Bader (Migration) - [2020] AATA 2333

Bader (Migration) [2020] AATA 2333 (13 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Youssef Badih Bader
CASE NUMBER:  1808682
HOME AFFAIRS REFERENCE(S):          CLF2015/19599
MEMBER:Justin Owen
DATE:13 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl.836.221 of Schedule 2 to the Regulations

Statement made on 13 March 2020 at 11:10am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Circuit Court remittal – ‘carer’ of an Australian relative – willingness and ability to provide the required assistance – multiple persons providing ‘substantial and continuing assistance’ – mother’s dominant carer role – visa applicant’s supportive role – knowledgeable and aware of sponsor’s psychological and physical challenges and needs – mother’s advanced age and declining health – applicant’s employment and desire to work – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cl 836.221
CASES
Bader v Minister for Immigration & Anor [2018] FCCA 485
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 5 January 2016 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 27 March 2015. 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. Relevantly to this matter, the primary criteria to be met include cl.836.221. 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 delegate refused to grant the visa on the basis that under cl.836.221 the delegate was not satisfied that the applicant was able to provide to the resident sponsor the substantial and continuing assistance of the kind needed by her and predicated on her ongoing medical condition. The delegate therefore found the applicant did not meet regulation 1.15AA(1)(f). As the applicant did not meet this requirement the delegate found the applicant was unable to meet the requirements of a Carer as defined in regulation 1.15AA. As the applicant did not satisfy regulation 1.15AA, the delegate found the applicant did not meet cl.836.221 in Schedule 2 to the Regulations.
The applicant applied for review of the delegate’s decision to the Tribunal which affirmed the decision on 16 September 2016. The applicant appealed to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 20 March 2018 the Federal Circuit Court made orders quashing the Tribunal’s decision of 16 September 2016 and remitting the matter to the Tribunal for reconsideration according to law.
The applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative 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
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.
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 applicant’s sister. The Tribunal accepts on the evidence that the Australian relative is the applicant’s sister, that she is an Australian Permanent Resident who is usually resident in Australia.
Therefore, as the applicant is the brother of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).
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.
For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal is satisfied that a valid Carer Visa Assessment Certificate was issued on 3 June 2015. The Tribunal is satisfied that the Certificate meets the requirements of r.1.15AA(2). The Tribunal is satisfied that according to the Certificate the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 30) specified in the Certificate. 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.
The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
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 an Australian permanent resident. Accordingly, the requirements of r.1.15AA(1)(ba) are met.
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 07/012.
In the present case, the impairment rating specified in the certificate is 30. This rating meets the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
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.
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.
The applicant stated that his only family in Australia is his mother, his sister (the sponsor) and her five year old niece. He resides with all three individuals. His wife departed Australia in June 2018 and resides in Lebanon. He and the sponsor have no other family in Australia. The Tribunal notes that the applicant’s mother is already playing a role in caring for his sister the sponsor and her niece. The Tribunal accepts the sponsor is not in contact and receives no support from her former husband from whom she separated after instances of family violence. The Tribunal accepts that the sponsor has no other family members in Australia who can provide her with the care and support she needs.
The Tribunal puts significant weight on the opinion of a wide range of medical specialists concerning the sponsor, her health and her needs. The Tribunal accepts that, given the paucity of family members that meet the definition of an Australian relative, the assistance she now requires cannot reasonably be provided by a relevant Australian relative.
On the evidence before it, the Tribunal is satisfied that the assistance required by the resident cannot be reasonably provided by a relevant relative. The applicant meets 1.15AA(1)(e)(i).
The Tribunal has also considered whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: 1.115AA(1)(e)(ii).
The Tribunal discussed with the applicant whether the assistance could not be reasonably obtained from welfare, hospital, nursing or community services in Australia.
The applicant has submitted that the assistance the sponsor and her niece require cannot be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal notes that the sponsor’s needs – particularly in regards to her psychological state – are very specific.
The applicant discussed with the Tribunal the services that they have utilised from Parramatta Mission Services. The Tribunal notes the evidence of the previous contact that has been made to access services which included contact with a range of community nursing services and welfare groups. The applicant has stated that these services are unable to provide the care his sister the sponsor needs. The sponsor needs significant supervision due to her psychological state as well as care for her five year old niece. The services that the sponsor is able to access will, in the Tribunal’s opinion, meet this need.
The Tribunal accepts that the applicant and sponsor’s financial situation precludes them from accessing some available nursing services. The Tribunal however based on the specialist medical evidence submitted – and the oral testimony of the applicant which it found honest, spontaneous and genuine – accepts that the specific assistance the sponsor requires cannot be reasonably provided from welfare, hospital, nursing or community services. The sponsor is isolated in Australia with just her daughter and her elderly mother in residence. She has very specific psychological challenges. The Tribunal is of the opinion the support and assistance she needs is best provided by her brother, the applicant.
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 r.1.15AA(1)(e) are met.
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. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
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.
The Tribunal notes that the applicant’s application was refused by the delegate and a previously constituted Tribunal on the basis the decision maker was not willing and able to provide the sponsor with the substantial and continuing assistance of the kind needed. The previous Tribunal noted that the applicant’s pregnant wife was in Australia. The Tribunal considered the applicant’s pregnant wife was a further incentive for the applicant to seek employment and it was not satisfied in such circumstances he would provide the substantial and continuing assistance the sponsor required. The Tribunal found the applicant would feel compelled to work to meet his own expenses and to support his wife and future child as well as the sponsor and his mother.
The previously constituted Tribunal furthermore was of the opinion that the applicant’s mother – who had been granted a Carer’s visa previously – was the one that was ‘willing and able’ to provide the substantial and continuing care the sponsor required. The Tribunal noted that the applicant’s mother looked after a range of hygiene matters, washing and care for the sponsor’s daughter. The applicant was doing some of the cooking, house work and supervision of the sponsor’s daughter. The Tribunal found that it was the sponsor’s mother – not the applicant – that was providing the ‘substantial and continuing assistance’ the sponsor required.
The matter was remitted to the Tribunal by the Federal Circuit Court on 20 March 2018 Bader v Minister for Immigration & Anor [2018] FCCA 485 when His Honour Driver J found 38 to 40:
Whether or not more than one person is providing assistance, the Tribunal is entitled to evaluate the assistance provided by the visa applicant in order to determine whether it is “substantial and continuing”. That evaluative task is for the Tribunal, not this Court. On the other hand, it would be an error for the Tribunal to proceed on an assumption that, because someone else is providing care to a sponsor, a visa applicant cannot, in a supportive role, provide substantial and continuing assistance. In other words, the fact that Mr Bader’s and the sponsor’s mother was the dominant carer of the sponsor did not preclude the possibility of Mr Bader, in a supportive role, also providing substantial and continuing assistance.
His Honour found that it was unclear whether the Tribunal was reasoning from a misapprehension that multiple persons could not individually or collectively provide substantial and continuing assistance or whether it was simply evaluating the assistance provided by the applicant in order to determine that it was not substantial and continuing. His Honour found ‘it was clear’ that the mother was playing the dominant role of carer and that the applicant’s role was supportive. Nevertheless His Honour found that because one person is providing substantial and continuing assistance, it does not follow that a second person in a supportive role and undertaking different tasks, cannot also provide substantial and continuing assistance. The Tribunal’s finding to the contrary he found amounted to a misconstruction of the regulation. His Honour subsequently remitted the matter to the Tribunal for reconsideration.
The Tribunal discussed with the applicant the ‘substantial and continuing care’ required by his sister the sponsor and whether he was both willing and able to meet the care needed.
The Tribunal notes the unfortunate circumstances of the applicant’s sister the sponsor. Separated from her husband after an allegedly violent and unhappy relationship, she is unable to care for herself and her five year old daughter. The sponsor has been diagnosed through both a psychiatrist and psychologist as suffering from depression, post-traumatic stress disorder, anxiety and an adjustment disorder. She also suffers from bilateral De Quervian disease, NSAID and wrist splints. The extensive medical evidence submitted suggests the sponsor’s condition has deteriorated both psychologically and physically over the last five years. She is unable to care for herself and her daughter. She has been managed by her psychiatrist Dr Phillips now for over five years and is prescribed a wide range of medication to assist her psychological state.
The Tribunal closely assessed the applicant and whether he was both willing and able to provide the ‘substantial and continuing’ assistance and care the sponsor requires. The Tribunal found the applicant to be both entirely knowledgeable and aware of his sister’s psychological and physical challenges and her needs.
The applicant was fully versed with the sponsor’s various medical specialists and the treatment the applicant receives. He is clearly in the Tribunal’s opinion in contact with the specialists. He states that he provides the sponsor with her medication and he was entirely familiar with the medications themselves, their individual roles and their effects. The Tribunal does not doubt he is responsible for this responsibility.
The Tribunal closely questioned the applicant concerning the breakdown of responsibilities between himself and his mother. The Tribunal notes that care may be provided collectively by more than one relative. In Jajo v 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. The applicant stated that his mother looked after the personal hygiene matters for his sister as well did some of the cooking. He stated he was responsible for most other caring responsibilities which included the majority of domestic cleaning, shopping, transport and supervision. The Tribunal found the applicant spontaneous in his oral testimony and is satisfied he is providing this care to his sister.
The role of his mother in caring for his sister was also discussed. The applicant stated that he is taking a greater and more substantial role in caring for his sister as his mother ages. He stated he is also now spending some time looking after his mother. The Tribunal notes that the applicant’s mother is now 77 years of age. The Tribunal notes the decline in his mother’s health and accepts that her age and health make continuing to care for her daughter the sponsor more and more problematic. The Tribunal is of the opinion on the evidence before it that in the time elapsed since his application was last refused by the Tribunal in 2016, the applicant is now responsible for the provision of a majority of the genuine and continuing care the sponsor requires.
The Tribunal has also noted the extensive care the applicant is providing to his five year old niece who has had significant eye-related problems and endured a range of operations and medical procedures. The applicant is the only male family figure his niece has in her life as her father is estranged from both the applicant’s sister and her daughter. The Tribunal notes that the applicant drives his niece to and from school each day, with both his mother and sister both unlicensed and incapable of driving. The Tribunal notes the importance of faith to the applicant and his family and notes the applicant takes his family to Church on a regular basis. The Tribunal accepts the applicant’s evidence that he is responsible for these activities.

The applicant stated he had not worked since 2017. The Tribunal notes the earlier concerns expressed by the previously constituted Tribunal concerning the applicant’s employment and desire to work. The Tribunal notes that the applicant has provided evidence that he did in fact have work rights granted to him in 2015 and was in fact entitled to work a number of hours a week on his Bridging visa. The Tribunal accepts that the applicant may have engaged in some limited employment whilst engaged in caring for his sister and gives this no adverse weight in the circumstances. The applicant has stated that he has not worked since 2017 and there is no evidence before the Tribunal to suggest otherwise.
The Tribunal furthermore gives weight to the fact that since the Tribunal’s refusal, the applicant’s wife and new child have departed Australia and are residing in Lebanon. He stated he is not supporting them – or his adult children in Sweden – financially. The pressure on the applicant to seek employment has dissipated given his household is now simply his mother who receives a carer payment, his sister the sponsor who is receiving the Disability Support Pension, and his niece.
The Tribunal notes the evidence the applicant has provided of acquiring a First Aid certificate and he discussed the ongoing care he provided for his father when dying of cancer in Lebanon between 1999 and 2002. The applicant has good English language skills and he is licensed to drive. The Tribunal is satisfied he has the ability to provide the care and the substantial and continuing assistance his sister the sponsor requires.
The Tribunal considers the applicant’s responsibilities for his sister as a carer have grown significantly in the past four years. His mother’s age and health as well as the decline in the physical and psychological condition of the sponsor – and the evolving needs of his five year old niece – have meant that the applicant is taking on a greater degree of responsibility than previously.
The Tribunal found the applicant to be a genuine, articulate, concerned and engaging individual who cares deeply for his sister the sponsor and is devoted to both his sister and his niece. The Tribunal notes that the applicant has Swedish nationality and to all intents and purposes departed a comfortable life in Sweden to travel to Australia where he now cares for his sister and his niece. The Tribunal is satisfied the applicant is both willing and able to provide the substantial and continuing assistance required by both the sponsor and her daughter, his five year old niece.
Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).
Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.
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 application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl.836.221 of Schedule 2 to the Regulations;
Justin Owen
Senior 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.