Allouch (Migration)

[2023] AATA 4450

Allouch (Migration) [2023] AATA 4450 (16 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Samira Allouch

REPRESENTATIVE:  Mrs Amita Kant

CASE NUMBER:  2202856

HOME AFFAIRS REFERENCE(S):          CLF2019/28410

MEMBER:Mila Foster

DATE:16 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 16 November 2023 at 2:17pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance cannot reasonably be provided/obtained – welfare, hospital, nursing or community services – partially dependent for activities of daily living (ADLs) – cultural or religious requirements – Muslim woman – preference rather than religious requirement – cost of obtaining services – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274

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 11 February 2022 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 July 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 applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa the criteria for which are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria include cl 836.212 which requires that the applicant claims to be the carer of an Australian relative at the time of application and cl 836.221 which requires that the applicant is the carer of a person referred to in cl 836.212 at the time of decision. The applicant applied for the visa on the basis that she was the carer of her sister, Kawsar Allouche, her sponsor for the visa.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the applicant had not demonstrated that the assistance needed by her sister could not reasonably be provided by other members of her family or obtained from welfare, hospital, nursing or community services in Australia.

4. The applicant appeared before the Tribunal on 24 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Raida Matar (the sponsor’s niece) and Celine Hassan (the sponsor’s granddaughter).  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

5. The applicant was represented in relation to the review. The representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the assistance the sponsor requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

8. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application, Department movement records, written submissions and documentary evidence presented to the Tribunal, and the oral evidence and submissions given at the hearing.

   Background

9. It is claimed that the applicant is a 64-year-old widowed Lebanese citizen who arrived in Australia on a visitor visa on 31 January 2019. She claims that since February 2019 she has been caring for her 69-year-old sister.

   Whether the applicant has claimed to be the carer

10. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the applicant claimed in her visa application to be the carer of the sponsor who was her sister and an Australian citizen.

11. 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 836.111. The terms ‘relative’ is defined in reg 1.03 of the Regulations and includes a sister.

12. The Tribunal has before it an Australian passport issued to the sponsor on 20 March 2018 and an Australian citizenship certificate which states she was granted citizenship on 2 August 1989. Based on those documents the Tribunal finds that the sponsor is and was at the time of application an Australian citizen.

13. An English translation of an extract of a Lebanese Family Registry Record issued on 17 January 2019 was presented as evidence of the relationship between the applicant and sponsor. The extract was not translated by a NAATI accredited translator. It indicates that Samira Allouche and Kawssar Allouche have the same parents. The Tribunal notes the variation in spelling of the names but presumes this is due to transliteration from Arabic to English. Although the sponsor’s passport and citizenship certificate only provide her year of birth the Family Registry Record provides the day, month and year of Kawssar Allouche’s birth. The year of birth corresponds to the sponsor’s claimed year of birth. The Tribunal accepts on the basis of this document and the statutory declarations from family members which refer to the applicant and sponsor as sisters, that the applicant is the biological sister of the sponsor. The applicant is thus a ‘relative’ as defined in reg 1.03 of the sponsor.

14. The Tribunal therefore finds that at the time of application the applicant claimed be the carer of an Australian relative and satisfies the requirements of cl 836.212.

    Whether the applicant is a carer

15. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative referred to in cl 836.221. The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this decision. It states that the applicant is the carer of a person who is an Australian citizen usually resident in Australia,[1] Australian permanent residence or eligible New Zealand citizen (the ‘resident’) if the requirements in paragraphs (a) to (f) are met.

    [1] The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17].

16. It is claimed that the applicant is the carer of the sponsor. The Tribunal has found that the sponsor is an Australian citizen. Based on her movement record and the totality of the evidence before it the Tribunal is satisfied that she is ‘usually resident’ in Australia. The sponsor is thus the ‘resident’ for the purposes of reg 1.15AA.

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

17. Regulation 1.15AA(1)(a) requires that the applicant is a relative of the resident. The Tribunal has found that the applicant is a relative of the sponsor. Therefore, the applicant is a relative of the resident and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

18. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that 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.

19. 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 (see Legislative Instrument IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

20. A certificate meeting the requirements in reg 1.15AA(2)(a) was issued by Bupa, the health provider specified in IMMI 14/085, in relation to the sponsor on 2 August 2019. According to the certificate the sponsor has three medical conditions which impair her ability to attend to the practical aspects of daily life – lower back issues, depression and anxiety, and vestibular migraine and vertigo. The certificate specifies an impairment table rating for the impairment, and the certificate states that because of the medical conditions the sponsor has and will continue to have for at least 2 years a need for direct assistance in attending to the practical aspects of daily life.

21. The Tribunal thus finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate 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.

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

22. 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.

23. In the present case, the person with the medical condition is the sponsor who is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

24. 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.

25. 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).

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

26. Where the person to whom the certificate relates is not the resident but a member of their family unit, reg 1.15AA(1)(d) requires the resident 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.

27. As the person to whom the certificate relates is the resident, reg 1.15AA(1)(d) does not apply.

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

28. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia (service providers).

29. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services 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].

30. According to the certificate the sponsor requires assistance with mobility, bathing/showering, toileting, dressing/grooming, supervision of medication, supervision for personal safety and transportation. Overall, the sponsor is said to be partially dependent for her activities of daily living (ADLs) and will need direct assistance for at least two years. A recent letter from her GP, Dr Peter Wong, dated 8 August 2023 indicates her need has continued.

31. Question 72 of the visa application asks whether anyone has sought assistance from any Australian welfare, hospital or nursing or community services to assist the relative. The applicant responded that assistance had been sought from doctors, specialists and hospital. Documents from doctors, specialists and hospitals provided in connection with the visa application related to medical diagnosis and treatment or were written to support the visa application rather than about obtaining assistance to meet the sponsor’s ADLs.

32. Evidence was presented on review indicating that attempts were made on behalf of the sponsor to obtain the assistance she needs.

33. Prior to the hearing the Tribunal was provided with a letter from the Community Home Care Service dated 27 July 2023 which stated that following a brief discussion Ms Matar was advised that limited assistance could be provided to the sponsor, 24-hour respite care could not be offered and some aspects of personal care/hygiene services could not be guaranteed due to the sponsor’s cultural requirements. A letter from Dr Wong dated 8 August 2023 referred the sponsor to the Aged Care Assessment Team (ACAT) [2] at Westmead Hospital. In statutory declarations made on 15 August 2023 the sponsor and her husband, Mohamad Allouche, stated that they were on the disability support pension and had limited financial means to find the extent of the care the sponsor needed. They stated that they had enquired through nursing homes and community services but the assistance offered was limited given the care the sponsor required at night. The sponsor stated that cultural and religious concerns about having a male or a non-family member provide her with care was also an issue.

    [2] ACAT assessment is the first step in determining eligibility for free and/or government subsidised aged care services through the Commonwealth Government’s My Aged Care: Access Australian aged care information and services | My Aged Care (>

    At the hearing the Tribunal asked the applicant what service providers had been contacted to obtain the assistance the sponsor needed. She replied that in their culture and religion it was not nice for a woman to be exposed to someone who was not a family, to a stranger. She stated that the sponsor would be comfortable with her. Asked if that was a preference rather than a requirement, the applicant replied it was forbidden under the Muslim religion and the sponsor would be more comfortable with her. The Tribunal noted there were Muslim aged care services and a Muslim nursing home[3] which suggested it may be the sponsor’s preference to be cared for a family member rather than a religious requirement. The applicant repeated it was forbidden even if the carer was Muslim, even a female stranger was forbidden to wash the sponsor after going to the toilet. The applicant said she was unaware whether any service providers had been contacted or whether the sponsor had had an ACAT assessment.

    [3] Australian Muslim Times, ‘Support services grow for Muslim aged care’, 30 April 2017,  National Zakat Foundation Australia website, ‘Respecting Elders’, Daily Care website, ‘Muslim Care’,  Muslimcare Australia website, ‘Aged Care – Our Duty To Care’, The Gallipoli Home website,

34. The sponsor told the Tribunal that she was comfortable with the applicant, it was not good in their religion for a stranger to see her body. She said she had vertigo and the applicant could be there all the time, she had anxiety and depression and the applicant helped her a lot by talking to her, making her comfortable and relaxed. Asked whether it was a preference rather than a religious requirement to be care for someone who was not a stranger given there were Muslim aged care providers and a Muslim nursing home, the sponsor stated that she preferred her sister rather than a different person every day.

35. Ms Hassan indicated at the hearing that she had contacted two service providers to obtain assistance for the sponsor but neither provided the information she needed. Ms Matar told the Tribunal she had looked at nursing homes. The Tribunal asked for documentary evidence of those inquiries to be provided.

36. The representative confirmed at the hearing that an ACAT assessment for the sponsor had not been undertaken.

37. Statutory declarations made by Ms Hassan on 29 August 2023 and Ms Matar on 28 August 2023 were submitted after the hearing. Ms Hassan stated that she had made multiple attempts to the Toongabbie Terrace Care Community and Southern Cross Care Greystanes Residential Care to obtain information about aged services for the sponsor. She stated that she emailed both service providers on 13 August 2023 and left telephone messages but received no response. Accompanying her statutory declaration were copies of two online enquiries she made to those service providers on 13 August 2023 asking to be advised of any accommodation and pricing.

38. Ms Matar stated that after many attempts she was only able to get information from three places. In addition to her inquiry to Community Home Care Chester Hill on 27 July 2023, she said St Vincent’s Care Services Yennora informed her that there was no vacancy. She stated that George Manor Advantage Care Georges Hall provided her with the costs of the sponsor staying however, Ms Matar said, the sponsor did not have the capacity to pay.  Accompanying her statutory declaration were emails from the latter two service providers. Ms Matar had emailed St Vincent’s Care Services Yennora on 9 August 2023 asking about residential care. The service provider replied on 22 August 2023 that there was no vacancy and asked for the sponsor’s ACAT assessment to place her on their waiting list if she was approved. An email Ms Matar received from Georges Manor on 18 August 2023 indicated that the service provider had spoken to Ms Matar that day and provided prices for accommodation.

39. The Tribunal is not satisfied on the evidence before it that assistance of the kind the sponsor needs cannot reasonably be obtained from service providers in Australia for cultural or religious reasons. It was not mentioned in the visa application or in the accompanying supporting evidence that cultural or religious requirements were issues affecting the sponsor’s ability to obtain assistance from service providers. An undated and unsigned document, the author of which is not apparent, was subsequently submitted to the Department[4] stating that the sponsor is a Muslim woman who feels more comfortable receiving personal care from someone she is related to. This indicates the sponsor had a preference to receive personal care from a relative rather than it being a religious requirement. That there is a Muslim nursing home and that there are Muslim aged care service providers indicates that receiving assistance for personal care and hygiene needs from a stranger is not religiously forbidden. The Tribunal has thus concluded that being cared for by a family member rather than a stranger is the sponsor’s personal preference rather than a religious requirement. The documentary evidence indicates that only on one occasion were cultural requirements specified in inquiries Ms Hassan and Ms Matar made to service providers regarding assistance for the sponsor. If cultural or religious requirements were a genuine issue for the sponsor then it seems reasonable to expect they would have been mentioned in the other inquiries made by Ms Hassan and Ms Matar. The letter from the Community Home Care Service does not indicate the nature of the cultural requirements that could not be met. That one service provider stated it could not meet unspecified cultural requirements does not satisfy the Tribunal that the sponsor has cultural requirements or that the assistance she needs cannot reasonably be obtained from other service providers for cultural or religious reasons.

    [4] On 22 November 2021.

1. Further, the Tribunal does not believe a genuine attempt has been made to obtain the assistance the sponsor needs from service providers. Even though the sponsor has needed assistance for many years, the evidence before the Tribunal indicates that Ms Hassan and Ms Matar contacted service providers and Dr Wong’s ACAT assessment referral was sought after the applicant was sent the hearing invitation on 6 July 2023. This suggests that the inquiries were made and the ACAT referral obtained to strengthen the claim that assistance was not obtainable from service providers rather than a genuine attempt to obtain that assistance. That a few service providers did not have vacancies or did not respond to recent inquiries made on behalf of the sponsor do not satisfy the Tribunal that the assistance the sponsor needs cannot be obtained from service providers.

2. Finally, if cost was an issue in obtaining assistance then the Tribunal expects inquiries would have been made about free and/or government subsidised assistance from service providers. The Tribunal is not satisfied on the evidence before it that inquiries or genuine inquiries were made about free and/ or affordable assistance.

3. For the above reasons the Tribunal is not satisfied on the evidence before it that the assistance the sponsor needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The requirements of reg 1.15AA(1)(e) are therefore not met.

   Conclusion

4. In light of the above findings, the applicant is not a carer of the Australian relative at the time of decision. The applicant therefore does not satisfy cl 836.221 and does not meet the criteria for a Subclass 836 visa.

   Other visa subclasses

5. In respect of the other visa subclasses the material before the Tribunal does not permit a finding that the applicant meets prescribed criteria for the visa sought.

6. The evidence before the Tribunal is that the applicant was born in 1958. As she was not old enough to be granted an age pension under the Social Security Act 1991 at the time of application, she does not meet the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl 838.212. The Tribunal thus finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa.

7. According to information provided in the visa application form the applicant had a brother and 7 stepchildren residing in Lebanon. As the applicant had a ‘near relative’ as defined in r.1.15(2) in Lebanon she was not a ‘remaining relative’ and unable to meet cl.835.212. The Tribunal therefore finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa.

   DECISION

8. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

   Mila Foster
   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.