Ali (Migration)

[2022] AATA 4619

Ali (Migration) [2022] AATA 4619 (8 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Basit Ali

VISA APPLICANTS:  Mr Muhammad Iqbal
Mrs Erum Shakeel
Miss Hareem Iqbal
Miss Sheikha Iqbal

CASE NUMBER:  2016479

HOME AFFAIRS REFERENCE(S):          OSF2018/009910

MEMBER:Andrew McLean Williams

DATE:8 November 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 08 November 2022 at 2:22pm

CATCHWORDS  
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be obtained/provided – assistance from relatives – assistance from certain services – willing and able to provide ‘substantial and continuing assistance’ – decision under review remitted

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15AA; Schedule 2, cl 116.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 6 November 2020 refusing 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 5 June 2018. 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 primary visa 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, the primary criteria include clause 116.221.

3. The delegate refused to grant the visas on the basis that cl.116.221 was unable to be met because Regulation 1.15AA(1)(e)(i) was not met by reason that the Delegate was not satisfied that the care and assistance required by Mr Basit Ali (the ‘Australian relative’ for purposes of r.1.15AA) could not reasonably be provided by any other relative, who was already resident in Australia.

4. Mr Bast Ali appeared before the Tribunal on 8 November 2022 accompanied by his appointed legal guardian and financial administrator, his brother Mr Arif Muhammad. Because of his significant cognitive impairment, Mr Basit Ali was unable to communicate with the Tribunal.  Nevertheless, his appearance before the Tribunal was important, as it underscored the obvious practical reality of his requiring day-to-day care and assistance.  The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu (Pakistan) and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is essentially confined to the question whether the visa applicant, Mr Muhammad Iqbal qualifies as a ‘carer’ for purposes of r.1.15AA.

7. Clause 116.221 requires that at the time of decision, the primary 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.

8. Regulation 1.15AA(1)(a) requires the primary visa applicant be 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 Mr Basit Ali who is identified as the primary visa applicant’s brother. As such, the primary visa applicant does qualify as a ‘relative’, and easily meets the requirements of reg 1.15AA(1)(a).

9. 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.

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

11. In this case there is a Bupa Health Assessment certificate issued by Dr Arvind Das on 13 September 2021 pursuant to regulation 1.15AA(1)(b) and 1.15AA(2) of the regulations that stipulates that Mr Basit Ali has an impairment rating of 30, in consequence of his suffering from ‘global cortical atrophy’: a permanent, progressive neurological condition giving rise to severe cognitive and behavioural impairment. In light of that certificate, and the care requirement matters further certified by the certificate, the Tribunal is satisfied in relation to the matters arising under r.1.15AA(1)(b).

12. 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.  Mr Basit Ali was conferred with Australian Citizenship on 22^nd May 1986, long before the onset of his present medical condition, such that the requirements of reg 1.15AA(1)(ba) are now met in this instance.

13. 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. In the present case, the impairment rating specified on the certificate is 30. This is sufficient to meet the requirements of reg 1.15AA(1)(c).

14. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) is applicable. As Mr Basit Ali is the person who is now the subject of the certificate r.1.15AA(1)(d) is not applicable.

15. Regulation 1.15AA(1)(e) requires that the required assistance cannot reasonably be provided by: any other relative of Mr Basit Ali who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or otherwise obtained from welfare, hospital, nursing or community services in Australia.

16. Mr Basit Ali has the following relatives in Australia:  his brothers Arif Muhammad and Zulqarnan, and his wife, Falah Iqbal. 

17. Fala Iqbal has provided a statutory declaration dated 3 August 2022 in which she describes the considerable difficulties caused for her when attempting to effectively care for her husband due to his physical size and her comparatively diminutive stature and because of her competing responsibilities looking after their children.   

18. Mr Basit Ali’s brother Zulqarnan has similarly provided a statutory declaration in which he states that he is unable to provide care services for his brother by reason that he lives too far away; has competing responsibilities towards his own wife and children; because his own wife is unable to drive; and because he has neither the skills nor the capacity to provide the amount of care that Basit Ali’s condition requires. 

19. Mr Arif Muhammad told the Tribunal that he endeavours to provide as much assistance as he can for his brother Basit Alia and his sister-in-law, but that this is limited by reason that he does not live in close proximity to them and because he and his wife already have significant care responsibilities for their own 11 year old son who is profoundly autistic, and thus high needs.  Mr Arif Muhammad also informed the Tribunal that his sister-in-law Fala Iqbal has had recent significant health problems of her own and has required surgery.  Mr Arif Muhammad produced correspondence from the Mater Hospital confirming that.  In his view, because of her own poor health and approximately seven continuous years of caring for Basit Ali she has reached a stage at which she is no longer practically capable of caring for her husband Basit Ali, who requires round-the-clock care and supervision. 

20. Mr Arif Muhammad is also Basit Ali’s legal guardian and appointed administrator for financial matters.  He informed the Tribunal that whilst Basit Alia receives an NDIS funding package the package is insufficient to fund in-home care and assistance.  Mr Arif Muhammad has made inquiries to ascertain whether care and assistance could as an alternate be provided either commercially or via charitable services in the community, yet has been unsuccessful in finding services for his brother that are either suitable, or affordable.

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

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

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

24. There is a statement before the Tribunal from the primary visa applicant and proposed carer, Mr Iqbal Muhammad that indicates that he is both willing, and able, to provide his younger brother Mr Basit Ali with substantial and continuing assistance. This meets the requirements of reg 1.15AA(1)(f).

25. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a ‘carer’ of the Australian relative, being the review applicant Mr Basit Ali, and therefore satisfies cl. 116.221.  It follows therefore that the other named visa applicants are each persons who will be able to meet the requirements of cl. 116.321.

26. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.

    DECISION

27. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

    ·cl 116.221 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    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.