Bekhet (Migration)

[2019] AATA 3780

Bekhet (Migration) [2019] AATA 3780 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Magda Amin M B Abdelshaheed Bekhet

VISA APPLICANTS:  Mrs Mervat Amin Abdelshaheed M B Bekhet
Mr Samir Wassef Tawfik Wassef
Miss Jila Samir Wassef Wassef
Mr Samwil Samir Wassef Wassef
Miss Carol Samir Wassef Tawfik

CASE NUMBER:  1617794

DIBP REFERENCE(S):  OSF2015062920

MEMBER:Kira Raif

DATE:5 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas 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 05 March 2019 at 4:51pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – providing substantial and continuing care to the sponsor – available care from Australian relatives – applicant’s husband works in regional areas – limited support from community services – domestic responsibilities for minor children – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 116.221; r 1.15

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 Immigration on 18 August 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants are nationals of Egypt. The first named applicant (‘the visa applicant’) applied for the visa on 7 October 2015. The application includes her partner and three children. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the applicant was the carer of her Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 5 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s spouse The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.

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

   Whether the visa applicant is a ‘carer’

6. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s sister. The Tribunal is satisfied the visa applicant is a relative of the sponsor. The Tribunal is satisfied the sponsor is an Australian citizen or permanent resident who is usually resident in Australia. The visa applicant meets the requirements of r.1.15AA(1)(a).

7. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

8. 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 or issued by a specified health provider in relation to a review of such an opinion.

9. The visa applicant provided with her application a Certificate issued by Bupa Medical Visa Services in May 2015 indicating that the sponsor met the requirements for a carer as she had an impairment rating of 30 points on the Impairment Rating Tables. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life.  The sponsor obtained a further, current Carer Certificate. The new Certificate, dated 11 December 2018, provides an impairment rating of 65.

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

11. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In the present case, the person with the medical condition is the sponsor and there is evidence that the sponsor is an Australian citizen at the time of this decision. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

12. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. In the present case, the impairment rating specified in the original certificate was 30. The more recent certificate issued in December 2018 has an impairment rating of 65. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

13. The Tribunal acknowledges a number of other medical reports that had been submitted with the application and to the Tribunal concerning the sponsor’s condition. In her submission to the Tribunal of 25 February 2019 the review applicant states that she suffers from a major depressive disorder with chronic paranoid delusion and has severe rheumatoid arthritis and these conditions cause her high degree of impairment. The review applicant describes her condition and its effects and repeated this in oral evidence to the Tribunal. The Tribunal accepts that the review applicant medical needs that cause her to require assistance.

14. 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.

15. 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.

16. The visa applicant provided with her application a statement from the Perth Arabic Christian Church, which refers to the sponsor’s circumstances. It outlines the sponsor’s condition and states that the sponsor needs someone to be with her day and night according to the doctor’s recommendations and to help with medication, food and mobility. The visa applicant provided a statement from Richmond Wellbeing in support of her application. It refers to the sponsor’s condition and the relationship between the applicant and the sponsor. It states that the support provided by the organisation has not been sufficient and that it would be beneficial to enable her to receive family support. The visa applicant provided a statement from Dr Taylor, which refers to the diagnosis of Major Depressive Disorder with psychotic features. Dr Taylor states that the sponsor’s condition is exacerbated by the sponsor’s isolation as her friends in Australia cannot provide adequate support. Dr Taylor states that it would be helpful for the sponsor to have supportive family. The applicant provided a Support Plan from the Southern Districts Support Association and a statement from Ms Knight, the social worker at the Armadale Health Service. It states that the sponsor’s husband works as a construction engineer in the north of WA and is often away for long periods. The couple have two young children and the sponsor is a full-time carer for the children but she has limited support in the community to assist her with caring for the children when her husband is away. There is a statement from the sponsor’s husband Mr Bekhit confirming that information.

17. In her written submission to the Tribunal, the review applicant states that her husband works as an engineer and has worked in regional areas and away from the family. The Tribunal accepts, on the basis of the presented evidence, that the sponsor’s partner is unable to provide the requisite care on a full-time basis and, on occasion when he works away from home, that he cannot provide requisite care at all.

18. In oral evidence, the applicant explained the nature of her condition and its effect on her daily life. She states that she is fearful of people and cannot interact with others. She needs someone who will make her feel safe. She suffers from hallucinations and also has rheumatoid which severely affects her mobility, even around the house. She states that she cannot communicate with strangers or receive assistance from strangers.

19. The Tribunal acknowledges that there is some evidence of support being provided by community organisations. The review applicant states that she receives support from NDIS but such support is limited and is not sufficient. The applicant provided a statement from NDIS (WA) confirming that the applicant is registered with NDIS and receives five hours of assisted support a week. The review applicant told the Tribunal that because she does not trust anyone, she needs the support from someone she knows. The review applicant states that her husband takes care of the children but when he is at work, the children do not know what to do. The review applicant told the Tribunal her husband works casual hours, about three hours a day. He has given up his job in NSW and now works in the local area to be able to take care of the children and to be with her. The review applicant told the Tribunal she has no other relatives in Australia. The review applicant’s spouse told the Tribunal that his job as a civil engineer requires him to work on site and to be away from home or live in a different area

20. Given the nature and severity of the sponsor’s condition, as well as her domestic responsibilities for minor children, the Tribunal is satisfied that the support provided by NDIS is inadequate. The Tribunal also accepts that the applicant cannot access assistance from other sources which would cover her daily needs, including the care responsibility for two minor children.

21. The Tribunal accepts that the review applicant’s spouse provides her with substantial degree of care at present but he is only able do to that by giving up his job. The Tribunal acknowledges that he is the sole breadwinner in the family with the financial responsibility for two minor children. The Tribunal does not consider it reasonable to expect Mr Bekhet to completely forego his employment and to accept full responsibility for the review applicant and the two children. The Tribunal accepts that the review applicant’s spouse is unable to provide the requisite assistance on a full-time basis. The Tribunal also accepts that the assistance the review applicant receives from NDIS, which comprises only a few hours a week, does not fully cover the review applicant’s needs. The Tribunal is satisfied that given the sponsor’s age and care arrangements in relation to children, residential care would not be a suitable option for her.

22. On balance, the Tribunal is satisfied that the assistance cannot be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services. 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.

23. 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.

24. 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.

25. The visa applicant expressed her willingness to provide assistance to her sister. The review applicant explained that due to her condition, she cannot accept strangers in her house while she has a close relationship with her sister. The Tribunal accepts, given the nature of the review applicant’s condition, that she may be unable to accept help from strangers. The review applicant’s evidence is that her sister completed a first aid training course and speaks fluent English and would be able to communicate and practically assist in Australia. The review applicant also said that the visa applicant’s children are older and do not require as much help. Also her sister has assets that they would be able to sell and have the financial stability in Australia.

26. The Tribunal acknowledges the visa applicant’s written evidence that she is able and willing to provide the requisite assistance. There is nothing to contradict that evidence and, on balance, the Tribunal is satisfied that the visa applicant is capable of providing the assistance required. The Tribunal is satisfied the visa 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).

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

    Conclusion

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

    DECISION

29. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas 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;

    Kira Raif
    Senior Member