Awad (Migration)

[2017] AATA 2570

Awad (Migration) [2017] AATA 2570 (29 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Awad Kamel Awad

VISA APPLICANTS:  Mr Samy Awad Kamel Awad
Miss Evon Mahanny Sadek Ebrahim
Miss Donise Samy Awad KAMEL
Miss Sandy Samy Awad Kamel

CASE NUMBER:  1516207

DIBP REFERENCE(S):  OSF2015/062543

MEMBER:Kira Raif

DATE:29 November 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 29 November 2017 at 10:01am

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Relatives in Australia – Family member contribution to care – External carer – Emotional needs

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 1, cls 115.211, 116.221, 116.321

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 Immigration on 15 November 2015 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Egypt. The first named applicant (‘the visa applicant’) was born in October 1966. He is the son of the sponsor. The visa applicant applied for the visa on 29 January 2015. The application includes his partner and two children. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant was the carer of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s children. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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 (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.

5. Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations.

   Is the applicant a carer of an Australian relative?

6. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.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 father. Evidence of the relationship has been provided and the Tribunal is satisfied the visa applicant is the son of the sponsor who is an Australian citizen. The visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

7. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

8. The visa applicant provided with his application a Certificate issued by Bupa Medical Visa Services in February 2015 indicating that the sponsor met the requirements for a carer as he had an impairment rating of 50 points on the Impairment Rating Tables. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life.

9. The Tribunal is satisfied that the certificate meets the requirements of r. 1.15AA(2). The Tribunal is satisfied that according to the Carer certificate, the sponsor has a medical condition causing impairments of his ability to attend to the practical aspects of daily life and as a result of such condition, which will continue for at least 2 years, there is a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

10. 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 and there is evidence that the sponsor is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

11. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

12. The Tribunal acknowledges a number of other medical reports that had been submitted with the application and to the Tribunal concerning the sponsor’s condition. The review applicant also presented to the Tribunal a copy of the ACAT Aged Care Assessment. The Tribunal accepts that the sponsor has medical needs that cause him to require assistance.

13. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.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 r.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. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

14. 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.

15. The Tribunal acknowledges that the review applicant’s spouse has passed away since the primary decision was made.

16. The review applicant has two adult children in Australia and he told the Tribunal that his son and daughter live about 15 – 20 minutes away from where he lives. The review applicant notes in his written submission to the Tribunal that both his children are on DSP. The Tribunal accepts that both of the review applicant’s adult children receive DSP, however, that in itself is not sufficient to establish their inability to provide some level of care to the review applicant. The Tribunal is not satisfied that eligibility for the DSP is in itself sufficient to establish inability to care. The Tribunal is also mindful that the review applicant’s children appear to have been in receipt of the DSP for some time, yet they did provide care to the sponsor, according to his own evidence. That supports the Tribunal’s view that the eligibility and the receipt of the DSP is in self not sufficient to establish the children’s incapacity to provide care to the sponsor.

17. There are a number of medical reports relating to his son Kamal and evidence that Kamal is in receipt of a Disability Support Pension from Centrelink. The Tribunal is mindful that several of the medical reports presented to the Tribunal are dated ten years prior to this review and while the Tribunal accepts that the sponsor’s son was in receipt of medical treatment at the time, given the passage of time, the Tribunal is not satisfied that the medical reports dating back to 2006 establish his inability to care for the sponsor at present. Further, the review applicant provided to the Tribunal evidence indicating his son Kamal has been operating a business since at least 2014. That is, the existence of the disability has not prevented this relative from engaging in employment and the Tribunal is not satisfied that the presence of the medical condition precludes that son from the provision of at least some degree of care.

18. The review applicant claims that his son Kamal has four school aged children whose needs take priority. The Tribunal notes that according to the documents submitted with the application, these children are over, or just under, the age of 18. While there is no doubt that they have needs, the Tribunal is of the view that children at that age will not require such level of care that would preclude Kamal from also providing a degree of care to his father. The suggestion that Kamal must care for the four children also supports the Tribunal’s view that his medical condition does not preclude his capacity to provide care to others.

19. The review applicant said his son is also preoccupied with his work and has his own medical condition and he has children to take care of with his wife. The son’s oral evidence to the Tribunal is that he has been suffering from a number of medical conditions and receives a disability support pension. He cannot walk much and takes medication. The Tribunal is mindful that despite these conditions, he is capable of engaging in employment (even if he claims he mainly sits) and contribute to the care of his children.

20. The Tribunal is also mindful that the eldest child is about 20 years old and the second child is 17. The Tribunal is not convinced that at least the elder children require ongoing supervision and at that age, they can assist with the younger children and with the review applicant’s own needs. The review applicant said these grandchildren have their own commitments and although they visit him sometimes with their parents, they do not do much more. The Tribunal is not satisfied they are incapable of doing so.

21. The review applicant’s evidence to the Tribunal is that his daughter does not visit him at all because of her medical condition although she may come if there is a family function. Ms Melaka referred in her oral evidence to the various medical conditions she has. The Tribunal is mindful that this daughter has attended both Tribunal hearings, so that her medical condition does not appear to preclude her from being able to travel when required, and the review applicant’s evidence is that she does travel for various functions. The review applicant appeared to have been unable to describe the extent of his daughter’s condition, stating that she sees doctors and needs massages and other treatment. That may be the case but the Tribunal is not satisfied from the presented evidence that the daughter’s condition is so poor that it renders her incapable of providing some degree of care to the review applicant.

22. The review applicant also told the Tribunal that his daughter has two children that she takes care of. (His evidence to the Tribunal is that these children are over 20 years old and the Tribunal is not convinced that they require close supervision). The review applicant’s evidence is that these children live with his daughter and she cooks for them and takes care of them. The Tribunal is of the view that if his daughter is able to provide some assistance to her children, whatever the need for it, she would be equally capable of providing some degree of assistance to her father.

23. The Tribunal is also mindful that there are a number of grandchildren. The review applicant’s written submission to the Tribunal is that Sally’s two sons, who are over 18, have work commitments and evidence of their employment has been provided to the Tribunal, as well as evidence of another grandson Daniel’s apprenticeship engagement. The Tribunal accepts that the grandchildren have work commitments but, again, the Tribunal is not satisfied that these necessarily preclude them from providing a level of care. The Tribunal is of the view that at least some level of care, even if not a significant level of care, can be provided despite such work commitments.

24. The review applicant said his two adult grandchildren are busy with their jobs and he only sees them when they bring food that their mother cooks. Ms Melaka’s evidence is that her children do not get along with the review applicant but the review applicant made no mention of any conflict he may have had with his grandchildren. The Tribunal accepts that these grandchildren may have work commitments but having such commitments is not sufficient to satisfy the Tribunal that they are incapable of providing at least some degree of assistance. The review applicant also suggested that he cannot communicate with his grandchildren because they only speak English but the Tribunal does not accept that the review applicant is unable to communicate with his grandchildren (and it is not apparent how they could be in conflict if they were unable to communicate).

25. The review applicant suggests that his children and grandchildren are partly unwilling to provide the care. However, his evidence is that his son takes him to medical appointments and buys medication and reminds him about medication times. His daughter assists with other tasks such as cooking. The review applicant said his grandchildren visit sometimes. That is, the family members do provide a degree of care and the Tribunal does not accept the review applicant’s evidence that they are unwilling to do so, even if they cannot provide the care on a full-time basis.

26. The review applicant’s evidence to the Tribunal is that he often does not see his grandchildren for months. They do not have free time and he cannot force them to come. However, it is not sufficient to state that the review applicant does not feel comfortable asking his family for help, if that is his evidence. The issue is whether the requisite assistance can reasonably be provided by these relatives. The applicant has not satisfied the Tribunal that it cannot.

27. The review applicant’s evidence to the Tribunal is that Egyptian culture is such that his son and family will be closer to him and will take care of him. He said the culture in Australia is different. The Tribunal is mindful that the review applicant’s son and daughter in Australia, even if not his grandchildren, would have grown up in the same culture. Yet the review applicant appears to have no expectations of his children in Australia while he claims that due to their culture, the visa applicant would provide him with care despite the same family commitments that his other family members have. The Tribunal finds that evidence unconvincing.

28. The Tribunal acknowledges the representative’s reference to a number of judicial authorities. The Tribunal is mindful that most of these relate to the earlier version of the legislation and the Tribunal does not consider these to be helpful.

29. The Tribunal accepts that all of the review applicant’s relatives in Australia, including his two children and adult grandchildren, have various commitments and medical needs that may prevent them from being carers on a 24 hours a day basis. The Tribunal acknowledges the submission that the relatives in Australia are ‘partly unable and partly unwilling’ to provide full-time care. The Tribunal accepts these relatives are unable, each on their own, to provide the care that the review applicant needs and there is no expectation that any of these relatives would act as full-time carers. However, the Tribunal is not satisfied that each of them is incapable of contributing to the care that the review applicant requires. The Tribunal is mindful that the type of care is varied, from personal hygiene, to supervision with medication, to medical appointments. The Tribunal is not satisfied that the relatives in Australia are not able to provide some form of care and the Tribunal does not accept they are unwilling to do so. The Tribunal is of the view that the review applicant can obtain the care that he needs from different sources.

30. Further, the review applicant’s evidence to the Tribunal is that his relatives in Australia have the financial means to support the visa applicant and his family so that the visa applicant will not have to work. The Tribunal is of the view that such finances could be used towards the cost of a carer who could also assist with some of the tasks. The review applicant claims there are no Arabic-speaking carers and following the hearing the review applicant presented a number of statements from various organisations indicating there are no Arabic-speaking carers available. The Tribunal accepts these particular organisations do not provide Arabic speaking carers and the Tribunal is prepared to accept the availability of such carers may be limited but the Tribunal is not satisfied such carers are not available, particularly if the care required is not provided on a full-time basis. The Tribunal is mindful that the organisations that the applicant approached – which include a church and residential care facilities – may not necessarily be best placed to provide the required care. Further, some of the assistance, for example, driving to medical appointments, cooking, etc, could be provided by a person in any language and need not be provided by an Arabic speaker. The review applicant’s representative also submits that the review applicant’s emotional needs cannot be met by an external carer. The Tribunal is mindful that the review applicant has two children and several grandchildren in Australia and he is able to communicate with the visa applicant and his family overseas as frequently as he likes (and there is frequent communication according to his evidence to the Tribunal), so that the review applicant’s emotional needs may continue to be met by other family member and not his carer.

31. For all these reasons, the Tribunal is not satisfied that the assistance cannot reasonably be provided by any other relative of the sponsor, being a relative who is an Australian citizen or permanent resident or eligible New Zealand citizen. The Tribunal is not satisfied the visa applicant meets r. 1.5AA(1)(e).

32. The review applicant explained to the Tribunal that he had lived with the visa applicant and his family, that they have different expectations and want to look after him. The review applicant said the family will provide financial support to the visa applicants so that his son will not have to work. The Tribunal accepts that the visa applicant is both able and willing to provide support to his father. However, that finding does not address the Tribunal’s concerns noted above.

33. 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. The secondary applicants do not meet cl. 116.321.

34. The visa applicant indicated on the application form that his spouse’s parents and siblings reside in Egypt. The Tribunal finds that such relatives are ‘near relative’ as defined at r. 1.15(2). The Tribunal is not satisfied that the visa applicant and his spouse have no near relatives other than near relatives usually resident in Australia. The Tribunal is not satisfied that the visa applicant meets r. 1.15(1)(c) or that he is a ‘remaining relative’ of the review applicant as required by cl. 115.211. The Tribunal is not satisfied that the visa applicant meets cl. 115.211 of the Regulations. The applicants are not old enough to be granted an aged pension and they are not aged dependent relatives of an Australian relative.

    Conclusion

1. 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

2. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

   Kira Raif
   

   Senior Member