Al-Massaudi (Migration)

[2020] AATA 561

Al-Massaudi (Migration) [2020] AATA 561 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Houda Al-Massaudi

VISA APPLICANT:  Mr Ali Adil Hasan Almasood

CASE NUMBER:  1716211

HOME AFFAIRS REFERENCE(S):          2016001743

MEMBER:M. Edgoose

DATE:25 February 2020

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 25 February 2020 at 11:48am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance reasonably provided by other relative, or obtained from service providers – care currently provided by husband – review applicant’s and husband’s health conditions and requirements – offer of care and meals through government program declined for cultural and religious reasons – no investigation of Muslim services available – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), rr 1.03, 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 Immigration and Border Protection on 21 May 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 June 2016. 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 (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.

4. The review applicant appeared before the Tribunal on 3 February 2020 to give evidence and present arguments The Tribunal adjourned the hearing on 3 February 2020. The hearing resumed via telephone on 13 February 2020. The Tribunal also received oral evidence from Mr Khairy Al Massoudy the review applicant’s spouse and the visa applicant Mr Ali Adil Hasan Almasood via telephone on 13 February 2020. Both of the Tribunal hearings were conducted with the assistance of an interpreter in the Arabic and English languages.

5. The review applicant was represented by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   APPLICANT CLAIMS TO BE CARER

   Whether the visa applicant has claimed to be a ‘carer’

7. Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of the review applicant, who is the visa applicant’s aunt.

8. 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.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

9. The visa applicant claimed to be a carer of a relative. The caree is an Australian citizen. I am satisfied that at time of application the applicant claimed to be the carer of another person. I am satisfied that the other person is an Australian citizen at the time of the application, and a relative, namely the aunt of the visa applicant at the time of application. I am satisfied the applicant claimed to be the carer of an Australian citizen at the time of application. 

10. Therefore, at the time of application the visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl.116.211.

    APPLICANT IS A CARER

    Whether the visa applicant is a ‘carer’

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

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

12. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Tribunal is satisfied the Australian relative, the review applicant is identified as the visa applicant’s aunt.

13. Therefore, as the visa applicant is the nephew of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

14. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

15. For a certificate to meet r.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 14/085 , or issued by a specified health provider in relation to a review of such an opinion. The Tribunal has considered the Bupa Medical Visa Services Carer Visa Assessment Certificate dated 26 April 2016. I am cognisant of the fact the certificated was prepared approximately four years ago, however there is no evidence before the Tribunal that indicates the review applicant, Mrs Houda Al-Massaudi’s, medical condition has improved, and the Tribunal accepts the certificate as still applicable.

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

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

17. 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.

18. In the present case, the person with the medical condition is an Australian citizen which was granted in 2009 year. I am satisfied that the person with the medical condition is an Australian citizen.  Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

19. 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

20. In the present case, the impairment rating specified in the certificate is 30. This rating is equal the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

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

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

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

22. 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.

23. The Tribunal has considered the evidence provided in the form of submissions, medical documents, the oral evidence provided at hearing and documents that were provided to the Department and the Tribunal pre and post hearing.

24. The review applicant initially stated at hearing that she has not been provided with any care in Australia. The applicant when questioned further by the Tribunal said that she receives home care approximately once a fortnight to clean the home. The Bupa Medical Visa Services Carer Visa Assessment Certificate dated 26 April 2016 states the review applicant receives home help by her local council fortnightly and that she lives with her husband who is her current carer.  According to the review applicant her husband does the cooking, helps her with administering her diabetic injections and checking her blood levels, showering and going to the toilet.

25. Post hearing the applicant’s migration agent submitted a letter from Dr Raouf Maccar of Epping Family Medical Centre dated 14 February 2020 (AAT Folio 110) that stated, “This is to certify that Mrs. Houda Al Massaudi isn’t receiving any assistance and her husband is her main carer”. Given that the review applicant provided oral evidence at hearing that she reviews home care approximately once a fortnight the Tribunal gives no weight to the letter from Dr Raouf Maccar.

26. On 1 December 2017 a letter was sent to the review applicant by the City of Whittlesea (AAT Folio 37) which said the following “The assessment officer offered Mrs Al Massaudi (the review applicant) personal care and delivered meals through the HACC PYP program, to relieve some of the carer stress. They (the review applicant and her husband) declined theses services due to cultural and religious reasons, and prefer to receive assistance with these supports from family/friends.” At hearing, the review applicant stated that she did not want to receive help from strangers and that because of her diabetes she likes to direct her husband how to cook meals. The Tribunal asked the review applicant did she know what Muslim services were available to her in Australia. The review applicant responded that she did not know what Muslim services were available to her in Australia and that she did not feel comfortable in receiving care from these services or programmes.

27. The Tribunal asked the applicant if she had investigated what Muslim health care providers were available in Melbourne. The review applicant responded no and that she does not want to look. The Tribunal asked the review applicant why she did not want to look. The review applicant responded that my English is limited and that she does not feel comfortable with strangers providing her care.

28. The review applicant informed the Tribunal that she attends a range of medical services outside of the home on a regular basis. The majority of the practitioners that the review applicant sees are able to communicate with her in the review applicant’s preferred language of Arabic.

29. The review applicant’s husband, Mr Khairy Al Massoudy, gave oral evidence at hearing. Mr Khairy informed the Tribunal that he is on the waiting list to have a knee operation, that he also has diabetes and high blood pressure and that his wife, the review applicant, is not well and cannot look after him. He further stated that he has problems with his hands and that he is waiting for an appointment at the Austin Hospital. The Tribunal asked Mr Khairy who will look after the review applicant when he has his knee surgery. Mr Khairy responded my wife will stay at home and this is why we want the boy (the visa applicant) to come to Australia. Mr Khairy confirmed that some modifications / alterations have been made to the bathroom at their residence and that other modifications / alterations are still pending. Mr Khairy’s final comment to the Tribunal was that I am tired and I need you, the Tribunal, to look into my case with understanding. Mr Khairy receives a carer payment and carer allowance from Centrelink according (AAT Folio 18) the evidence provided to the Tribunal. The Tribunal considers that Mr Khairy is the paid carer of the review applicant given that he receives a fortnightly care payment and carer allowance from Centrelink.

30. The review applicant informed the Tribunal that the visa applicant lives in Iraq and that she has met him in person. The review applicant and her husband last saw the visa applicant in person was when they travelled to Iraq for one month in February 2019. This was confirmed by the visa applicant.

31. The visa applicant informed the Tribunal that he works as a land surveyor. The visa applicant understand that if he were to come to Australia that he would be providing care for his aunty and her husband by doing the shopping, looking after her everyday business, needs and life. The visa applicant stated that he will live at his aunt’s house. The Tribunal asked the visa applicant how he was going to support himself financially. The visa applicant responded isn’t the Australian government going to provide me a salary. The Tribunal responded to the visa applicant that he would have to seek advice on that. The visa applicant understands that Australia is a developed country and that the people are respectful. The visa applicant informed the Tribunal that he has no formal carer or medical qualifications or experience. The visa applicant understands that the review applicant has diabetes, high blood pressure and back problems and the main reason to come to Australia is to look after his aunt. The visa applicant further added that he does not know what welfare, hospital, nursing or community services are available for his aunt in Australia but believes requires a full-time carer. 

32. The Tribunal is satisfied that assistance cannot reasonably be 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. Accordingly the requirements of r.1.15AA(1)(e)(i) are met. 

33. As mentioned in paragraphs 26 and 27 the review applicant has not accepted or engaged with the services available and offered to her in Australia.  The review applicant does not feel comfortable with strangers providing her care. The review applicant further mentioned that she had not investigated what Muslim services were available to her in Australia. Given that the review applicant has not accepted or engaged with the services available to her in Australia the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met. 

34. As the Tribunal finds review applicant, Mrs Houda Al-Massaudi, does not meet the requirements of cl.1.15AA(1)(e)(ii) the visa applicant, Mr Ali Adil Hasan Almasood, does not meet the definition of carer in r.1.15AA. Given these findings the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

35. For the reasons above, the visa applicant, Mr Ali Adil Hasan Almasood, does not meet the criteria for a Subclass 116 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.   

    DECISION

36. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    M. Edgoose
    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.