Yusuf (Migration) - [2022] AATA 5246

Yusuf (Migration) [2022] AATA 5246 (29 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Nasro Artan Yusuf
REPRESENTATIVE:  Mr Gareth John Lewis (MARN: 0319248)
CASE NUMBER:  2017124
HOME AFFAIRS REFERENCE(S):          CLF2017/112578
MEMBER:Moira Brophy
DATE:29 November 2022
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 29 November 2022 at 4:04pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) – Subclass 835 (Remaining Relative) – health criteria – MOC opinion – functional impairment – right side hemiplegia – severe aphasia – continuing hardship to an Australian family unit – irreparable harm and continuing hardship – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 2.25A; Schedule 2, cl 835.223; Schedule 4, PIC 4005
CASES
Ramlu v MIMIA [2005] FMCA 1735
Robinson v MIMIA (2005) 148 FCR 182

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 6 November 2020 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant initially applied for the visa on 22 June 2012 seeking to satisfy the criteria in Part 115 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) that as the applicant, she was the remaining relative of an Australian relative. The delegate refused to grant the visa on the basis that cl 115.211 was not met because the delegate was not satisfied that the visa applicant met the definition of remaining relative in reg 1.15.
The applicant sought review of the decision of the delegate and the matter came before the Tribunal (differently constituted) on 14 January 2015.
On 15 January 2015, the Tribunal remitted the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 115 (Remaining Relative) visa were met: cl 115.211 of the Regulations; and cl 115.221 of the Regulations.
On 6 November 2020, the delegate found the applicant did not meet the criteria for the grant of the visa as the applicant had not complied with a request by the Medical Officer of the Commonwealth to provide a medical assessment and the delegate was not satisfied the applicant was able to meet Public Interest Criterion (PIC) 4005(1)(ab).The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 835.223 of the Regulations because the health criteria in PIC 4005 of Schedule 4 to the Regulations was not met.
The applicant sought merits review of the decision.
The applicant was represented in relation to the review.
On 4 October 2022, the representative of the applicant advised the Tribunal that the applicant waived her right to a hearing and requested the matter be determined…

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 Yusuf (Migration)

Details

AGLC: Yusuf (Migration) [2022] AATA 5246
Case: [2022] AATA 5246
Decision Date: 29 November 2022

CaseChat Overview and Summary

This matter concerned a review of a decision to refuse a visa to the applicant, who claimed to be the remaining relative of her Australian citizen mother. The applicant, born in Somalia in 1978, arrived in Australia in 2014. She had been separated from her biological mother at birth and raised by neighbours in Somalia, with her adopted parents now deceased. DNA testing confirmed her biological mother, Ms Faduma Hussein, who became an Australian citizen in 2004, was indeed her mother. The Tribunal had previously found that the arrangement for her care in Somalia did not constitute a customary adoption under the regulations, meaning her caregivers and their children were not considered her near relatives for the purposes of the visa. The applicant’s biological father was deceased, and she had no siblings other than those of her biological mother, all of whom resided in Australia.

The primary legal issue before the Tribunal was whether the visa applicant met Public Interest Criterion (PIC) 4005, specifically subclause (1)(c), which requires an applicant to be free from a disease or condition that would likely require health or community services, and for which the provision of such services would likely result in significant cost to the Australian community or prejudice access for Australian citizens or permanent residents. The applicant suffered from right-side hemiplegia and severe aphasia following two strokes, rendering her wheelchair-bound and dependent on a carer for all daily activities.

The Tribunal affirmed the decision under review, finding that the applicant did not meet PIC 4005(1)(c). A Medical Officer of the Commonwealth (MOC) opinion, provided at the applicant's request, concluded that a hypothetical person with the applicant's condition, at the same severity, would likely require ongoing care and disability support services, and that this condition was likely permanent. The MOC noted a significant deterioration in the applicant's personal care abilities between medical examinations in 2019 and 2021, attributing this to strokes in 2017 and 2019. The MOC opined that such a hypothetical person would likely require Commonwealth disability support services, leading to the conclusion that the applicant did not meet the health requirement. The Tribunal accepted this opinion, finding that the applicant's condition would likely result in significant costs to the Australian community for health and community services.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 19 September 2022, at the request of the applicant, a further MOC opinion was provided. The MOC considered the applicant did not satisfy PIC 4005(1)(c) in Schedule 4 to the Regulations. The MOC opined the applicant had functional impairment due to the sequelae of subsequent strokes which resulted in right side hemiplegia and severe aphasia. The applicant mobilises with a wheelchair, is unable to speak or write and is dependent on a carer for the activities of daily living. As was the case in the previous MOC, the MOC found that a hypothetical person with the condition, at the same severity as the applicant, would be likely to require ongoing care and disability support, and that the condition was likely to be permanent. He considered that a hypothetical person with the same disease or condition at the same severity as the applicant would be likely to require Commonwealth disability support services. In coming to this decision, the MOC had regard to the information available including but not limited to the visa medical assessment and associated investigations dated 14 February 2019 and 20 May 2021.The MOC noted there was a drastic change in the applicant’s ability for personal care between the medical examinations dated 14 February 2019 and 20 May 2021 with the applicant in February 2019 being able to walk about with crutches with preserved ability for activity of daily living, to in May 2021 being wheelchair bound and requiring full assistance for all personal care. The MOC noted the applicant had her first stroke in October 2017 and a second in May 2019 which resulted in right side hemiplegia and severe aphasia The MOC concluded that the applicant did not meet the health requirement.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this review is whether the visa applicant meets PIC 4005 as required by the criteria for the grant of the visa. PIC 4005, as it applies to this case, is extracted in the attachment to this decision. It requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community. The applicant in this case suffers from a severe functional impairment. She was assessed as having a condition that was permanent and that would require a high level of community care services in the future. Is the applicant free from the relevant diseases or conditions (PIC 4005(1)(a), (b), (c))? Public Interest Criterion 4005(1)(a) and (b) require the applicant to be free from tuberculosis and free from a disease or condition that is, or may result in the applicant being a threat to public health in Australia or a danger to the Australian community. Public Interest Criterion 4005(1)(c) requires the applicant to be free from a disease or condition which would be likely to require health care or community services, or which would meet the medical criteria for provision of a community service during the specified period; and provision of the health care or community services (regardless of whether it will actually be used in connection with the applicant) would be likely to: result in a significant cost to the Australian community in the areas of health care and community services; or prejudice access of an Australian citizen or permanent resident to health care or community services. For certain temporary visas, the applicant is excluded from the requirement to be free from a disease or condition likely to result in significant cost in the areas of health care and community services: PIC 4005(3).

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Background The visa applicant was born in Somalia in 1978. She arrived in Australia on 9 September 2014 on a Visitor (Subclass 601) visa. At the time of application, the applicant claimed she was the remaining relative of an Australian relative, that relative being her mother, Ms Faduma Hussein. The visa applicant claimed that her father was deceased and her mother and three siblings resided in Australia. She said that four other siblings of her family were deceased. The visa applicant stated she was separated from her biological mother at birth and she was given up for adoption to a friend of her mothers. She then travelled to the United States of America as a refugee. Her adopted family remained in Somalia. It was claimed that her adopted parents are now deceased. It was claimed that the visa applicant was single, having divorced her husband, with whom she had no children. The mother of the applicant, Ms Faduma Hussein, first entered Australia on 2 January 2002 on a Humanitarian visa. She became an Australian citizen on 11 March, 2004. The previously constituted Tribunal was provided with DNA testing to establish the maternity of the visa applicant. This found that the relative chance of Ms Faduma Hussein being the mother of the visa applicant was 99.97%. The Tribunal accepted, on the basis of the DNA testing, that the visa applicant is the daughter of Ms Faduma Hussein. The previous Tribunal considered whether arrangements entered into subsequent to the birth of the applicant would be recognised as a valid adoption. The Tribunal found that the arrangement whereby the biological mother arranged for the visa applicant to be cared for by neighbours who were friends of hers was not an arrangement in accordance with the usual practice, or a recognised custom, in the culture of Somalia at the time the arrangement was put in place. The arrangement was put in place as the biological mother considered she had no alternative. She was required to return to live with her husband who she had been separated from for about 18 months, over which period she fell pregnant and gave birth to the visa applicant. Evidence was given that if her husband found out about the birth of the child, it is likely that she would have been prosecuted for the offence of adultery and may have faced punishment for that offence, possibly including death by stoning. This would have prevented the biological mother from placing the care of the visa applicant with any of her relatives. The Tribunal found that the arrangement put in place for the visa applicant to be cared for by neighbours of the review applicant after her birth did not meet the definition of customary adoption in reg 1.04(2). As the previous Tribunal concluded that the visa applicant was not adopted by the people who were caring for her after her birth, either by formal adoption arrangements or other arrangements pursuant to reg 1.04(2), the Tribunal found that the people who were caring for the visa applicant after her birth and their children were not relevant when considering whether the visa applicant has any near relatives other than near relatives who are usually resident in Australia. The applicant advised the previous Tribunal her biological father died in 1985. There was no available information about any children of the biological father. The Tribunal was satisfied that the biological father of the visa applicant was deceased. Further, the Tribunal was satisfied that the biological father does not have any children who could be considered as half siblings and therefore near relatives of the visa applicant. The visa applicant provided details of her near relatives, being her biological mother and the children of her biological mother and indicated the surviving children of her mother were all resident in Australia. The movement records of the applicant’s biological mother and her children were corroborative of that evidence. Four of the children of the biological mother were listed as being deceased. This was consistent with the information provided previously by the biological mother in other applications to the Department. The Tribunal was satisfied that these children are deceased. Accordingly, the Tribunal found that all surviving near relatives of the visa applicant are usually resident in Australia and are Australian citizens.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.