Abdulrazzaq (Migration)

[2023] AATA 3519

Abdulrazzaq (Migration) [2023] AATA 3519 (13 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Aliyah Kadhim Abdulrazzaq Abdulrazzaq

VISA APPLICANTS:  Mr Hasan Abdulaali Abdullah Al-Asadi
Mrs Ibtisam Yousif Jyad Alradhi
Master Ali Hasan Abdulaali Al-Asadi
Miss Rian Hasan Abdulaali Al-Asadi
Miss Fatima Hasan Abdulaali Al-Asadi

REPRESENTATIVE:  Mr Hulio Gash (MARN: 1281149)

CASE NUMBER:  2201955

HOME AFFAIRS REFERENCE(S):         OSF2019/021654

MEMBER:Moira Brophy

DATE:13 October 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 13 October 2023 at 4:19pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance cannot reasonably be provided by family members or obtained from service providers – multiple physical and mental health conditions requiring assistance for all daily activities – previously cared for by son and daughter-in-law – daughter-in-law receiving carer payment but not able to drive to visit or take to medical appointments – son’s care for own son – minimal approaches to service providers – not eligible for other subclass visas – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(e)(ii), Schedule 2, cl 116.221

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 Home Affairs on 9 February 2022 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 17 May 2019. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.221.

3. The delegate refused to grant the visa on the basis that cl 116.221 was not met because the delegate was not satisfied that the visa applicant was the carer of the resident, who is also the sponsor and review applicant. Specifically, the delegate was not satisfied that the availability of suitable services had been fully investigated for the purpose of reg 1.15AA(1)(e)(ii). In the absence of evidence of what assistance was available to the resident, the delegate found that reg 1.15AA(1)(e)(ii) was not met. A copy of the decision record was provided to the Tribunal by the review applicant.

4. The review applicant, who is also the sponsor in this application, appeared before the Tribunal on 21 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the son of the review applicant, Mr Ameer Abdulaali Abdullah Ali-Asadi and from the granddaughter of the review applicant, Ms Dunya Ameer Abdulaali Al-Asadi. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant is the carer of the resident at the time of this decision.

   Whether the visa applicant is a carer

8. Clause 116.221 requires that at the time of decision, the visa 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.

   Assistance cannot be reasonably provided/obtained – reg 1.15AA(1)(e)

9. 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.

10. Under reg 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 this 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.

11. In a Carer Visa Assessment Certificate (CVAC) dated 8 September 2018, the review applicant was said to have the following conditions which may impact on her ability to self care:

    ·Diabetes Mellitus with severe proliferative retinopathy and peripheral neuropathy – on insulin and hypoglycaemic agents. Poor control with worsening complications.

    ·Heart Failure – frequent shortness of breath and limited exertion. On multiple cardiac meds.

    ·Sleep Apnea – frequent sleep apnea with generalized weakness. Not using CPAP.

    ·Severe osteoarthritis UL and LL – involving most joints.

    ·Cervical and Lumbar Prolapse – L4/L5 canal stenosis with moderate multilevel degenerative disease. Not for surgical intervention.

    ·Severe Anxiety and Major Depression with PTSD – on Amitriptyline and attends regular psychotherapy.

    ·Visual Impairment – from advanced bilateral proliferative retinopathy(6/36 on R and counting figures on L). According to GP she is legally blind.

12. In relation to the functional assessment, the assessing doctor found that the review applicant’s Diabetes Mellitus, Heart Failure and Sleep Apnea impacted on her in that she had limited exertional ability, becoming frequently breathless from performing her daily activities such as showering and moving about. She required assistance for all daily activities. There was a moderate impact of these conditions on her stamina. Her severe osteoarthritis of the upper and lower limbs impacted on her in that she required assistance with dressing, showering and cleaning herself after toileting. Her ability to mobilize independently outdoors was impacted by her lower limb osteoarthritis, she was not able to use a staircase and was unable to stand for more than ten minutes. There was, in the assessing doctor’s opinion, a mild impact on her lower limb functioning. There was functional impact from her spinal conditions which impacted on her ability to put on her underwear and socks and to stand up from sitting and to transfer in and out of bed. Her mental health conditions impacted moderately on her mental health functioning with her having occasional mood withdrawal and a reduction in her activity levels.

13. The assessing doctor opined the review applicant had medical conditions that resulted in her needing personal care and attention on a daily basis to carry out routine bodily functions and that that need was permanent.

14. The Tribunal has also had regard to medical evidence provided from her treating doctor, the most recent report being dated 16 April 2023 and stating the review applicant was “suffering from multiple core mobility” and had a need for special care and assistance.

15. At the time of assessment and at the time of application, the review applicant was residing with her son and his family. It was noted her daughter-in-law assisted her with showering and toileting, with her dressing and grooming, and prepared her meals. Her son and daughter-in-law administered her insulin injections and her son took her to her medical appointments.

16. The Tribunal noted the daughter-in-law of the review applicant was in receipt of a carer payment and carer allowance from Centrelink for the care she provided to the review applicant.

17. At the time of hearing the Tribunal took evidence that the review applicant no longer resided with her family. She told the Tribunal she was living alone and the Tribunal noted there was a Residential Tenancy Agreement between the review applicant and Anglicare dated 28 March 2023. The review applicant described it as a bedsit that had been organised for her because her son and his family no longer wanted her to live with them. She said it was about 45 minutes to one hour away from where her son and his family lived. The review applicant said she was not in receipt of any monies from the government and her rent was $800 per calendar month (the Tribunal noted a Centrelink statement provided showing she was in receipt of a disability support payment). She said that she did not receive any help, no one cooked her meals, she looked after that herself but sometimes she did not have the energy to do it.

18. When asked about her family, she said her granddaughter sometimes visited her but her time was limited as she was attending university and was in paid employment. She was also busy planning her upcoming wedding. The review applicant said her granddaughter would come each week and she does assist her with showering and taking her to the chemist to get her medications. The review applicant said she required insulin injections and also injections in her eyes. Sometimes she missed these and her medical appointments as she had no one to help her.

19. The son of the review applicant told the Tribunal he visited his mother when he could, but he had little time as he was the carer to his son who has autism. His son is in year seven at school. He said when he has a chance, he does some cleaning at his mother’s place. He tries to see her once a week, but she lives about 28 kilometres from where he lives. It requires time he does not always have. When asked if he takes his mother to medical appointments, he said a lot of them had been cancelled since she had been living on her own. He does not have time to take her to those appointments. He said when he visits his mother, he sometimes takes some food for her.

20. The son of the review applicant told the Tribunal that his wife who is in receipt of a payment for providing care to his mother is not able to drive and is therefore not able to either visit his mother or take her to her medical appointments.

21. In addition to the oral evidence given at hearing the Tribunal had been provided with written statements:

    ·A statement from the review applicant dated 6 May 2023 setting out her need for a day-to-day carer who could provide continuous caring assistance, and that the need could be best met by her son, the visa applicant.

    ·A further statement from the review applicant dated 6 May 2023 setting out details of family members resident in Australia, being her son Ameer Abdulaali Al-Asadi, her daughter-in-law Laila Kadhim Nassr Alabdalsayid, her granddaughter Dunya Al-Sadi and her grandson Layth Ameer Abdulaali Al-Sadi.

    ·A Statutory declaration from Dunya Al-Sadi dated 6 May 2023 setting out what she saw as the care needs of her grandmother and her inability to be able to care for her grandmother because of her work and study commitments.

    ·A statutory declaration from Layth Ameer Abdulaali Al-Sadi dated 6 May 2023 stating he was not able to care for his grandmother because of his casual work and TAFE studies and requesting a visa be granted to his uncle as his grandmother urgently required a carer.

    ·A statutory declaration from Laila Kadhim Nassr Alabdalsayid dated 6 May 2023 stating she was the mother of three children, one of who had autism, and she was the person in receipt of a carer payment for care provided to her mother-in-law, the review applicant in this application. She indicated that because of the care needs of her son, she was finding it difficult to provide care to he mother-in-law and she stated her willingness to waive her right to payment in favour of her brother-in-law in the event he was granted a visa. She supported the application of the visa applicant stating he was more suited to the role of carer for the review applicant than she was. A Centrelink statement for carer payment was attached.

    ·A statutory declaration from Ameer Abdulaali Abdullah Al-Asadi dated 6 May 2023 stating he was the son of the review applicant but was not able to provide care to her as he was in receipt of a carer payment for care he provided to his son who has autism. He stated his mother needed ongoing care and she would feel comfortable with that care being being provided by his brother, the visa applicant. A copy of his son’s NDIS plan was provided.

22. At hearing the Tribunal discussed with the parties the assistance required by the review applicant. The review applicant and her son agreed there was a need for the review applicant to regularly receive her prescribed insulin injections, to be taken to medical appointments for her eye injections and to attend appointments with her mental health specialists. She also required assistance with showering and transfers in and out of chairs.

23. The Tribunal discussed with the review applicant, her son and granddaughter what efforts had been made to obtain the assistance required from welfare, hospital, nursing or community services in Australia given their stated inability or unwillingness to provide the requisite care.

24. The son of the review applicant said he had made various attempts but there had been a reluctance on the part of the services he had contacted to get involved. He said he had been trying to get assistance with helping his mother in and out of the lift so she could access the garden where she lives.

25. When asked whether he had approached aged care services or community and home care services to obtain an assessment of his mother’s needs and an assessment as to how she could best be assisted, he said that he had not done so.

26. An email provided from Southern Cross Care dated 11 April 2023 and sent to the visa applicant was indicative of their not being able to provide private care.

27. A further email dated 11 April 2023 and sent to the visa applicant from SummitCare at Smithfield stated that ‘his mother’ would need to be assessed by a social worker at MyAgedCare as a preliminary step to identify her care needs and that once assessed she would be given a code for respite and aged care. They advised they did not have available care for his mother at that point.

28. The Tribunal has considered the information in front of it, including the testimony of the review applicant, her son and her granddaughter that was given at the Tribunal’s hearing. While it accepts that the review applicant may wish to be cared for by the visa applicant who is her son, the Tribunal must be satisfied 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 and make findings about the reasonableness of obtaining assistance from the relevant services.

29. On the information provided, the Tribunal finds that the visa applicant has made some enquiries into what assistance may be able to be obtained from welfare, hospital, nursing or community services in Australia. However, they have not taken the important step of engaging MyAgedCare. This lack of meaningful engagement is significant because it has been made abundantly clear to the review applicant and her family by SummitCare at Smithfield that the provision of services is contingent upon the resident receiving referrals from MyAgedCare. It is also significant because a lack of enquiries into services formed the basis for the delegate’s decision to refuse the visa applications. In this way, the review applicant and the visa applicant have been on notice of this being an issue in the review since at least 9 February 2022 when the delegate made her decision.

30. The Tribunal is not satisfied that adequate enquiries have been made into what assistance can be obtained by the review applicant. Because of this, the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia in conjunction with the assistance that can reasonably be provided by family members here especially in the context of one of them being provided a government payment to provide that care. The requirements of reg 1.15AA(1)(e)(ii) and ultimately reg 1.15AA(1)(e) are not met.

31. As reg 1.15AA(1)(e) is not satisfied, the visa applicant is not a carer of the Australian relative, being the resident and sponsor, and therefore does not satisfy cl 116.221.

32. There is no evidence that the visa applicant satisfies any other subclass. The evidence before the Tribunal is that the visa applicant was born in 1982. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. As such, the visa applicant is not an “aged dependent relative” as defined in reg 1.03 for cl 114.211 of Schedule 2 to the Regulations.

33. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 115 (Remaining Relative) visa as there are near relatives of the visa applicant, as defined in reg 1.15(2), who reside in the same country as the visa applicant. In this case, the visa applicant provided information in his Form 47OF application form dated 1 May 2019 that he has other family members who, at the time of application, were not Australian citizens, Australian permanent residents or eligible New Zealand citizens. As such, the visa applicant is not a “remaining relative” and therefore is unable to meet cl 115.211.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Moira Brophy
    Member