AZIZ (Migration)

[2021] AATA 861

AZIZ (Migration) [2021] AATA 861 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Refaa H Aziz
Mr Safaa Aziz
Mr Michael Aziz
Master Jonathan Fadi Aziz
Miss Madeline Aziz

CASE NUMBER:  1820900

HOME AFFAIRS REFERENCE(S):          CLF2016/44334

MEMBER:Hugh Sanderson

DATE:29 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 29 March 2021 at 2:31pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance provided by Australian citizen or permanent resident relatives or obtained from service providers – other relatives’ health, work, families and general circumstances, including inability or unwillingness to provide assistance – brief statutory declarations by other relatives now four years old – no current information provided – multiple relatives able to provide assistance to some extent – cost of care from service providers – no information about attempts to obtain services – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(e), Schedule 2, cl 836.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 July 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 26 July 2016. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.

3. 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 met the definition of a carer. Specifically, the delegate was not satisfied the first named visa applicant (hereinafter the applicant) met the criteria in r.1.15AA which requires, in part, that the assistance required cannot reasonably be provided by any other relative of the resident who is an Australian citizen permanent resident or an eligible New Zealand citizen, or reasonably obtained from welfare, hospital, nursing or community services in Australia.

   Background

4. The applicant was born in Iraq and is a citizen of the United States. She is currently 38 years old. The secondary visa applicants are her husband and her children who are 14 years old, 13 years old, and nine years old. They are all citizens of the United States. They have applied for the visas on the basis of being members of the family unit of the applicant who meets the primary criteria.

5. The sponsor of the applicant is Refaah Aziz. She is the mother of the applicant. She was born in Iraq and is currently 70 years old. She first entered Australia in August 2013 and now has the right to reside permanently in Australia. She disclosed that she had the following relatives who lived in Australia:

   ·Hekma Azeez Butrus Aziz, 83 years old – husband – living at a different address and receives care himself from his son;

   ·Thaer Hekma Azeez Azessz Azeez, 41 years old – son – full time carer for his father, and has five children with his wife;

   ·Muntaha Hekma Azeez Azeez, 42 years old – daughter – full time contractor in a family day care and has three children;

   ·Fahad Hikmat Azeez Azeez, 31 years old – son – lives with sponsor but works full time in his own business;

   ·Rawaa Hekma Azeez Azeez, 52 years old – daughter – suffering from depression, anxiety, and migraines; and

   ·Nahlah Azeez, 46 years old – daughter – suffering backpain, depression, anxiety and migraines, with her own children and her son is her carer.

6. The sponsor provided a Carer Visa Assessment Certificate dated 17 November 2015, which reported she suffered from osteoarthritis in her upper and lower limbs, a lumbar spine fracture and degeneration, and depression and post-traumatic stress disorder. Her impairment rating was assessed at 35. It was noted that she required assistance with bathing, showering, dressing, grooming, eating and supervision for her medication, personal safety and transportation.

7. The applicant and her family arrived in Australia on 29 April 2016 holding Visitor visas. The application for the carer visa was made on 26 July 2016. Various documents were provided in support of the application, including brief statements from family members claiming they could not provide any support to their mother. It was claimed that there were no community services which would be able to provide any assistance to the sponsor.

8. The delegate who considered the application noted the sponsor had multiple relatives who lived close to her in Australia. Although some, like her husband, were not able to provide any care, all the rest could provide some assistance to the sponsor, even though most claimed they were working full-time. The delegate noted that some of the claims of the relatives’ work was not supported by any evidence provided by them. The delegate noted that the sponsor, at that time, had at least three grandchildren who are over the age of 18 and would be able to provide some assistance to her.

9. The delegate noted that the medical reports indicated the sponsor had been living with her husband and son before moving out of that home and then receiving further assistance from another son and one of her daughters. No information had been provided as to the previous assistance that had been given by her children to the sponsor.

10. Taking into account all these matters, the delegate was not satisfied that the assistance required by the sponsor cannot reasonably be provided by any other of her relatives resident in Australia. The delegate was not satisfied the applicant met the definition of a carer in r.1.15AA(e)(i).

11. The delegate noted that despite the National Disability Insurance Scheme advising the parties contact My Aged Care, the applicant did not provide any response to any aged care provider they may have contacted. The applicant claimed that any aged care provided to her mother would be too expensive, with their fees being between $51 and $53 per hour. The delegate was not satisfied that any meaningful attempt had been made to obtain community services to provide assistance to the sponsor. The delegate was not satisfied that the applicant met the definition of a carer in r.1.15AA(e)(ii).

12. As the applicant did not meet the definition of a carer in r.1.15AA(e), the delegate found the applicant did not meet the criteria in cl.836.221. Accordingly, the delegate refused the application of the applicant. As the applicant did not meet the primary criteria for the grant of the visa, the secondary applicants were not members of the family unit of a person who met the primary criteria and therefore the delegate refused their applications.

    Information to the Tribunal

13. The Tribunal wrote to the applicant on 8 March 2021 inviting her to attend the hearing before the Tribunal. In the hearing invitation, the Tribunal requested the applicant provide details of all relatives of the sponsor, including grandchildren, and to provide statements as to why the relatives were not able to provide assistance to the sponsor. The applicant was requested to provide details of contact she had made to community support services for the sponsor.

14. The applicant did not provide any further statements from any of the sponsor’s relatives in Australia or any further information as to contact she had made to any community services. The applicant’s agent provided submissions noting that “the applicant does have a number of family members, who one would imagine, might normally be able to assist their mother”. The agent submitted that due to the fact that they had suffered as refugees from Iraq and had their own health and work responsibilities they were “unwilling or unable to provide the required care”. It was also claimed that the family had looked into community care for their mother, but “the care was either not available or unaffordable to a person in (the sponsor’s) financial position”.

15. The applicant appeared before the Tribunal by MS Teams video on 25 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

16. The applicant gave evidence of all her relatives who were living in Australia. She said that her mother also had three sisters who lived in Australia, but she was unable to provide any details of their circumstances or details of the children of the sponsor’s sisters. She said that when she had contacted community care she had been told that they were able to provide three hours of home-care each day, but as her mother requires 24-hour care, they refused this service. She said that she had not done anything for more than three years to make any further enquiries about any community services which would be available for the sponsor. The applicant provided details of the care requirements of the sponsor.

17. The Tribunal asked the applicant why, with a combination of the relatives the sponsor has in Australia, they could not reasonably provide the assistance needed by the sponsor. This, in addition to the community services which the applicant had indicated were available, would seem to more than meet the assistance requirements of the sponsor. The applicant said that none of her family want to give any assistance to the sponsor. She said that all her family members are busy and do not want to care for the sponsor. She said the sponsor has specific mental health needs and only she can provide care for her or understand her.

18. The Tribunal noted that one of the sponsor’s grandchildren was on a Carer’s pension and caring for his mother who it was claimed was suffering from depression and mental health issues. This would indicate that he would be able to provide the necessary care for the sponsor. The Carer Visa Assessment Certificate also indicated other family members had been providing care for the sponsor. The applicant said that the sponsor only wants her to care for her. She said that community care was just for specific hours and costs a lot so they did not want that as it was not the 24-hour care the sponsor needed.

19. The sponsor gave evidence about her care requirements. She said that she was not living with her husband as her husband did not accept her as she was up at night. She said that they remained married but as her husband had his own care needs, they could not live together. She said that her son was looking after her husband but could not look after both her husband and herself. She said all her family are busy and cannot look after her. She said she only wants the applicant to look after her.

20. The sponsor said that she had three sisters who live in Sydney, but was unable to provide any details about her sisters or if they had any children because, she claimed, she had not talked to them since they were living in Iraq.

21. The sponsor claimed that she never left the home apart from having to go to the doctors. She then acknowledged that she went to church once or twice per month. She claimed that nobody visits her.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the applicant meets the definition of a carer in r.1.15AA and, specifically, if the assistance required by the sponsor cannot reasonably be provided by any other relative of the sponsor resident in Australia or reasonably obtained from welfare, hospital, nursing or community services in Australia.

    Whether the applicant is a carer

24. 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 r.1.15AA of the Regulations, which is set out in the attachment to this Decision. The Tribunal has first considered whether the assistance required by the sponsor cannot reasonably be provided by any other relative of the sponsor or obtained from welfare, hospital, nursing or community services in Australia.

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

25. 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.

26. The applicant is married to Hekma Aziz. He is 83 years old and suffers from various medical problems. His son is receiving a Carer’s pension to look after him. The Tribunal accepts that the applicant’s husband cannot reasonably provide any of the assistance required by the sponsor.

27. The applicant has disclosed the following children and grandchildren[1] [2] of the sponsor who are resident in Australia and over the age of 18:

    [1] The applicant has never provided the full names and dates of birth of the grandchildren of the sponsor. The information as to the grandchildren was based on the evidence given by the applicant at the hearing and the Tribunal notes the spelling of the names of the grandchildren may not be accurate due to the difficulties in transcribing the names during the hearing. The Tribunal apologises for any misspelling of the names in the decision.

    [2] The grandchildren of the sponsor are listed under the names of their parent.

    ·Thaer Hekma Azeez Azessz Azeez, 41 years old – son;

    oMaying, 21 years old – granddaughter;

    oThatic, 19 years old – grandson;

    ·Muntaha Hekma Azeez Azeez, 42 years old – daughter;

    oYouseff, 19 years old, grandson;

    ·Fahad Hikmat Azeez Azeez, 31 years old – son;

    ·Rawaa Hekma Azeez Azeez, 52 years old, 1/3/1969 – daughter;

    oNour, 22 years old – granddaughter; and

    ·Nahlah Azeez, 46 years old – daughter;

    oAlex, 26 years old – grandson;

    oEevet, 23 years old – granddaughter;

    oRafal, 21 years old – grandson;

    oDani, 19 years old – grandson; and

    oAngela, 18 years old – granddaughter.

28. When the hearing invitation was sent by the Tribunal to the applicant, the Tribunal asked the applicant to provide statements as to why the relatives of the sponsor were not able to provide any assistance to the sponsor. No further statements were provided. In the submissions provided by the applicant’s agent, it was claimed “apart from their own health, the family members also provided statutory declaration stating their own reasons to why they are unwilling or unable to provide the required care”.

29. No up-to-date information has been provided by any of the relatives of the sponsor who are resident in Australia as to their circumstances. The statutory declarations that have been provided by the children of the sponsor are now over four years old. The statements do not provide any detailed information as to why those relatives cannot reasonably provide the assistance required by the sponsor. The statements are brief, stating such things as “I cannot care for my mother as I suffer from illness and have six children who are students, my son is my registered carer”[3] and “I cannot provide care for my mother as I am working full-time”[4]. The limited documentation to support the claims made by the children of the sponsor are all out of date. It was claimed that Muntaha Azeez was employed by Care 4 Kids in a letter dated 23 June 2016, however, the evidence of the applicant was that she was no longer employed by that organisation. When the Tribunal asked questions of the applicant at the hearing as to the details of the activities of her siblings and nieces and nephews, the applicant was unable to provide any accurate details. The fact that no up-to-date statements or independent information has been provided as to the employment or other responsibilities of the children and grandchildren of the sponsor makes it difficult to assess the credibility of the claims made as to the factors which would mean those relatives cannot reasonably provide the assistance required by the sponsor.

    [3] Statement of Muntaha Azeez sworn 20 January 2017.

    [4] Statement of Fahad Azeez sworn 14 November 2016.

30. The Tribunal has considered all the circumstances of the relatives of the sponsor and whether the assistance required by the sponsor cannot reasonably be provided by those relatives. This includes assessing the level of assistance that those relatives can reasonably provide and whether a combination of the sponsor’s relatives resident in Australia can meet the sponsor’s assistance requirements.

31. Thaer Azeez is the son of the sponsor. He currently receives a Carer’s pension to enable him to care for his father. The applicant claimed he also worked as a cucumber farmer, but only worked 20 hours a week so as not to affect his Carer’s pension.

32. It is difficult to understand why the sponsor and her husband are not able to live together. The applicant claimed that her parents still love each other but need to be cared for by separate people. The sponsor claimed that as she had medical problems her husband did not want to live with her and as he had medical problems she could not live with him. The applicant has not provided any current information as to the medical problems of the sponsor or the applicant which would indicate that they would not be able to live together. Even if they did not share a bedroom due to any disturbances the sponsor or her husband may cause the other during the night, it does not appear unreasonable for the sponsor and her husband to live together and be cared for by Thaer Azeez. Thaer Azeez would be able to meet all the sponsor’s assistance needs at the same time as providing the assistance needed by his father.

33. Even if the sponsor were not living with her husband, the Tribunal finds that it would be reasonable for Thaer Azeez to provide a degree of assistance to the sponsor. This would include shopping and other chores which he could do in combination with those that he was doing for his father. As he only works 20 hours a week on his cucumber farm, he would have the flexibility to be able to take the sponsor to any medical appointments or other outside activities the sponsor was required to attend. Even if the sponsor were not living with him, he would be able to care for both his father and the sponsor during the day either in his own home or with his father in the home where the sponsor was living.

34. The Tribunal finds that the assistance required by the sponsor can be reasonably provided to a very large degree by the sponsor’s son, Thaer Azeez.

35. The sponsor’s granddaughter, Maying, is 21 years old and is married with a child. There is no information which would indicate that she is working at the moment. It is claimed that she is planning to emigrate to the United States with her American husband. At this time, there appears to be no reason why Maying would not be able to provide all the care required by the sponsor. She is in a similar position as the applicant in that she is married with a child, albeit her child is quite young, and could live with her child and husband with the sponsor in the home the sponsor currently rents.

36. Although the only evidence of Maying’s intention to immigrate to the United States is the statement from the applicant, the Tribunal accepts that she intends to relocate to the United States and in that case would not be able to provide any assistance to the sponsor.

1. Thatic is the 19 year old grandson of the sponsor. It was claimed that he was studying at TAFE and also working, which his parents arrange. The applicant was unable to provide any clear details of his study hours or his work hours, simply claiming that he worked six days a week. The Tribunal does not accept this. The applicant has had opportunity to provide evidence of the work and study hours of Thatic. She was aware the Tribunal was requesting statements from all relatives in Australia as to their circumstances. Nothing has been provided. There is no information which would indicate any work undertaken by Thatic would prevent him from providing some assistance to the sponsor. It is unlikely that his work is six days a week, as the applicant claimed, and it is likely that he would be able to provide some assistance both on the weekend and occasionally during the week to the sponsor.

2. The Tribunal accepts that Thatic is attending TAFE. The Tribunal finds that Thatic would have opportunity when he is not attending TAFE to provide substantial assistance to the sponsor. This could include supervision of the sponsor overnight with Thatic living with the sponsor in the home where she currently resides. If the sponsor were living in the home of Thaer Azeez, his father, he could obviously provide further assistance to the sponsor both during the day and at night.

3. Overall, the Tribunal finds that the assistance required by the sponsor could reasonably be provided by Thatic to a limited extent. This would likely be on weekends and would include Thatic being able to live with the sponsor in any home she chose to live so that he would be able to provide overnight supervision and assistance.

4. Muntaha Azeez is the daughter of the sponsor. She is a single mother who claims to look after her children, Youseff who is 19, Helen who is 16 and Christina who is 10 years old. She previously claimed to be working at a childcare centre, however, it is now claimed that she works part-time at Woolworth’s Supermarket, working about 20 or 25 hours per week.

5. There is nothing to indicate that Muntaha Azeez does not have the capacity to care for the sponsor. The fact that she works not more than 25 hours a week indicates that her children do not require her presence at all times. It is noted that Youseff, at 19 years of age, is an adult and would not need supervision from his mother. Her two daughters attend school and Muntaha Azeez would be available during school hours to provide the assistance required by the sponsor. There is nothing to indicate that the sponsor would not be able to live with Muntaha Azeez, which would enable her to provide all her care overnight as well as during the day.

6. The Tribunal finds that the assistance required by the sponsor could reasonably be provided by Muntaha Azeez, including living with the sponsor to provide all the assistance and care requirements of the sponsor including any hygiene or toiletry assistance. Apart from when she is working for 25 hours a week, she would also be able to provide any daytime assistance for the sponsor.

7. Youseff is the sponsor’s grandson. He is 19 years old. He attends TAFE, studying hairdressing. The applicant was not able to provide details of the hours he attended TAFE or the hours of any work he was engaged in. She claimed that he just did not want to give any assistance to the sponsor. The Tribunal finds that the assistance required by the sponsor could reasonably be provided by Youseff to a limited degree. This would be outside the hours that he was attending TAFE and would include providing assistance over the weekend. This could include supervision of the sponsor, assisting in shopping, cleaning and other domestic chores, ensuring medication is taken and maintaining social contact. It would include taking the sponsor to any medical appointments or to her church or any other social activity of the sponsor.

8. Fahad Azeez is the son of the sponsor. The sponsor was originally living with Fahad Azeez before the applicant arrived in Australia and the applicant and her family continued to live in the home of Fahad Azeez after she arrived in Australia for a period of time. Fahad Azeez is married with three young children. He has his own business. This is not the truck driving business that he previously provided information about. It is now claimed he has his own tyre business. There is no information from Fahad Azeez as to his current work responsibilities or his hours of work.

9. The Tribunal accepts that if Fahad Azeez has his own business, it is unlikely that he would be able to provide substantial assistance to the sponsor. The only assistance he may be able to provide is some assistance on weekends to include supervision to provide respite for any other family member providing the substantial assistance to the sponsor. As the sponsor was previously living with him and his family, there would appear to be no reason why this could not resume.

10. Rawaa Azeez is the daughter of the sponsor. She is reported to suffer from depression. Her husband receives a Carer’s pension to look after her. The Tribunal accepts that as she suffers from depression she would not be able to provide any substantial assistance to the sponsor. The most that she would be able to provide is company during the day when she is being cared for by her husband.

11. Nour is the granddaughter of the sponsor. She is single and works as a librarian. The applicant claimed that she worked six days a week, 54 hours each week. The Tribunal does not accept this. No independent information has been provided as to Nour’s work hours and the Tribunal does not accept that she works any more than 40 hours a week, five days a week.

12. There is nothing to indicate that Nour would not be able to live with the sponsor. This would enable Nour to provide all the assistance required by the sponsor overnight. This includes any supervision and toiletry and hygiene requirements of the sponsor. She would also be able to provide assistance to the sponsor on weekends when she is not working.

13. The Tribunal finds that the assistance required by the sponsor could reasonably be provided by Nour giving her overnight assistance as well as on weekends when she is not working. This assistance would not be continual, but could be offset by other relatives of the sponsor.

14. Nahlah Azeez is the sponsor’s daughter. She suffers from depression and her son receives a Carer’s pension to provide care for her. There is little information to show the current level of incapacity suffered by Nahlah. Despite this, the Tribunal accepts that it would only be reasonable for her to provide very limited assistance to the sponsor. This would be limited to company and limited supervision during the day when her carer is also providing care for her.

15. Alex is the grandson of the sponsor. He is 26 years old. He receives a Carer’s pension to provide for the care of his mother. It was claimed he was also working as a truck driver, but this was limited to 20 hours a week to ensure that he was able to provide the necessary care for his mother. It was claimed that as the sponsor’s condition involves mental health concerns, that Alex would not be able to provide any assistance to the sponsor. The Tribunal does not accept this. As Alex is caring for his mother who was reported to have mental health issues similar to those suffered by the sponsor, there is nothing to indicate that Alex would not have the necessary skills and experience in providing the necessary assistance to the sponsor.

16. As Alex is currently providing assistance to his mother as her carer, the Tribunal finds that it would be reasonable for him to also provide substantial assistance to the sponsor. This would include caring for both his mother and the sponsor during the day as well as doing shopping and other chores that he would otherwise be doing for his mother by including the needs of the sponsor in that assistance.

17. Although it is claimed Alex is working as a truck driver, there is no information about the hours of his work or any demands that this places on him. It is stated that this work is less than 20 hours a week to enable him to continue to be his mother’s carer. In those circumstances, the Tribunal finds that Alex would have sufficient time to be able to provide assistance to his mother and the sponsor at the same time so that the assistance required by the sponsor could reasonably be provided to a substantial degree by Alex.

18. Eevet is the granddaughter of the sponsor. She is 23 years old. When the Carer Visa Assessment Certificate was obtained, Eevet accompanied the sponsor for the medical examination and was identified as a person, along with the sponsor’s daughter who was not identified and was not the applicant, as a person providing care and assistance to her.

19. Eevet is married and has a young baby. She does not work. Her situation is similar to that of the applicant in that she is married with children. The Tribunal acknowledges that the applicant’s children are over the age of 10 while Eevet is caring for a baby. The Tribunal finds, however, that she would be able to provide the same assistance that the applicant claims she is currently providing to the sponsor. The Carer Visa Assessment Certificate indicates that Eevet has previously provided assistance to the sponsor and there is nothing to indicate that she would not have the skills, knowledge and experience to provide that assistance. There is nothing to indicate that the sponsor would not be able to live with Eevet and Eevet’s husband and child. The care that Eevet would be able to provide includes all hygiene and toiletry requirements, supervision, transport and other assistance requirements. The Tribunal finds that the assistance requirements of the sponsor could reasonably be provided to a substantial extent by Eevet.

20. Rafal is the grandson of the sponsor. He is 21 years old. It was claimed that he attends TAFE and also works as a plumber. The applicant was unsure of the hours he attended TAFE or the hours he worked. No independent information has been provided to set out these details. The Tribunal accepts that Rafal is attending TAFE and also works part-time as a plumber. This would allow him to provide limited assistance to the sponsor. This would include supervision and company for the sponsor. This would be when he was not working or attending TAFE and would likely include weekends and evenings. The Tribunal finds that the assistance required by the sponsor could reasonably be provided by Rafal to a limited extent.

21. Dani is the grandson of the sponsor. It was claimed that he attended TAFE and worked in a truck wash. The applicant was not able to provide details of what Dani was studying or the hours he was working, simply claiming that he worked six days a week and only had Sundays off. The Tribunal does not accept this. Without any independent information, the Tribunal cannot accept a statement from the applicant that Dani works six days a week even though she does not know what he is studying at TAFE or where he is working.

22. The Tribunal finds that the assistance required by the sponsor could reasonably be provided by Dani to a limited extent. This would include supervision over weekends and occasionally during the week when he is not working or attending TAFE.

23. Angela is the granddaughter of the sponsor. She is 18 years old. The applicant claimed that she is currently going to university, studying medical assistance. She also works part-time at Subway. The applicant was unable to provide details of her hours at university or when she was working.

24. As she is studying medical assistance, it would be expected that Angela would have the skills and capability of providing significant care for the sponsor when she was not at university or working. This could include overnight assistance if Angela lived with the sponsor, and she could provide all hygiene and other assistance needs of the sponsor. The Tribunal finds that the assistance required by the sponsor could reasonably be provided by Angela to a large extent including overnight assistance when she is not attending university or working part-time at Subway.

25. The Tribunal has considered the circumstances of all the relatives of the sponsor that the applicant has disclosed to the Tribunal. The Tribunal notes that the applicant disclosed that the sponsor has three sisters who also live in Sydney and they are likely to have children, being the nieces and nephews of the sponsor. No details have been provided of these relatives. It is claimed the sponsor does not have any contact with her sisters or their families and the Tribunal has not taken these relatives into account when considering whether the assistance required by the sponsor cannot reasonably be provided by other relatives of the sponsor resident in Australia.

26. All the relatives of the sponsor live in relatively close proximity of the current home of the sponsor. The applicant said that she had moved a number of times with the sponsor since arriving in Australia and they are living in rented accommodation. There is nothing to indicate that other accommodation arrangements could not be made for the sponsor to live with one of her relatives, either in the home that the relative is currently living or in some other accommodation.

27. As set out above, the sponsor has five children and nine grandchildren all over the age of 18 years who reside in Australia. One of her grandchildren, Maying, is planning to immigrate to the United States and the Tribunal accepts that in those circumstances she would not be able to provide any assistance to the sponsor. Of the other relatives, the Tribunal finds that it would be reasonable for each of them to provide at least some assistance to the sponsor. For some, such as Rawaa and Nahlah, this assistance would be limited due to their own medical issues. For others, such as Thaer Azeez, Muntaha Azeez and Eevet, this would be substantial. This would include the sponsor living with those relatives so that they would be able to provide care overnight as well as substantial care during the day. Other relatives would be able to provide the relative with whom the sponsor was living respite by also providing care to the extent that it would be reasonable for them to do so as set out above. This would include for some of the relatives providing care overnight or on weekends or when they were not working or attending their studies.

28. The applicant argued that none of her relatives were able to provide the assistance required by the sponsor because they did not want to give the sponsor any assistance. It was claimed that the sponsor demanded that the only person who gave her assistance was the applicant. The requirement under the legislation is that the Tribunal must consider whether the assistance required by the sponsor cannot reasonably be provided by any other relative of the resident who is resident in Australia. Although the relatives may claim that they do not want to provide any care for their mother or grandmother, this is not the criteria that must be considered. It is whether the assistance cannot reasonably be provided by that relative. As set out above, the Tribunal has considered each of the relatives of the sponsor and to what extent the assistance required by the sponsor can be reasonably be provided by them.

29. The sponsor may say that she demands to have the applicant care for her, however, this again is not relevant when considering whether the assistance cannot reasonably be provided by other relatives. It is noted that in the Carer Visa Assessment Certificate it was noted that the sponsor was already receiving care from her daughter and granddaughter. This does not indicate either that the sponsor does not have any relatives who are able to provide the assistance or that she refused to accept this assistance previously. It indicates that the sponsor was previously receiving appropriate care from her relatives in Australia.

30. The Tribunal finds that a combination of the relatives of the sponsor resident in Australia would more than meet the assistance requirements of the sponsor. The level of assistance of each relative could provide, as set out above, varies. Some of the relatives are able to provide substantial assistance and this would meet the majority of, if not all, the assistance requirements of the sponsor. The other relatives would be able to provide any relative providing the substantial assistance to the sponsor respite and opportunities to pursue their own affairs. With 13 relatives all able to provide assistance to some extent this would minimise the burden on any one relative in meeting the assistance requirements of the sponsor.

31. For the above reasons, the Tribunal is not satisfied that the assistance required by the sponsor cannot reasonably be provided by other relatives of the sponsor resident in Australia, either individually or in combination.

32. The Tribunal has also considered whether the assistance required by the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

33. There is little information of any attempts by the sponsor or any of her family members to obtain community services to meet the assistance requirements of the sponsor. The applicant indicated that she had not made any enquiries as to any community assistance available to the sponsor for more than three years. The information provided at the time of the application indicated half-hearted attempts to enquire about community assistance available to the sponsor. The applicant complained that the assistance that could be identified was going to be too costly for the sponsor or would not meet what she considered were the 24-hour care needs of the sponsor.

34. The applicant gave evidence that the enquiries that she had made more than three years ago indicated that the sponsor would be entitled to home care amounting to three hours each day.

35. The Tribunal has significant concerns as to the lack of any attempt by the applicant or any of her relatives resident in Australia to make genuine enquiries as to the availability of welfare, hospital, nursing or community services in Australia. For the purpose of this decision, however, the Tribunal accepts the evidence of the applicant that the assistance able to be provided by community services in Australia is limited to three hours’ home care each day.

36. The Tribunal accepts that the assistance requirements of the sponsor are in excess of the three-hour home care that is able to be accessed from community services in Australia. The Tribunal finds, however, that if this home care was accessed it would reduce further any burden on the relatives of the sponsor resident in Australia in providing assistance to her. With the assistance that can reasonably be provided by other relatives of the sponsor resident in Australia and reasonably obtained from community services in Australia, the Tribunal finds the assistance needs of the sponsor would be more than fully met.

37. For the above reasons, 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. Therefore, the requirements of r.1.15AA(1)(e) are not met.

38. As the applicant does not meet this criterion in r.1.15AA for the definition of a carer, it is not necessary to consider whether the applicant meets the other criteria for the definition of a carer.

39. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

40. For the reasons above, the applicant does not meet the criteria for a Subclass 836 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.

41. As the applicant does not meet the criteria for the grant of the Care visa or any other visa of the subclass, the secondary applicants are not members of the family unit of a person who meets the primary criteria. Accordingly, the decision to refuse their applications must also be affirmed.

    DECISION

1. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

   Hugh Sanderson
   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.