Ali (Migration)

[2023] AATA 2697

Ali (Migration) [2023] AATA 2697 (11 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bilal Ali
Mrs Kamila Almoury
Mr Mouhamad Fateh Ali
Miss Fadila Ali
Master Eshaq Ali
Miss Tarnim Ali
Mr Mohamad Moubarak Ali

REPRESENTATIVE:  Mrs Fatme Akkileh (MARN: 1576810)

CASE NUMBER:  2111248

HOME AFFAIRS REFERENCE(S):          CLF2019/10218

MEMBER:Meena Sripathy

DATE:11 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 11 July 2023 at 9:52am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – circumstances have changed since the application was made – applicant is no longer caring for the sponsor – applicant is not a carer of the Australian relative at time of decision – assistance required by the Australian resident relative is being provided by one or more of his sons – Ministerial intervention referral –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 351

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

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 17 August 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 26 February 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the first named applicant (the applicant) is seeking to satisfy the primary criteria for the grant of a Subclass 836 visa. The remaining applicants are applying as members of his family unit and seek to satisfy the secondary criteria. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221.

3. The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied on the evidence provided that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by r.1.15AA(1)(e)(ii) of the definition of carer in the Regulations.  The delegate was also not satisfied, on the evidence provided, that the primary applicant was willing and able to assist the resident, given that they were living at different addresses, and the resident is living with numerous other immediate family members.

4. The applicants appeared before the Tribunal on 6 July 2023 to give evidence and present arguments. The seventh named applicant also attended the hearing but did not give evidence.  The applicants were accompanied by a family friend, for support. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.  The applicants were represented in relation to the review but the representative was not present at the hearing.

5. The issue in the present case is whether the applicant meets r.1.15AA(1)(e) and 1.15AA(1)(f) of the Regulations, that is, whether the assistance required by the Australian resident cannot reasonably be provided by any other relative of the resident or obtained from welfare, hospital, nursing or community services in Australia; and whether the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The applicant is a 42 year old, married, Lebanese national. He arrived in Australia in March 2015 on a visitor visa and was grant temporary visas in 2015 and again in 2017.  He lodged the present visa application in February 2019 while the holder of a Subclass 408 visa. His wife and four children, two sons and two daughters, born in 2002, 2003, 2009 and 2014 were included in the application as his dependents. A fifth child, born in Australia in 2021 was added to the application after it was lodged. The applicant provided details in the application of his family composition comprising his parents, seventeen siblings in Lebanon, and two siblings in Australia (including half siblings).

8. The applicant has had four residential addresses since his arrival in Australia in 2015, including two addresses in Young NSW from August 2015 to January 2019. His address at time of application was in Guilford NSW.

9. He applied for the visa to be a carer for Mahmoud Ali, born in 1952, who he declared is his uncle.  Mr Mahmoud Ali sponsored the application, and provided a signed Form 40.  The sponsor is an Australian citizen, and resides at the Guildford residential address provided for the applicants. The sponsor has a partner, Fatme Taha Ali, born in 1955, four sons and two daughters.  He stated that he lives with his spouse, son, nephew and his family. 

10. In a letter accompanying the application dated 23 February 2019, the applicant’s representative provided information about the sponsor’s health conditions, details of the sponsor’s Australian relatives (wife and six children) and why they are unable to provide the care and details of contact made with organisations for assistance. The following supporting documents were provided:

    ·Carer Visa Assessment Certificate (CVAC) dated 30 April 2018 relating to Sponsor, which indicates he was assessed an impairment rating of 30

    ·Various medical reports and letters relating to the sponsor, including: letter dated 13 March 2018 from Norval Street Medical Centre by Dr Hany Abdalla regarding the review of the sponsor; letter from St Mary’s Guildford Medical Centre dated 12 February 2018 and signed by Dr Maha Moussad in respect of Mahmoud Ali’s medical condition for IHD, DM, hypotension, hypercholesterolemia and chronic neck and back pain; letter from Dr Mahidi Mardini a Consultant and Interventional Cardiologist dated 13 February 2017 regarding treatment provided to the sponsor ; a medical report from Westside hearing and balance aid dated 10 November 2015 for the treatment of Mahmoud Ali.

    ·Assessment summary issued by My Aged Care for Sponsor Mahmoud Ali dated 10 July 2018.

11. On 26 May 2021, the applicant requested the addition of his newborn baby to the application and provided a new residential address for himself and the family in Chester Hill.

12. In June 2021 the applicant provided various documents in response to a request by the Department for information, including:

    ·Applicant’s bank statement showing his address and regular deposits of $300, notated as ‘family assistance’.

    ·Screenshot from Google Maps showing distance between his Chester Hill address  and the sponsor’s address in Guildford (2km).

    ·Sponsor’s bank statement showing his address (21 Broughton St Guildford) and deposits of pension payments.

    ·Correspondence from MyAgedCare to sponsor reminding him to use the Home Care package Level 1 assigned to him on 17 November 2020.

    ·Applicant’s Statement of Attainment relating to First Aid course dated 24 May 2018.

    ·Home Care Package Contract relating to Level 1 HCP signed on 20 January 2021 by sponsor

    ·Statutory Declaration from Abdul Latif Ali, of Villawood, dated 20 May 2021, stating that he cannot provide domestic care and support for his father because he is married with 4 children aged between 8 years and 6 months and runs his own business, which involves travel to the Central Coast weekly. He attaches tax documents relating to his business in support.

    ·Statutory Declaration from Abdul Kader Ali of Yagoona, dated 28 May 2021, stating that he cannot look after and care for his uncle because he is married and has two children and looks after two businesses. Tax documents are attached in support.

    ·Statutory Declaration from Abdul Nasser Ali of 21 Broughton St Guildford dated 28 May 2021 declaring he cannot look after his father because he is engaged to be married and is busy with his wedding preparations scheduled for November 2021, and will soon have his own life, he also has his own business.  He was previously a carer for his mother.

    ·Statutory Declaration from Fatme Ali, wife of the sponsor, who resides with him, dated 28 May 2021 declaring she cannot look after her husband because of her own health conditions and needs a carer herself.  Medical certificate attached in support.

    ·Statutory Declaration from Khaled Ali, of Punchbowl, nephew of sponsor, dated 19 May 2021 declaring he cannot look after his uncle Mahmoud Ali because he is married and has one child and supports his family, he refers to the death of his new born baby.

    ·Statutory Declaration from sponsor dated 2 June 2021 declaring that he has not seen his children Khalid Ali, Rana Ali and Zeina Ali for over 12 years due to issues between himself and their mother.

    ·Statutory Declaration from Ahmed Ali dated 28 May 2021, of 21 Broughton St Guildford, declaring he cannot look after his father because he is engaged and due to get married and also involved in his own business.

    ·Statutory Declaration from Mouhamad Fateh Ali, third named applicant, dated 2 June 2021 declaring he helps his parents by looking after his younger siblings while his father is busy caring for his uncle.

    ·Statutory Declaration from Omar Ali of Yagoona dated 28 May 2021 declaring he cannot look after his uncle Mahmoud Ali due to managing his own business and his own responsibilities to his wife and three children.

    ·Statutory Declaration from Rabih Ali of Cecil Hill dated 20 May 2021 declaring that he cannot look after his uncle Mahmoud Ali due to his own business and family (wife and one child) commitments.

    ·Letter from Migration Agent dated 6 July 2021 with explanations of all family Members about the reason they cannot provide assistance to the sponsor Mahmoud Ali.

    ·Letter from Dr Hany Abdalla dated 17 May 2021 (updated medical report for the sponsor)

    ·Statutory Declaration from applicant, Bilal Ali, dated 7 June 2021 declaring that is pleased to continue providing unlimited care to his paternal uncle Mahmoud Ali.

    Evidence before the Tribunal

13. On 2 October 2021 the applicant provided evidence of change of name of his Australian born son and an updated NSW Birth Certificate with the new name.

14. On 2 March 2022 the Tribunal received copies of the applicants’ new passports as the previous ones had expired.

15. Department movement records before the Tribunal indicate the applicant was outside Australia from 29 March 2023 to 12 May 2023.  The other applicants travelled outside Australia between 24 January to 6 March 2023. 

16. No other updated information or evidence was provided to the Tribunal addressing issues relating to the review.

    Tribunal hearing 6 July 2023

17. The applicant attended the hearing accompanied only by his son, Mohammad Moubarak Ali, and a family friend. He gave evidence about his current circumstances and relevant history that led to the current situation.  A summary of his evidence, as relevant to the issues in the review, follows.

18. He confirmed his current address, in Chester Hill, where he has lived with his wife and five children for the last four years.  Previous to that, he lived with his paternal uncle, the sponsor, at the Guildford address provided in the application.  They moved out after his wife became pregnant with their youngest child. The applicant confirmed that his paternal uncle presently lives in a granny flat at the Villawood property of his son, Abdul Latif Ali, together with his wife. His son, Abdul Nasser Ali, may also be living there but the applicant is not sure.

19. He explained that when he made the application, he was living with his uncle, together with his wife and children.  At that time, it was only his uncle and his wife and the applicant’s family.  The sponsor’s two sons, Ahmad Ali and Abdul Nasser Ali were not living at this address though they may have listed it as their address.  Ahmad Ali married in early 2021 and lives at Bass Hill with his wife.  Abdul Nasser Ali got married after the application was made, then divorced and his now about to get married again.  He moved out after his first marriage and since then has been back and forth between the Guildford address and his brother’s property at Villawood.

20. In 2021 the property at Guildford began to be renovated.  Abdul Latif Ali moved his parents, the sponsor and his wife, to the granny flat at his property and they have been living there since then to the current time.

21. The applicant explained the history as follows.  He used to live at Young and was working for the Lebanese Muslim Association there.  Then his paternal uncle, the sponsor, asked him to come and look after him because he was not satisfied with the care he was getting from his son, Ahmad Ali, who was at that time being paid to be a carer for him.  The applicant obliged because of his obligation to his father to look after his brother. He left his position and brought his family to Sydney and began to undertake the duties of caring for his uncle.  It was difficult for him financially but his sons and brother helped him.  He continued to do this until the visa was refused and then he applied for review of the decision. 

22. The applicant told the Tribunal he is presently working part time for the Lebanese Muslim Association.  His two elder sons are also working, as plumbers, having completed Certificate III qualifications.  His wife is not working, she is taking care of the younger children, including the new baby.  The other two children are at school.

23. He confirmed that he is n longer caring for the sponsor and has not been doing any caring duties for some time. His uncle told him that he wanted to get his son Ahmad to return to care for him and he can get income from the government for that together with care services.  The applicant told his uncle this was not fair to him given that he left Young and the job he had with his family to look after him as he requested. The uncle told him that it was up to him to resolve the situation.  The applicant said he decided to proceed to the Tribunal hearing and see what happens. 

24. The Tribunal explained the requirements of the carer definition which he must meet at time of decision to meet the visa criteria and that his evidence indicates that he does not meet it. He acknowledged this, confirming that the sponsor and his wife are now living with their son  and to his knowledge they are providing care together with up to 9 hours of care services.

25. The applicant said he has been put in a difficult situation, he believed he was doing the right thing by his uncle when he came from Young to provide care for him. He did look after his uncle for some time.  As the time passed since the application was made, many things have happened and now his uncle has made other arrangements for his care. Meanwhile the applicant has obligations to his own family, which has grown since he has been here.  His sons are both qualified as plumbers and working.  His younger children are at school and he has a new baby. 

26. The Tribunal expressed its appreciation at his candour and honesty regarding his circumstances but explained that it can only consider in this review whether he meets the visa criteria.  It explained that upon finalisation of the review, if the decision is unfavourable to him, which is likely given his evidence, he may wish to consider requesting the Minister to exercise his power to substitute a favourable decision using his discretion under s351 of the Act, although this is a limited power which only the Minister can exercise, and only where there are public interest reasons to do so.  The applicant requested the Tribunal to consider referring the matter to the Minister for consideration under this power if possible.

    FINDINGS AND REASONS

    Whether the applicant is a carer

27. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

28. The applicant has provided evidence to the Tribunal at hearing that his circumstances have changed since the application was made.  He told the Tribunal that he was previously providing care to his relative, the sponsor, who is his paternal uncle, but he is no longer doing so.  On the basis of the information and evidence now before it, the Tribunal makes the following findings relevant to the requirements of r. 1.15AA and concludes that the applicant is not a carer of the Australian relative at time of decision. 

29. 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 applicant’s uncle.

30. The Tribunal is satisfied the applicant is the son of a brother of the Australian relative, and accordingly the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

31. Regulation 1.15AA(1)(b) requires a certificate, which meets requirements of reg 1.15AA(2).  The Tribunal has before it a certificate dated 30 April 2018 that relates to a medical assessment of Mahmoud Ali, the resident, carried out on behalf of Bupa Medical visa Services and is signed by a medical advisor who carried it out. The Tribunal accepts that the certificate provided meets the requirements of reg 1.15AA(2) and addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv).  Accordingly, the requirements of reg 1.15AA(1)(b) are met.

32. 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 an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

33. 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 in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

34. 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)

35. 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.

36. The delegate refused the visa on the basis of not being satisfied the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by r.1.15AA(1)(e)(ii) of the definition of carer in the Regulations.  The delegate was also not satisfied, on the evidence provided, that the primary applicant was willing and able to assist the resident, given that they were living at different addresses, and the resident was living with numerous other immediate family members.

37. At the time of decision, the concerns identified by the delegate have in fact played out.  On the evidence of the applicant himself, the assistance required by the Australian resident relative is apparently now being provided by one or more of his sons, Abdul Latif Ali, Abdul Nasser Ali and Ahmad Ali in conjunction with care services of some nine hours per week.  The applicant is no longer, and has not been for some time, providing any care assistance to him. 

1. Therefore, on the basis of the evidence of the applicant at hearing of the current care arrangements, the Tribunal is not 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 not met.

2. Given the above finding, it is not necessary to address r.1.15AA(1)(f) which requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. The Tribunal acknowledges the applicant’s oral testimony that he was prepared to provide care to the sponsor and did so at the time the application was made.  It accepts his evidence that he left his job in Young and relocated with his family to Sydney for this purpose in 2019. However, he also stated that his family has since grown and it became difficult for him to manage financially. Given the finding above, and the arrangements now in place for the sponsor, it is not necessary to consider further whether the applicant can meet this requirement and therefore the Tribunal makes no finding on it.

3. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.

   Secondary visa applicants

4. As the primary visa applicant does not meet the primary criteria, the Tribunal finds that all of the secondary applicants are unable to meet cl.836.321.

5. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that any of the applicants meets prescribed criteria for the visa sought. Specifically, none of the applicants are old enough to be eligible to meet the criteria for a Subclass 838 Aged Dependent Relative visa.  There is no evidence before the Tribunal to suggest any of the visa applicants meet the requirements for a Subclass 835 Remaining Relative visa.  

   Ministerial intervention request for referral

6. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal notes the applicants have been in Australia lawfully on various temporary visas and bridging visas pending this application since 2015. The Tribunal found the applicant to be a credible and honest witness and it accepts his account about how and why he came to make this application and the change of circumstances that occurred since that time. He told the Tribunal that he was previously employed by, and is now working for, the Lebanese Muslim Association.  His two adult sons are working as plumbers, having obtained Certificate III qualifications.  He has two young children of school age and a new Australian born child.  On this evidence, the family appear to have been living lawfully and productively in Australia for a significant period of eight years, which have been formative years in the lives of the applicant children, and in that time it is reasonable to expect that they have made significant community ties.

7. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3). These refer to unique or exception circumstances, which include, among others, compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.  However, having regard to these guidelines and the limited material before it, the Tribunal has decided not to refer the matter, although it does note the applicant impressed the Tribunal as a person of integrity and candour. The Tribunal notes that the applicants can still make a request directly to the Minister. In doing so, they may wish to submit further evidence addressing any unique or exceptional circumstances such as support letters from employers and the community.

   DECISION

8. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

   Meena Sripathy
   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.