Sourori (Migration) - [2022] AATA 2684

Sourori (Migration) [2022] AATA 2684 (29 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bobby Sourori
REPRESENTATIVE:  Mr Emil Kalouch (MARN: 0637601)
CASE NUMBER:  1822312
HOME AFFAIRS REFERENCE(S):          CLF2016/47216
MEMBER:Moira Brophy
DATE:29 June 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.211 and cl 836.221 of Schedule 2 to the Regulations.

Statement made on 29 June 2022 at 1:57pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – DNA evidence – strong evidence (99.936%) of the applicant and the sponsor being maternal relatives – updated Carer Visa Assessment Certificate provided –visa applicant is a carer of the Australian relative – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.211, 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Lin v MIMIA [2004] FCA 606
Rafiq v MIMIA [2004] FCA 564
Hon Anh Vuong v MIAC [2013] FCCA 274
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 25 July 2018 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 8 August 2016. 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 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.
The delegate refused to grant the visa on the basis that cl 836.212 and cl 836.221 were not met because the delegate was not satisfied the applicant was a carer to an Australian relative as defined in reg 1.03, and further, that the assistance required could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair,…

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 Sourori (Migration)

Details

AGLC: Sourori (Migration) [2022] AATA 2684
Case: [2022] AATA 2684
Decision Date: 29 June 2022

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, Mr Bobby Sourori, sought to migrate to Australia to care for his nephew, Mr Mahan Kousedghi, who is an Australian citizen. The decision under review was made by the Tribunal.

The legal issues before the Tribunal were whether the applicant qualified as a "carer" of the Australian relative as defined by regulation 1.15AA of the Migration Regulations 1994, and whether the caree's needs for assistance could not be reasonably met by other relatives or Australian community services. The Tribunal noted that the elements of regulation 1.15AA are cumulative, meaning failure to meet any one element would result in the applicant not meeting the regulation overall.

The Tribunal found that the applicant had claimed to be a carer of an Australian relative at the time of application, satisfying clause 836.212. It also considered the definition of "carer" under regulation 1.15AA, which requires the applicant to be a relative of the caree, that the caree has a medical condition causing impairment, and a continuing need for direct assistance. Crucially, the Tribunal considered whether this assistance could reasonably be provided by other relatives or obtained from Australian welfare, hospital, nursing, or community services.

Given the findings, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the criteria under clauses 836.211 and 836.221 of Schedule 2 to the Regulations were met, and the application was remitted to the Minister for consideration of the remaining criteria for a Subclass 836 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The sponsor, Mrs Shahrzad Sourori, has sponsored the applicant to provide care to a member of her family unit, Mr Mahan Kousedghi.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the primary visa applicant is the carer of the review applicant as defined in reg 1.15A and whether the review applicant’s needs could not be reasonably provided by community health care providers in Australia. The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 10 December 2021 provided, which the Tribunal requested prior to the hearing. Whether the primary visa applicant has claimed to be a ‘carer’ Clause 836.212 of the Regulations requires that the primary visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the primary visa applicant is a carer of a member of the sponsor’s family, who is the primary visa applicant’s nephew. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the primary visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. There is a copy of the Carer visa application made by Mrs Sourori and her brother, Mr Bobby Sourori (the primary visa applicant), on the Department file. On that application the primary visa applicant claims to be the carer of his nephew, who is the son of the sponsor, Mr Mahan Kousedghi (the caree). The caree is an Australian citizen, as evidenced by the copy of the birth certificate provided. Therefore, at the time of application the primary visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 836.212.Whether Mr Sourori is a ‘carer’ Clause 836.221 requires that at the time of decision, the primary visa applicant is a carer of an 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. Whether Mr Sourori is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the primary visa applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03, that is, a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the primary visa applicant’s nephew. The Department file contains identity documents of the primary visa applicant, his mother Leya Zabeheyan and his sister, the sponsor.

Decision

Reasons for decision

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.DECISION The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:·cl 836.211 and cl 836.221 of Schedule 2 to the Regulations.Moira BrophyMemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.Background The primary visa applicant, Mr Bobby Sourori, is a 34-year-old male. He was born in Tehran and is a citizen of the Netherlands. He has declared no previous relationships. Mr Bobby Sourori has frequently travelled to Australia on temporary entrant visas since 2005. He studied in Australia in the period from December 2008 to March 2010. In 2011 and in 2014 he entered Australia on electronic visas for short terms. He was in Australia on a Visitor visa granted on 9 March 2016 when his present application was lodged. The sponsor, Mrs Shahrzad Sourori, has sponsored the applicant to provide care to a member of her family unit, Mr Mahan Kousedghi.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the primary visa applicant is the carer of the review applicant as defined in reg 1.15A and whether the review applicant’s needs could not be reasonably provided by community health care providers in Australia. The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 10 December 2021 provided, which the Tribunal requested prior to the hearing. Whether the primary visa applicant has claimed to be a ‘carer’ Clause 836.212 of the Regulations requires that the primary visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the primary visa applicant is a carer of a member of the sponsor’s family, who is the primary visa applicant’s nephew. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the primary visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. There is a copy of the Carer visa application made by Mrs Sourori and her brother, Mr Bobby Sourori (the primary visa applicant), on the Department file. On that application the primary visa applicant claims to be the carer of his nephew, who is the son of the sponsor, Mr Mahan Kousedghi (the caree). The caree is an Australian citizen, as evidenced by the copy of the birth certificate provided. Therefore, at the time of application the primary visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 836.212.Whether Mr Sourori is a ‘carer’ Clause 836.221 requires that at the time of decision, the primary visa applicant is a carer of an 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. Whether Mr Sourori is a relative of the resident – reg 1.15AA(1)(a)