Atallah (Migration)

[2023] AATA 1499

Atallah (Migration) [2023] AATA 1499 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Zahia Kamel Bishara Atallah

VISA APPLICANT:  Mr George Nagy Kamel Beshara

CASE NUMBER:  2204097

HOME AFFAIRS REFERENCE(S):          OSH2019/021632

MEMBER:Peter Emmerton

DATE:25 May 2023

PLACE OF DECISION:  Adelaide

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

·cl 116.221 of Schedule 2 to the Regulations

Statement made on 25 May 2023 at 11:30am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – other relatives – estrangement – work and family commitments – community services – specific language and cultural requirements – willing and able – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cl 116.221

CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 January 2022 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 19 March 2019. 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 because the applicant has not demonstrated that the assistance required by the resident cannot reasonably be provided by her relatives in Australia. Consequently, they found that regulation 1.15AA(1)(e)(i) within the definition of ‘carer’ is not met. In addition, they found that the resident requires care, but they did not find that it has been demonstrated that the care the resident requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Consequently, regulation 1.15AA(1)(e)(ii) is not met.

4. The review applicant was not represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether or not the requirements of cl 116.221 are met.

7. The Tribunal has read and carefully considered the following evidence presented to the Department and the delegate.

   ·Department notice of invalid application, 31 May 2019

   ·Department acknowledgement of application, 31 May 2019

   ·Department internal visa application summary

   ·Department request for signatures – with signatures provided

   ·Department/Applicant progress queries/updates

   ·Department Application forms

   ·Bupa Medical Visa Services Certificate

   ·Photos and biometrics

   ·Australian Citizenship Certificate of Zahia Kamel Bishara Atallah, 13 October 2018

   ·Department request for more information, 18 August 2021

   ·Birth Registration, George Nagy Kamel Beshara, issued 24 April 2016

   ·Statement of Coptic Orthodox Patriarchate, 18 August 2021

   ·Family documents and Department personal particulars forms

   ·Aged Care Support Plan, Zahia Atallah, Action on Disability, 20 August 2021

   ·St George’s Coptic Orthodox Church statement, V Rev Fr Samuel Elias, 22 August 2021

   ·Centrelink income statement, Zahia Atallah, 19 August 2021

   ·Prior statutory declarations (all declarants included on updated AAT file with new copies)

   ·Department request for more information, 16 November 2021

   ·Letter from Fr Sourail, St Marks Coptic Orthodox Church, 8 December 2021

   ·Statutory Declaration of Girgis Abdelmalek, 30 November 2021

8. The Tribunal has read and carefully considered the following evidence presented to the Administrative Appeals Tribunal, (AAT).

   ·Submission of Nirmen Beshara, 20 March 2022

   ·Letter from Fr Peter Agaibi, St George’s Coptic Orthodox Church, 20 March 2022

   ·Statement of Hany Faltas, 20 March 2022

   ·Statement of Nader Faltas, 21 March 2022

   ·Aldi Mobile statements 28 September 2020 to 10 March 2022

   ·Account Statement, Zahia Atallah, ADEC, November 2021

   ·Statement of Nadia Christofidis, Family Therapist, 26 February 2022

   ·Sale of Business Agreement. 1 November 2021

   ·Medical Statement, Edwardes Street Medical Family Clinic, 22 November 2021

   ·Email enquiries regarding lack of appropriate care/supports available

   ·Outline of submissions from Mina Beshara

   ·Correspondence from care providers regarding lack of services, 2022

   ·Caritas Egypt – confirmation of employment of George Nagy Kamel Beshara, dated 16 May 2023

   ·Support letter from Fr Peter Agaibi, Parish Priest, St Georges’ Coptic Orthodox Church, 17 May 2023

   ·Resume of George Beshara

   ·Statutory Declaration of Hany Faltas, Correctional Officer, 18 May 2023

   ·Statutory Declaration of Mina Beshara, Administrator, 7 May 2023

   ·Statutory Declaration of Nader Faltas, Cable Technician, 17 May 2023

   ·Statutory Declaration of Nirmen Beshara, Learning Support Officer, 18 May 2023

   ·Statutory Declaration of Sami Sami Hakim, Disability Support Worker and Community Volunteer, 10 May 2023

   ·Academic Records of George Nagy Kamel Beshara, including secondary schooling and Tourism courses

   Whether the visa applicant is a ‘carer’

9. 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.

10. 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 aunt.

11. For the purpose of this application, the delegate found that the ‘resident’ referred to within the definition of ‘carer’ at regulation 1.15AA is Zahia Kamel Bishara Atallah, who is also the sponsor. It is recorded in the applicant’s Birth Certificate that his parents were Nagy Kamel Beshara and Sanaa Ebeid Abdalla. The resident provided her Birth Certificate that listed her parents as Kamel Beshara Abdelmalek and Lameah Tawadros Sobh. It is recorded in the Family registration issued by the Ministry of Interior that Nagy Kamel Beshara and Zahia Kamel Beshara are the children of Kamel Beshara Abdelmalek and Lameah Tawadros Sobh. Based on the above information, it has been demonstrated that the applicant is the nephew of the resident. The Tribunal has perused the forementioned documents and concurs with the delegates assessment.

12. Therefore, as the visa applicant is the nephew 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).

    Certificate in relation to Regulation 1.15AA(1) and Regulation 1.15AA(2)

13. 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.

14. 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.

15. There is a Relevant Certificate dated 18 August 2021, issued by an authorised Health Services Provider as stipulated in IMMI 14/085. The provider in this case is BUPA.

16. The Certificate meets the requirements of 1.15AA(2). The Certificate states that the resident has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The impairment has an impairment table rating specified in the certificate, (30).  The Tribunal is satisfied that because 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.

17. The Tribunal 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)

18. 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.

19. In the present case, the person with the medical condition is a Permanent Resident of Australia. This was confirmed by reference to Departmental records.  Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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

20. 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

21. 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 (when not the subject of certificate) – reg 1.15AA(1)(d)

22. 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)

23. 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.

24. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

25. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

26. The Tribunal notes that it has been provided with substantially more relevant information upon which it can base its’ decision in relation to this circumstance than was afforded the delegate. The Tribunal notes the substantial and varied statements and Statutory Declarations provided by Churches, religious leaders, Medical Practitioners, service providers, aged care facilities and members of the sponsor’s immediate family as detailed in paragraphs 7 and 8 of this decision.

27. The Tribunal notes that the sponsor is estranged from her siblings and contact is non-existent. This would frequently be the first reliable support group within a family under different circumstances. This is clearly unavailable in this instance. The reasons as to why this has occurred is not for the Tribunal to contemplate in its decision, only the fact that this is the circumstance facing the sponsor.

28. The Tribunal accepts as understandable when perusing the information provided that the sponsor’s children are not in a position to provide meaningful full-time care and assistance at the level needed in this instance. Work and family commitments make such actions virtually impossible even if in a perfect world the responsibility could be effectively shared. Once the Tribunal has considered extended work hours and the distance the family members live from the sponsor and their substantial family responsibilities, it appears clear that a reliable level of full-time care is not possible via the family members not estranged nor would it be reasonable to inflict such onerous responsibility upon those family members.

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. When considering the multiple statements provided to it from care providers and aged care facilities it is made abundantly clear that the holistic care which includes language as a key component is not reliably available. The Tribunal is cognisant of the extreme stress this sector is currently experiencing in terms of quality compliance requirements that are reasonably demanded by the community and the Governments. The extreme global lack of adequate staff is a major stressor and unlikely to ease in the foreseeable future. This challenge is made almost impossible when the additional burden of specific language and cultural requirements is overlaid on the basic skills needed.

31. The Tribunal is satisfied that the need for Arabic language in order for communication to occur is not a desire or preference, rather it is cultural and health necessity. An inability to communicate for a person effectively completely physically isolated due to age and infirmity combined with severe medical issues is well known to lower the quality of life and subsequently life expectancy. It could be reasonably argued that the isolation that would likely be imposed should the visa applicant not undertake this responsibility is almost certain to exacerbate the depression experienced by the sponsor and culminate in a shortened life expectancy.

32. Safety of the sponsor has been highlighted by the medical reports and other supporting statements received by the Tribunal. It fully accepts the range of severe medical issues and associated frailty of the individual concerned means that she needs 24 hour per day supervision and support. If that can not be achieved in a culturally and linguistically appropriate setting in an aged care facility, then a full-time ‘carer’ is the only other viable option. There is a strong argument that this is in fact the preferred option for the sponsor and the Australian community. Governments are currently preparing for greater in-home care services with an associated decrease for the need to provide institutionalised care. This substantially reduces the financial and social burden placed upon the community.

33. The Tribunal is highly sensitive to the fact that if the sponsor is confined to a facility where she is linguistically isolated her physical well being and safety is compromised as she will be unable to seek help effectively nor explain any medical symptoms associated with her failing health or medical emergencies. The Tribunal has formed a view that the full-time care needed with a culturally and linguistically appropriate relative is not a mere preference or optimal choice, it is a critical need for the holistic well being of the sponsor that can not be reliably obtained without the visa applicant’s engagement in the home.

34. 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)

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

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

37. The Tribunal has perused the visa applicants work history, Resume’ and qualifications. In addition, it has referred to the brief statement from the Caritas Egypt Refugee Office date 16 May 2023, affirming the applicant’s tenure and work responsibilities. The Tribunal notes and accepts as fact that the Resume’ details a work history of employment in the services industry, principally with multi-national high end hotel chains. This will have in the Tribunal’s experience, provided the applicant with superior organisational skills, ability to work long hours and a service-oriented approach to individual’s and a flexibility when needing to adapt to a range of demands and expectations.

38. The Tribunal accepts the visa applicant is willing to undertake the care and responsibility necessary in this role firstly because of his application for the visa and secondly his own statements. This is supported by statements made by the immediate family of the sponsor and those providing some support currently.

39. The Tribunal notes the various statements from the sponsor’s Church and family members which clearly indicate a long-term pattern of behaviours and circumstances which suggest a substantial degree of isolation has occurred between the sponsor and many of the important people in her expected close circle of family and friends whom you might consider natural support persons. A service-oriented and flexible approach to individuals needs and behaviours will, the Tribunal expects, be important in this caring role. The Tribunal additionally notes the age and health status of the sponsor and the additional isolation this in conjunction with her inability to communicate in the English language imposes upon her.

1. The Tribunal accepts as fact that the visa applicant has in his volunteer roles acted as a ‘carer’ for old and sick individuals needing support. This has been within the context of his Christian Church participation. It also notes that he is an unmarried individual and therefore is able to leave his home country and relocate to another in support of his aunt without needing to consider the impact this might inflict upon others. As he does not have children or a spouse, the applicant’s ability to provide complete care across a 24-hour, 7 day per week time span, as is demonstrated to be needed, due to the medical circumstances of the sponsor, will be less difficult to organise.

2. The professional qualifications the applicant possesses show an ability to speak multiple languages. Key to this circumstance is the fact that he can communicate competently in both Arabic and English languages. The Tribunal notes that an inability to speak in English and only have the capacity to speak Arabic is a severe impost upon the wellbeing of the sponsor. This includes her physical and mental health due to physical isolation and a lack of mental stimulation and importantly her physical safety in an emergency or medical incident. The Tribunal notes that the visa applicant has had professional training in a range of skills including cookery and service which will no doubt aid in his ability to care for the sponsor appropriately.

3. Therefore, the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

   Conclusion on ‘‘carer’’ criterion

4. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a ‘carer’ of the Australian relative, being the review applicant, and therefore satisfies cl 116.221.

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

   DECISION

6. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 116 (‘carer’) visa are met:

   ·cl 116.221. of Schedule 2 to the Regulations

   Peter Emmerton
   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’.