Al Bermaney (Migration)
[2024] AATA 253
•12 February 2024
Al Bermaney (Migration) [2024] AATA 253 (12 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mrs Fawzia J Rashed Al Bermaney
VISA APPLICANT: Mr Ihsan Ali Abd Al-Jawazery
CASE NUMBER: 2013562
HOME AFFAIRS REFERENCE(S): OSF2017/000059
MEMBER:Michael Ison
DATE:12 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.
Statement made on 12 February 2024 at 2:41pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care reasonably obtained from welfare, hospital, nursing or community services in Australia – assistance available from Australian family – review applicant lived lengthy periods with her other children – Australian daughter’s busy medical practice – limited evidence of inquiries about in-home assistance obtainable – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 116.221, 835.212; rr 1.03, 1.15
Social Security Act 1991, s 23CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Biyiksiz v MIMIA [2004] FCA 814STATEMENT 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 25 June 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Immigration history
The visa applicant is Mr Ihsan Ali Abd Al-Jawazery who is a 45-year-old national of Iraq. Mr Al-Jawazery is referred to as the visa applicant in these reasons for decision.
On 20 August 2017 the visa applicant applied for an offshore Other Family (Migrant) (Class BO) (Subclass 116) Carer visa on the basis that the visa applicant claims that he is a relative of his sponsor Mrs Fawzia J Rashed Al Bermaney, who is claimed to be the visa applicant’s mother.
The visa application was refused on 25 June 2020. It is the refusal to grant the visa applicant a Subclass 116 Carer visa that is the subject of this review.
The review applicant is Mrs Al Bermaney who is a 78-year-old national of Australia, having acquired Australian citizenship on 8 September 2020. Mrs Al Bermaney is referred to as the review applicant, the sponsor or the resident in these reasons for decision as the context requires.
The visa applicant did not provide evidence to the Department to demonstrate that the visa applicant is son of the review applicant.
According to a Carer Visa Assessment Certificate (CVAC) dated 23 May 2017, the review applicant has been assessed as having an impairment rating of 40 under the relevant Impairment Tables. The CVAC stated that the review applicant has been diagnosed as having the following medical conditions: advanced seronegative rheumatoid arthritis, ischaemic heart disease, renal impairment, cervical and lumbosacral degenerative arthropathy/nerve impingement, glaucoma, posterior vitreous detachment, cataract and depression.
The doctor who completed the CVAC found the review applicant’s medical conditions adversely and permanently impair the review applicant’s following functions: conditions limiting exertion and stamina (Table 1), conditions impacting upper limb function (Table 2), conditions impacting the spine (Table 4), mental health conditions (Table 5) and vision and the eyes (Table 12).
The examining doctor stated in the CVAC that the review applicant’s medical conditions have resulted in the need for the review applicant to receive personal care and attention on a daily basis to carry out routine bodily functions and has a need for constant supervision or monitoring because the review applicant may be a danger to themselves or another if left unsupervised. The examining doctor confirmed the review applicant’s need for assistance is permanent.
The primary decision of a delegate of the Minister
The review applicant provided the Tribunal with a copy of the primary decision.
The visa applicant applied for the visa on 20 August 2017. 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.
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 a carer of the review applicant because there was insufficient evidence before the delegate that the assistance the review applicant required could not be obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal hearing
The review applicant and the visa applicant appeared before the Tribunal on 25 August 2023 to give evidence and present arguments, by video from Turkey. The Tribunal hearing was conducted by video at the request of the applicants.
The Tribunal also received oral evidence from Dr Areej Al-Jawazery, who is a daughter of the review applicant and sister of the visa applicant. Dr Areej Al-Jawazery assisted the applicants in relation to the review and attended the hearing by video from Turkey.
The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicants whether they could understand the interpreter and whether they had any objection to the use of the interpreter retained by the Tribunal. The applicants indicated they could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision.
Pre-hearing submissions
Apart from correspondence in relation to administrative matters associated with this review, the Tribunal did not receive any submissions on behalf of the applicants prior to the Tribunal hearing.
Post-hearing submissions
The Tribunal received the following submissions on behalf of the applicants from Dr Areej Al-Jawazery after the Tribunal hearing, with the main, but not necessarily all documents attached to each submission noted:
28 August 2023
·A copy of the pages of the passports of the visa applicant and Dr Areej Al-Jawazery containing their biometric data; and
·A photo of both sides of Dr Areej Al-Jawazery’s Victorian drivers’ licence.
15 September 2023
·Monthly tax invoices for Dr Areej Al-Jawazery’s services for the months of April, May, June, July and August 2023.
21 September 2023
·Certified translations of Republic of Iraq personal identification cards for the visa applicant and Dr Areej Al-Jawazery.
Post hearing letter sent in accordance with the procedure in s 359A and requesting additional information under s 359(2) of the Act
On 22 January 2024 the Tribunal sent the review applicant a letter under s 359A of the Act inviting the review applicant to respond to or comment on information from her movement records that indicated the review applicant had resided in Australia between 31 October 2023 and 9 January 2024 during which time she would have been cared for by Dr Areej Al-Jawazery rather than the visa applicant.
The Tribunal’s letter explained in detail why this information was relevant to the review applicant’s review and the consequences for that review if the Tribunal relied upon the information from the review applicant’s movement records.
The Tribunal’s letter also requested the review applicant provide the following additional information to the Tribunal:
1. Information supporting your claim that when you were in Iraq between 29 March 2022 and 31 October 2023 you resided only with your son, Mr Al-Jawazery;
Ø Examples of this type of information include but are not limited to dated photos with annotations confirming where each photo was taken and who is in each photo, correspondence addressed to you at your Iraqi address, immigration information provided to or received from the Iraqi government for your stay in Iraq, communication or social media records between family members about your stay in Iraq, copies of information from you informing Centrelink or other Australian government authorities including immigration, that you would be travelling to Iraq and where you would be staying in Iraq, or similar information;
2. Information from Dr Shema Al-Jawazery about her personal circumstances including but not limited to information about her family life, residence, professional life, her marriage, her husband’s personal and professional life and what frequency and types of contact she had or has with you during your stay in Iraq between 29 March 2022 and 31 October 2023 and presently and what assistance she has provided to you and your son in caring for you during your visits to Iraq in 2022 – 2023 and in 2024;
Ø Examples of this type of information include but are not limited to Dr Shema Al-Jawazery providing a statutory declaration addressing these matters;
3. Information about what enquiries have been made (including by whom and when any inquiries were made) to see if the assistance you require to attend to the practical aspects of daily life cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia;
Ø For clarity, the Tribunal does not seek any information about you being placed in a residential aged care facility, sometimes called a nursing home, as the Tribunal accepts this would not be appropriate in your circumstances;
Ø Examples of the type of information the Tribunal does seek in this regard include but are not limited to:
§Registration with myagedcare.com.au, any aged care assessment report and aged care plan and any correspondence or invoices and receipts in relation to obtaining and paying for services received;
§Letters or emails to and from in-home aged care service providers and other relevant agencies confirming:
othey cannot provide suitable assistance and their reasons for this eg: lack of facilities or inability to meet cultural or language or religious or dietary requirements etc; or
othe care they can provide would not cover the full extent of assistance required; or
oassistance is not available within a reasonable period of time.
§Letters or emails to and from health care professionals including but not limited to a social worker, specialist/community case officer or Aged & Disability Service Coordinator providing detailed insight as to why the assistance required cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia;
§Letters and emails from Dr Areej Al-Jawazery seeking to refer you to public or other health services Dr Areej Al-jawazery stated in her oral evidence to the Tribunal that she made and any written responses from the agencies to those referrals.
4. Information in relation to what services you have received from welfare, hospital outpatient (not inpatient), nursing or community services in Australia in the past, noting that the doctor who completed the Carer Visa Assessment Certificate dated 23 May 2017, stated:
“Just recently moved 2 months ago; before moving, engaged in community services including weekly cleaning and caring/showering/feeding services”.
The Tribunal’s letter stated that the review applicant’s comments or response to the Tribunal’s letter should be received by the Tribunal by 5 February 2024 and stated (emphasis in the original):
Consequences of not responding to either the invitation
If we do not receive either your comments or response or the additional information requested by the Tribunal within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.
At the time of this decision the Tribunal has not received any response from the review applicant to the Tribunal’s letter dated 22 January 2024. The Tribunal also did not receive a request from or on behalf of the review applicant seeking an extension of time to respond to the Tribunal’s letter.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicants and Dr Areej Al-Jawazery, all of the information in the oral and written submissions provided to the Tribunal on the applicants behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the visa applicant’s application for the Other Family (Migrant) (Class BO) (Subclass 116) visa, the documents provided to the Department in support of that application and copies of communications between the Department and the visa applicant.
Background
The review applicant has three children:
·Dr Shema Al-Jawazery, aged 48 who according to the oral evidence before the Tribunal practices as a medical doctor, lives in Babylon, Iraq and is married with three children;
·Dr Areej Al-Jawazery, aged 47 who practices full-time as a medical doctor, lives in Craigieburn in Victoria, Australia with her husband and three children and since 13 October 2011 has been an Australian citizen; and
·Mr Ihsan Ali Abd Al-Jawazery, who is the visa applicant, aged 45, unemployed, unmarried and without children and lives in Baghdad, Iraq.
Over the past four years, since 1 January 2020, the review applicant has spent the following periods of time in Australia where she has lived with Dr Areej Al-Jawazery and in Iraq where it is claimed she has lived with the visa applicant:
Dates
Country
Days
1 January 2020 to 23 October 2020
Australia
296
24 October 2020 to 12 November 2021
Iraq
384
13 November 2021 to 28 March 2022
Australia
135
29 March 2022 to 30 October 2023
Iraq
580
31 October 2023 to 8 January 2024
Australia
69
9 January 2024 to 12 February 2024
Iraq
34
The review applicant, since 1 January 2020, has spent 998 days in Iraq and 500 days in Australia.
Some of this travel occurred during the COVID-19 global pandemic when local and international travel movements were restricted from time to time.
Dr Areej Al-Jawazery gave oral evidence, which the Tribunal accepts, that as the only child of the review applicant in Australia she is the primary carer of the review applicant who – apart from one short period of weeks – has always lived with Dr Areej Al-Jawazery and her family when the review applicant is in Australia.
The visa applicant gave oral evidence that the review applicant lived with him during her 2020-2021 and 2021-2022 trips to Iraq and during this time he was the review applicant’s primary carer. It is on this basis that the visa applicant claims to be the carer of the review applicant. The visa applicant’s evidence in this regard is summarised as follows:
·He is unmarried, without children and has lived in Baghdad, Iraq for the past five years, having grown up in the family home in Babylon, Iraq;
·He was engaged to be married but his fiancé did not accept his care responsibilities for his mother and so he broke off the engagement before his mother arrived in Iraq in March 2022;
·When the review applicant, his mother, is in Iraq she lives with him and he does everything for her including administering medications, preparing meals and food, assisting the review applicant with personal hygiene, dressing her, washing her clothes, assisting the review applicant with her mobility including lifting her at times and sleeping in the same room together because the review applicant has become scared to sleep on her own;
·Their eldest sister, Dr Shema Al-Jawazery, also lives in Iraq, still in Babylon, works as a doctor and is busy raising her three children and therefore does not provide any assistance to the visa applicant in caring for their mother save for she visits most Fridays for a few hours during which time the visa applicant goes and does the grocery shopping for the review applicant and himself;
·Is trained and qualified but has never worked as a pharmacist;
·Is unemployed but has an online business as a goldsmith and jeweller making and selling jewellery which he hopes to continue in Australia should he be granted the Carer visa and should his mother’s care needs afford him the time to do;
·It is normal in their Arabic and Iraqi culture for the eldest son to take care of their parents because the daughters marry and move out of the family home. This includes assisting the review applicant, who the visa applicant gave evidence is shy and has a difficult temper at times, with toileting and showering which reflects that the review applicant is most comfortable with and closest to, the visa applicant; and
·The review applicant receives Government benefits from Australia and the review and visa applicants use this money to support themselves in Iraq.
The review applicant gave evidence, which the Tribunal tried to keep relatively brief given her age and medical conditions, including recent shortness of breath, as follows:
·She is sick and needs assistance;
·The visa applicant is her only child that can take care of her;
·Her daughters, Shema and Areeja, both have their own children and families, are both working as doctors, with Areeja working 10 hours a day in Australia, so they are not able to care for her;
·She is sore in the back, neck, cannot move her neck and cannot move her hands; and
·Is tired and exhausted and needs the assistance of the Tribunal.
The Tribunal did not receive oral evidence or a statutory declaration or other form of written statement from Dr Shema Al-Jawazery as to the review applicant’s circumstances when living in Iraq.
There is very little independent documentary evidence before the Tribunal to support the oral evidence that the visa applicant is the carer of the review applicant when the review applicant is living in Iraq.
The Tribunal gave the applicants an opportunity to address these gaps in the evidence about the review applicant’s circumstances after the Tribunal hearing, by letter dated 22 January 2024, the key details of which have been reproduced in paragraph 21 of these reasons.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is a carer of the review applicant at the time of this decision, taking into consideration how the term ‘carer’ is defined in reg 1.15AA.
Whether the visa applicant is a ‘carer’
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.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
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 visa applicant’s mother.
In the Tribunal’s hearing invitation dated 13 July 2023 the Tribunal requested (emphasis in the original):
The Presiding Member requests the visa applicant Mr Ihsan Ali Abd Al-Jawazery and the review applicant Mrs Fawzia J Rashed Al Bermaney (the sponsor) to provide evidence of their relationship through certified birth certificates or DNA testing.
The Tribunal did not receive the requested information. The Tribunal discussed this with Dr Areej Al-Jawazery during the Tribunal hearing as it was Dr Areej Al-Jawazery who completed all paperwork for the visa applicant and review applicant, provided all documentation to the Tribunal during this review and engaged in all non-hearing communications with the Tribunal. Dr Areej Al-Jawazery agreed that she could obtain the visa applicant’s birth certificate and would provide it to the Tribunal.
As noted in paragraph 18 of these reasons, after the Tribunal hearing on 28 August 2023 Dr Areej Al-Jawazery provided colour copies of the pages of her and the visa applicant’s passports containing their biometric information and a copy of both sides of her Victorian drivers’ licence.
On 29 August 2023 the Tribunal confirmed its request for a copy of the birth certificate of the visa applicant and other information as follows:
The Tribunal confirms receipt of your email date stamped Monday, 28 August 2023 1:27 PM attaching photos of the front and rear of Dr Al-Jawazery’s Victorian drivers licence and photos of the biometric pages of Dr Al-Jawazery’s passport and the Iraqi passport of the visa applicant, Mr Ihsan Ali Abed Al-Jawazery. The Presiding Member has reviewed these photos and is satisfied with their quality. Just to confirm, the remaining documents the Presiding Member asked be provided are:
1. Copy of the Iraqi birth certificate for Mr Ihsan Ali Abed Al-Jawazery and a certified translation of that certificate into English;
2. Copy of the Iraqi birth certificate for Dr Al-Jawazery and a certified translation of that certificate into English;
3. Copies of the last five pay statements for Dr Al-Jawazery.
The Tribunal requested the birth certificate of Dr Areej Al-Jawazery rather than the review applicant because the Tribunal thought that may be easier for Dr Areej Al-Jawazery to obtain and if those birth certificates identified Dr Areej Al-Jawazery and the visa applicant had common parents that would be sufficient for the Tribunal to make findings as to whether the visa applicant is a relative of the review applicant.
The Tribunal has not received a copy of the original and a certified translation of the visa applicant’s birth certificate or any explanation as to why that documentation has not been provided.
On 21 September 2023 Dr Areej Al-Jawazery provided the Tribunal with a copy of a certified translation of her and the visa applicant’s Iraqi identity cards. Both cards state who the mother and father of person for whom the identity card has been issued. In relation to the visa applicant his identity card states his mother is “Fawzia Jawwid”. In the case of Dr Areej Al-Jawazery, her identity card states her mother is “Fawzea Jawwid”. The Tribunal notes the same information was before the Department and the delegate did not find it sufficient to make a finding in the primary decision about whether the visa applicant and review applicant were related (emphasis in the original):
A full assessment of the claimed relationship between the primary applicant and Fawzia J Rashed AL BERMANEY has not been made by the Department. It has been declared that the primary applicant is the son of Fawzia J Rashed AL BERMANEY. It has been claimed that the ‘resident’ is also the sponsor, Fawzia J Rashed AL BERMANEY.
Given the consistent and unequivocal oral evidence of each of the visa applicant, review applicant and Dr Areej Al-Jawazery, the Tribunal accepts for present purposes – without formally finding – that the visa applicant is the son of the review applicant and on this qualified basis meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
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.
For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).
A CVAC has been issued in this case. The CVAC has been issued by a currently registered medical practitioner employed by Bupa who signed the certificate on 23 May 2017. The CVAC is now more than five years old.
According to Department policy, where a CVAC is more than two years old the decision-maker can request that the person with the medical condition undertake a fresh examination and provide an updated CVAC. This is not a legislative requirement however and the Tribunal is mindful such requests will incur additional costs for an applicant.
There was evidence on the Tribunal file of the Tribunal requesting an updated CVAC and the review applicant agreeing to provide an updated CVAC, before this case was constituted to the presiding member. The review applicant provided evidence of having made an appointment with a BUPA doctor on 28 February 2022 and again on 8 July 2022, but ultimately an updated CVAC was not provided to the Tribunal.
Dr Areej Al-Jawazery gave oral evidence about the medical care she provided to the review applicant and the additional medical conditions experienced by the review applicant since the May 2017 CVAC. These included surgery for a cataract in the review applicant’s left eye, her right eye requiring similar surgery that has not been performed yet, the review applicant’s rheumatoid arthritis progressing and she was supposed to take medicine by injection but because of the restrictions on the movement of people in response to the emergence of the COVID-19 global pandemic she could not and heart surgery. The Tribunal enquired about the review applicant’s heart surgery. Dr Areej Al-Jawazery told the Tribunal she was taking care of her mother’s medical needs and they did a lot of tests without finding anything but eventually found out that the main artery in the review applicant’s heart was 95% blocked. Dr Areej Al-Jawazery further told the Tribunal that surgery was performed, and a stent inserted, and this occurred in March, but Dr Areej Al-Jawazery could not recall in what year. Dr Areej Al-Jawazery gave evidence that the review applicant needed 24-hour, seven day a week care after the surgery and had to take a regime of medications, which Dr Areej Al-Jawazery could not provide because she had exams at the time. Based on all of the evidence before the Tribunal it is likely that the heart surgery was performed on the review applicant in early March 2022, as the review applicant travelled to Iraq on 29 March 2022 to be cared for by the visa applicant.
Dr Areej Al-Jawazery also told the Tribunal that after the heart surgery a new blockage occurred which has made it difficult for her mother, the review applicant, to breathe. Dr Areej Al-Jawazery’s evidence is that as all of the review applicant’s doctors are in Australia and she was living with the visa applicant in Iraq at the time of the Tribunal hearing, the review applicant has an urgent medical appointment in Australia for this issue on 8 September 2023. The Tribunal notes that the review applicant’s Australian government movement records state the review applicant did not return to Australia until 31 October 2023 and then departed Australia on 9 January 2024.
In addition to these medical conditions and the medical conditions noted in the CVAC, Dr Areej Al-Jawazery told the Tribunal the review applicant also has fibromyalgia, severe osteoporosis, bursitis in one hip, has fractured one hip and has had two fractures in her hands and her hands and one foot are now so deformed by her rheumatoid arthritis that she can no longer use them, had all of her teeth removed as well as having ongoing depression, urinary incontinence, hypertension and hypercholesterolemia.
As the applicants did not respond to the Tribunal’s letter sent in accordance with the procedure in s 359A of the Act as set out in paragraphs 19 to 23 of these reasons, the Tribunal has no further information about the review applicant’s 8 September 2023 medical appointment and whether it was rescheduled or her most recent major medical issue of having another artery blocked that is causing her difficulties breathing.
The Tribunal overall accepts Dr Areej Al-Jawazery’s evidence about the review applicant’s medical conditions, their impact on the review applicant, the progression of some of those medical conditions since the May 2017 CVAC and the review applicant’s ongoing need for care and assistance given the progression and complexity of her medical conditions since the CVAC was completed.
Given the extent, nature and overall impact of the review applicant’s medical conditions and impairments, her 2017 CVAC impairment rating, viewed in the context of the review applicant’s age, medical and health history both before and since the CVAC was completed, the Tribunal did not require the review applicant to provide an updated CVAC.
The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the Tribunal finds the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the Tribunal finds that the requirements of reg 1.15AA(1)(b) are met.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
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.
In the present case, the person with the medical condition is the review applicant who has provided evidence which the Tribunal accepts that she is an Australian citizen.
Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
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 17/126. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.
In the present case, the impairment rating specified in the CVAC is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
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 condition.
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia.
Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to the second limb of reg 1.15AA(1)(e) is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. 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].
Can the assistance reasonably be provided by any other Australian relative?
The evidence before the Tribunal, which it accepts, is that the review applicant has four relatives in Australia who the Tribunal accepts are Australian citizens:
·Dr Areej Al-Jawazery, who is aged 47;
·Dr Areej Al-Jawazery’s three children Yousef, Mariam and Hussain. The children at the time of hearing were aged eight, five and four years respectively.
Dr Areej Al-Jawazery first arrived in Australia in July 2007 and her oral evidence to the Tribunal was that she has been her mother’s primary carer since the review applicant arrived in Australia on 4 August 2010 including when Dr Areej Al-Jawazery and her first husband lived in Melbourne and then between 2014 and 2019 when they lived in Shepparton, during which time Dr Areej Al-Jawazery separated from her first husband and remarried her current husband, and then back in Melbourne where they have since lived in Craigieburn. Dr Areej Al-Jawazery told the Tribunal she did rent an apartment for the review applicant for a short period of time but as her mother could not speak English and has no friends in Australia she did not do well living on her own physically or mentally and so moved back in with Dr Areej Al-Jawazery and her family.
Dr Areej Al-Jawazery told the Tribunal she is a contracted medical doctor, working at a clinic in Epping as a full-time general practitioner since January 2023 (having worked part-time before that) and being the only female doctor at the clinic, she often works seven days a week, works 10 hours per day, although she tries to take some Sundays off to spend time with her children.
Dr Areej Al-Jawazery provided the Tribunal with tax invoices for Dr Areej Al-Jawazery’s services for the months of April, May, June, July and August 2023. As Dr Areej Al-Jawazery works as an independent contractor these invoices do not record her days or hours of work but show her gross and net payments from the clinic owner, which are substantial.
The Tribunal asked Dr Areej Al-Jawazery that as she has provided all of the assistance the review applicant requires when she is in Australia, when the review applicant returns to live in Australia why cannot Dr Areej Al-Jawazery continue to do that? Dr Areej Al-Jawazery’s evidence was that she works long hours, often seven days a week, is tired when she gets home and needs rest, is loved by her patients at the Epping clinic and would not like to leave that clinic because her patients last doctor left suddenly even though the clinic owner has another clinic in Craigieburn much closer to Dr Areej Al-Jawazery’s home, and her husband and children are supportive of the work she does for her patients as the only female doctor at the clinic. Dr Areej Al-Jawazery told the Tribunal she would have to reduce her work hours as a doctor caring for the community to be able to care for the review applicant.
In addition, Dr Areej Al-Jawazery told the Tribunal her brother the visa applicant is not married and is able to care for the review applicant and her mother trusts him, including to assist her with personal hygiene care such as toileting and showering.
Dr Areej Al-Jawazery told the Tribunal when she was not working, she did receive a carer allowance for caring for her mother from Centrelink and when she began working part-time did take maternity leave from her part-time work after the birth of her children in 2015, 2018 and 2019 the duration of which each time was determined by Centrelink and during these times Dr Areej Al-Jawazery continued to provide assistance and care to the review applicant.
The Tribunal accepts Dr Areej Al-Jawazery’s evidence about her professional and family commitments and the care and assistance she has and continues to provide to her mother, the review applicant.
Dr Areej Al-Jawazery told the Tribunal when the review applicant returns to Australia from Iraq, which at the time of the Tribunal hearing was expected to be in September 2023 for an urgent medical appointment, the review applicant would live with and be cared for and assisted by Dr Areej Al-Jawazery. The Tribunal also accepts this evidence.
In the Tribunal’s letter sent in accordance with the procedure set out in s 359A of the Act and referred to in paragraphs 19 to 23 of these reasons, the Tribunal asked the review applicant via Dr Areej Al-Jawazery to respond to or comment on the following information (emphasis in the original):
On 18 January 2024 the Tribunal obtained a copy of your Australian government movement records. This is a record of your departures from and returns to Australia. A copy of your movement records are enclosed.
What your movement records show is that most recently you:
·Departed Australia on 29 March 2022 to travel to Iraq;
·You stayed in Iraq for approximately 19 months;
·You returned to Australia on 31 October 2023;
·You stayed in Australia for 10 weeks; and
·You departed Australia on 9 January 2024 to return to Iraq and have not returned to Australia since.
Relevance of this information to your review
The information in your movement records is relevant to your review because:·Your oral evidence to the Tribunal on 25 August 2023 was that your son Mr Al-Jawazery is the only person who can provide the assistance you need for you to be able to attend to the practical aspects of daily life;
·Your oral evidence to the Tribunal on 25 August 2023 was also that your daughter who lives in Australia, Dr Areej Al-Jawazery is too busy with her practice as a medical doctor and the demands on her time as a wife and mother to three children aged under ten to provide the assistance you need for you to be able to attend to the practical aspects of daily life either at all or to the extent that you need assistance;
·The separate oral evidence of your son Mr Al-Jawazery and your daughter Dr Areej Al-Jawazery to the Tribunal on 25 August 2023 was also that Mr Al-Jawazery is the only person who can provide the assistance you need for you to be able to attend to the practical aspects of daily life and that Dr Areej Al-Jawazery is no longer able to provide that assistance to you;
·Your daughter Dr Areej Al-Jawazery’s oral evidence to the Tribunal on 25 August 2023 was that when you return to Australia, noting you were in Iraq at the time of the hearing, you would reside with her; and
·Your recent residence in Australia for 10 weeks between 31 October 2023 and 9 January 2024 could indicate to the Tribunal that you can obtain the assistance you need to attend to the practical aspects of daily life from your daughter who lives in Australia, Dr Areej Al-Jawazery.
Consequences for your review if the Tribunal relies on this information
The consequences for your review if the Tribunal relies on the information in your movement records is that the Tribunal could find that the assistance you require to attend to the practical aspects of daily life can reasonably be obtained from another relative in Australia who is an Australian citizen or Australian permanent resident. In your case, this Australian citizen or Australian permanent resident relative is your
daughter Dr Areej Al-Jawazery who became an Australian citizen on 13 October 2011 and who normally resides in Australia.If the Tribunal were to make this finding, then that would be the reason, or a part of the reason, for the Tribunal to affirm the decision that is under review. This is because if you can reasonably obtain the assistance you require to attend to the practical aspects of daily life in Australia then your son, Mr Al-Jawazery:
·will not meet the requirements of reg 1.15AA(1)(e)(i) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations);
·will not meet the definition of being a ‘carer’ as that term is defined in reg 1.15AA of the Regulations; and
·will not meet the requirement for the grant of a Subclass 116 Carer visa in cl 116.221 of Schedule 2 to the Regulations of being your ‘carer’ at the time of the Tribunal’s decision.
Despite the review applicant not responding to the Tribunal’s letter reproduced in part above, the Tribunal notes that the review applicant only returned to Australia for ten weeks and that this is a relatively short-term stay, which may not be indicative of Dr Areej Al-Jawazery’s ability to provide the assistance the review applicant needs for the longer-term.
The Tribunal finds that the Australian citizen children of Dr Areej Al-Jawazery are too young to contribute to providing the assistance the review applicant needs.
The Tribunal further finds that Dr Areej Al-Jawazery is not reasonably able to provide all of the assistance the review applicant needs since Dr Areej Al-Jawazery began full-time work in January 2023, whilst also raising three children under ten years of age.
Can the assistance reasonably be obtained from welfare, hospital or nursing or community services in Australia?
Given the age and health, including mental health, of the review applicant and the cultural context within which she views and receives assistance, the Tribunal does not expect the review applicant or anyone on her behalf to have made inquiries about residential care for the review applicant. It is apparent to the Tribunal that no meaningful such inquiries have been made but the Tribunal draws no adverse inferences and makes no adverse findings in this regard.
There is very little documentary evidence before the Tribunal of what in-home assistance can reasonably be obtained for the review applicant from welfare, hospital or nursing or community services in Australia. The Tribunal discussed this with Dr Areej Al-Jawazery during the Tribunal hearing, given Dr Areej Al-Jawazery’s evidence that the review applicant has always lived with, been assisted including medically, and been cared for, by Dr Areej Al-Jawazery when the review applicant has been in Australia.
The Tribunal noted to Dr Areej Al-Jawazery that the May 2017 CVAC states, in part:
Just recently moved 2 months ago; before moving, engaged in community services including weekly cleaning and caring/showering/feeding services.
Dr Areej Al-Jawazery told the Tribunal the review applicant has not ever received any in-home assistance but did receive some assistance after her eye surgery, however that was when she was with Dr Areej Al-Jawazery.
When the Tribunal asked Dr Areej Al-Jawazery what inquiries or efforts had been made to obtain in-home, as opposed to residential, services to assist the review applicant, Dr Areej Al-Jawazery told the Tribunal she tried to obtain some physiotherapy session for her mother but that was not successful. Dr Areej Al-Jawazery told the Tribunal as a doctor she tried to refer her mother to some services but there was “big pressure” on public hospitals and the wait time to be admitted was two years so Dr Areej Al-Jawazery was advised to seek private care for the review applicant.
Dr Areej Al-Jawazery told the Tribunal that she has tried so hard to obtain assistance for her mother but the problem in part is that her mother, the review applicant, refuses to accept these services and says she feels neglected by her children after all she has done for them. Dr Areej Al-Jawazery told the Tribunal the review applicant is a nice lady but a difficult character because she will not let anyone touch her or examine her body and has a phobia of scans.
The Tribunal accepts Dr Areej Al-Jawazery’s oral evidence that the review applicant wants to be cared for by her son and will not accept other services and in this context accepts that some, but very limited, inquiries were made to find out what assistance may be able to be obtained for the review applicant from welfare, hospital or nursing or community services.
As noted in paragraph 21 of these reasons, the Tribunal sought additional information from the review applicant to confirm what enquiries had been made about what assistance for the review applicant could reasonably be obtained from welfare, hospital or nursing or community services in Australia.
The review applicant did not respond to the Tribunal’s request for additional information.
The Tribunal acknowledges that the review applicant is too old to be eligible to receive assistance from the National Disability Insurance Scheme.
There is no evidence before the Tribunal of the review applicant being registered with myagedcare.gov.au, of any aged care assessment being undertaken or of any aged care support plan being developed or communication with service providers to obtain in-home services. These assessments do not require an eligible person to move out of their home into residential care. The Commonwealth Government funds the Commonwealth Home Support Program (CHSP) to assist eligible older Australians to live independently in their homes for longer.
The CHSP provides potential access to a very broad range of in-home assistance including but not limited to bathing, hygiene and grooming, help with impairments and incontinence, meal and food preparation, nursing support, physiotherapy, cleaning, laundry and other household chores, social inclusion and transport.
The Tribunal understands and acknowledges that the review applicant has a clear and very strong preference to be cared for by her son, the visa applicant. The Tribunal further acknowledges that the visa applicant claims to have been the primary carer of the review applicant for nearly 1,000 days out of the past 1,500 days dating back to 1 January 2020. The Tribunal does not expect that the assistance that may reasonably be able to be obtained from welfare, hospital, nursing or community services in Australia could replicate the care that the visa applicant provides to the review applicant, including in relation to the cultural appropriateness of that care.
However, for the Tribunal to make a positive finding that the assistance the review applicant requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia then convincing evidence needs to be placed before the Tribunal of the enquiries and efforts that have been made to obtain such services for the review applicant. Recognising the age and ill health of the review applicant and the fact the review applicant and visa applicant did not have the assistance of a migration lawyer or migration agent during this review, the Tribunal has endeavoured to give the applicants every opportunity to provide this evidence. The Tribunal found the oral evidence of Dr Areej Al-Jawazery about what inquiries had been made of welfare, hospital, nursing or community services in Australia, to be generalised in nature and unconvincing. There is no documentary evidence before the Tribunal of any inquiries being made to find out what assistance could be obtained from welfare, hospital, nursing or community services in Australia for the review applicant.
The Tribunal is not satisfied that the assistance the review applicant requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e)(ii) are not met. For this reason, the Tribunal finds that the requirements of reg 1.15AA(1)(e) are not met by the visa applicant at the time of this decision.
Conclusion on ‘Carer’ criterion
Given these findings the Tribunal finds that at the time of this decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl 116.221 of Schedule 2 to the Regulations.
Conclusion
For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa.
Other visa subclasses
Visa Class BU also contains two other subclasses of visa in addition to Subclass 836 Carer visa: Subclass 835 Remaining Relative visa and Subclass 838 Aged Dependent Relative visa.
100. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 835 Remaining Relative visa as the visa applicant’s near relatives, as defined in reg 1.15(2), reside in the same country as the applicant. The visa applicant’s oral evidence is and his visa application states, that the visa applicant has a sister, Dr Shema Al-Jawazery, who remains resident in Iraq. As such, the visa applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212 of Schedule 2 to the Regulations.
101. The evidence before the Tribunal is that the visa applicant was born on [day deleted] of October 1978. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 838 Aged Dependent Relative visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991 (Cth). Therefore, the Tribunal is not satisfied that the visa applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.
DECISION
102. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.
Michael Ison
Senior MemberATTACHMENT
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.
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