Talal (Migration)

[2023] AATA 2249

Talal (Migration) [2023] AATA 2249 (28 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Assoum Talal

CASE NUMBER:  1933284

HOME AFFAIRS REFERENCE(S):          CLF2018/27609

MEMBER:Deputy President Justin Owen

DATE:28 April 2023

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 28 April 2023 at 3:36pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance cannot reasonably be provided/obtained – willing and able – no response to s.359A invitation – applicant departed Australia – no right of return – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 40, 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 836.221, 836.411

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 18 November 2019 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 male 42-year-old Lebanese national. The applicant applied for the grant of the visa on the basis of providing assistance to his Australian citizen brother (Mr Abdullah Omar Assuym) to provide direct assistance to Mr Assuym’s son (his nephew), Master Bahaa Assoum. The applicant applied for the visa on 13 March 2018. 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.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met. The delegate was not satisfied that it had been demonstrated that the assistance required by the resident to care for Master Bahaa Assoum could not reasonably be provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen: reg 1.15AA(1)(e)(i). 

4. The delegate furthermore refused to grant the visa as she was not satisfied that the applicant was willing and able to provide to the resident substantial and continuing assistance of the kind needed: reg 1.15AA(1)(f).

5. As the delegate found that regs 1.15AA(1)(e) and (f) within the definition of ‘Carer’ at reg 1.15AA were not met, the delegate was not satisfied that, at the time of decision, the applicant met the definition of a ‘Carer’ at reg 1.15AA, and as a result did not meet cl 836.221 to Schedule 2 of the Regulations. 

   REVIEW OF REFUSAL

   Section 376 Certificate

6. A certificate dated 25 February 2020 was issued by the Delegate under s 376 of the Act restricting the Tribunal from disclosing certain information on the Departmental file CLF2018/27609 on the basis that disclosure of such information would be contrary to the public interest.  The Delegate certified that the disclosure of such material would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of a confidential source of information. The Tribunal has discretion under s 376 to disclose the information on the file.  The Tribunal considered that the certificate was valid and contained a valid ground of public interest immunity not to disclose the information. 

7. In the interests of procedural fairness, the Tribunal stated that it wished the applicant to know the gist of the information that was subject to the s 376 certificate. The Tribunal wrote to the applicant and explained that the information was an allegation that he was not looking after his disabled nephew Master Bahaa Assoum and that he was not living at his stated address in Lurnea.  The information furthermore alleged he was working full-time with his brother Abdullah, with no licenses, at 60 Riverside Road, Chipping Norton at a company called RCC. The information furthermore stated the applicant was working day and night shifts at a different address. A copy of the s 376 certificate was provided to the applicant.

8. The Tribunal wrote to the applicant on 24 March 2023 inviting him to comment on or make submissions on the validity of the certificate, and also to seek a favourable exercise of the Tribunal’s discretion to disclose the material.

9. The applicant was informed that his comments or response should be received by 11 April 2023.  The Tribunal’s correspondence noted that if the applicant could not provide his written comments or response by 11 April 2023, then he could request an extension of time.

10. No response was received by the applicant. No request for an extension of time to comment on or make submissions on the certificate was received.  No request was made for the Tribunal to exercise its discretion to disclose the material. 

    Section 359A

11. The information that was purportedly covered by the s 376 certificate was also put to the applicant in writing under s 359A on 24 March 2023. 

12. The applicant was again provided the particulars of the information. The information was that the applicant was not looking after his disabled nephew, and he was not living at his stated address in Lurnea. The applicant was informed the information alleged he was working full-time with his brother Abdullah, with no licenses at 60 Riverside Road, Chipping Norton at a company called RCC. The information furthermore was that he was working day and night shifts at a different address. 

13. The Tribunal stated the information was relevant to the review because it suggested that incorrect, misleading or fraudulent information may have been provided to the delegate by the applicant as part of his application for a Carer visa. The Tribunal stated the information was relevant because it suggested the applicant may have contrived the characterisation of his role as his nephew’s carer for migration purposes.

14. The Tribunal stated the information was furthermore relevant because it reflected negatively on the applicant’s credibility and the credibility of his evidence. 

15. The Tribunal explained to the applicant that the consequences of the Tribunal relying on this information were that the Tribunal may find he did not meet the definition of a ‘Carer’ as defined in reg 1.15AA of the Regulations, and on that basis the Tribunal may affirm the decision to refuse his visa. 

16. The applicant was informed that his comments or response should be received by 11 April 2023. The Tribunal’s correspondence noted that if the applicant could not provide his written comments or response by 11 April 2023, then he could request an extension of time.

17. No response was received by the applicant. No request for an extension of time to comment on or respond to the information was received. At the time of decision over two weeks later, no response has still been received. 

18. The Tribunal also on 24 March 2023 put to the applicant in writing under s 359A information before it that the applicant was currently offshore and in fact had departed Australia over two years earlier, on 27 February 2021 and he had not re-entered Australia since that date.  The Tribunal put to the applicant that Departmental records indicated that his Bridging B (Subclass 020) visa ceased on 20 February 2022 and he did not hold a valid visa to re-enter Australia. The relevant Departmental records were provided to the applicant. 

19. The Tribunal noted this information was relevant because the Migration Regulations required that to be eligible for the grant of the visa, the applicant must be in Australia, but not in immigration clearance, at the time of decision.

20. The Tribunal explained to the applicant in its correspondence that the consequences of it relying on this information were that the Tribunal may find that, if he was not in Australia at the time of decision, that he did not meet the requirements of cl 836.411 of the Regulations for the grant of the visa, and the Tribunal may consequently affirm the decision to refuse his visa. 

21. The applicant was invited to comment on or respond to the information put to him under s 359A in writing.  

22. The applicant was informed that his comments or response should be received by 11 April 2023.  The Tribunal’s correspondence noted that if the applicant could not provide his written comments or response by 11 April 2023, then he could request an extension of time.

23. No response was received by the applicant.  No request for an extension of time to comment on or respond to the information was received. At the time of decision over two weeks later, no response has still been received.

    Making a decision on the review  

24. On 24 March 2023, the Tribunal wrote to the applicant pursuant to s 359A of the Act inviting him to comment on or respond to information by 11 April 2023.  The Tribunal has received no response to that invitation as of the date of this decision. No request for an extension of time to respond to the invitation was received by the Tribunal.

25. The Tribunal is satisfied that the applicant was sent an invitation to comment on information under s 359A of the Act. The invitation, dated 24 March 2023, was sent to the last address for service provided by the applicant in connection with his application for review.

26. Where an applicant is invited to comment on or respond to information under s 359A and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (subss 359C(1) and (2)).  In these circumstances, the applicant is not entitled to appear before the Tribunal (subs 360(3) and s 363A). 

27. The Tribunal has found that the applicant did not provide comments within the prescribed period. No request for an extension of time to provide comments was received from the applicant. The Tribunal has decided in this case to now proceed to make a decision on the review without taking further action to obtain comments from the applicant and without inviting the applicant to appear before the Tribunal. 

28. The Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. The issue in the present case is whether the applicant satisfies the requirements of the Regulations for the grant of a Subclass 836 Carer (Residence) visa.

30. Before the Tribunal considers the evidence whether the applicant meets the definition of a ‘Carer’ under reg 1.15AA, there is another issue which must be considered in this case. 

31. The Tribunal notes the information before it, as put to the applicant under s 359A, that the applicant departed Australia over two years ago, on 27 February 2021 and has not re-entered Australia since that date. The Tribunal notes the applicant’s Bridging B (Subclass 020) visa ceased over a year ago, on 20 February 2022, and he has no valid visa to re-enter Australia. 

32. The evidence before the Tribunal is the applicant has departed Australia. The evidence before the Tribunal is that the applicant is currently unable to return. 

33. As the applicant is not the holder of another substantive visa, the Tribunal must consider the requirements of the Act under s 60 and s 40 which must be met before the Tribunal considers whether the requirements of the Act and Regulations in relation to his claim to meet the requirements for the grant of a Carer visa are met. 

34. Relevantly, the Tribunal has information before it, as put to the applicant under s 359A, that he departed Australia over two years ago and has no visa entitling him to return to Australia after his Bridging visa B (Subclass 020) visa ceased over a year ago. 

35. The Tribunal is satisfied therefore that at the time of this decision, the applicant is outside of Australia and is unable to return. 

36. The legal basis for the grant of visas is found in s 65 of the Act, which provides, so far as is relevant, as follows:

    65

    (1)After considering a valid application for a visa, the Minister:

    (a)if satisfied that:

    (i)    the health criteria for it (if any) have been satisfied; and

    (ii)   the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii)  the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv)  any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

    (b)if not so satisfied, is to refuse to grant the visa.

37. Section 40 of the Act provides:

    40

    (1)The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

    (2)Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:

    (a)  is outside Australia; or

    (b)  is in immigration clearance; or

    (c)  has been refused immigration clearance and has not subsequently been immigration cleared; or

    (d)  is in the migration zone and, on last entering Australia:

    (i)   was immigration cleared; or

    (ii)     bypassed immigration clearance and had not subsequently been immigration cleared.

38. The Tribunal notes that cl 836.411 provides as follows:

    836.411          

    The applicant must be in Australia, but not in immigration clearance, when the visa is granted.

39. The fact that the applicant is outside of Australia, and has no right of return to Australia, means that the applicant does not meet the requirements of cl 836.411. 

40. It is not necessary for the Tribunal to consider whether the requirements of the Act and Regulations in relation to this further claim for a Carer visa (or in fact a Remaining Relative or Aged Dependent relative visa) are met, as the Tribunal is satisfied that the provisions of ss 40 and 65 of the Act operate to prevent the grant of the visa to the applicant.      

41. 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

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

    Justin Owen
    Deputy President

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (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.