CANOL (Migration)

[2023] AATA 1237

CANOL (Migration) [2023] AATA 1237 (24 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms DENIZ CANOL

REPRESENTATIVE:  Mr Kayhan Oncu (MARN: 1386541)

CASE NUMBER:  1927511

HOME AFFAIRS REFERENCE(S):          CLF2018/71372

MEMBER:Moira Brophy

DATE:24 January 2023

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 836.211 and cl 836.221 of Schedule 2 to the Regulations.

Statement made on 24 January 2023 at 3:51pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – other relatives – home care package – 24-hour assistance required – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 836.211, 836.212, 836.321

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lin v MIMIA [2004] FCA 606
Rafiq v MIMIA [2004] FCA 564

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 18 September 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 June 2018. 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 (Cth) (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 836.212 and cl 836.221.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant was a carer to an Australian relative as defined in reg 1.03, and further, that the assistance required could not reasonably be obtained from family members or from welfare, hospital, nursing, or community services in Australia.

4. The applicant appeared before the Tribunal on 15 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mrs Neriman Ozdemir. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

7. The visa applicant, Ms Deniz Canol, is a 52-year-old female. She was born in Turkey and is a citizen of Turkey. She was previously married to Mr Biilal Gonul. Mr Gonul resides in Turkey as do the two sons of the marriage. Her father is deceased, her mother, one brother and one sister reside in Turkey. The applicant is a niece of the sponsor.

8. The applicant travelled to Australia on a temporary entrant Visitor (subclass 600) visa on 11 September 2017. She was granted a Student (subclass 500) visa on 31 January 2018 for the period to 18 June 2018.

9. The sponsor, Mrs Neriman Ozdemir, is an 82-year-old female living in Sydney. She is a citizen of Australia and also a citizen of Turkey. The sponsor is in receipt of an aged pension and she resides in social housing. Her husband died in 2002. She has five children, one daughter lives in Turkey. Her parents are deceased and she has one brother and one sister living in Turkey.

10. At the time of application, it was stated the applicant was required to provide care to the sponsor and a member of her family unit, the sponsor’s daughter Ms Hatice Ozdemir.

11. The delegate in his decision determined that the person requiring care was the daughter of the sponsor and was satisfied the applicant was the niece of the sponsor and that the sponsor was the primary carer of her daughter Hatice. However the delegate was not satisfied sufficient evidence had been provided to show the care required could not be provided by other adult relatives resident in Australia.

12. On 29 July 2021, the Tribunal wrote to the applicant requesting an updated Carer Visa Assessment Certificate.

13. On 2 December 2021, the Tribunal was advised the application was proceeding on the basis the applicant was providing care to the sponsor and not to a member of the sponsor’s family unit. In material accompanying the advice, it was stated the sponsor had suffered a stroke in September 2020 resulting in her being hospitalized for two months in Westmead Hospital. The consequence was she was no longer able to provide to her daughter the care she needed.

14. On 2 March 2022, a Carer Visa Assessment Certificate from BUPA Medical Services dated 22 February 2022 was provided to the Tribunal for Mrs Neriman Ozdemir

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the visa applicant is the carer of the sponsor as defined in reg 1.15A and whether the sponsor’s needs could not be reasonably provided by either other adult family members or by community health care providers in Australia.

16. The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall.

17. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 22 February 2022 provided, which the Tribunal requested prior to the hearing.

    Whether the applicant has claimed to be the ‘carer’

18. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s aunt.

19. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

20. There is a copy of the Carer visa application made by the sponsor, Mrs Neriman Ozdemir and her niece, Ms Deniz Canol (the visa applicant), on the Department file. On that application, the visa applicant claims to be the carer of her aunt, the sponsor Mrs Neriman Ozdemir (the caree). The caree is an Australian citizen, as evidenced by the copy of citizenship certificate provided.

21. Therefore at the time of application, the primary visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 836.212.

    Whether the applicant is a carer

22. 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 reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

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

23. 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 aunt.

24. The Department file contains identity documents of the primary visa applicant and the sponsor, her aunt. The Tribunal is satisfied on the evidence before it that Mrs Neriman Ozdemir is the aunt of Ms Deniz Canol. The Tribunal is satisfied the primary visa applicant, Ms Deniz Canol meets the definition of close relative. The Tribunal is also satisfied that the sponsor, Mrs Neriman Ozdemir is an Australian citizen and is ‘usually resident’ in Australia.

25. Therefore, as the applicant is the niece of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

26. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 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.

27. For a certificate to meet reg 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.

28. On 2 March 2022, the applicant provided a  Carer Visa Assessment Certificate from BUPA Medical Visa Services dated 22 February 2022.The report stated Mrs Neriman Ozdemir was suffering from the sequelae of a left corona radiata and internal capsule lacunar stroke, knee and hip osteoarthritis, right shoulder rotator cuff injury, lumbar disc disease and depression and anxiety. She had also been diagnosed with hypertension, T2DM, hypothyroidism, glaucoma and hypercholesterolaemia.

29. The examining officer opined her conditions were treated and presently stable. They were permanent conditions likely to deteriorate in the future. He considered her to be partially dependent and unlikely to improve beyond her current functional capacity. She was ascribed an impairment rating of 40 points.

30. The Tribunal finds that the certificate provided does meet 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.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

31. 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.

32. In the present case, the person with the medical condition is Mrs Neriman Ozdemir who, according to documents on file, is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

33. 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 17/126.

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

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

35. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 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 reg 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 two years as a result of the medical condition.

36. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

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

37. 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia. In determining whether the assistance cannot reasonably be obtained for the purposes of reg 1.15AA(1)(e), the Federal Court has held that the question is whether the Australian relative can reasonably obtain assistance from the person or services; not whether that person is able to reasonably provide the required assistance, or those services are reasonably available: Lin v MIMIA [2004] FCA 606; Rafiq v MIMIA [2004] FCA 564; and Biyiksiz v MIMIA [2004] FCA 814.

38. According to the BUPA Assessment conducted on 22 February 2022, Mrs Ozdemir requires assistance with mobility, bathing and showering, dressing and grooming, eating and feeding, supervision of medication, supervision for personal safety, and transportation. The physical conditions impacted on her functional impairment of her spine and upper and lower limbs. Her mental health conditions impacted on her in that she was reluctant to get involved in social or recreational activities, she had difficulty focusing on tasks and had impaired memory and was not able to plan or organise.

39. As a result, she is partially dependent on another person for all activities of daily living and is unlikely to improve beyond her current functional capacity. In their opinion, she satisfied the criteria for a Carer visa.

40. There was consistent oral evidence at the hearing regarding the arrangements for Mrs Ozdemir’s care. She lives alone in a social housing unit. She is in receipt of a Centrelink aged pension. Her husband died in 2002. They had five children. One daughter is living in Turkey. She has one daughter who is disabled. She cared for her until she had a stroke two years ago and as a result of that stroke, she was no longer able to care for her daughter. Her daughter now lives with her other daughter and she and other family members manage her care.

41. The evidence as to the level of care Mrs Ozdemir requires was consistent. She has difficulty with her personal hygiene and rituals. She suffers from insomnia so has disturbed sleeping patterns. She is not able to manage her own medication and if not prompted will forget to take it. The applicant has the chemist prepare blister packs but these do not include Mrs Ozdemir’s morning medications. The applicant is presently not living with Mrs Ozdemir but she is with her each day from early morning. When she arrives each day, she assists with her ablutions and helps her to dress. She prepares her breakfast and medications. She takes her to physiotherapy each week and to medical appointments. Sometimes they go out for coffee. She does the grocery shopping and prepares Turkish food which Mrs Ozdemir prefers to eat. She tends to the washing especially those items that require handwashing. Mrs Ozdemir has difficulty with managing things like feeding herself and is frequently dropping food on her clothes. The applicant also tends to Mrs Ozdemir’s banking needs.

42. The Tribunal accepts that Mrs Ozdemir has significant care needs given her multiple medical diagnoses. She requires supervision and assistance with many activities of daily living and cannot be left alone for long periods of time.

43. At the time of hearing, the Tribunal asked Mrs Ozdemir about family members in Australia. Mrs Ozdemir told the Tribunal that her daughter, Ms Handan Otay now has primary care of her disabled sister. She is assisted by an NDIS worker. She also works full time and manages the house for herself, her husband and two children. She assists her mother as much as she is able, she takes her disabled sister to visit and she provides financial assistance to the applicant to enable her to be able to care for her mother. The Tribunal received statutory declarations from Ms Handan Otay and she gave oral evidence at the time of hearing that was consistent with the evidence in her statutory declaration. The Tribunal accepts she has effectively provided care to her mother by assuming the care and responsibility of her sister and because of that she does not have further capacity. The tribunal also received statutory declarations from the two children of Mrs Otay as to the contributions they make to the care of their grandmother. The Tribunal accepts those declarations.

44. The Tribunal also received a statutory declaration from Cengiz Ozdemir, son of the sponsor dated 12 August 2022. He stated he was living about six hours out of Sydney on his own farm and that he visits his mother once or twice a year. In that declaration he detailed his health problems following a heart attack he suffered in 2020 and the impact of that and his geographical location to care for his mother as she needed. He also outlined his financial responsibilities and the need to produce an income to service those responsibilities. He spoke of the care provided by the applicant to his mother and of his mother’s pleasure at the way the applicant cared for her. The Tribunal accepts Mr Cengiz Ozdemir is geographically not proximate and therefore not able to provide the care his mother requires.

45. The Tribunal received a statutory declaration from the son of the sponsor, Mr Bayram Ozdemir dated 7 August 2022. In that declaration he stated he was not able to provide care to his mother due to his working, financial and family commitments. He stated he was dealing with his own health issues and had recently had to cease managerial work because of his short temper. Evidence provided by the migration agent was indicative of Mr Bayram Ozdemir’s wife and daughters not being supportive of his or of them playing a more active role in the care of Mrs Ozdemir. While the Tribunal considers there may be further scope for Mr Bayram Ozdemir or his family to provide care and assistance to his mother, the Tribunal was also mindful of discussion in another matter on this issue. As Finn J stated in Rafiz v MIAC [2004] FCA 564, what a relative is capable of doing and what that person is willing to do are not necessarily the same. Despite having initial significant concerns about the evidence presented to support this application in terms of the capacity of other family members (particularly her two daughters), the Tribunal has concluded that none of Mrs Ozdemir’s relatives in Australia are willing to provide her with the care that she requires

46. The Tribunal accepts Mrs Ozdemir is currently receiving NDIS assistance each week. They assist with household chores and take Mrs Ozdemir outside for walks.

47. The Tribunal acknowledges that Mrs Ozdemir requires assistance with personal care tasks such as showering and toileting and would not feel comfortable having these tasks performed by a person other than a female person. While there may be scope for further involvement and community assistance, the Tribunal accepts that constantly changing caregivers may be unsettling for Mrs Ozdemir. No relative other than the visa applicant is prepared to make a full-time commitment to Mrs Ozdemir because of their own commitments and not being in proximity either geographically or emotionally. Despite having initial significant concerns about the evidence presented to support this application in terms of the capacity of other family members (particularly her daughter and two sons), the Tribunal has concluded that none of Mrs Ozdemir’s relatives in Australia are willing to provide her with the care that she requires.

48. For the above reasons, the Tribunal is satisfied that the assistance required by Mrs Ozdemir cannot reasonably be obtained from her Australian relatives.

49. The Tribunal has also considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing, or community services in Australia.

50. 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].

1. The Tribunal discussed welfare, hospital, nursing, or community services, including a residential care option, with Mrs Ozdemir and Ms Canol at the hearing. Ms Canol gave oral evidence that Mrs Ozdemir was not comfortable with strangers in her home and she was very particular about the way things were done. She was often critical of the NDIS workers who come each week for two hours to do house cleaning. She claimed they did not do the work to an acceptable standard. She also did not cope when there was a change of caregiver as often happened with the care package. She prefers to receive care from those with whom she has a close personal relationship. She expressed her desire to have a female family member care for her personal needs. She is adamant she does not want to go into residential care. It would also be inconsistent with their culture to place her in respite or full-time residential care and both Ms Canol and her daughter considered it would be detrimental to Mrs Ozdemir’s mental health. The Tribunal accepts that Mrs Ozdemir requires ongoing care because she needs constant supervision because of her physical ailments with her lack of balance meaning she has frequent falls, because of her inability to tend to her personal hygiene and her need for assistance with many daily tasks including the taking of medication. It also accepts that Mrs Ozdemir strongly prefers to remain in her own home.

2. The NSW and Australian Governments provide various services to assist elderly people to continue to reside in their homes. Mrs Ozdemir had previously been assessed as eligible to receive a home care package, and that provided her with assistance in her home by way of three hours cleaning and general assistance per week. The Tribunal accepts that there would be no obtainable welfare or community services that could provide 24-hour assistance to Mrs Ozdemir. While some further community assistance may be accessed for Mrs Ozdemir, the Tribunal is not satisfied that such services are sufficient to meet Mrs Ozdemir’s needs.

3. Based on the evidence before it, the Tribunal is satisfied that the assistance required by Mrs Ozdemir cannot reasonably be obtained from welfare, hospital, nursing, or community services.

4. The Tribunal is satisfied that the assistance cannot reasonably be obtained from a relevant relative or service in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

   Willing and able – reg 1.15AA(1)(f)

5. 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.

6. 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.

7. The Tribunal is satisfied that the visa applicant is aware of and familiar with her aunt’s medical conditions and care needs. The visa applicant has been the primary carer for her aunt since she had a stroke. Prior to that, she cared for both her cousin and her aunt but since her aunt’s stroke her care needs have increased and she was no longer able to care for both of them. It was at that time the family made a decision to move Ms Hatice Ozdemir to her sister Ms Handan Otay’s place and to further engage with the NDIS for her primary care. That decision enabled Ms Canol to care full time for Mrs Neriman Ozdemir. Ms Canol was able to describe in detail her aunt’s care needs.

8. The visa applicant is currently not in the paid workforce. Until recently, she was doing some casual cleaning work  but she understands that in order to provide the care her aunt needs she will be required to prepare her meals and do her washing and shopping and tend to other personal needs. She will be required to assist her aunt with showering, her personal needs and ensure she gets to medical appointments. The Tribunal is satisfied that the visa applicant is able to provide full-time care to her aunt. The Tribunal accepts this evidence and concludes therefore that the visa applicant is willing and able to provide to her aunt substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

   Conclusion on ‘Carer’ criterion

9. 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.

10. 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

11. 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 836.211 and cl 836.221 of Schedule 2 to the Regulations.

    Moira Brophy
    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.