Sorisho (Migration) - [2019] AATA 2504

Sorisho (Migration) [2019] AATA 2504 (18 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sam Sorisho
CASE NUMBER:  1804028
DIBP REFERENCE(S):  CLF2012/98714
MEMBER:Justin Owen
DATE:18 February 2019
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 18 February 2019 at 11:59am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – applicant had not provided from his sponsor an updated sponsorship form – applicant is carer for Australian relative – not satisfied that the applicants sisters are unable to provide at least some degree of support – no further corroborative evidence of any attempts to obtain welfare, hospital, nursing or community services – no material which would permit a finding – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1 item 1123B, Schedule 2 Part 836, cls 835.212, 836.213, 836.221, 836.223, 836.227, 838.212, rr 1.03, 1.15AA, 2.03AA, Public Interest Criterion (PIC) 4001
CASES

Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554

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 Immigration on 30 January 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 15 May 2012. 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 (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. 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 r.1.15AA of the Regulations which is set out in the attachment to this Decision.
The delegate refused to grant the visa on the basis that cl.836.213 and cl.836.227 was not met because the applicant had not provided from his sponsor an updated sponsorship Form 40 confirming the sponsorship was still in place at the time of decision. The delegate furthermore refused to grant the visa as cl.836.223 was not met. Cl.836.223 states that an applicant must satisfy public interest criteria (PIC) 4001. PIC 4001 requires a s65 delegate to assess a person against the terms of the ‘character test’. Under policy, a component of this assessment against PIC 4001 for temporary or permanent migration is the provision of a Police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10…

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 Sorisho (Migration)

Details

AGLC: Sorisho (Migration) [2019] AATA 2504
Case: [2019] AATA 2504
Decision Date: 18 February 2019

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for his father, Mr Karim Yousif, an Australian resident. The decision under review was made by the Tribunal, presided over by Senior Member Justin Owen.

The primary legal issue before the Tribunal was whether the applicant met the definition of a "carer" as prescribed by regulation 1.15AA of the Migration Regulations 1994. This required the Tribunal to be satisfied that the applicant's father had a medical condition necessitating direct assistance, that this assistance could not reasonably be provided by any other eligible relative or obtained from Australian welfare, hospital, nursing, or community services, and that the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal considered evidence of the sponsor's medical conditions, including osteoarthritis, dementia, and depression, which resulted in a rating of 50 under the Impairment Tables. While the applicant claimed to provide 24-hour care, the Tribunal noted the presence of the applicant's mother and sister, Eptesam, who also resided at the home and provided care. The Tribunal found that the applicant had not provided sufficient evidence to demonstrate that his sisters were unable to provide at least some degree of support to their father. Furthermore, there was no corroborative evidence presented regarding attempts to obtain welfare, hospital, nursing, or community services.

Consequently, the Tribunal affirmed the decision not to grant the applicant the visa, finding that the prescribed criteria for a carer visa had not been met.

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 The applicant post-hearing on 4 February 2019 provided evidence to the Tribunal of a new Carer Visa Assessment Certificate for his father and sponsor Mr Karim Yousif. The Certificate is dated 29 January 2019 with Mr Karim assigned a rating of 50 under the Impairment Tables in her Carer Visa Assessment Certificate. The certificate states he has osteoarthritis of the hand; osteoarthritis of the knees and foot; back ache and osteoporosis of the spine; and dementia and depression (T1, Folio 102-119). The applicant claims to reside with the sponsor Mr Karim and his mother. The Tribunal accepts the applicant is Mr Karim’s son and he has resided with his parents since coming to Australia in November 2011. 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 r.1.15AA of the Regulations which is set out in the attachment to this Decision. The Australian relative is his father Mr Karim. Regulation 1.15AA(1)(e) requires that 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 discussed with the applicant the care he currently provides the sponsor, his father. The applicant said his father was a sick man with mobility issues. He said that he essentially provides 24 hour a day care. The applicant said he cuts his father’s hair, cleans his teeth, assists him with toileting numerous times every evening, sleeps in the same room as him and tests his blood pressure and his sugar levels. He said he manages the sponsor’s medication and massages his legs and arms to deal with the pain he is suffering. The Tribunal noted that the applicant’s mother lived at the same residence and asked what care she provides to her husband the sponsor. The applicant said that his sister Eptesam is the carer for his mother. He said that she comes to the house every day of the week. He said that she is divorced with three children aged 28, 24 and 21 years of age respectively. The applicant said his mother was not well and needed his sister’s help. He said that she had previously been diagnosed with thyroid cancer in 2007. The Tribunal asked the applicant if he had any other evidence at the hearing concerning his mother’s health. He said he did not. The applicant said his sister Eptesam was receiving a Carer’s pension for her work with his mother. The applicant informed the Tribunal that he had four sisters living in Australia. The Tribunal noted that the applicant had provided at the hearing documentation concerning his four sisters and their ability to support their father. The applicant provided copies of the Pensioner Concession Cards belonging to each of his sisters (T1, Folio.76).

Decision

Reasons for decision

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