Toma (Migration)

[2019] AATA 2670

Toma (Migration) [2019] AATA 2670 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Rajaa Yousif Toma
Master Johan Polus
Master John Polus
Mr Salem Khawadja Polus

CASE NUMBER:  1724371

HOME AFFAIRS REFERENCE(S):           CLF2013/241553

MEMBER:P. Wood

DATE:26 June 2019

PLACE OF DECISION:  Melbourne, Victoria

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

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 26 June 2019 at 4:32pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – spontaneous and reliable evidence – applicant is the carer of the sponsor –other family members unable to provide care –decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15, Schedule 1, Schedule 2, cls 836.212, 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 Immigration and Border Protection on 19 March 2014 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 2 October 2013. 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.

3. The first named applicant appeared in person before the Tribunal on 24 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor (who is the first named applicant’s mother), the family’s priest and the primary applicant’s sister.

4. The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian and English languages.

5. The applicants were represented in relation to the review by a solicitor and accredited specialist in immigration law.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the first named applicant is the carer of an Australian relative, namely her mother.

   CONSIDERATION OF CLAIMS/EVIDENCE, AND FINDINGS

8. At the time of application the first named applicant claimed to be the carer of her mother, who is her Australian relative (as determined by the Department and concurred with by this Tribunal after having considered the evidence in the files (Department and Tribunal)). Based on the first named applicant’s consistent and spontaneous oral evidence, combined with the contemporaneous and consistent oral evidence provided by the sponsor, the family priest and the first named applicant’s sister, the Tribunal is satisfied that at the time of application the applicant claimed to be the carer of her mother (an Australian relative) and therefore she satisfies cl.836.212.

9. In relation to whether any of the sponsor’s relatives can ‘reasonably’ provide the relevant assistance, the Tribunal found the first named applicant’s (and her sister’s) oral evidence at the hearing, and that of the sponsor, to be spontaneous and reliable. The Tribunal has considered the circumstances of each of the sponsor’s (relevant) relatives and why they could not (individually or collectively) provide for the care of their relative. The Tribunal has read and had regard to each of the statutory declarations provided concerning this. The first named applicant and the sponsor gave convincing evidence to the Tribunal of the highly personal type of care required and provided (including for example assistance with daily showering and day-to-day mobility). The Tribunal has been persuaded on the evidence provided (as contained in the submissions provided to the Tribunal by the first named applicant) that the first named applicant’s other ‘relevant’ family members are unable to provide (individually or collectively) the full-time care the sponsor requires for the reasons they state. The Tribunal has come to this decision primarily because it is satisfied that the 24-hour round-the-clock care required by the sponsor in her particular circumstances could not reasonably be individually or collectively provided by the ‘relevant’ family members in this case. The Tribunal is not satisfied that a collective roster system would be reasonable where 24-hour personal care is required. Therefore the applicant satisfies r.1.15AA(1)(e)(i).

10. The Tribunal also discussed the notion of obtaining support services from a third party. In this respect it is appropriate to observe that the sponsor belongs to a subset of Chaldean Iraqis who are a very small community in Australia. The Tribunal accepts the cultural and language issues present which are necessary considerations when considering the sponsor’s care circumstances. Having considered all the evidence, individually and as a whole, the Tribunal is not satisfied that the sponsor can reasonably obtain assistance from welfare, hospital, or community services in Australia. Therefore the applicant satisfies r.1.15AA(1)(e)(ii).

11. On the evidence presented, the Tribunal is satisfied that care and assistance cannot be reasonably provided to the sponsor either by her family members or ‘community services’ or a combination of both. Therefore, the Tribunal is satisfied that r.1.15AA(a)(e)(i) and (ii) are met.

12. The Tribunal is satisfied that the first named applicant is willing and able to provide the sponsor substantial and continuing assistance to fulfil her mother’s needs. There is no evidence before the Tribunal that the first named applicant is physically or psychologically unable to provide the assistance. The first named applicant demonstrates particularly personal knowledge of her mother’s circumstances and has the ability to provide the necessary assistance and therefore satisfies the requirements of r.1.15AA(1)(f).

13. The Tribunal is satisfied that at the time of decision, the first named applicant is the carer of her Australian relative; therefore, the first named applicant meets cl.836.221 in Schedule 2 of the Regulations.

14. 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

15. 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

    ·cl.836.221 of Schedule 2 to the Regulations

    P. Wood
    Senior Member

    
    

    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.