Ghulam (Migration)

[2020] AATA 5788

Ghulam (Migration) [2020] AATA 5788 (30 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Maryam Ghulam

VISA APPLICANT:  Mr Abdulrahim Kohsar

CASE NUMBER:  1923075

HOME AFFAIRS REFERENCE(S):          OSF2015/038762

MEMBER:James Lambie

DATE:30 September 2020

PLACE OF DECISION:  Brisbane

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.116.211 of Schedule 2 to the Regulations;  and

·cl.116.221 of Schedule 2 to the Regulations.

Statement made on 30 September 2020 at 3:54pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– certificate provided meets the requirements of r.1.15AA(2) – capacity of Australian resident relatives–decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15, Schedule 1, Schedule 2, cls 116.211, 116.221

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 31 July 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 31 August 2015. 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 (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.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met because it had not been demonstrated that the assistance that the review applicant, Ms Ghulam, requires cannot reasonably be obtained from welfare, hospital or community services in Australia and that, consequently, subregulation 1.15AA(1)(e)(ii) was not met.

4. The review applicant appeared before the Tribunal on 30 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Shakeela Ghulam and Shakiba Ghulam. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Ms Ghulam has met subregulation 1.15AA(1)(e)(ii), in that she has established that the assistance she requires cannot reasonably be obtained from welfare, hospital or community services in Australia.

   Whether the visa applicant has claimed to be a ‘carer’

8. Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of Ms Ghulam, who is the visa applicant’s mother.

9. For the purposes of the Carer visa, ‘carer’ is defined in regulation 1.15AA, which provides:

   (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.

10. Ms Ghulam is an Australian citizen who is usually resident in Australia.  The visa applicant is her son.  This satisfies paragraph 1.15AA(1)(a).

11. Ms Ghulam has provided a Carer Visa Assessment Certificate (CVAC), which assesses her as requiring a carer for the purposes of paragraph 1.15AA(1)(b).

12. By the CVAC, Ms Ghulam was assigned an impairment rating of 40, which exceeds the applicable rating of 30 and therefore satisfies paragraph 1.15AA(1)(c).

13. Against the criteria in subparagraph 1.15AA(1)(e)(ii), the delegate found the Ms Ghulam’s family had made limited enquiries by email which did “not represent an exhaustive effort to fully investigate what care [is] available to the resident obtained from other services in other welfare, hospital nursing or community services.”  The delegate noted that:  “No evidence of any person making any genuine efforts to engage in any meaningful fashion with welfare/community agencies or other in-home care service providers has been provided.  Overall, while it is appreciated that Ms Maryam Ghulam has a preference for receiving care from the [visa] applicant, this does not negate the need for the availability and suitability of assistance available from services in Australia for her to be thoroughly explored and evidenced for the purposes of this application.”  Accordingly, it was found that the subparagraph had not been met.

14. The Tribunal does not accept that “an exhaustive effort to fully investigate” the available care options is required to satisfy the requirement that the identified assistance “cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.”  However, it is clear from the delegate’s decision that the limited enquiries that had been made could not be sufficient to establish that the identified assistance could not be reasonably obtained.

15. The hearing of this matter was initially, at the applicant’s request, given priority processing on the basis of Ms Ghulam’s declining health and the evidence of her daughters as to their heavy responsibilities for her care.  The applicant was listed for hearing on 14 January 2020 but postponed when Ms Ghulam was admitted to intensive care at Princess Alexandra Hospital on 12 January 2020.  She was released from hospital on 9 May and the matter was relisted for hearing on 30 June 2020.

16. Since the delegate’s decision, Ms Ghulam has moved from Western Australia to Queensland to reside with her daughters Shakeela and Shakiba.  Accordingly, the evidence provided to the delegate about the availability of assistance is no longer relevant.

17. The material provided to the Tribunal on behalf of Ms Ghulam consisted of an Australian Government Aged Care Assessment Summary dated 27 September 2019, an Australian Government Home Care Package approval advice dated 2 June 2020, an email from Blue Care Services dated 18 August 2019, an email from Queensland Community Support Services dated 15 July 2019, an email from the Queensland Department of Communities, Disability Services and Seniors – Accommodation Support and Respite Services dated 11 July 2019, referrals, medical certificates and health summaries from Dr Sabitha Yakkala, and a Short-Term Restorative Care program from Suncare Community Services dated 31 October 2019.  In order to form a better understanding of Ms Ghulam’s medical history and the care implications for her family, I have also had regard to the hospital discharge summaries of 5 August 2019, 10 September 2019 and 22 May 2020 and associated material (including representations from Shakiba Ghulam) submitted with the priority and postponement requests. Additional material included a representation from Sh. Enayatulla Zara of the Islamic Shia Council of Queensland, unsigned statements from Shakiba Ghulam dated 11 November 2019 and15 June 2020, an unsigned statement from Shakeela Ghulam dated 16 June 2020, a medical referral and a letter of support from Dr Yakkala concerning Shakeela Ghulam dated 22 June 2020, a statement of willingness to provide care from Abdulrahim Kohsar (the visa applicant), and submissions by Ms Ghulam’s representative.  I have had regard to all of this material.  Because I was able to take oral evidence from Shakeela and Shakiba Ghulam, I attach no significance to the formal defects in their written statements.

18. The Home Care Package approval advice of 2 June 2020 assigns Ms Ghulam a level 4 home care package, under which the Australian Government contributes a yearly amount of up to approximately $50,750 towards the cost of her care.  The support plan underlying the package contains the following:

    Maryam lives with her 2 daughter Shakiba and Shakeela in their rental home.

    Shakiba and Shakeela provide all cares for Maryam including nutritional management via her nasogastric tube, continence management, medication management, oxygen management, transfers via hoist, pressure area care and hygiene provision.

    Shakiba and Shakeela are experiencing considerable carer stress due to the high nature of Maryam’s care needs plus they are struggling emotionally due to Maryam’s declining health.  Additionally, the cost of Maryam’s care, including hoist and bed hire, nasogastric feeds and equipment, catheter supplies, are putting significant financial stress on them all.  Currently they have engaged limited formal services as they are not able to meet the costs of any further services.

    Maryam is receiving services for personal care x 3/week, catheter management x 4/weekly and has continence aids and oxygen supplied.

    Shakiba and Shakeela would like extra support in order to continue caring for Maryam at home as is culturally appropriate.

    …

    Maryam does not wish to receive care from strangers as she believes it is the duty of her children to do so.  Maryam wishes to be nursed at home by her family as this is culturally appropriate for her.

19. I accept the evidence that Ms Ghulam has extensive needs and that it is beyond the capacity of her daughters to provide for those needs without significant assistance.  The nature and availability of that assistance, and in particular, its delivery in a culturally appropriate manner and in a language that Ms Ghulam understands, was initially the central issue in this application.

20. Shakiba Ghulam’s statement of 15 June 2020 expands on the cultural elements pertinent to the applicant’s care:

    (1)We are paying Blue Care three times a week for showering my mother, but we still have to be there to help mom with the hoist, because the care who are coming they are not train with hoist so they can not help because their policy to not hurt my mother.

    (2)Being Muslim at the end of shower we do take an ablution than only Muslim know how to each time I have to help my mother in the shower.

    (3)None of the carer speaks my mother language, so every time we have to be there for translating, is the water OK, can I was here or there and extra.

21. Shakeela Ghulam says, in her statement of 16 June 2020, relevantly to the cultural elements:

    We have been asked to send my mother to a nursing home, but that is not for someone like my mother.

    (1)She does not speak any English it is difficult for her and everyone else, if she can not explain her needs and pain.

    (2)She still pray just someone with same religion knows how to make her ready.

    The hospital suggested palliative care but we said No.

    (1)My mother does not have any pain.

    (2)It is against our religion we believe that birth and death is on God’s hands no one can end some one’s life, if we yes it means that we give order for her death and it is a big sin for someone to do.

    (3)My mother still enjoy her life even she can not walk but still she has hopes and wishes.

    (4)Her parent had long life although there was not such a great hospital and doctors in Afghanistan we are sure Mum is the same.

22. The letter from Sh. Enayatullah Zara says:

    As a religious scholar and Imam of the Islamic Shia Council of Queensland, I would like to highlight the code of practice on “who can be a carer for a female” from Islamic perspective as follows:

    For a female who’s in need of a carer due to her health condition the following conditions apply:

    ·If she requires a male carer due to special need to help her, the carer must be one of the nearest next of kin, i.e., father, husband, son or brother.  No one else would be lawful to handle her with her personal support.

    ·If a female would be able to fulfil her needs to provide care for her, can be from her relatives or family members.

    ·A female from other faith cannot be her personal carer from religious perspective.

23. I give some credence to this evidence, with the observation that it must surely be the case that the provision of care to a female by a female cannot be limited unreservedly to relatives or family members, at least as it relates to the applicant’s family.  No such claim was made by them,   only that a co-religionist is necessary.  Shakeela Ghulam’s statement notes that the applicant’s parents in Afghanistan lived to an advanced age under the care of medical professionals who were not identified as relatives.

24. At the time of the hearing, the evidence presented on behalf of the applicant as to the assistance that could be obtained from welfare, hospital, nursing or community services in Australia was:

    ·An email of 19 August 2019 from Kimberley Harrold, Personal Care Team Leader, Blue Care Eastside Community, which reads:  As per our phone conversation, we do not currently have any staff members who speak Persian/Dari to provide services to Maryam Ghulam;

    ·An email of 15 July 2019 from Emma Waters, Assessment and Intake Officer, Ozcare (St Vincent de Paul Society), which reads:  As discussed, Queensland Community Support Services Access Point assesses client under 65 years of age for the Queensland Community Support Scheme;

    ·An email of 11 July 2019 from Yves Engels, Manager Nundah Service Centre, Accommodation Support and Respite Services, Department of Communities, Disability Services and Seniors, which reads:  Our department is a registered service provider under the National Disability Insurance Scheme (NDIS).  We deliver our services through our Accommodation Support and Respite Services (AS&RS) services.  AS&RS provides assistance with daily living for people with a primary diagnosis of an intellectual disability who require support to enable them to live as independently possible.  It is a requirement that you are a participant under the NDIS to access our service.

25. It was submitted on behalf of the applicant that these emails are evidence that the assistance Ms Ghulam requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.  Only one of the providers (Blue Care) was offering the required services, and it could not source a staff member who spoke Persian or Dari.

26. At the hearing, I asked Ms Shakiba Ghulam if the three emails comprised the totality of her attempts to locate medically and culturally appropriate care for her mother.  She agreed that this was the case and that it was therefore clear to her that it was necessary for her brother to be granted the visa.  She reiterated the points made in her statement of 15 June 2020 (see paragraph 20), that the assistance offered by Blue Care was insufficient and that there was no-one who offered culturally appropriate assistance in a language her mother understood.

27. I asked if any approach had been made to the Islamic Women’s Association of Australia (IWAA) , the website of which indicates that services of – or very close to – the type she was seeking were available.  Ms Shakiba Ghulam’s evidence was that she had not had time to approach that organisation.   She was, however, certain that there is a lack of Dari speakers who could do the work.  I said that I would need some evidence of that.

28. I observed that, while the organisations she had approached had not been at all helpful in suggesting alternative services, the IWAA website had been located with a perfunctory search conducted in less than a minute.  I would be surprised if a request for assistance within her religious community would not have yielded an immediate similar result, and perhaps much else.  As matters stood, therefore, I could not be satisfied that any reasonably diligent efforts to obtain assistance had been made.  I invited the family to make the necessary inquiries and provide the results in a post-hearing submission. 

29. The applicant’s representative lodged a post-hearing submission dated 10 July 2020.  It contained a further statement from Ms Shakiba Ghulam dated 6 July 2020, a copy of an email from the IWAA dated 1 July 2020, a copy of an email from Sunny Care dated 3 July 2020, a copy of an email from Active Refugee and Migrant Integration in Australia (ARMIA) dated 6 July 2020 and a hospital discharge medication record for the applicant. 

30. Ms Shakiba Ghulam’s statement of 6 July 2020 reads:

    As we were suggested to contact the Islamic Women Association of Australia and the same time I contacted another organisation called ARMIA (Active Refugee and Migrant Integration in Australia) for now my mother gets some help from Sunny care.

    I got an email from IWAA explaining about the package that my mother got, it is 15 hours per week any extra hour we have to pay $48.75 per hour.

    ARMIA sent me an email that they are not able to help my mother.

    Sunny Care that is looking after my mother and her package I am including their email.

    My mother is in need of 24/7 care, as she is bed bound and we have to give her water flashes every four hours or sometimes every two hours and change her pad some days five times because of the feed she is on it is very liquid.

    Also we are paying for all equipment that she needs like $60 for hospital bed per month, $135 for hoist, sling and air mattress weekly, $145 for feed monthly and $276.63 for some other needs like gloves, catheter and some cream, so all this expenses will bring the 15 hours down.

    Also none of these organisation works on weekends.

    We are very very happy with the help my mother gets, but my sister and I do not have time for ourself and no time for my kids they are not socialised they just have to stay at home all the times. We are both very exhausted also the kids, my daughter is on school holiday spending it at home.

1. The Sunny Care package to which Ms Shakiba Ghulam refers is detailed in that organisation’s email of 3 July 2020 (quoted verbatim):

   Mum is in level 4 funding now. Government will funding mum $141.94 per day so $993.58 per week and $3974.32 per month.

   The expense as below list:

   1. Sunnycare take 10% management fee for funding.

   2.bed rental $60 per month

   3. hosit and sling $135 per week $540 per month.

   4. other expense like feeding and hygie $700 per month.

   5. nurse service $80 per month.

   6. OT organize all equipment trial and purchase $120 per visit. maybe need 3 visit so $360 (one off services)

   total funding left per month: around $2000 per month. For this funding can have about 10 hours general services per week like home respite or personal care or Domestice assistant.

   Sunny Care nurse is helping mum to apply extra supplement at the moment. After that mum can get extra $16.32 per day for dementia supplyment, oxgen supplement $11.98 per day and enteral Feeding Supplement $18.98 per day. when finalized by department mum can get extra $330 per week about another 5 hours services per week.

2. This email is a curious document, with varying fonts and the obvious spelling, grammatical and formatting errors.  The company name and getup are similar to that of the much larger and better-known provider, Suncare, which provided the assessment for Ms Ghulam’s short-term restorative care program.  The Sunny Care website provides limited information and the business appears to be very localised to the Caboolture area (a very considerable distance from the family’s home).  It is possible that the family has engaged Sunny Care under a misapprehension.  I have given some consideration to the nature of the email but have decided, on balance, to accept that it is what it purports to be.

3. The representative’s submission is:

   … Ms Ghulam has high physical needs and the rapid deterioration in her medical condition is leading to significant decline in her functions and independence.

   As you will see from the responses enclosed, the institutions have advised that they cannot offer more than 10 to 15 hours of assistance per week.

   Unfortunately, due to Ms Ghulam’s conditions which are quickly deteriorating, she requires full-time care which cannot be offered to her by any of the institutions that have been approached.

   It is also of extreme importance that Ms Ghulam’s carer speaks Dari so that she can communicate her needs, her pain level, etc.

   Only IWAA had a Dari speaker to offer, however they are unable to offer more than 15 hours care per week which is definitely not sufficient for the needs Ms Ghulam has.

   I hope that the email responses from all three institutions, along with responses previously submitted, are sufficient to demonstrate that the applicant has extensively sought assistance from various institutions however neither have been able to offer the full-time care that is required.

4. As I noted in paragraph 14 above, I do not consider that an exhaustive effort to fully investigate the available care options is required to satisfy the requirement that the identified assistance “cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.”  However,  I must be satisfied that reasonable efforts to locate the identified assistance have been made.

5. At the time of the hearing, I was not satisfied that any reasonable efforts had been made, given the specificity of the applicant’s stated requirements. Of the three providers approached, only one was an aged care provider. The inability of that one provider to source a Dari speaker was asserted as evidence that no such care was available. There was no assertion made at that time that anything other than certain specific assistance was required: assistance with the hoist, capacity to follow the ablution regime and an ability to assist if required at prayer times.  It was on that basis that the hearing was adjourned to permit the family to make further enquiries.

6. Of the further enquiries that were undertaken (one of these – IWAA – being at my own suggestion), one was to an organisation – ARMIA – that provides a range of settlement and employment services but, according to its website, nowhere purports to provide aged care services. The other – Sunny Care – has apparently been engaged by the applicant despite there being no indication that it offers the required language and religious skills.

7. The state of the financial evidence is less than satisfactory.  Ms Shakiba Ghulam’s statement (see paragraph 30) is that “we are paying for all equipment that she needs like $60 for hospital bed per month, $135 for hoist, sling and air mattress weekly, $145 for feed monthly and $276.63 for some other needs like gloves, catheter and some cream …”  The agent’s submission is that the cost of feeding is much higher, at $700 per month.  There is no proper itemisation and no documentary evidence of the costs.  Even allowing for all the claimed costs, there is no attempt to reconcile with any particularity some 50% of the Australian Government contribution of more than $50,000 per year with the services being acquired or under consideration.  However, I allow for any surplus being put to additional nursing hours in the region of between 5 and 15 hours per week.

8. The applicant’s case has, since the hearing, changed significantly. The initial case was that the care required was nowhere available. When it was put to the family that some minimal research would unearth a range of appropriate services, the assertion then made was that any appropriate services would in any case be inadequate.

9. I have taken into account the sisters’ oral and written evidence on their mother’s needs and their own capacity, aided or unaided, to care for her.  I have also taken into account the medical and other professional evidence tendered to the Tribunal.  In particular, I have considered the assessment summary prepared for the purposes of the Home Care Package approval (see paragraph 18 above).  The specific recommendations and approvals at pages 4 to 10 of that document include elements specifically directed to the alleviation of the burden of care on the family (e.g., 1 day per week in-home day respite, 2 days per week cottage respite, garden maintenance and general house cleaning).  It was not claimed until after the hearing that the approved package was itself inadequate.  It is, however, claimed that Ms Ghulam requires 24-hour care and that this need cannot be met by the family without the granting of the visa. 

10. I have given careful consideration and significant weight to the written evidence of the visa applicant, Mr Abdulrahman Kohsar.  I have no doubt at all that both he and Ms Ghulam would draw great comfort from his presence in Australia and that he could render valuable care to Ms Ghulam and assistance to the family.  However, against this I must measure the evidence and the definition I am required to apply.

11. The assertion that Ms Ghulam requires 24-hour care was made in the context that the 15 hours per week quoted by the care providers would not be adequate.  I can see nothing in the evidence that suggests that, short of Ms Ghulam entering a residential aged care facility, around-the-clock professional assistance is contemplated by the medical advice or any home care packages.  The home care package was sought and provided for the purposes of supplementing the care the family already provides and to provide skilled technical assistance for certain elements of Ms Ghulam’s needs. However, I do accept that Ms Shakeela Ghulam has limited capacity to perform heavy or repetitive tasks, owing to certain medical conditions.  I also accept that Ms Shakiba Ghulam’s capacity is limited by her responsibility for two young children.

12. I have given very significant weight to the professional medical assessments provided in support of the application.  I accept that Ms Ghulam is effectively immobilised by the combination of her medical conditions and that she is, and will continue to be, unable to perform any basic task for herself unaided.  The nature of her condition is such that someone (not necessarily medically qualified) must be available at all times to ensure that she is sustained with appropriate care and dignity.  There are certain elements to this care for which professional assistance is needed and is being provided under the home care package.  There are other elements which inevitably fall to the family and which, I am satisfied, are at the outer limits of their current capacity to deliver.  I am also satisfied that, given Ms Ghulam’s prognosis, those elements are likely to exceed the family’s capacity, despite the assistance they are receiving.

13. I have come to this conclusion with some hesitation, because the evidence indicates that the family was intent on securing the immigration outcome and, until prompted at the hearing, had made only minimal attempts to source the locally available nursing and welfare services.  I was also of the view at the hearing that it was the intention of the family to present reasons to excuse them from seeking local assistance.  However, I am now satisfied that this assistance is in place and that, nevertheless, Ms Ghulam’s long-term needs cannot reasonably be met by a combination of that assistance and the current capacity of her Australian resident relatives.  The visa applicant has declared himself willing and able to provide the substantial and continuing assistance required.  Accordingly, the visa applicant meets the definition of a carer in regulation 1.15AA. 

14. Therefore, at the time of application the visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl.116.211.  I am satisfied that, at the time of this decision, the applicant is the carer within the meaning of regulation 1.15AA, and therefore meets the requirements of cl.116.221.

15. 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

16. 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.116.211 of Schedule 2 to the Regulations;  and

    ·cl.116.221 of Schedule 2 to the Regulations.

    James Lambie
    Senior Member