 836.213 of Schedule 2 to the Regulations.

   Justin Owen
   Deputy President