Assaf (Migration)

Assaf (Migration) [2022] AATA 4602 (31 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Hanadi Mohammad Mahmoud Assaf
Miss Menna H M Mhanna
Miss Mariam H M Mhanna
REPRESENTATIVE:  Dr Mahmoud Ajjawi (MARN: 9900118)
CASE NUMBER:  1836003
HOME AFFAIRS REFERENCE(S):          CLF2017/61888
MEMBER:Jennifer Cripps Watts
DATE:31 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·clause 836.221 of Schedule 2 to the Regulations

Statement made on 31 October 2022 at 5:52pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – Carer Visa Assessment Certificate – occupational therapist report – My Aged Care assessment – psychology report – assistance cannot be reasonably be obtained/provided – other relatives – welfare, hospital, nursing or community services – women only housing complex – cultural, social, economic and educational background – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 4 September 2017. 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 criteria for the grant of a Subclass 836 visa.
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, at the time of decision, includes cl.836.221. To meet the secondary criteria, if any member of the family unit satisfies the primary criteria, the other members of the family unit are eligible for the grant of the visa if they satisfy the secondary criteria and their applications are made before the Minister has decided to grant or refuse to grant the visa to the first person.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative, because the applicant did not meet reg 1.15AA(1)(e) of the Regulations.
The applicants appeared before the Tribunal by MS-Teams video on 29 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Hanan Assaf, a sister of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The applicants’ representative, who was appointed by the applicants on 27 April 2021, attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of carer, as it is described in reg 1.15AA of the Regulations (attached in the appendix to this decision), for the purpose of meeting cl.836.221. The elements of reg 1.15AA are cumulative; if one element is not met, the applicant does not meet definition of 'carer' for the purpose of satisfying cl.836.221 of Schedule 2 to the Regulations.
The substantive issue on review, and on which the visa was refused, is whether the applicant meets of reg 1.15AA(1)(e), which requires that applicant demonstrate that the assistance the sponsor needs 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; or
· obtained from welfare, hospital, nursing or community services in Australia.
The applicant Hanadi Assaf, born in 1976. The sponsor is her mother, Samira Salame (Ms Salame), who was born in 1954. The sponsor’s husband is deceased. The second and third named applicants are the daughters of the applicant and granddaughters of the sponsor. Ms Salame is referred to variously throughout the decision and where relevant as sponsor, Australian relative, relative and resident.
The applicant’s submission signed and dated 19 July 2021, provided by Mr Ajjawi prior to the hearing, makes reference to attached documents including a statutory declaration made by the sponsor, statutory declarations from family members of the sponsor, a report from an occupational therapist and a psychological report, both relating to the sponsor, a discharge document for the sponsor from Royal Prince Alfred Hospital indicating she was admitted on 18 March 2021 for heart surgery and discharged on 31 March 2021, with attached clinical history stating that the sponsor was under the care of a cardiothoracic surgeon while an inpatient and that she ‘underwent a successful operation’, and evidence the applicant has completed a special course in first aid. Relevant information in them has been considered.
Essentially, it is submitted that the sponsor’s Australian adult relatives cannot provide the assistance the sponsor requires and nor can the assistance the sponsor be obtained from welfare, hospital, nursing or community services in Australia. For these reasons, it is claimed that the applicant is the only person who can provide the assistance the sponsor needs.
The Tribunal did not ask the applicant to provide another or updated Carer Visa Assessment Certificate, since the visa application was made.. On the basis of the medical and related evidence that has been provided, there appears to be no question that the sponsor is elderly and unwell and that her condition or conditions are not improving with age, they may be getting worse, and that she will need assistance permanently, if not for at least two years.
The sponsor lives in a women only two bedroom apartment in suburban Sydney. The applicant started living with her the sponsor when she arrived in Australia in 2016. The applicant continues to live there, with her two daughters, the secondary applicants, who divide them time between their grandmother’s house and that of their aunt and cousins. Men can visit the accommodation where the sponsor lives, but they cannot stay overnight. The written submission includes background relating to the sponsor’s deteriorating health, including that she has undergone heart surgery for replacement of a valve with a stent; the occupational therapist from Canterbury Hospital assessed her as needing 24/7 care.
In the report of the occupational therapist that was provided to the Tribunal, dated 9 April 2021, in summary the sponsor is assessed, as follows:
·requires supervision to mobilise within the home
·needs assistance with functional transfers, assistance for showering, full assistance for all domestic activities of daily living, and has an ongoing need for the assistance
·her daughter, the applicant, has been providing assistance for ‘several years’
·the sponsor has other children who are unable to ‘provide the current level of support’ because of their family and work commitments
·The sponsor has no formal support services because the applicant, provides the necessary care requirements for her 24/7
·Government services are unable to provide the current support that is being provided by the applicant; there are long waiting lists and associated costs
·The sponsor ‘wishes to remain in her own home’ for as long as possible
The sponsor undertook a My Aged Care assessment in her home on 23 June 2021 and the following findings were included in the report:
a.the sponsor contacted My Aged Care with the assistance of the applicant and was referred for assessment while she recovers from heart surgery
b.Information was provided by the sponsor and electronic medical record notes were consulted
c.the sponsor reported that she needs home supports due to a change in her care needs from medical conditions (as previously mentioned, the heart surgery and generally deteriorating health as it has been detailed in various medical reports that have been provided)
d.the sponsor declined social support offered to her at the assessment and said she is happy staying at home with her family
e.the sponsor was not referred for services because she is well cared for by her daughter and, if her daughter leaves Australia, the sponsor will call My Aged Care for supports
f.the sponsor’s medical conditions were listed as heart valve disorders, aortic stenosis and valve replacement, osteoporosis, depression/mood affective disorders, high blood pressure, high cholesterol, reflux and varicose veins
g.the applicant has applied for a carer visa and is waiting for an answer
h.the sponsor has never been in respite care and doesn’t require respite services
A psychology report for the sponsor is addressed to the Department of Immigration, and is signed but undated and includes:
·the sponsor has attended nine consultations to undergo psychological treatment for Major Depressive Disorder and Generalised Anxiety Disorder symptoms
·the sponsor underwent bladder and heart surgery in March 2021 and that this has ‘exacerbated her anxiety, depressive and chronic pain symptoms and significantly impacted her overall functioning
·that she reports physical symptoms of headaches, migraines, high blood pressure, knee and back pain which has limited her independent functioning
·with reference to the psychologist’s earlier 2019 report, that the applicant cares for the sponsor and provides her with ‘a sense of cultural safety that helps manage her anxiety and depressive symptoms’ and if this ‘significant source of support is removed, it could impact Mrs Salame’s sense of safety and wellbeing’
·the sponsor’s other daughter cannot care for her because of a car accident and back pain
·in Arabic speaking cultures, ‘for many people sending a parent to a nursing home is haram or forbidden’ and the children are responsible for the care of the parent
·the sponsor reported that she does not want her children to send her to a nursing home
·the unresolved visa status of the applicant is causing anxiety to the sponsor and she cannot cope without her daughter’s support
·the resolution of the visa application ‘would allow the continuation of the necessary support and cultural safety Mrs Salame requires’ and will assist to reduce her anxiety and depression and address ongoing needs
The psychologist has assessed the current arrangement which appears to be what the sponsor is happy with and prefers. However, the sponsor has many other adult relatives who collectively appear to be able to provide appropriate support and assistance to the sponsor and give her a sense of cultural safety. The Tribunal has considered the evidence provided relating to the sponsor’s adult relatives’ claims that they cannot provide the assistance the sponsor needs.
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s mother.
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’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
The Tribunal is satisfied that the applicant claimed to be the carer of another person (‘caree’), who is an Australian citizen, and an Australian relative as defined in reg 1.03, at the time of application.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.
Whether the applicant is a carer
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.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
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 mother, who resides in Australia
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).
Certification – reg 1.15AA(1)(b)
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.
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 in Legislative Instrument IMMI 14/085, or issued by a specified health provider in relation to a review of such an opinion; IMMI 14/085 was the relevant legislative instrument in effect at the time of application and is still in force.
A CVAC, prepared in 2017, was provided in support of the application. In the applicant’s circumstances, on this and other evidence that has been provided, the Tribunal did not consider it necessary to put the applicant to the trouble of obtaining an updated CVAC.
The Tribunal has had regard to the information contained in the CVAC, that being the opinion of a medical advisor of the health service provider specified in IMMI 14/085, Bupa Australian Health Pty Ltd trading as Bupa Medical Visa Services (Bupa). Included in the 2017 CVAC is that the sponsor had conditions including ‘osteoporosis’ and other conditions relating to ‘degenerative joint disorder’, she was a ‘falls risk’, could only ‘mobilise short distances (indoors) independently’ and ‘requires assistance for outdoor mobility’. The sponsor was born in 1954. Even for a layperson with no medical expertise, it is reasonable to conclude that these are not conditions that will resolve or improve with age in the sponsor’s case . Nor is it likely that limitations on the sponsor’s mobility or her need for assistance mobilising, showering, toileting, dressing, meals preparation and administering her medications will have abated over time, and, for that reason, is likely to be needed for at least the next 2 years.
The Tribunal is satisfied, substantially on the basis of an up-to-date report of the sponsor’s occupational therapist dated 9 April 2021, that the medical condition/s specified in the CVAC relate to the need for direct assistance of the kind specified in the report and that it is reasonable to conclude that the assistance has continued since the certification in 2017, and that need for the assistance will continue for at least two years.
For these reasons, and in the sponsor’s circumstances, the Tribunal is satisfied that there is a certificate, the CVAC already referred to:
·That meets the requirements of reg 1.15AA(2) and, according to the certificate
othe resident has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life, and
othe impairment has an impairment table rating specified in the certificate, and
obecause of the medical condition, the person 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
The certificate addresses each of the matters 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)
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 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)
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 Legislative Instrument IMMI 17/126.
In the present case, the impairment rating specified in the certificate is 35. This rating exceeds 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 not the subject of certificate) – reg 1.15AA(1)(d)
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.
The Australian relative is the subject of the certificate and therefore reg 1.15AA(1)(d) is not applicable in this case.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
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.
At the time of application, the applicant provided her own statutory declaration with the visa application, signed 5 November 2018, stating that she is willing and able to provide the care her mother requires and that she lives with her two daughters and her mother in her mother’s home; she describes her mother’s health conditions and the assistance the sponsor requires, generally consistent with the information included in the CVAC provided in 2017; and included that her two daughters attend school and split their time between living with their mother and their aunt, Hanan Assaf, and cousins three days a week.
In the sponsor’s statutory declaration, signed and dated 5 November 2018, she includes that her three children in Australia are unable to assist her ‘long term’ because her two daughters have young families and are married to ‘husbands who do not support them’; her son cannot stay with her because she lives in women’s housing and she does not have any grandchildren over the age of 18 who are Australian citizens or permanent residents (although noting that the sponsor does now have some relatives who are now over the age of 18); her brothers are divorced, she hasn’t had contact with them or any of their children; that her daughter, Marwah, contacted the National Disability Insurance Scheme (NDIS), but that ‘they can’t provide any service for me on 24 hours a day 7 days a week’. A letter provided to the Department from the NDIS, dated 29 May 2018, confirms the sponsor’s ineligibility to participate in the scheme, The Tribunal acknowledges that at the time of this decision, the sponsor would be over the age limit for participants.

In the delegate’s decision, it is included that in October 2018 additional evidence was requested to demonstrate that the assistance required by the sponsor could not be reasonably provided by any other relative in Australia; four statutory declarations were provided in response; one from the sponsor and three from her adult children, Hanan, Marwah and Mahmoud. The asserted claims in their statutory declarations included that they could not provide their mother with the assistance she requires, essentially because they are married, work and have their own family commitments. Mahmoud also included that it is not permitted for men to stay overnight at the women’s housing where his mother lives. It is noted by the delegate that ‘no documentary supporting evidence’ was provided with any of the three statements. Referring to the statement the sponsor provided, the delegate includes that she has three brothers and has no contact with them or their children and a younger sister, Zeina, who is a full time driving instructor who cares for her disabled mother-in-law. It is noted, relating to the sponsor’s statement, that no ‘documentary supporting evidence has been provided from the declared brothers and sister with this statement’. It is summed up by the delegate that the applicant ‘has not provided sufficient evidence to demonstrate that each family member’s family and work commitments prohibit them from providing some of the required care … either individually or as a combined family unit, in conjunction with home care services’. It was for these reasons, essentially, that the delegate made the finding that the applicant did not meet reg 1.15AA(1)(e)(i).
Mindful of these matters, the Tribunal ensured that the applicant has provided sufficient and up-to-date documentary evidence to address the concerns, relevant to the sponsor’s current needs and the assistance that other relatives may or may not be able or willing to provide.
In support of the visa application, the applicant provided statutory declarations, signed and dated 5 November 2018, from:
a.The sponsor, who lives in housing commission women only housing in Bankstown; she describes past physical injuries and medical conditions, that her three Australian adult children are unable to assist her ‘on a long term basis’, because the daughters are married with children and have unsupportive husbands, and her son is not allowed to stay with her in the women only housing where she lives; she has no Australian citizen grandchildren over the age of 18; her three brothers are divorced and have children but the sponsor is not in contact with any of them; a younger sister, Zeika aged 55, looks after her mother-in-law who lives with Zeika and her family; the sponsor relies on Hanadi, the applicant, ‘to get on with my daily life’
b.Mahmoud Assaf, Australian citizen son of the sponsor who lives in Greenacre; he says he cannot provide assistance to his mother because he runs his own courier business which is going through a hard time, he has to work long hours and is financially unstable; in addition, his mother lives in women only housing, so he can go there but not stay overnight.
c.Hanna Assaf (the applicant), adult daughter of the sponsor, signed and dated 5 November 2018
d.Marwah Assaf, an adult daughter of the sponsor, is married with one child born in 2017 and works at the airport full-time doing shift work on rotation; her husband works in cleaning and is ‘always busy’
In the written submission given to the Tribunal, it is included that taking into account ‘cultural, social, economic and educational background of the sponsor’ alternative care arrangements are ‘extremely limited’ and:
·that hospitals are not nursing homes and they are there to treat people who need short term stays
·nursing homes are beyond the financial capacity of the sponsor and some would not accept her because she does not speak English – an example is given of Strathdale Nursing Home at 64-70 Albert Road, Strathfield
·there are no Arabic or Muslim welfare groups or organisations who can afford to provide assistance to the sponsor
·the Muslim Women Association was phoned and ‘confirmed what is on their website’ and they do not have such a service
·Mina and Tripoli Association was phone and Dr Ajjawi says they informed him that their funding comes from My Aged Care and ‘it is very limited in its scope as far as the hours and care is concerned’ (no evidence of what care they provide, applicant has not pursued any options that may be available to her through My Aged Care)
·My Aged Care does not have the human or financial resources to meet the needs of older Australians (objective, not subjective, and the sponsor was assessed but told them she did not need any assistance because the applicant currently lives with her, but that she would contact them again if circumstances changed) (no evidence provided relating to what human or financial resources My Aged Care does not have to meet the sponsor’s needs
·My Aged Care provides a maximum of 20 hours per week and it is not free
·For the reasons, ‘we claim that there is evidence that the only person who can provide full time care to the sponsor is her daughter, the applicant’.
In addition, at the Tribunal’s request, Dr Ajjawi provided post-hearing written submissions. His submissions, dated 2 November 2021, were received a few days later and include. He submits, in summary, that:
·if ‘we are to accept the information provided by health professionals about the sponsor’, although not referring specifically to which health professionals or when the information was provided, that the sponsor needs day and night care, particularly at night relating to her osteoarthritis
·on the basis that the sponsor lives in a female housing complex where men cannot stay overnight, that ‘all male children or siblings of the sponsor should be excluded’, and only considered for the purpose of visiting, or taking the sponsor out for coffee or a walk.
·only female daughters and siblings should be considered as potentially being able to provide relevant assistance to the sponsor, but they can only help ‘a little’ but cannot sleep over each night due to their other commitments and/or health problems
·the conclusion is that ‘the only person who is mentally willing and physically able to care for the sponsor day and night is the visa applicant’, which has been ‘proved’ because she has been the ‘only carer’ for the last four years, since 2017
The Tribunal accepts that the sponsor seems to require full time care, but not that all male relatives should be excluded for the reason that they cannot stay overnight with the sponsor. Even if the applicant requires the day and night care, it is not a requirement that one person is responsible for providing the care 24 hours a day. The care could, for example, be provided collectively amongst the relatives; the male relatives providing care outside the hours where someone would need to be sleeping over. They should not be ruled out completely because of the overnight sleeping arrangements.
It is unfortunate, given how many relatives the sponsor has, that almost all of them have provided reasons why they cannot assist the sponsor at all, which reflects poorly on them in the Tribunal’s view, some more than others. Some of the relatives do at least commit to offering that they see the sponsor occasionally on weekends, while others, some who live quite closeby, appear to suggest that they will not be available at any time, for various reasons. It has been submitted that the male relatives should be excluded altogether because they cannot stay overnight at the home of the sponsor, which is an extreme and completely unreasonable suggestion.
Even where relatives in Australia appear to be unwilling or unable to provide assistance, it is still open to the Tribunal to consider whether the assistance could be reasonably provided. However, the Tribunal, in considering whether it is reasonable for other relatives to provide the assistance, depending on the particular circumstances of a sponsor relating to a carer visa application, needs to be mindful that this may not be a reasonable or satisfactory solution to find that relatives who simply do not want to assist, in that they are not willing, should be made to do so. The Tribunal must consider whether the assistance can be reasonably provided and, in some circumstances, while it may be open to the Tribunal to find that the assistance can be provided by, for example, an unwilling relative or relatives, it may not be reasonable to think they are capable of providing the assistance in circumstances where they seem to have convinced themselves, but not necessarily the Tribunal, that they do not have any spare time at all.
It is referred to the psychologist’s report relating to the sponsor that ‘for many people sending a parent to a nursing home is haram or forbidden’ and that the children are responsible for the care of the parent. This was discussed at the hearing and it was submitted by Dr Ajjawi that, for this reason, among others, there are very few options for people such as the sponsor to enter suitable residential care because it is culturally uncommon or unacceptable.
Sub-regulation 1.15(1)(e)(i) refers to ‘any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen’, the Tribunal is not confined to considering only daughters and siblings of the sponsor.
Dr Ajjawi submitted, on the applicant’s behalf, that ‘it is well known that hospitals are not aged care centres and are not designed or equipped to act as a nursing home. Generally, it is for short term stay for patients and for palliative care’. Attached to the submission, which included a list of the attachments, were:
a.A diagram of the sponsor’s family tree
b.Dr Ajjawi’s statutory declaration, signed and dated 18 November 2021. He declares:
i.He has contacted ‘the nursing home and community organizations mentioned in my submission dated 19 July 2021 and was unable to obtain any evidence. Two referred me to their websites while the third Minal and Tripol mentioned they only help those referred by Aged Care for a few hours/week only’
c.Statutory declarations, signed and dated in November 2021 from:
i.Yusuf Salamah, nephew of the sponsor, a TAFE student who lives in Greenacre
ii.Zachariah Salameh of Greenacre, nephew of the sponsor, a TAFE student who says he is ‘unable to provide any type of care for my aunt at any time of day every day of the week due to my commitments to my studies and work duties’
iii.Mohammad Mahdi Salameh, of Greenacre, nephew of the sponsor, who is a part-time university student and works full time in the building industry and cannot provide ‘any part’ of her care
iv.Nadeen Dianne Akil, a niece of the sponsor who is married with children, works full time at Westmead Children’s Hospital five days a week and lives in Liverpool; she says she cannot provide ‘the full time care that she (the sponsor) needs’ and can only see her on ‘occasional weekends or holidays … which is not adequate to provide her with the level of full time care that she needs’
v.Allisar Robyn Akil, a niece of the sponsor who a solicitor, married and works full time five days a week and sometimes overtime; she lives in Liverpool and has her ‘own health condition over the past six months’
vi.Dahlia Wendy Akil, a niece of the sponsor, a full time university student who lives in Blakehurst cannot drive because of a medical condition; she visits the sponsor on ‘holidays or special occasions’
vii.William Samir Akil, a full time student studying dentistry at the University of Sydney; his study commitments which means he can only see her ‘on special occasions or holidays’
viii.Ali Salameh of Campsie, brother of the sponsor, who has ‘occasional work duties’ and provides care to his ‘elderly mother’; he visits the sponsor from ‘time to time’ but cannot fit any more duties into his schedule
ix.Jihad Salameh, who works full time
x.Jamal Salame, a brother of the sponsor who runs his own engineering business and lives in Greenacre; he says that to his knowledge the sponsor requires a ‘full time carer every day of the week’ and that his ‘work nature and obligations prevent me from providing any type of care for my sister at any time of the day or week’
xi.Zeina Akil, of Busby, employed full time and ‘have the duty of maintaining my personal residence which consume most of my time every day of the week; he says he is ‘in no position to provide my sister Samira Salame any type of care at any time of the day or week’
xii.Hanan Assaf, who has previously cared for her mother, lives in Greenacre and is married with four children, the youngest is five years of age; she had a car accident in 2017 and it is difficult for her ‘to carry out strenuous tasks throughout two households’; she visits a back clinic for management of her condition; the ‘stress and pressure of maintaining two households had caused me marital problems’; she visits her mother on the weekends
xiii.Marway Assaf, daughter of the sponsor who lives in Glenfield, married with two children who attending an early learning centre while she is at her full time job; she talks to the sponsor by phone and visits her twice a week when she does not have work and is ‘not capable of providing the care requirements for’ her mother
xiv.Mahmoud Assaf, son of the sponsor who works full time; he has a partner and nine month old child; he visits his mother on the weekends if he does ‘not have personal commitments’ and is ‘not capable of provide the care requirements for’ the sponsor
xv.Ali Mohammad Farhat, born in 2001, a grandson of the sponsor, full time TAFE student; he visits his grandmother every second weekend and is ‘in no position or capacity to provide the care requirements’ for the sponsor
It is accepted that these members of the sponsor’s family study and work in the capacity that they have said they do and, where applicable, are married and have children and other caring responsibilities.
The sponsor lives in Bankstown in Western Sydney. Some of the family members who have provided the above statutory declarations live closeby to the sponsor, others up to half an hour or so by car.
Also attached to the submission are:
i.Medical reports relating to Hanan Assaf, children, oldest Ali Mohammad Farhat m.b.06/10/2001 Australia, son of Mahmoud Ali Farhat and Hanan Assaf - youngest born 2016 (df.117)
b.A tax return for Marwah Assaf, who is married with two children and works full time
c.An estimated tax return for Mahmoud Assaf who is married with one child and works full time.
The applicant’s representative, Dr Ajjawi, has himself provided a statutory declaration, the contents of which have already been detailed earlier in this decision.
It is submitted that another daughter of the sponsor, Jumana, who is not an Australian citizen or permanent resident, or eligible New Zealand citizen is in Australia with her two children, who are students; she holds a student guardian visa. It is not relevant to include Jumana as a relative who can reasonably provide care for her mother.
It is included in the submission that the sponsor ‘has no communication with any other adult relative who has not provided a statutory declaration’.
The CVAC that was provided with the visa application, is dated 19 April 2017. Given the sponsor’s age and with reference to information relating to her condition in the CVAC, the Tribunal did not consider it necessary to request an updated CVAC.
The sponsor’s conditions are listed, numbered 1. to 6. In the CVAC, and a significant number of medical reports from various doctors and providers are listed and were considered relevant to the assessment by the doctor who prepared the report. In the CVAC the sponsor’s current care requirements, in the stated context of the sponsor living in a women only housing commission unit, for direct assistance relating to the practical aspects of her daily life includes the following:
·Assistance when walking outdoors as she is a ‘fall risk’
·Showering, toileting on most days and dress
·Meals preparation and administering her medications
·Taking her to medical appointments once a week
It is included in the 2017 CVAC that no formal services had been arranged and that the care the sponsor received was ‘informal/family support’. On evidence that has been provided to the Tribunal, this appears to be referring to one family member only, that is, the applicant.
Given that the relatives, both at the time of application and decision, maintain the same position relating to being willing or able to provide the sponsor with any of the assistance she requires, in the circumstances of this case, the Tribunal sees no suggestion or willingness among them, in the evidence that has been provided, either individually or be engaging with each other to find a solution other than to prevail upon a relative from overseas to provide the care the sponsor requires, seven days a week. She herself has a family, including school age children, who she sends to her sister’s house a few days a week, demonstrating some generosity of thought and flexibillity relating to the needs of her mother.
The Tribunal has carefully considered the evidence, giving significant weight to Dr Ajjawi’s submissions and evidence provided by way of a statutory declaration. Taking a commonsense approach, given the observations that the Tribunal has earlier made relating to the sponsor’s adult relatives, the Tribunal does not think it reasonable to find that the assistance can be provided, or obtained as the case may be, by a combination of relatives and welfare, hospital, nursing or community services for the purpose of reg 1.15AA(1)(e).
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.
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the 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 applicant’s state of mind.
It is acknowledged that the applicant has given evidence that she is willing and able to provide the assistance the sponsor requires. The Tribunal has no reason to think this is not the case. The applicant has been providing the required assistance to the sponsor since 2017, for around five years, including throughout the COVID-19 pandemic. This amply demonstrates to the Tribunal that she is both willing and able to provide the substantial and continuing assistance her mother requires for attending to the practical aspects of her daily life.
For the reasons given, the Tribunal is satisfied that the requirements of reg 1.15AA(1)(f) are met.
Conclusion
Given these findings, at the time of decision the applicant is a carer of the Australian relative, and therefore satisfies cl 836.221 of Schedule 2 to the Regulations.
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 836 visa.
DECISION
The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·Clause 836.221 of Schedule 2 to the Regulations
Jennifer Cripps Watts
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.

[2022] AATA 4602

31 October 2022

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