Botros (Migration)

[2020] AATA 1442

Botros (Migration) [2020] AATA 1442 (21 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Magda Moris Reyad Botros

CASE NUMBER:  1803440

HOME AFFAIRS REFERENCE(S):          CLF2016/55456

MEMBER:Helena Claringbold

DATE:21 April 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 April 2020 at 3:37pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably obtainable from service providers in Australia – sponsor’s physical and mental health and assistance needs – husband’s health and treatment – assistance tasks performed by applicant – children unable to provide assistance – approaches to service providers – no evidence from service providers – cultural factors – not reasonable for sponsor to refuse services – unsubstantiated adverse information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 359AA, 376

Migration Regulations 1994 (Cth), r 1.15AA(1)(e)(ii), Schedule 2, cl 836.221

CASE
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 13 September 2016, Ms Magda Moris Reyad Botros, the applicant, applied for an Other Family (Residence) (Class BU) visa. The application was made on the basis that she is the carer of her sister, Mrs Nahid Moris Riyad Botros, the resident and sponsor.

2. On 31 January 2018, a delegate of the Minister of Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant satisfied cl.836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) under the Migration Act 1958 (the Act). On 9 February 2018, the applicant provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision.

3. At the time of application, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer); and Subclass 838 (Aged Dependent Relative). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.

4. On 21 October 2019, the Tribunal invited the applicant to a Tribunal hearing on 14 January 2020. On 10 December 2019, the applicant requested and was granted a postponement of the Tribunal hearing set down for 14 January 2020.  On 24 February 2020, the applicant appeared before the Tribunal 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 Sudanese and English languages. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor and whether the applicant is willing and able to provide to the sponsor substantial and continuing assistance to fulfill her needs.

   BACKGROUND ON THE EVIDENCE

8. The applicant was born in 1962 in Bahari, Sudan.  Her parents are deceased. Her sister, the sponsor and resident, lives in Australia and her remaining three siblings live in Sudan and Egypt. The applicant was previously married to Mr Ayoub. In 2000 the applicant and Mr Ayoub separated.  There are two children from this relationship who were born in Sudan in 1982 and 1986. The applicant’s two children live in France and Australia respectively.   

9. The sponsor was born in 1956 in Sudan.  On 2 February 1999, she entered Australia. She is married and has two adult children who live in Australia. On 26 July 2001, she was granted Australian citizenship.  

   Does the applicant claim to be the carer of an Australian relative?

10. Clause 836.211 of Schedule 2 to the Regulations requires that at the time of application, the applicant claims to be the carer of an Australian relative. In this case, at the time of application, Ms Botros claimed to be the carer of Mrs Botros, who is an Australian citizen and the applicant’s sister. Therefore, at the time of application the applicant meets cl.836.211 of Schedule 2 to the Regulations.

11. Regulation 1.03 provides that carer has the meaning as given in r.1.15AA

    Whether the assistance cannot be reasonably obtained or provided

12. Regulation 1.15AA(1)(e)(i) 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 New Zealand citizen; or

    that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulation 1.15AA(e)(ii).

    Whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

13. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

14. On the visa application form dated 8 September 2016, the applicant stated the following: that she lived at Budapest Street. Assistance for the sponsor had not been sought from any Australian welfare organisations. The sponsor cannot do anything for herself.  She needs assistance and care day and night seven days a week and someone to be with her all the time. Welfare organisations only offer a few hours help a week. The only option is for the sponsor is to go into a nursing home. She refuses to do this because she won’t leave her husband who is ill and has dialysis three times a week. She is a private person and does not want to be helped by strangers. The sponsor’s son is unable to help his mother and her daughter cannot care for her on a full-time basis.

15. The Carer Visa Assessment Certificate (CVAC) dated 29 October 2019, recorded a total rating of 40 points. Noted on the CVAC is the following: the sponsor has long standing medical conditions. These are impacting her ability to self-care as well as to look after her unwell husband. She is limited in her ability to mobilise, transfer and perform self-care due to her very poor vision. She is also severely impacted by her mental health condition, self-neglect and risk of self- harm.  Due to these issues, she requires direct assistance to perform her daily activities as well as needing constant supervision to ensure her safety.  The sponsor requires assistance with mobility, hygiene, dressing, feeding, the supervision of medication and personal safety and transportation. ‘Based on my objective assessment of her conditions and their impacts on her functional ability, ‘she meets the criteria for a permanent carer visa’. The CVAC also recorded that the sponsor lived with her frail ill husband, in a three-bedroom single storey house with one step access. The sponsor and her husband were receiving assistance from the applicant for eight to ten hours daily and that no formal services were arranged. The sponsor was supported during the assessment by her son Nagi and the applicant. The sponsor’s address was recorded as Budapest Street, Rooty Hill.

16. In February 2017, the applicant’s migration agent stated the following: that since the sponsor’s son died the sponsor has been depressed.  She refused to have any strangers help her. Culturally she feels comfortable that the applicant is caring for her. She totally refuses the idea of getting assistance from services. 

17. In February 2017, the applicant stated the following: culturally the sponsor is comfortable for the applicant to shower and bath her and provide her with other types of assistance. The sponsor would not be comfortable if a stranger offered her this type of assistance.  The assistance the sponsor requires cannot be obtained from welfare, hospital or community services in Australia because she needs assistance all day and all night. She needs someone sitting with her and doing things for her all day and all night, when she needs to go to the bathroom. The services that are offered are for a few hours a week to help with cleaning, shopping and personal care.

18. A medical certificate and letter dated 17 October 2019 stated the following: the sponsor’s husband had a fall at home. He required surgical repair and rehabilitation. He previously required assistance at home from his wife. The sponsor’s husband attended Blacktown Hospital as an inpatient from 27 September 2019 to 17 October 2019.  He is likely to require assistance from both the sponsor and the applicant. The sponsor currently requires assistance at home from the applicant and the sponsor’s son provides the family with transportation. The certificate recorded that the sponsor is the carer of her husband and attended the hospital to assist caring for her husband.

19. In October 2019, the sponsor’s clinical social worker, counsellor –psychotherapist and hypnotherapist (clinical social worker) stated the following: that the report is provided at the request of the sponsor.  The sponsor urgently needs the applicant to be her carer under the carer visa provisions. The sponsor receives a disability pension from Centrelink. She suffers from major depression and post-traumatic stress disorder and anxiety due to the loss of her son some years ago.  Because of her medical conditions, the sponsor is unable to shop, cook or clean and attend to her personal hygiene. She has no friends to support her due to her irritability. She is unable to communicate in English and the ‘services can’t communicate with her in her own language.  In addition, these services and many others have limited resources and availability.  The Multicultural Aged Community Welfare Service has been approached and indicated that they do not provide fulltime care for people with her disabilities. The Department of Disability and Ageing were contacted and they referred the sponsor to Australian Unity, who indicated a cost $45 an hour (for services) and this is financially unaffordable for someone on the sponsor’s low income. The psychological assessment is based on a semi structured clinical interview with the sponsor at her home.  The sponsor’s symptoms are indicative of her psychological condition which are characterised by persistent, negative depressed and anxious moods, cognitive impairment with persistent and hyper-vigilant behavioural patterns with psychotic features. Her fear of not being able to live an independent life has exacerbated her mental illness.  Her condition indicates an imperative need for the applicant to stay in Australia and be the sponsor’s carer. It would give the sponsor a quality of life that she has not had for a long time. The sponsor’s cognitive ability is impaired by persistent thoughts about her future and (the sponsor) in the past tried to end her life as she was unable to be consoled about her physical deficits. On clinical grounds the practitioner supports the application for the carer visa.

20. In a letter dated 27 February 2020, the clinical social worker repeated the information she provided in her letter of October 2019.  She also gave other information including the following: the sponsor finds it difficult to cope with emotional stress. She lacks motivation and concentration and has poor appetite and memory and is unable to attend to her daily hygiene. Her poor communication skills cause her to be socially isolated and she rejects strangers around her. It would not be in the sponsor’s best interest to be placed in a nursing home as it would exacerbate her mental health and hinder her progress and make her feel more anxious and isolated. The practitioner recommends that the sponsor continues to receive treatment for her psychological condition while living at home with her sister whom she feels comfortable and secure around. She stated that the sponsor is accustomed to having her own food, culture and language and if that changed it would have a negative impact on her health and well-being. Placing her in a nursing home or a hospital facility would deteriorate her depression and anxiety severely and lead to more mental health issues. Due to the sponsor’s psychological condition, it is vital for her to be with and cared for by family members. The sponsor receives a Centrelink disability pension. She lives with her disabled husband. She wants to stay with her husband in their home. The sponsor stated several times that the applicant’s presence is the only thing that comforts her.  Her presence makes her feel secure. Without the applicant’s support she has no reason to live, this is indicative on symptoms of suicidal ideations. The sponsor can’t manage on-her-own and can’t prepare meals for herself and can’t sit or stand for any length of time. Her only pleasure is talking to the applicant. The sponsor is cognitively impaired and is often unaware of her surroundings.  She has problems concentrating and can’t remember what she was doing or where she put things. One time she decided to cook a meal and ended up almost burning down the kitchen. She lacks judgement and insight into her mental illness. The sponsor suffers severe major depression, post-traumatic stress disorder and anxiety. Her experience of fear of not being able to live an independent life has exacerbated her mental health and her fear of being sent to a nursing home.  On clinical grounds the practitioner supports the application for the carer visa.

21. In a statutory declaration from the sponsor dated 10 December 2019, she provided the following information: an overview of her medical and psychological conditions, which are already detailed in this decision record and have been considered. Since her arrival in Australia in 1999 she has been assisted with community and welfare services through Vision Australia. They provide an Opal card allowing the sponsor and an attendant to travel on public transport; mobility parking card allowing the use of disability parking and transport services through the Taxi Transport Subsidy Scheme.  Her husband also receives community and welfare services including transport services three times a week to the hospital for dialysis and transport once a week for shopping and transport to doctors’ appointments as needed and one hour of cleaning weekly services and mowing services every fortnight.  These services are not enough for the sponsor and her husband as their conditions are deteriorating. They need special care which ‘these services are unable to provide’. She has tried to receive additional services, but she does not qualify as she is not over 65 years of age. She would not be able to cope without the assistance of the applicant.  The applicant provides the sponsor and her husband with care. She sleeps at their home three to four times a week.  The housing commission will not permit her to be there permanently. The applicant arrives at 7:00am and leaves late in the evening. On the days her husband has dialysis the sponsor wakes at 5:45am and makes her husband’s breakfast and prepares his clothes and dresses him and waits for the worker from Anglicare to take him to the hospital. She also stated that the applicant assists to get her husband ready. The applicant assists the sponsor to shower and dress and cleans the house and helps the sponsor prepare lunch and supports her emotionally. The applicant prepares dinner which they eat at 8:00pm. She ensures medication is taken and then leaves to return to her home. She provided a copy of a Home Care and Services Plan for her husband showing that he receives an HCP level 2.

22. In a statutory declaration from the applicant dated 12 December 2019, she provided the following information: an overview of the sponsor’s medical and psychological conditions, which are already detailed in this decision record and have been considered. The sponsor cries every day and sometimes does not want to get out of bed or eat. At times she needs to provide the sponsor with her medication. She provides as much assistance to the sponsor as she does to the sponsor’s husband. She helps the sponsor care for her husband including ironing his clothes, cooking his dietary requirements and wheeling him when they go to doctors’ appointments. The service providers refused to take her on the bus with ‘with them’ because she is not the sponsor’s husband’s carer and the sponsor does not receive the same services because she is not over 65. The sponsor’s children have tried many times to obtain additional services for the sponsor, but she is not eligible for the services. The applicant either meets the sponsor and her husband at the shopping centre or they all take a taxi subsidised by the transport service. The sponsor cannot fulfil day-to-day living necessities.  She can’t be around the stove or oven or carry a pot to the table without the risk of fire. She cannot care for her husband and cannot be left alone. The only time the applicant ‘has off’ is when she goes to church on Sundays and serves in the canteen.  While she does this one of the sponsor’s children will be with the sponsor. The visa refusal has affected the sponsor as she fears losing the applicant.

23. In a statutory declaration from the sponsor’s son dated 9 December 2019, he provided the following information. He gave reasons why he can’t provide care for the sponsor, which are already detailed in this decision record and have been considered. His mother needs a carer due to her long-term illness. His father is also ill. The sponsor and her husband are vulnerable.  The sponsor previously cared for her husband, but his health is poor and he needs 24-hour care. The applicant helps care for his mother and father and assists them with their daily needs, such as cooking and cleaning. His mother’s psychological wellbeing has improved significantly and his parents physical and mental health has improved with the care and attention provided by the applicant.  Without the applicant’s help his parents will not be able to cope with their daily needs.  His mother receives a community service allowance due to her vision impairment, but it is limited as she is not over 65 and she does not fit the NDIS criteria. Other service providers told him that they do not provide 24-hour care. It is important that the applicant is granted a carer visa.

24. In a statutory declaration from the sponsor’s daughter dated 9 December 2019, she provided the following information: reasons why she can’t provide care for the sponsor, which have been considered. Her father requires 24-hour care and is provided with a level 4 home care package. The package does not provide for his needs as they only come three times a week to provide personal care, transport for shopping and medical appointments.  The cooking, housekeeping, toileting and social support was previously provided by the sponsor, but her health is deteriorating, and her vision impairment puts her at high risk. She is receiving some support from a disability provider.  However, because of her age she is not meeting the criteria for an aged care package. The applicant has been providing support to her mother and father. Her presence is important for the whole family and she strongly advocates the grant of the visa.

25. In a statutory declaration from the applicant’s son dated 12 December 2019, he provided the following information: since arriving in Australia, the applicant has been devoted to helping the sponsor. He arrives home at 6:30am which is just before the applicant leaves to go to the sponsor and her husband.  The applicant is practically with them 24 hours a day and is a great comfort and support to them. The applicant helps the sponsor with all her daily activities such as cooking, cleaning, going shopping and going to medical appointments, wheeling the sponsor’s husband in his wheelchair and assisting the sponsor with her mobility. The applicant provides this assistance with care and love and is a genuine applicant for the carer visa.

1. On 20 February 2020, the applicant’s migration agent stated the following: the sponsor is already provided services from community and welfare organisations including homecare personal domestic assistance as the carer for her husband; transport taxi vouchers due to her vision impairment, an Opal travel card due to disability for herself and one attendant and a transport card from Vision Australia. She provided a ‘Home Care and Services Plan’ document dated May 2019, relating to the sponsor’s husband.  This recorded the services and assistance provided to the sponsor’s husband including the following: transport to and from dialysis; hygiene services; mopping floors; sweeping dusting; vacuuming the living room and bedroom; wiping down shower and bath surfaces; cleaning the toilet; removing items from washing machine and hanging them to dry; removing dry items from washing line; purchasing items on the shopping list and delivering them to the sponsor’s home; the sponsor or carer will be transported to and from shops to support the sponsor’s husband and weekly ad-hoc outings are undertaken to acquire shopping.   

2. The Tribunal put the core of the information which is the subject of the s.376 certificate to the applicant under s.359AA of the Act as follows:

   ·In January 2016, the Department received information that although the applicant did not have permission to work, she was running a catering business and child- minding business from her home and that she moved residences and was living with her son at a Hythe Street address. She advertised her business in the community and through Facebook.  Additionally, the sponsor is receiving assistance from her son and daughter who live close to her.

3. The Tribunal put the other information to the applicant under s.359AA of the Act as follows:

   ·In September 2016, the Department received information that the sponsor’s depression condition is false and is being used for a migration outcome for the applicant. The sponsor’s daughter is a qualified aged care professional and may have been registered with Centrelink as the sponsor’s carer.

4. The applicant responded at the Tribunal hearing and stated the following: she has never worked in Australia. The catering business referred to was in Sudan and she has never taken care of children. She volunteers at her church and does some catering for them. When she arrived in Australia she lived with the sponsor and then moved to the Hythe Street address. The sponsor’s daughter is the carer for her father and requests services for him. The daughter does not receive any government payment as she works fulltime.

5. In a letter dated 24 February 2020, a parish priest stated the following: that he has known the applicant for three years.  She is active and volunteers in a variety of activities and services.  The applicant has never been paid or received remuneration for her volunteer work.        

6. The Tribunal places no weight on the information the subject of the s.376 certificate because it is not substantiated by independent evidence.        

7. The applicant told the Tribunal the following: the sponsor’s children do not provide care for the sponsor because they are both working. She is the person who cares for the sponsor.  The time she spends with the sponsor depends on how the sponsor is feeling.  Generally, she will be with her three days a week. She does everything for the sponsor - cleaning, washing, cooking and assists with the shopping. On Sundays she arrives at the sponsor’s home at 6:00pm to 7:00pm. She prepares a light meal for the sponsor’s husband, usually milk and a slice of cake which he has at 8:00pm. She prepares a bag for the sponsor’s husbands to take when he goes for dialysis the next morning. On Monday morning she gets the sponsor’s husband ready to go for treatment and he departs at 7:30am.  He returns home at 1:30pm.  While he is away, she assists the sponsor to get up. Sometimes this is difficult; because of the sponsor’s depression she loses interest.  She helps the sponsor with hygiene and sits her in a chair. The sponsor has difficulty seeing and is unable to hold metals and glass items and is unable to perform tasks. Therefore, the applicant cooks lunch in readiness for the sponsor’s husband’s return, when they all have lunch together. In the evening they have a light meal at 8:00pm and she returns to her home.  This routine is followed on Tuesday evening and Wednesday.  On Thursdays she assists the sponsor to go shopping.  She returns to their home and assists in putting the shopping away and sometimes stays with them because the sponsor’s husband has dialysis on Friday. On days she is not with the sponsor she makes sure that she has prepared everything they need. She prepares a light meal that can be prepared in the microwave and leaves the kettle ready for boiling. She leaves the sponsor’s husband’s wheelchair in a good position for manoeuvring. She provides the sponsor with physical and emotional support. She takes the sponsor to her son’s grave which she feels comforts the sponsor. The sponsor sometimes wakes in the night screaming and the applicant feels that her staying over in the sponsor’s house has also given her comfort as she has become used to her being there.

8. The sponsor has been provided with a discount card and transport card and a person to accompany her. The sponsor’s daughter makes enquiries about services over the telephone. However, when she applied for other services, she was told that the sponsor was under 65 years of age and didn’t qualify. She can’t remember the name of the organisation that was approached but was told that aged care was not approached. She thinks the sponsor’s daughter approached the NDIS but was told that the sponsor was under 65 and didn’t qualify. She tried to get help and thought about getting help from someone else but because of her condition can’t accept help from someone she doesn’t know. Regarding approaches to welfare, hospital, nursing and community services, the applicant is unable to confirm what happened previously.  However, the sponsor did spend three days in the hospital with an inflamed intestine.  

9. The sponsor told the Tribunal the following: she didn’t care for herself and didn’t want to get out of bed or comb her hair and didn’t eat well. She is unable to cook and use fire and the applicant helps her with everything. She does the washing and the cleaning and takes her to church. The applicant had her hair cut and cares for it. The applicant stays with her most of the time depending on how the sponsor is feeling. She takes care of her hygiene and takes her shopping or purchases items for her. Her children do not provide her with support because of their own busy lives.  Her husband has liver cancer and does not do anything other than watch television and does not give her emotional support. Her husband does not do anything and the applicant irons his clothes and cooks his meals. After the sponsor’s son died, she started to think what the purpose was of living and it would be better that she goes. She cries every day because things are depressing.  She is prescribed Valium and had had therapy.  However, she can’t forget the passing of her son and is unable to get out of her depression. The applicant is the one who makes her feel better. She talks to her and cares for her. The sponsor applied for aged care a long time ago and was told she was under 65 years of age.

10. The Tribunal put the other information to the applicant under s.359AA of the Act. The applicant sought and was granted additional time to comment on or respond to this information.  The information is as follows:

    ·The sponsor told the Tribunal that last year she spoke with the NDIS over the telephone and completed a telephone interview with them. They were going to send some forms, but they were not received.  She didn’t follow up with the NDIS because she benefits from the cleaning and lawn-mowing services provided to her husband.  Also, the applicant does everything for her.  This information was put to the applicant because information before the Tribunal is that the NDIS provides services to people with a disability.  The NDIS have a similar program to aged care providing house care, cleaning and other daily needs. Each NDIS program is tailored to the needs of the individual.[1] 

    [1] Understanding the NDIS. >

    In a post Tribunal hearing statutory declaration dated February 2020, the sponsor’s daughter Nagla, detailed the following: In the past years she communicated with many service providers on behalf of the sponsor. In 2000 Vision Australia provided the sponsor with a free transportation card with an attendant. As the sponsor is considered to be wholly blind, she is not eligible for limited services through them.  In 2014, the Anglican Retirement Village declined to offer service because the sponsor was under the age of 65. In 2016, her father started receiving home care services from Anglicare.  They refused the provision of further services for the sponsor because she was under the age of 65. In 2018, Nagla contacted My Age Care Assessment team through the hospital where the sponsor was a patient, to check with them about services. They referred her to the National Disability Insurance Scheme (NDIS).  In late 2018, Nagla contacted the NDIS who said they would send the sponsor an information pack and arrange a telephone interview with the sponsor before they decide whether they would complete a home assessment.  Nagla organised the telephone interview at a time that didn’t conflict with the times the sponsor was accompanying her father for medical appointments or shopping services. The telephone interview was conducted in 2019. After the interview, the sponsor told Nagla that the NDIS had sent an information pack to the sponsor. The sponsor told her that the NDIS stated that it appeared that she already had a carer and services and they could not help with services the sponsor was already receiving. Nagla called the NDIS and was told that as the sponsor has vision impairment, they would refer her to Vision Australia. Nagla informed them that the sponsor was already receiving the maximum services available to her from Vision Australia.

11. The NDIS told Nagla the following: that as a result of the interview with the sponsor, they established that her father received domestic assistance and weekly shopping services from Aged Care.  As the sponsor lives in the same house as Nagla’s father the NDIS could not provide these same services. The NDIS also established that the sponsor was being cared for by the applicant.  Nagla told the NDIS that the applicant had applied for a carer visa and did not have permanent status in Australia and the sponsor cannot do without proper care.  The NDIS stated that they assess each case not only on the degree of disability but also on services already delivered into the household, which they would not duplicate. They stated that the maximum service suitable for the sponsor would be two hours a week which would include any of the following; housekeeping, mowing, personal; care or transport. They do not provide 24-hour care. They told Nagla the sponsor was not eligible for a home assessment and to contact them should circumstances change.  Nagla realised that the NDIS would not provide the sponsor with anything and told the sponsor that she didn’t need to do anything further with the pack she received. The sponsor didn’t follow up as she was told that she already has a carer and didn’t qualify for a home assessment and to contact the NDIS should circumstances change.  They have tried to obtain the maximum services for the sponsor. The sponsor is desperate and needs many hours of care.  The applicant provides the sponsor with psychological and emotional support.  She sleeps at the sponsor’s home many days a week. She provides the sponsor with full support at home, socially, going shopping with her, assisting with her father’s medical appointments, cooking and supervision. They can see a huge difference in the sponsor’s condition since the applicant has provided her with care. Nagla and her brother cannot provide their mother with care because they cannot leave their employment and have families and financial commitments. The sponsor will die if the applicant cannot remain in Australia.  She would die if she was placed in a nursing home and it would be psychologically detrimental for her. The applicant is needed for the sponsor’s survival to provide her with full support and assistance and ensure she has a humane and a decent standard of living.

12. In a post Tribunal hearing submission, the applicant’s migration agent reiterated the evidence already detailed in this decision record and stated the following:  the NDIS were unable to provide services as they considered that the sponsor is already benefiting from services provided to her husband though Aged Care. The sponsor is not eligible for any services from the NDIS as she already benefits from services her husband receives and she is already cared for by her sister. The NDIS cannot provide 24-hour care which the sponsor needs and whatever services the NDIS offered would not be enough for the sponsor. The sponsor is unable to obtain the required care from community and welfare organisations or from nursing homes or hospital facilities.  

13. The Tribunal accepts that the sponsor suffers from the conditions as described.  It accepts that the sponsor would rather remain in her own home with her husband and have the applicant provide her with care and assistance and that the sponsor may be reluctant to engage other services. The Tribunal considered the information provided about the sponsor’s family members being unable to care for her however has made no finding on these claims. The Tribunal will base its decision on whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor.

14. The Tribunal has not been provided any independent information about any investigation into services that may be obtained for the sponsor. The information provided by Nagla about the investigation she claims to have undertaken to obtain services for the sponsor is without any supportive evidence from any organisation.  The sponsor’s clinical social worker states that services can’t communicate with the sponsor in her own language; that these services and many others have limited resources and availability; and that ‘The Multicultural Aged Community Welfare Service have been approached and indicated that they do not provide full time care for people with her disabilities; that the Department of Disability and Ageing was contacted and they referred the client to Australian Unity which indicated (services) would cost $45 an hour and this is financially unaffordable for someone on her low income’. These statements are unsubstantiated by any expression of how the social worker came to this view or on what information or evidence she based her opinion nor has she given any information from service providers giving this evidence. Nor are claims made by family members about services not being obtainable for the sponsor supported by independent evidence.

15. It is apparent that the sponsor is having trouble looking after some aspects of her welfare.  It follows that it is a matter for her family to decide how best to care for her.  It is evident that the sponsor wants to remain in her own home with the applicant caring for her. However, this does not necessarily mean that the assistance cannot reasonably be obtained through services in Australia.  In considering the claims about the lack of 24-hour services and the cost of services being prohibitive, the Tribunal has not been provided any probative evidence to show that this is the situation or that any investigation has been undertaken to establish whether 24-hour services are obtainable from welfare, hospital, nursing or community services in Australia.

16. The evidence is that a process began with the NDIS to investigate what services might be obtained for the sponsor. However, on the sponsor’s evidence she completed an interview with the NDIS over the telephone and they were going to send her forms which she didn’t follow up on. However, Nagla’s evidence is that after the NDIS held a telephone interview with the sponsor, Nagla had a conversation with them and was advised that because the sponsor benefited from services her husband receives from Aged Care and services provided to her by the applicant, services were not obtainable for the sponsor and she advised the sponsor not to proceed with the NDIS. The Tribunal is not satisfied by this evidence because it is not supported by any independent information from the NDIS.  Neither is the Tribunal satisfied that cultural factors - mean that the assistance cannot reasonably be obtained from welfare, nursing or community services in Australia because no evidence has been provided to support that service providers cannot cater to the sponsor’s cultural needs. The Tribunal does not consider it to be reasonable that the sponsor refuses to obtain help from services in Australia. The clinical social worker statement that services can’t communicate with the sponsor in her own language is provided without any information about what services she is referring to or about the services that were approached that allowed her to form this view.

17. The Tribunal is sympathetic to the sponsor’s circumstances.  However, the Tribunal is not satisfied that the evidence provided demonstrates that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, because there is no evidence to support this claim from any service provider.  Ultimately, other than statements given, from the clinical social worker and family members about obtaining services, the sponsor has not provided any independent information that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor; rather, she has unreasonably rejected any option, stating that she only wants the applicant to provide her with assistance and there is no capacity available to the Tribunal to waiver this requirement.

    Other considerations

18. The Tribunal told the applicant the following: that a non-disclosure certificate has been issued pursuant to s.376 of the Act in relation to certain material which is on the Department’s file. The Department has sought to restrict the disclosure of folios 102-106 on the basis that disclosure of the information contained in these folios would be contrary to the public interest because these folios disclose or enable a person to ascertain the existence or identity of a confidential source of information. These folios contain details of an allegation made by the third party, whose identity might be determined by the applicant and the sponsor if disclosed. The Tribunal is satisfied that the s.376 certificate is valid. The applicant was invited to comment on the validity of the certificate. The core of the information the subject of the certificate was put to the applicant under s.359AA of the Act and is recorded in this decision.

19. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and as a whole. Having considered the evidence individually and as a whole, the Tribunal is not satisfied  that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, therefore r.1.15AA(1)(e)(ii) is not satisfied.

20. As the Tribunal has determined that the criteria for the grant of the visa have not been satisfied the Tribunal has not considered the remaining criteria.

21. 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.

1. There are no claims or evidence that the applicant meets the criteria for any of the other subclasses contained in Class BU.

   DECISION

2. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

   Helena Claringbold

   
   

   Member