Begum (Migration)

[2023] AATA 4107

Begum (Migration) [2023] AATA 4107 (30 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Tajwar Begum

VISA APPLICANT:  Ms Zakia Haider Ali

REPRESENTATIVE:  Mr Iqbal Safari

CASE NUMBER:  2013574

HOME AFFAIRS REFERENCE(S):          OSF2017/020153

MEMBER:Stephen Conwell

DATE:30 November 2023

PLACE OF DECISION:  Melbourne

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 30 November 2023 at 4:11pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – physical and mental health conditions and full dependency for activities of daily living – other specified relatives’ work, care for own child and own health – assistance cannot be obtained from service providers – religious, cultural and language requirements – approaches to local providers – applicant willing and able to provide required care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(b)(iv), (e), Schedule 2, cl 116.221

CASES
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 6 August 2020 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 (the applicant) applied for the visa on 29 May 2017. 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 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied that the applicant was the carer of the resident, who is also the sponsor and review applicant (the resident or Mdm Begum).  Specifically, the delegate was not satisfied that the availability of suitable services has been fully investigated for the purpose of r.1.15AA(1)(e)(ii). In the absence of evidence of what assistance was available to the resident, the delegate found that r.1.15AA(1)(e)(ii) was not met.

4. A copy of the decision record was provided to the Tribunal by the resident.

5. The resident was represented in relation to the review by her registered migration agent (representative). The representative attended the Tribunal hearing by video.

6. The review applicant (who is also ‘the resident’ in this matter, appeared before the Tribunal by video on 19 September 2023 to give evidence and present arguments. The Tribunal also received evidence from the applicant, Ms Zakia Haider Ali, who appeared by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

7. After the first interpreter lost contact with the hearing, a second interpreter was appointed however the sponsor claimed that she could not understand her  because  she and the second interpreter spoke a different dialect.  Both interpreters attended the Tribunal hearing by phone. Eventually the hearing was adjourned sine die in order to secure the services of an appropriate interpreter.  Given the Tribunal’s difficulty in securing the services of an interpreter who spoke the particular dialect of the resident, the parties agreed with the Tribunal’s suggestion that no further hearing be required  on the basis that the that the parties be granted a 14 day extension of time (to 22 November 2023) to provide any further written submissions.

8. The parties provided further written submissions within the extension of time granted.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the carer of the resident at the time of this decision.

    Whether the visa applicant is a carer

11. 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 r.1.15AA of the Regulations which is set out in the attachment to this Decision.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

12. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother.

13. Based on the evidence in the Departmental and Tribunal files the Tribunal is satisfied that Mdm Begum is usually resident in Australia.  Since the applicant is the biological daughter of the Australian relative, she is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

14. 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 resident who is an Australian permanent resident – which is not in dispute. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Certification – reg 1.15AA(1)(b)

15. A Carer Visa Assessment Certificate (CVAC) in respect of the resident was issued by BUPA Medical Services in November 2022. The Tribunal is satisfied that it was signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in compliance with reg 1.15AA (2), (Bupa Australia Health Pty Ltd).

16. The Tribunal finds that the CVAC provided meets 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.

17. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

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

18. 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.

19. Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal is required to assess the level and particulars of this assistance required by the resident in order to make a finding whether this assistance cannot reasonably be provided by the appropriate relatives or obtained by from the relevant services.

20. According to the 2022 CVAC, Mdm Begum  was said to have the following medical conditions that may impact her capacity to self-care:

    ·Osteoarthritis of the knee and spine;

    ·Depression and anxiety;

    ·Right rotator cuff injury.

21. In relation to the functional assessment, the assessing doctor made the following findings. The doctor found that:

    ·the osteoarthritis caused functional impairment impacting the lower limbs, Consequently the resident was unable to use stairs without assistance or stand unaided for more than a few minutes. She reported frequent falls by the resident who also requires a mobility aid;

    ·the right rotator cuff injury meant that Mdm Begum  was unable to abduct her shoulder more than 45 degrees with limited internal and external rotation. She has difficulty picking up heavy or bulky objects, as well as with dressing.

    ·the resident’s spinal condition meant she was unable to sit during interview for extended periods due to pain. She also needs assistance with transfers from sitting to standing. She had a limited straight leg raise with significant pain.

22. The doctor also recorded a “Long standing history of depression and anxiety, sees psychiatrist and psychologist, taking Lexapro. Reports frequent episodes of tearfulness and anxiety about the future. Presented with a sad affect but was able to answer questions appropriately.”

23. The resident was found by the assessing doctor in the CVAC to be fully dependent vis-à-vis the activities of daily living, requiring assistance with mobility, bathing/showering, toileting, dressing/ grooming, supervising medication, supervision for personal safety and transportation.

24. The assessing doctor stated in summary:

    Tajwar is a 73-year-old lady from Pakistan who presents with multiple long-standing medical conditions including chronic back and knee pain, rotator cuff injury, and depression. She requires assistance with most ADLs.

25. The assessing doctor stated that she had considered reports from the resident’s GP (dated 14th February 2022), an X-ray of the lumbosacral spine dated 4th February 2020 and an Ultrasound report right shoulder dated 17 March 2020.

26. The Tribunal has also considered the previous CVAC dated 27 July 2016 which is discussed in the decision record. According to the 2016 CVAC, the resident was found to suffer from Chronic back pain and Depression/Anxiety. Whilst acknowledging that the resident suffers from multiple medical problems, the most evident was found to be chronic back pain, depression and multiple falls. The 2016 CVAC states that Mdm Begum  requires assistance with bathing/showering, toileting, grooming, supervising of medication and personal safety and transport.

27. The 2016 CVAC states the overall dependence as “partially dependent”, however understandably, with the passage of time, the 2022 CVAC states the resident is “fully dependent” upon a carer.

28. The Tribunal has considered the evidence in front of it, in particular the 2022 CVAC. Based on this evidence, it finds that the resident is fully dependent on others for assistance, requiring assistance with mobility, bathing/showering, toileting, dressing/grooming, supervising medication, supervision for personal safety and transportation.

29. Statutory declarations from the resident’s daughter, Ms Asmat Haider Ali dated 5 February 2020 and  15 September 2023 states in summary that :

    ·the resident is frail and requires round-the-clock care;

    ·she cannot provide that care as she works full-time, whilst her husband is the full-time carer of their eldest son who has autism;

    ·her husband finds it difficult to care for both their son and the resident;

    ·it is very difficult for the resident to receive personal care from her son-in-law as it is not culturally appropriate for a woman to receive personal care from a male member of family other than her husband.

30. A statutory declaration dated 14 September 2023 from the resident’s son in Australia, Mr Muhammad Ishaq, repeats much of his sister’s and brother-in-law’s difficulties in caring for the resident. He states that as a man he faces the same cultural difficulties with assisting the resident with her personal and intimate needs.  He also states that he works in a casual capacity as a labourer and does not have time to care for his mother, the resident.

31. A statutory declaration dated 4 December 2019 from the applicant also repeats much of the resident’s circumstances in Australia. She states Mdm Begum  is unable to care for herself. Further that she (the applicant) has been Mdm Begum’s primary carer for many years and is familiar with her cultural and linguistic needs and medical conditions and can provide more culturally appropriate care to Mdm Begum.

32. At hearing, the applicant told the Tribunal that since arriving in Australia, Mdm Begum  returned to Pakistan every year to spend a few months with her family. During her visits she is cared for by the applicant. The applicant said that Mdm Begum travels unaccompanied during these visits.

33. Post-hearing the resident and her son each submitted further statutory declarations, both dated 22 November 2023.  In her statutory declaration Mdm Begum stated that:

    ·she speaks only the Quetta dialect of the Hazaragi language. She cannot find a qualified carer who speaks this dialect and is able and willing to provide 24 hours personal care for her;

    ·she needs assistance for her personal needs such as showering, using the bathroom, grooming and other aspects of  personal hygiene. This care is provided by her son-in-law, which is contrary to cultural norms and is uncomfortable for both of them

    ·her daughter, Asmat and her husband as well as her son, Muhammad Ishaq are willing to assist her to meet her obligations as a resident/sponsor;

    ·before she migrated to Australia the applicant would care for her. She also cared for her during her regular visits to Pakistan.

34. In his post-hearing statutory declaration her son, Muhammad Ishaq confirms his willingness to assist and support his mother, Mdm Begum in her sponsorship responsibilities, should the applicant be granted a visa.

35. The Tribunal is satisfied  based on the CVAC that the resident is fully dependent and requires assistance with all aspects of daily living including mobility, bathing and showering, toileting, dressing and grooming, supervising medications, supervision for personal safety and transportation. The Tribunal is satisfied  the resident needs regular and constant support and care.

36. The Tribunal is satisfied, based on the oral and written evidence, that:

    ·the Australian relatives of the resident include her two adult children – her son, daughter, and her son-in-law;

    ·the resident’s lives with her daughter, Asmat, who is married with four children, (whose eldest son has been diagnosed with autism and who requires the full-time care of his father, the resident’s son-in-law);

    ·Asmat herself suffer from several medical conditions, including back pain and schizophrenia with secondary depression. In the past her husband has had to care for her and their children, particularly their eldest son who has autism. Her husband also currently cares for the resident;

    ·Over time the care needs of both the resident and her grandson with autism have increased, placing an onerous physical and psychological burden across the family, in particular upon the resident’s son-in-law;

    ·that the resident’s son Muhammad Ishaq (although he lives in the same household as the resident), works casually as a labourer and is unable to provide the care his mother requires due to his work commitments as well as the fact that it is culturally unacceptable for him to assist his mother with her intimate hygiene needs.

37. The Tribunal is satisfied based on the oral and written evidence, that the current situation whereby the resident’s son-in-law provides her with most care is culturally unacceptable and unsustainable in the long run as the care needs of his autistic son increase with time.  

38. The Tribunal now considers the question of whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

39. According to the decision record dated 6 August 2020, on 8 June 2020, the Department requested the resident to provide evidence that the following Aged Care and Health organisations had been contacted as stated in the letter from Hazara/Afghan community group, “United Cultural Support”:

    ·M&CG Medical & Aged Care Group

    ·Arcare Keysborough Aged care

    ·Estia Health Keysborough

40. After requesting an extension of time of 14 days to respond, the resident’s representative informed the Department  that Mdm Begum and her family had contacted these service providers in person, via telephone and emails. The representative hoped to submit the responses from these service providers shortly. On 9 July 2020, the representative provided evidence of correspondence with M & G Aged Care Group. The representative stated that the applicant had also contacted Arcare Keysborough Aged care and Estia Health Keysborough, both organisations advising that they cannot provide care to Mdm Begum , although they did not  respond in writing.

41. Submitted in evidence is a  group email dated 7 September 2023 from Mdm Begum ’s son-in-law to more than a dozen Aged Care and Community organisations seeking information about services and detailing Mdm Begum’s very specific religious and cultural requirements which were to be catered to at all times.  There is a response of the same date from Clear Care Community advising that they do not provide services to the Aged Care needs as yet. There is no evidence of responses from any of the other Aged Care and Community organisations. The lateness of these enquiries and lack of responses might in some circumstances be unsatisfactory as evidence of the parties having made reasonable enquiries as to whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. However the Tribunal must have regard to the entire circumstances surrounding the parties and this merits review.

42. Having regard to all the circumstances, particularly the very specific cultural and linguistic needs of the resident and the challenging family circumstances of her daughter and son-in-law, the Tribunal is satisfied  that the assistance of the resident requires cannot reasonably be provided by any other relative of the resident who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and therefore the requirements of r.1.15AA(1)(e)(i) are met.

43. The Tribunal is satisfied, having regard to the linguistic, religious and  cultural factors in this case, that the assistance cannot reasonably be obtained because of these factors rather than because the resident or her family have unreasonably chosen to reject assistance from welfare, hospital, nursing or community services in Australia.

44. The Tribunal is satisfied  that the applicant has been treated by health professionals, including psychiatrists and other health professionals. It has considered the recent report dated 23 October 2023, from her psychiatrist, Dr Hamimi who has threating the resident since September 2019. The Tribunal accepts the advice of Dr Hamimi that “Ms. Begum would benefit from the support of her daughter as her carer in Australia as she is not receiving adequate long-term support from the community or from any relatives in Australia.”

45. The Tribunal is satisfied  that the care the resident requires on a daily basis cannot reasonably be provided by a stranger or even a male family member (on a sustainable basis) and cannot be obtained through available Australian services.

46. The Tribunal is satisfied  that the assistance the resident requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, and therefore the requirements of r.1.15AA(1)(e)(ii) are met.

47. For these reasons, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant Australian 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)

48. 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.

1. 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 Court’s comments were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

2. The Tribunal is satisfied that the applicant has cared for the resident in the past, before the latter came to Australia, as well as during her regular visits back to Pakistan. The Tribunal is satisfied  that the applicant is aware of the physical, cultural and psychiatric health needs of the resident, her mother. The Tribunal is satisfied the applicant is able and willing to do all the tasks the resident cannot do for herself. 

3. The Tribunal is satisfied  that the applicant intends to live with the resident in the household in which all the Australian family members currently live.

4. 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 reg 1.15AA(1)(f).

   Conclusion on ‘Carer’ criterion

5. Given these findings the Tribunal concludes that at the time of decision the applicant is a carer of the Australian relative, being the resident, and therefore satisfies cl.116.221.

6. Consequently, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 116 visa.

   DECISION

7. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 116 (Carer) visa:

   ·cl 116.221 of Schedule 2 to the Regulations

   Stephen Conwell
   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.