1831401 (Migration)

[2023] AATA 1113

1831401 (Migration) [2023] AATA 1113 (28 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr David Harvey (MARN: 0854768)

CASE NUMBER:  1831401

MEMBER:Brendan Darcy

DATE:28 March 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 28 March 2023 at 10:29am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of the resident – assistance could reasonably be provided by any relative in Australia – large extended family nearby – appropriate enquiries into available assistance – community service providers consulted – joint caring support from family members – willing and able to provide to substantial and continuing assistance – referral for Ministerial Intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.221; rr 1.03, 1.05

CASES

Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
Naidu v MIMIA (2004) 140 FCR 284
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 5 October 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).

2. The applicant applied for the visa on 5 July 2017. 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 clause 836.221 and the definition of carer under regulation 1.15AA.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met, as the resident had not provided sufficient evidence to determine that the assistance could not reasonably be provided by any other relative of the resident pursuant to regulation 1.15AA(1)(e)(i).

4. As the applicant did not meet the requirements defined in regulation 1.15AA(1) (e)(i), the applicant was unable to meet the requirements of a Carer defined in regulation 1.15AA. As the applicant did not satisfy Regulation 1.15AA, the applicant did not meet clause 836.221 in Schedule 2 of the Regulations.

5. The applicant appeared before the Tribunal on 23 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, [Ms A], and three of his sisters, [Daughter A], [Daughter B] and [Daughter C].The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian (Standard) and English languages.

6. The applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The visa applicant (or ‘the applicant’), [named], was born in Iraq on [date]. The applicant resided in [Country 1] between January 2007 and November 2013 on a refugee visa, and subsequently acquired [Country 1] citizenship [in] January 2013. A copy of the applicant’s [Country 1] passport issued [in] 2018 is on the Departmental file.

9. The applicant arrived in Australia [in] November 2013. Since then, he has departed Australia once, in February 2014. The applicant applied for a student via on 6 March 2015, which was granted on 8 April 2015. The applicant claimed he plans to complete a [specified qualification]. However, it was further claimed that his father’s health deteriorated at the end of 2016 and the applicant did not attend classes since the beginning of 2017. On 7 July 2017, the applicant lodged a Class BU Subclass 836 Carer visa.

10. The resident (who is the sponsor) [Mr A], was born on [date] in Iraq. In 2008, he travelled to Australia on a humanitarian visa with his wife, [Ms A], born [DOB].The resident claims to be the biological father of the applicant.  A copy of the sponsor’s Australian passport, issued [in] 2013 is on the Department’s file. The form 40 for sponsorship indicated that the resident became an Australian citizen on [in] 2012.

11. Relevantly, the applicant and the resident and other family members are ethnically Assyrian and religiously Christian. 

12. The applicant provided evidence of a Carer Visa Assessment Certificate (CVAC) for the resident, [Mr A] to the Department. At the time, [Mr A] was assessed as having an impairment rating of 50 under the Impairment Tables.

13. On 30 April 2018, an email was sent to the applicant requesting he provide evidence to demonstrate that the assistance required could not be reasonably provided by any other relative of the resident in Australia. The applicant was also requested to provide a statutory declaration to declare all the resident’s adult relatives in Australia.

14. The Tribunal notes that the applicant declared in the Form 80 that he has a one sibling, [named], residing in Iraq [Country 1] and another, [named] residing in [another country].

15. The resident’s family – Australian citizens and permanent residents and eligible NZ citizens, were declared as follows:

RESIDENT’S FAMILY MEMBERS With Australian Citizenship or Permanent Australian Residency
[Ms A]	Spouse	[DOB]
[Daughter A]	Daughter	[DOB]
[Daughter B]	Daughter	[DOB]
[Daughter D]	Daughter	[DOB]
[Daughter C]	Daughter	[DOB]
[Daughter E]	Daughter	[DOB]
[Son A]	Son	[DOB]
[Son B]	Son	[DOB]
[Son C]	Son	[DOB]
[name]	[Sibling]	[DOB]
[Sister A]	Sister	[DOB]
[Grandson A]	Grandson	[DOB]
[Grandson B]	Grandson	[DOB]
[Grandchild A]	[Grandchild]	[DOB]
[Granddaughter A]	[Grandchild]	[DOB]
[Grandchild B]	[Grandchild]	[DOB]
[Grandchild C]	[Grandchild]	[DOB]
[Name]	[Relative]	[DOB]
[Name]	[Relative]	[DOB]
[Relative A]	[Relative]	[DOB]
[Relative B]	[Relative]	[DOB]
[Relative C]	[Relative]	[DOB]
[Relative D]	[Relative]	[DOB]
[Relative E]	[Relative]	[DOB]
[Name]	[Relative]	[DOB]
[Name]	[Relative]	[DOB]
[Name]	[Relative]	[DOB]
[Name]	[Relative]	[DOB]
[Niece A]	Niece	[DOB]

1. [Ms A] is the spouse of the resident. The resident’s spouse provided a statement to the Department to declare that she could not provide the required assistance to her husband as she had her own medical issues to confront and manage. The spouse provided a letter from her doctor as evidence to support her statement.

2. [Daughter C] is the daughter of the resident. She lived with the resident, his wife [Ms A], [Son B] and the applicant at the residence of the resident. [Daughter C] declared that she could not provide the required assistance to her father due to her own medical issues. She further declared that she was receiving a disability support pension although occasionally performing light household chores such as cooking and light cleaning. She provided a letter from her doctor as evidence to support her statement.

3. [Niece A] is the niece of the resident. She provided a statement to declare that she could not provide the required assistance to her uncle as she resided in New South Wales, and he resided in Victoria. She provided evidence of her Driver’s licence as evidence to support her statement.

4. A doctor’s letter was provided for [Daughter E] to confirm her medical issues and that she was unable to care for herself. A doctor’s letter was also provided for Mr [name] (husband of [Daughter D]), but no evidence or statement was provided from his wife to show that she could not reasonably provide some of the required assistance to the resident.

5. The Department noted that with the application, the applicant provided weekly schedules for the resident, [Ms A], [Son A], [Son B], [Daughter C], [Daughter E] and [Daughter D], however no statements or supporting evidence was provided to support their claimed schedules.

6. In follow-up submissions to the Department dated 4 June 2018, the applicant provided details of a large number of community services contacted in search of suitable community facilities in Melbourne to care for [the sponsor]. These were as follows: [list of agency names]. The applicant submitted that despite this extensive survey of suitable community facilities, none was able to offer [the sponsor] the care he needed.

7. The applicant declared to the Department that the resident had 29 relatives in Australia and provided evidence to show that 3 of them were not able to reasonably provide the required assistance to the resident due to their own health, work and family commitments. None, or insufficient evidence was provided from the resident’s other 26 relatives in Australia.

8. The applicant did not provide sufficient evidence to demonstrate that each family member’s family and work commitments prohibited them from providing some of the required care to the resident, either individually or as a combined family unit, in conjunction with home care services. Consequently, the applicant did not provide sufficient evidence to demonstrate that the assistance required could not reasonably be provided by any other relative of the resident.

9. A delegate acting on behalf of the Minister refused the applicant’s application for an Other Family (Residence) visa, on 5 October 2018.

10. The applicant applied for a review of the Delegates decision with the Tribunal on 25 October 2018, and attached the Departments Notification Letter, and decision record.

    Evidence before the Tribunal

11. An updated CVAC was received by the Tribunal on 5 January 2022 (dated 22 December 2021), indicating that the resident, aged [age] years, now has an impairment rating of 70. His conditions include:

    ·     [Extensive list of medical conditions, with some treatments specified]

12. It further states his ability to move around the house is affected by multiple conditions; he requires ongoing medication management; as well as total support with everyday activities.

13. The applicant submitted to the Tribunal that on 7 June 2022, he contacted a large number of community services in search of suitable community facilities in Melbourne to care for [the sponsor, Mr A]. These were as follows: [extensive list of facilities].

14. The applicant stated that none of the care homes were able to provide adequate care for [the sponsor]. Furthermore, at the hearing the applicant stated that he cares for his father in the following ways: he stays with him and observes him during nights (ensuring that he does not fall from the bed), measures food intake, tests his blood, measures and administers [the sponsor’s] medication etc. He also provides emotional support and companionship through talking to [the sponsor], and helps him with the bathroom, and general mobility.

15. As mentioned above, a scheduled hearing was held on 23 June 2022, where the applicant was represented.

16. During the hearing, the applicant stated that he had never been married, engaged, party to a de facto relationship, and does not have any children. The applicant described his daily activities is providing support and care for his father and did so in some detail.

17. The applicant’s representative provided post-hearing submissions on 21 July 2022. It included the following specific submissions:

    ·     A signed statement by [Son C], living in [Suburb 1], stating that he was too busy to provide care. It is dated 14 June 2022;

    ·     A signed statement by [Daughter A] living in [Suburb 1]. It is claimed she was too busy with homemaking duties. It is dated 14 June 2022;

    ·     A signed statement by [Son A] living in [Suburb 1]. He cannot provide care because he cares for his mother. It is dated 15 June 2022;

    ·     A signed statement by [Relative B] living in [Suburb 2] stating that she was a pensioner and unwell. It is dated 14 June 2022;

    ·     A signed statement by [Relative A] living in [Suburb 2], stating that she was too busy caring for her aunt. It is dated 14 June 2022;

    ·     A signed statement by [Grandchild A] living in [Suburb 1] that [they were] too busy with [specified duties]. It is dated 14 June 2022;

    ·     A signed statement by [Grandson B] living in [Suburb 3], stating that he was too busy to provide care. It is dated 14 June 2022;

    ·     A signed statement by [Grandson A] living in [Suburb 3]. He claimed he worked and travelled a lot. It dated 14 June 2022;

    ·     A signed statement by [Relative E] residing in [Suburb 1]. He claimed to be the carer for his father, [named]. It was dated 15 June 2022.

    ·     A signed statement by [Relative C] living in [Suburb 4]. He claimed to be too busy providing care for an unnamed elderly pensioner. It is dated 16 June 2022;

    ·     A signed statement by [Relative D] living in [Suburb 1]. He claimed to be too busy as a full-time worker to provide care for [the sponsor]. It is dated 15 June 2022;

    ·     A co-signed statement by [Daughter B], [Grandchild B], and [Grandchild C]. [Daughter B] claimed to be a carer while [Grandchild B] was receiving a pension and [Grandchild C] was a full-time student. It is dated 14 June 2022;

    ·     A signed statement by [Granddaughter A] residing in [Suburb 1].She claimed to be a young mother and had caring responsibilities for her mother in law. It is dated 15 June 2022; and

    ·     A signed statement by [Sister A] residing in [Suburb 1]. She claimed she could not care for her brother, [Mr A] because she is an aged pensioner and has her own medical conditions. It is dated 15 June 2022.

18. Also attached was a copy of the family tree relevant to his matter.

19. On 1 August 2022, the applicant’s representative advised the Tribunal that the applicant’s brother, [Son B] was involved in a serious car accident, and had been transferred to ICU at the [a named] Hospital. It was submitted that [Son B] would not be in the position to act as a carer for his father for the foreseeable future.

    APPLICANT CLAIMS TO BE CARER

    Whether the applicant has claimed to be the ‘carer’

20. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s father.

21. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

22. Clause 836.221 is a time of decision criterion, which states that the applicant is a carer of a person referred to in clause 836.212. Carer is defined at regulation 1.15AA.

23. In this matter, at the time of application, the applicant claimed to be the carer of an Australian relative at the time of application and that he satisfies the requirements of cl 836.221 at the time of decision.

    APPLICANT IS A CARER

    Whether the applicant is a carer

24. 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 reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

25. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s father.

26. It is not disputed that the applicant is the biological son of the Australian resident who is an Australian citizen. As the son of the Australian resident, the applicant meets the definition of close relative (b) under regulation 1.03.

27. Therefore, as the applicant is the biological son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

28. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

29. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 07/013, or issued by a specified health provider in relation to a review of such an opinion.

30. On examination of the December 2021 CVAC received by the Tribunal, it is issued by [a registered medical provider] to the above-mentioned person with a medical condition.

31. Legislative Instrument IMMI 07/013 specified [this provider] as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The certificate specifies that:

    ·     the caree has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life;

    ·     the impairment has an impairment table rating specified in the certificate; and

    ·     because of the medical condition, the caree has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

32. The CVAC indicates the Australian resident in this matter has a medical condition causing of his ability  ability to attend the practical aspects of daily life; an impairment rating of 70 in accordance the instrument; and because of the medical to have for at least two years, a need for direct condition assistance condition, the person has and will condition in attending to the practical aspects of daily life

33. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

34. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

35. In the present case, the person with the medical condition was an Australian permanent when he first arrived in 2008 and that he was an Australian citizen since 2013 and remained so at the time of application. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

36. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 07/012.

37. In the present case, the impairment rating specified in the certificate is 70. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

1. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical conditions.

2. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

   Assistance cannot be reasonably provided any other relative – reg 1.15AA(1)(e)(i).

3. Regulation 1.15AA(1)(e)(i) 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.

4. Reasonableness must be assessed in light of the circumstances of the applicant with a focus on the ability of the person requiring the care to access the assistance they need: Naidu v MIMIA (2004) 140 FCR 284 at [22]. Whilst the personal circumstances of the relative may be relevant to the question of whether services can reasonably be obtained from them, the mere fact that there may be some practical difficulties for family members in providing care does not compel a conclusion that the services cannot be reasonably obtained from them: Lam v MIBP [2013] FCCA 1263 at [44] – [47].

5. The sponsor belongs to a large family. At the time of application, the family consisted of many Australian citizens and permanent residents who satisfied the definition of any other ‘relative’ of the Australian relative and who are aged 18 and over. These relatives include one spouse; [number] children; two sisters; [number] grandchildren and [number] nieces and nephews.

6. The Tribunal accepts the resident’s spouse is an aged pension with her own medical conditions, and that the assistance the resident requires cannot be reasonably be provided by her.

7. The Tribunal also notes that the resident in this matter has two aging sisters, one of whom is [age range] years of age, while the other younger sister has her own care responsibilities towards her husband. It is accepted that assistance the resident requires cannot be reasonably be provided by them

8. Notwithstanding any assistance that can be provided by the resident’s grandchildren, nieces and nephews relevant to this specific subclause, the Tribunal has considered the cumulative capacity of the resident’s [number] available children (the applicant’s siblings) to provide care for the applicant’s and their own father (the sponsor).

9. The submitted statements and documents to the Department and the oral and written evidence received by the Tribunal did not persuade that there was sufficient evidence, in its totality, the sponsor’s children in Australia did not have capacity to provide the assistance the Australian relative required.

10. The evidence is that all the adult children either lived in the same residence in [Suburb 1] as the sponsor and his wife, in [Suburb 1], or in the reasonable proximity to the sponsor’s residence. With [number] available children in the same area with short travel times, it is not unreasonable for any decision maker to consider that they can plan, schedule and meet the demands of their own daily lives to provide the required assistance for the sponsor – even if they were to give up one or two days of work per week.

11. The evidence from a MyAgedCare assessment from March 2017 is that the sponsor and his wife lived in a home with the applicant and his daughter, [Daughter C], and that [Son A] was his designated carer in receipt of Centrelink benefits, but resides in another home. The assessment reports, although the sponsor had [specified] surgery at the end of 2017, he eats a well-balanced diet with no weight loss.

12. [Son A] provided a schedule to the Department indicating that he travels three days a week to care for his mother and occasionally his sister, [Daughter C]. A certified MyAgedCare support plan issued by the Commonwealth Department of Health stated the sponsor was being cared for by his son, [Son A], as of March 2017. There is also evidence on file that [Son A] had been receiving Centrelink benefits as carer to provide assistance for his father until July 2017 – the same month as the application for his carer visa was lodged. That is, at the time of application, [Son A] was receiving income support to care for his father and not his mother. Dated 30 April 2018, a section 56 (Request for more information) letter specifically mentions that the application form states that [Son A] discontinued Carer Allowance in July 2017 and requested further details. A response date 25 May 2018, indicated to the delegate that [Son A] ceased receiving Carer Payments for his father at the beginning of 2018. This indicated that [Son A] was providing care at the time of application and that he continues to have the capacity to assist should the applicant not be available to do so. At the scheduled hearing, [Son A] was not a witness. The applicant explained his lack of participation was due to him caring for the sponsor. He described [Son A] as a divorced sole parent of minors. He added that [Son A] cares for his mother and assists the applicant in lifting his father. [Son A’s] June 2022 statement claims that he cannot provide care because he cares for his mother.

13. While the Tribunal accepts that [Son A] has caring responsibilities for his mother as claimed. His regular attendance at the sponsor’s home and previous role as his father’s carer that entitled him to benefits strongly indicates that he could make a meaningful contribution to the assistance his father needs in combination with other siblings at the time of application.

14. The Tribunal also notes the sponsor’s other’s son, [Son B], had been living with his sponsor and working full time at the time of application. He did not have a spouse or any children. Having full-time work at the time of application does not exclude [Son B] from providing at least one or two days a week in providing care. There was a late submission that [Son B] recently endured a car accident and that he plans to move to [Country 2] to [take up a new occupation] – which the Tribunal accepts. Based on the available evidence, the Tribunal accepts that [Son B] did not have the physical and other capacities to care for their father at the time of application, although it is accepted that he does not have the capacity and the motivation at the time of making this decision. 

15. The Tribunal has considered the circumstances of [Son C] at the time of application. He did not provide as statement at the time of application. The oral evidence from the visa applicant indicates that he lives in [Suburb 1] and has care and work responsibilities for his own young family. Although [Son C] is married with minor children and a full-time job, this does not exclude him from providing one or two days a week in providing care for his father. His most recent statement is limited and states that he is merely too busy to assist the sponsor. A letter from [Son C’s] employer indicates he is [an occupation 1] since January 2021.   Based on the available evidence, the Tribunal accepts that [Son C] did not have the physical capacity to care for his father at the time of application, and it was open to him to avail himself at least a few days a week to assist his father. The Tribunal is satisfied he has maintained that capacity up to the time of making this decision. 

16. The Tribunal has turned its mind to the capacity of the sponsor’s [daughters].

17. The applicant and the witnesses reasonably raised with the Tribunal that the sponsor’s daughters cannot provide comprehensive care to their father as it was considered improper or inappropriate to bathe or shower their father, and/or were not physically able to lift their father. The Tribunal accepts there are physical limitations but it does not exclude any of the daughters attending appointments with the sponsor or preparing meals or supervising medication. 

18. At the time of application, [Daughter C] lived with the sponsor and his wife. In a 2018 statement, [Daughter C] claimed to be a recipient of a Disability Support Pension. She is physically separated or divorced from her ex-husband and that her two adult sons, [Grandson A] and [Grandson B], reside with their father in [Suburb 3]. She has claimed to have been involved in a car accident in 2013 in which she sustained [specified injuries]. It also mentions she suffers from [specified medical conditions]. It is claimed she receives assistance from her brothers and her sons to attend appointments and for shopping, but has provided assistance in the form of light household chores in the past. On balance, the Tribunal accepts that [Daughter C] did not have some capacity to care for her father at the time of application beyond light household chores and that remains the case at the time of making this decision.

19. According to [Daughter C’s] 2018 statement, her sister, [Daughter E], was injured in the same car accident as she was in 2013. [Daughter E] did not provide as statement prior to the delegate’s decision. She did not attend the scheduled hearing. In her signed July 2022 statement, [Daughter E] states she resides in [Suburb 4] but does not mention any other barriers to her assisting her father. There is no medical evidence to support her claims about being injured to the extent she cannot provide care through meals, medication and attending appointments for her father. There is insufficient evidence for the Tribunal to accept that [Daughter C] did not have some physical capacity to care for her father at the time of application or that remains the case at the time of making this decision.

20. [Daughter D] who lives in [Suburb 1] has claimed to be an ongoing primary carer of her husband and a recipient of a Centrelink benefit since the time of application. In a signed statement from 2022, she repeated these claims. A medical certificate pertaining to [Daughter D’s] husband was attached, indicating he was suffering from [a medical condtion]. Based on the limited information, the Tribunal accepts that [Daughter D] did not have the physical and other capacities to care for her father at the time of application and this remains the case right up to the time of making this decision.

21. [Daughter A], who resides in [Suburb 5], claimed at the time of application that she has a husband, [number] teenaged aged minor children and one adult child. She claimed not to have a driver’s licence. She admitted at the hearing that one of her adult children is married and the others are working. She insisted that she has grandchildren to care for and that she does not work. Asked if she could provide any care for her father, [Daughter A] insisted she had no time and a sore back. Her signed statement form dated July 2022 does not mention her claimed busy scheduled. There is insufficient evidence for the Tribunal to accept that [Daughter A] did not have some physical capacity to care for her father at the time of application or that this remains the case at the time of making this decision.

22. Finally, [Daughter B], who resides in [Suburb 4], claimed to have a husband and two adult children and [number] teenaged minor children. She claimed to provide assistance for her sister, [Daughter E], while her children were at school and that she does not have a driver’s licence. At the hearing, [Daughter B] said that she was not working and claimed to have a sore arm. Her unsigned statement from July 2022 indicates the applicant lives in [Suburb 4] and is a part time student and housewife. Her husband is unwell and her son suffers from mental health issues, [Daughter B] claims her care responsibilities to her own family took priority. The Tribunal places little weight on these otherwise accepted circumstances as it was open to [Daughter B] to provide some of her time to her father at the time of application and on an ongoing basis.

23. Even taking into account the caring responsibilities of all the other adult children of the sponsor, and that some activities were excluded by some children on cultural or physical grounds, the Tribunal is not satisfied that they would not be in a position to reasonably provide the required care to the sponsor.

24. In reaching this assessment, that it is reasonable for the sponsor’s adult children have been and continue to in a position whereby they are able to make arrangements to care for the sponsor.  It is a finding notwithstanding the availability of adult grandchildren, nephews and nieces. It is accepted the sponsor’s grandchildren and nephews and nieces are at the beginning of their adult vocation studies, careers and forming their own families at the time of application Even under such circumstances, they too were in a position to provide a range of caring responsibilities from the physically exertive to light duties involving supervision, preparing meals and attending appointments without causing much disruption to their own lives’ preoccupations, both at the time of application and decision.

25. The Tribunal accepts that the sponsor and his wider family has a strong preference to remain at home and be cared for by the visa applicant. However there has not been a genuine attempt to secure the required assistance from among the available members of a very large family, even though the sponsor currently lives close to a number of close family members and that many family members live in nearby residences to the sponsor. 

26. On balance, the Tribunal accepts the other relatives of the Australian relative, with particular emphasis on the sponsor’s adult children, had the combined capacity and willingness to arrange their affairs to provide the assistance the sponsor required at the time of application, and that had been reasonably for them to provide such care.

27. In making this finding, the Tribunal has been cognisant that the cumulative impact on caring for the sponsor will affect their work and family lives, but not to any extent to which it will amount to any notable financial or emotional hardship to provide the required care.

28. Noting the above findings about other relatives of the Australian relative, the Tribunal is satisfied that the assistance can reasonably be provided by a relevant relative, therefore the requirements of reg 1.15AA(1)(e)(i) are not met.

    Assistance cannot be reasonably obtained from the community– reg 1.15AA(1)(e)(ii).

29. Regulation 1.15AA(1)(e)(i) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

30. The Tribunal is not required to make any further findings in relation to regulation 1.15AA(1), on the basis that the criterion under part (e)(i) has not been met.  

31. However, in this matter, the level and kind of care available in the community for the applicant who has complex physical, psychological and cultural needs as a traumatised Iraqi refugee and based on his ethnicity and religion do not appear to be reasonably obtainable in the community.[1]

    [1] While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

32. The sponsor is ethnically Chaldean or Assyrian from Iraq. He is a Chaldean Catholic and speaks Chaldean (and can understand some Arabic). Chaldean Catholics are among many of the ethnic and religious minorities in predominately Muslim and Arabic Iraq. The sponsor and his family have settled in the [same area] of Melbourne. There are no Assyrian community owned and operated residential aged care facilities in metropolitan Melbourne. In metropolitan Sydney, St Sergius Aged Care offers Assyrian specific services, albeit being auspiced by the local Russian community. The Tribunal is unable to locate any comparable service in Melbourne. In the absence of culturally appropriate services, the Tribunal reasonably assesses residential age care will adversely affect his psychological conditions. 

33. In this context, it has placed notable weight on the clinical psychologist’s report that the sponsor’s psychological wellbeing is unlikely to remain stable with care provided by residential carer and external providers.

34. Any placement of the sponsor in a residential home would not be reasonably obtainable from welfare, nursing or community services, in the sense, such services are culturally appropriate or available in the context of the sponsor’s complex needs. The Tribunal does not accept the desire of the sponsor’s family to have the review applicant care for his father is merely a preference for receiving at home care from a family member.

35. The Tribunal is therefore satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e)(ii) are met.

36. However, as mentioned above, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative and therefore the requirements of reg 1.15AA(1)(e) are not met.

    Willing and able – reg 1.15AA(1)(f)

37. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

38. Notwithstanding the adverse finding under r 1.15AA(1)(e), the Tribunal accepts that the applicant has been adequately and conscientiously attending to the well-being of his ageing father for some considerable time.  There is no evidence before the Tribunal to suggest the applicant is neither willing nor able to provide substantial and continuing assistance of the kind his father requires.

39. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

40. Notwithstanding the adverse finding under r 1.15AA(1)(e), the Tribunal accepts that the applicant has been adequately and conscientiously attending to the well-being of his ageing father for some considerable time. There is no evidence before the Tribunal to suggest the applicant is neither unwilling nor unable to provide substantial and continuing assistance of the kind his father requires.

41. Therefore, the applicant is not willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

    Conclusion on ‘Carer’ criterion

42. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.

    Ministerial intervention

43. The Tribunal has considered whether this is an appropriate matter to refer to the Minister for consideration in the hopes that a favourable decision be substituted pursuant to the powers in s.351 of the Act.

44. In deciding whether to refer the matter to the Minister for consideration under s 351, the Tribunal has had regard to the Direction of the President of the Tribunal titled Conducting Migration and Refugee Reviews, especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s 351, s 417 and s 501) available in the Procedures Advice Manual 3 (‘the Minister’s Guidelines’).

1. Paragraph 16.1 of the President’s Direction, referred to above, provides that ‘Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister’. The Direction also provides that a Member should set out, in their reasons for decision, the circumstances which the Member considers warrant the case being brought to the Minister’s attention.

2. The Minister’s Guidelines list a number unique or exceptional circumstances and provide that cases that have one or more unique or exceptional circumstances may be referred to the Minister for possible consideration of the use of his intervention powers

3. The Tribunal is satisfied the wider family members have the sufficient capacity to provide the care required by the sponsor. The Tribunal notes that the threshold of visa applicants being found a carer for this Subclass of visa is stridently high. With no ‘compelling or compassionate’ waiver for decision makers to determine, the application of the definition of carer under regulation 1.15AA can lead to unreasonable or capricious outcomes.

100.   The sponsor and his wife are Australian citizens and belong to a large family. However, the sponsor and his wife are of advanced age. As the findings above indicate, there does not appear to be suitable residential care services for complex needs of the applicant’s parents. Inevitably the challenges for caring for the sponsor and his wife by this Australian family will deteriorate into the near and foreseeable future.

101.   There is an obvious and close bond between the applicant and his ailing and aged father who has multiple physical and mental health complaints. There is nothing to suggest the applicant has not been, and is not, committed and conscientious in his care responsibilities towards his father.

102.   Furthermore, the threat of emotional hardship and psychosocial trauma is apparent from their backgrounds as persecuted Christian Assyrians who were externally displaced from their country of origin, namely Iraq. They have successfully sought refuge in Australia and other comparable countries with humanitarian programmes for asylum seekers found to be refugees. Yet many of the members of the wider family credibly attest to harbouring significant psychosocial and other disabilities arising from past trauma. Their unique or exceptional circumstances has weighed on the Tribunal’s mind, that this Australian family’s best interest is served by the applicant remaining in Australia on a suitable visa where he can contribute to his closely knit family and the Assyrian community in Melbourne more generally.

103.   When cumulatively considering the evidence, the adverse impact arising from the applicant’s departure from Australia amounts to a continuing emotional and psychological hardship on this Australian family unit, which is inclusive of Australian citizens.

104.   Having had regard to all relevant factors, the Tribunal considers that this is a case where it would be appropriate to make a referral to the Minister.

Conclusion

105.   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.

106.   As this is a situation that requires a resolution, the Tribunal recommends the parties consider requesting the Minister to personally intervene in this matter.

DECISION

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

Brendan Darcy
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.