Abdulazeez (Migration)

[2022] AATA 4236

Abdulazeez (Migration) [2022] AATA 4236 (14 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ihsan Sameer Abdulazeez Abdulazeez

REPRESENTATIVE:  Dr Mohamed Al Jabiri (MARN: 9803754)

CASE NUMBER:  2012099

HOME AFFAIRS REFERENCE(S):          CLF2018/177753

MEMBER:David Crawshay

DATE:14 September 2022

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 14 September 2022 at 4:06pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant is not a carer of the Australian relative – no enquiries have been made about what assistance is able to be obtained – Tribunal is not satisfied that the assistance required cannot reasonably be obtained from services – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 836.221

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 15 July 2020 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 9 July 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 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied that the applicant was the carer of the resident. Specifically, the delegate was not satisfied that the assistance required by the resident could not reasonably be provided by her relatives in Australia: r.1.15AA(1)(e)(i). A copy of the decision record was provided to the Tribunal by the applicant.

4. The applicant appeared before the Tribunal on 13 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the resident. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is the carer of the resident at the time of this decision.

   Whether the applicant is a carer

7. 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 r.1.15AA of the Regulations which is set out in the attachment to this Decision.

   Assistance cannot be reasonably provided or obtained – r.1.15AA(1)(e)

8. Regulation 1.15AA(1)(e) 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; or obtained from welfare, hospital, nursing or community services in Australia.

9. Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal now turns to the task of assessing the level and particulars of the assistance required by the resident in order to then assess whether this assistance cannot reasonably be provided by the appropriate relatives or obtained from the relevant services or a combination of both.

10. In a Carer Visa Assessment Certificate (CVAC) dated 1 February 2022, the resident was said to have the following medical conditions that may impact her capacity to self-care: cervical and lumbar spine degenerative disease; osteoarthritis; bilateral shoulder rotator cuff impingement; prolonged grief with major depressive disorder; diabetes; and hypertension.

11. In relation to the functional assessment, the assessing doctor made the following findings. The doctor found that the resident had a severe functional impact on upper limb function, having a history of neuropathic pain in her upper limbs related to her cervical degenerative disease and hand osteoarthritis, and limited coordination in both arms and hands and severe difficulty handling or moving most objects. The doctor found that the resident had an extreme functional impact on activities using her legs and feet, with a history of lower limb neuropathic pain secondary to her lumbar degenerative disease and diabetic neuropathy, and that she had regular household falls despite the applicant supervising her. She was found not to be able to mobilise independently. Finally, the doctor found that the resident had a severe functional impact on activities involving mental health function, with a long-standing history of major depressive disorder related to psychosocial stressors from her family’s past in Iraq. She was found to need continual support with daily activities and self-care, to be unable to live on her own or to travel away from her home without the support of the applicant, and to have difficulty concentrating on tasks or conversation for more than 10 minutes.

12. The resident was found by the assessing doctor in the CVAC to be fully dependent vis-à-vis the activities of daily living. She was said to require assistance with mobility, bathing and showering, toileting, dressing and grooming, eating and feeding, supervising medication, supervision for personal safety and transportation. The comments that accompanied these findings indicated that the assistance required was in most cases of a complete or full kind.

13. The assessing doctor stated as follows in summary comments:

    [Mrs A] is a [age]-year-old woman who suffers from multiple permanent medical conditions affecting her ability to attend to the practical aspects of daily life. She has chronic neuropathic pain in both her upper and lower limbs secondary to her degenerative cervical and lumbar spinal disease. From a musculoskeletal perspective, she also suffers from bilateral hand and knee osteoarthritis and bilateral rotator cuff tears in her shoulders. [Mrs A] also has a history of depression stemming from a traumatic family past in Iraq, which affects her mental functioning on a daily basis. She has undergone all reasonable treatment proposed by her doctors with ongoing disability in her activities of daily living.

    These medical conditions are permanent and likely to deteriorate in the future. As a result, she is now fully dependent and unlikely to improve beyond her current functional capacity. It is of my opinion that [Mrs A] satisfies the criteria for a carer's visa at today's assessment.

14. The applicant has provided several other medical documents such as letters from the resident’s GP, psychiatrist and eye doctor. Where applicable, these documents further substantiate the findings of the CVAC in relation to the resident’s physical and mental conditions.

15. At hearing, the Tribunal asked the applicant what assistance he gave to the resident. He replied that he helps her with food and clothes, showering, getting into and out of bed, toileting, and medications (the resident has five different types for diabetes, blood pressure, cholesterol and osteoporosis and has a puffer which the applicant supplied her with). He told it that he sleeps in a bed in her room as she wakes up every hour. He said that the resident’s mental health has deteriorated since he lost his residency in the UK,[1] and since his carer visa was refused.

    [1] The applicant claims that he lost his residency as a result of being out of the country for too long.

16. The applicant said that he and the resident are Mandaeans and cannot eat everything. He said that he is a chef and prepares all food. He said that he came to Australia to look after the resident and gave up his UK residency and wife and children to do so. The applicant said that the resident has an upcoming surgery in November for glaucoma and is worried that she might lose her eye. He reiterated that the resident must eat certain foods. He said that she must wear certain clothes.

17. The Tribunal has considered the information in front of it in relation to the level of assistance required by the resident. It accepts and gives weight to the findings of the CVAC which show that the resident is fully dependent on others for activities of daily living, requiring assistance with mobility, bathing and showering, toileting, dressing and grooming, eating and feeding, supervising medication, supervision for personal safety, and transportation.

18. In relation to the question of whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services within Australia, the Tribunal notes that the applicant’s representative had previously submitted an email dated 17 June 2020 wherein he relevantly stated as follows in relation to the ability to obtain the assistance from services:

    However, the applicant is still in the process of gathering more medical reports for his mother, UK police check and evidence from community nursing homes and facilities on why they cannot provide his mother with assistance. They informed us that due to the social restrictions created by the covid-19, the medical doctors and specialists were not available to provide health assessments for the mother.

19. Very little written information has been submitted subsequently that spoke to the question of whether the assistance cannot reasonably be obtained from the relevant services, including any correspondence with service providers or agencies tasked with assessments. The only information that touched on this subject was contained in a submissions letter from the applicant’s representative dated 12 September 2022 which relevantly stated as follows:

    We re-iterate the family’s belief that the only reasonable solution would be to permit [Mrs A]’s son “the applicant” to provide her with the full-time, live-in care she needs. We also submit that on the evidence presented it is now open to the Tribunal to find that it would be completely unreasonable for [Mrs A] to place any reliance on the insufficient and limited public sector aged care services to meet her care needs.

20. At hearing, the Tribunal asked the applicant what, if any, enquiries had been made about whether the required assistance could be obtained from welfare, hospital, nursing or community services within Australia. The applicant replied that none had been made. When asked why none had been made, he said that he had to look after the resident and take care of her full-time. He said that he did not have time to go out and make enquiries.

21. The Tribunal summed up the concern it had. It told him that there seemed to be no issue that the resident required round-the-clock care and that he was currently looking after her as a dedicated carer. It told him that it considered it likely that the assistance could only performed by relatives of the resident in conjunction with each other and in conjunction with services in Australia. However, it put to him that it could only consider whether assistance cannot reasonably be obtained through the relevant services after enquiries had been made into those services. The applicant replied that the resident does not accept this help and she does not even want her daughters but only wants him. He said that she does not trust anyone. He said that he has his bed beside hers. He said that the resident is always scared and worried that he will leave her side.

22. The Tribunal has considered the information in front of it, including the testimony of the resident and the applicant at hearing. It accepts that the resident requires extensive assistance that cannot be performed by a relative unless he or she is a dedicated carer. In this regard, it accepts that the applicant is currently performing this assistance in a diligent and, frankly, sacrificial way. Further, it accepts that the assistance cannot be performed by several of the resident’s relatives and the assistance would need to be rendered by services in Australia – either with some or no help from the resident’s relatives. The Tribunal acknowledges that the resident may wish to be cared for by the applicant who is her son and accepts that this arrangement may have wide acceptance from family and from the Mandaean community. It also acknowledges that the resident’s family may consider public sector aged care as being “insufficient” and “limited”, although there has been no information submitted to substantiate this claim or similar claims about care facilities not being able to accommodate the specific dietary and clothing requests of Mandaeans.

23. However, the Tribunal must satisfy itself that enquiries have been made about what services, if any, are able to be obtained. Until this occurs, it is not able to consider the resident’s wishes about how she should be cared for or her family’s views about the suitability of alternative sources of assistance, and whether it would be unreasonable to obtain the relevant services.

24. On the evidence in front of it, the Tribunal is not satisfied that appropriate enquiries have been made about what assistance is able to be obtained. Without the benefit of having information about the resident’s ability to obtain assistance, the Tribunal is not satisfied that the assistance required by her cannot reasonably be obtained from those services. As difficult a decision as it is to make, r.1.15AA(1)(e)(ii) is not met.

25. As r.1.15AA(1)(e) is not satisfied, the applicant is not a carer of the resident, and he therefore does not satisfy cl.836.221.

26. 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. The evidence before the Tribunal is that the applicant was born in 1974. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of “aged dependent relative” in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

27. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant has near relatives, as defined in r.1.15(2), that are not usually resident in Australia. In this regard, in a Form 80 dated 12 June 2020, the applicant has listed his wife and two children as residing in the United Kingdom. As such, the applicant is not a “remaining relative” and therefore is unable to meet cl.835.212.

    DECISION

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

    David Crawshay
    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.