Ansari (Migration)

[2022] AATA 2962

Ansari (Migration) [2022] AATA 2962 (21 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Bibi Hamida Ansari

VISA APPLICANT:  Mr Ahmad Basit Ansari

CASE NUMBER:  2016042

HOME AFFAIRS REFERENCE(S):          OSF2018/009220

MEMBER:M. Edgoose

DATE:21 July 2022

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 21 July 2022 at 2:35pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – relative of an Australian relative – medical condition is permanent – review applicant’s husband has mainly been unemployed – care reasonably provided by Australian family members – family’s overseas travel – care by relevant welfare, hospital, nursing or community services – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 116.211, 116.221; rr 1.03, 1.15

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 25 August 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).

2. The visa applicant applied for the visa on 4 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 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. On 30 June 2022 the Tribunal sent a hearing invitation to the review applicant via email inviting her to attend a hearing on 21 July 2022 at 10am.

5. On 30 June 2022 the Tribunal received the following email from the review applicant’s registered email address.

   I hope you guys are well. in scheduled time which is in 21/07/2022 for hearing I am not available because I got an emergency my father is really sick He has cancer so I am going overseas soon. So I am politely requesting you guys if you change date of hearing in September 2022 or after that
   Thanks best regards .

   The Tribunal considered the review applicant’s request however was not satisfied that the hearing should be postponed. Therefore, on 1 July 2022 the Tribunal sent a letter to the review applicant via email informing her that the Member of the Tribunal was not satisfied that a postponement in this matter should be granted and that the hearing would proceed as scheduled.

6. The review applicant appeared before the Tribunal on 21 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ahmad Basit Ansari, the visa applicant and Mr Wahidullah Ansari the husband of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

7. At hearing the review applicant informed the Tribunal that she, her husband and children were in Afghanistan with their four children.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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 sister.

10. 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 reg 1.03 of the Regulations.

11. In this matter the review applicant is, Mrs Bibi Hamida Ansari, and her son Sidiqullah Ansari, is the person that requires care. The visa applicant in this matter is the brother of the review applicant and uncle of the person that requires care.

12. The Tribunal is satisfied that the visa applicant is a relative of an Australian citizen in this matter.

13. 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’

14. 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)

15. 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 aunty. The person who requires in Australia is a cousin of the visa applicant. 

16. Therefore, as the visa applicant is the brother and uncle of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

17. 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.

18. 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. The Tribunal has considered the Bupa Medical Visa Services Carer Visa Assessment Certificate dated 7 December 2021 completed by examining doctor, Dr Nirmalie De Silva.

19. Dr De Silva found that the review applicant’s son, Sidiqullah,

    has a moderate to severe intellectual disability, severe receptive and expressive language delay, and challenging and difficult behaviours. His condition is permanent and as a result, he needs constant supervision and assistance with his activities of daily living.

    The Tribunal acknowledges that Sidiqullah, the son of the review applicant will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life given that Dr De Silva has determined his condition is permanent.

20. 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 rr.1.15AA(1)(b)(i)–(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

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

21. 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.

22. 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.

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

23. 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.

24. 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 r.1.15AA(1)(c).

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

25. 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.

26. In the present case the Australian relative (resident) is not the subject of the certificate. In this matter the relative is the mother of the person who has the medical condition. Therefore, the review applicant is requesting her brother, the visa applicant, to be granted a carer visa to assist her in supporting her son who has the medical condition. At hearing the review applicant informed the Tribunal that the visa applicant will help look after her children. The review applicant claimed that she requires lots of help and that the visa applicant will provide this support. The review applicant informed the Tribunal that her husband does not work and assists in helping the children when he is at home, especially with their son who has the medical condition. Mr Ansari, the husband of the review applicant confirmed at hearing that he assists his wife with their son and the other children. He further mentioned that in 2014 when they first arrived in Australia, he was the primary carer for their son. In 2016 / 2017 the review applicant took over as the primary carer of their son as her husband started looking for employment. Mr Ansari informed the Tribunal at hearing that the only time he has worked since arriving in Australia was for approximately one month in 2021 as a security guard. Mr Ansari claimed at hearing that he is currently looking for full-time employment. The Tribunal does not accept that Mr Ansari at time of hearing is currently looking for full-time employment given that he is currently in Afghanistan with the review applicant and his family and that since arriving in Australia in 2014 he has only worked for approximately one month, that being in 2021. Given this the Tribunal is not satisfied that the review applicant, the Australian relative, requires assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv) given that her husband has for the majority of the time been unemployed except for a period of approximately one month since 2014. Given this the Tribunal considers, the review applicant, the Australian relative has the required support to provide direct assistance for their son, the person who has the medical condition. Therefore, the requirements of reg 1.15AA(1)(d) are not met.

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

27. 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.

28. At the hearing on 21 July 2022 the review applicant confirmed to the Tribunal that she had not submitted any further evidence to the Tribunal regarding her son and their current circumstances other than the recent CVAC that was completed on 7 December 2021,  

29. At hearing the review applicant informed the Tribunal at home she has her husband, the witness in this matter and four children aged 20, 16, 13 and 2 years of age. The 16 year old is the person with the medical condition. The review applicant informed the Tribunal that her husband assists her with the needs of the children, especially with the 16 year old who has the medical condition when he is not out looking for work. As mentioned earlier in this decision the review applicant’s husband has only worked for approximately one month in 2021 since arriving in Australia. Given this the Tribunal is of the view that the review applicant’s husband and the review applicant can provide the required care for their son with the medical condition.

30. The review applicant informed the Tribunal that her 20 year old daughter lives at home and that she is currently studying at university. The review applicant claimed that her daughter does not provide any assistance for her brother with the medical condition. The Tribunal finds this implausible given that the sister of the boy with the medical condition lives in the same house. The Tribunal does accept that the 13 year old at the time of this decision would provide minimal assistance in the care of her brother and that the 2 year old would provide no assistance.

31. The review applicant stated to the Tribunal that she drops off and picks up her son with the medical condition to the local special school which he attends. The visa applicant said to the Tribunal that if he were to come to Australia, he would do the school drop off and pick up of his nephew and that he would also take care of the other children. During the day when the children are at school or university, he would do the washing and cleaning around the house and take care of the 2 year old. The Tribunal is of the view that the review applicant and her husband already perform these daily tasks and have done so since arriving in Australia in 2014.  

32. Collectively the Tribunal is satisfied that the review applicant, her husband and 20 year old daughter could provide the required care of the 16 year old boy with the medical condition. The Tribunal notes that at the time of the hearing the review applicant’s family, consisting of the review applicant, her husband and the four children had travelled to Afghanistan as a family unit. Therefore, it is apparent to the Tribunal that as a family unit they already have the resources to care for the boy with the medical condition. Given this the Tribunal is satisfied that the review applicant, husband, and 20 year old daughter at time of this decision can provided the assistance to the boy with the medical condition and therefore reg 1.15AA(1)(e)(i) is not met.

33. At hearing the review applicant claimed that they had applied to a few places that could provide the relevant care for her son with the medical condition, but they did not accept him. The Tribunal asked the review applicant if she had any physical evidence like refusal letters to support her claims. The review applicant informed the Tribunal that she had no evidence to support her claims that her son with the medical condition had not been accepted by the relevant welfare, hospital, nursing or community services in Australia. Given the lack of evidence the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the applicant does not satisfy the requirements of reg 1.15AA(1)(e)(ii).

34. 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.

35. 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.

36. For the reasons above, the visa applicant 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

37. 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.