Girgis (Migration)

[2019] AATA 4749

Girgis (Migration) [2019] AATA 4749 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ister Girgis

VISA APPLICANT:  Ms Evon Girgis Mikhaiel

CASE NUMBER:  1801320

HOME AFFAIRS REFERENCE(S):           OSF2016/030414

MEMBER:Hugh Sanderson

DATE:27 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2019 at 8:39am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – carer of relative – children live with review applicant – claim of 24 hour care – currently receiving assistance – lack of information regarding refusal of NDIS – daughter receiving carer’s pension – children could reasonably provide assistance – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 116.221, r 1.15AA

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 3 December 2017 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 28 June 2016. 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.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant met the definition of the carer, as found in r.1.15AA, of the review applicant. Specifically, the delegate was not satisfied that the assistance required by the review applicant could not reasonably be obtained from other relatives of the review applicant resident in Australia or from welfare, hospital, nursing or community services in Australia.

   Background

4. The visa applicant is a citizen of Sudan and is currently 62 years old. She is the sister of the review applicant who is currently 55 years old.

5. The review applicant first entered Australia in 2006 on a Humanitarian visa. She suffers from multiple medical conditions including Parkinson’s disease, hypertropic cardiomyopathy, bilateral knee osteoarthritis, osteoporosis and anaemia. A Carer Visa Assessment Certificate dated 13 July 2015 found that she had a total impairment rating of 35.

6. At the time of the application, the review applicant was living with her six children. Statements were provided by four of her children as to why they could not care for her. In the statements the following was claimed:

   ·Marian is a student at the University of South Australia;

   ·Rania is a student studying mental health at Western Sydney Institute of TAFE and working as a receptionist in a family medical practice;

   ·Nevine is a student studying for a Bachelor of Civil Engineering; and

   ·Nansi  (Nancy) works full-time and is planning to move away from her mother’s home to live closer to her work.

7. The delegate who considered the application noted the following:

   ·The review applicant had six children residing in Australia, aged 32, 29, 23, 21, 18 and 15 years old as well as a brother for whom no details had been provided;

   ·The review applicant’s daughter, Nancy (or Nansi), was in receipt of a carer allowance to care for her mother;

   ·No information had been provided of any legitimate attempts to access support from private health service providers;

   ·Apart from the limited information in the statutory declarations of her children, there was no information as to why the care required by the review applicant could not be adequately provided by her relatives resident in Australia or obtained from welfare or community services;

   ·No information had been provided as to why the current care provided to the review applicant by Nancy could not continue to be provided to her;

   ·The fact that the review applicant may consider it culturally unacceptable to seek assistance from people who are not members of her family, this does not mean that the services of community welfare organisations cannot be reasonably obtained; and

   ·The reports from the treating medical professionals of the review applicant do not indicate that any genuine attempt had been made to obtain community services to provide the required assistance.

8. Taking these matters into account, the delegate was not satisfied that the assistance required by the review applicant could not reasonably be provided by her relatives resident in Australia or obtained from welfare, hospital, nursing or community services in Australia. The delegate found the definition of the carer in r.1.15AA(1)(e)(i) and (ii) was not met and therefore the visa applicant did not meet the criteria in cl.116.221 and refused the application.

   Information to the Tribunal

9. The review applicant provided further medical reports of her condition including her admission to hospital and discharge summary after being involved in a motor vehicle accident.

10. The review applicant provided a statement where she made the following claims:

    ·Her eldest daughter, Nancy (35 years old), lives far away from her home and is employed full-time and does not visit very often;

    ·Nevine (32 years old) works full-time as a civil engineer leaving home at about 4:30 am and not returning until 7:00 pm and she also works night shifts and weekends;

    ·Rania (25 years old), who is her current full-time carer, is a student social worker and is planning to work full-time after she completes her course at the end of 2019 and then move out with her husband within the next year or so;

    ·Marian (23 years old) is married and lives with her husband and child and works five days a week looking after her husband and child;

    ·Nagi (20 years old) is studying at Macquarie University doing a medical science degree and is employed part-time mainly doing late night shifts;

    ·Randa (18 years old) is attempting to obtain employment for herself and is planning to undertake tertiary studies;

    ·Anglicare was providing assistance but transferred the assistance to Baptist care;

    ·Baptist care charged for their services at a discounted rate and only provided services for her bedroom and the connected toilet;

    ·Baptist care did not provide domestic services for the rest of the household, including cleaning other bathrooms in the house, doing the laundry and doing the shopping which placed stress on her family;

    ·NDIS has not provided any assistance as they have been asking for the review applicant to provide information that has been too difficult to obtain;

    ·Her brother Ayman is self-employed, works full-time and has a wife and three children aged 17, 14 and 12 years old.

11. The review applicant appeared before the Tribunal on 23 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s sister-in-law and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Sudanese) and English languages. The review applicant was represented in relation to the review.

12. The review applicant provided details of her children living in Australia. She claimed that as all of them are so busy with their own lives they were not able to provide any care for her. She said that her daughter, Rania, was currently receiving a carer’s pension, but as she was planning to get married she could not do this any longer.

13. The information the review applicant gave as to her children’s work was often vague and did not provide details of the hours of work. She claimed that due to her children’s work and study requirements, all of them were too exhausted to provide her any assistance. She said that her brother has his own business and is not able to provide her any assistance.

14. The review applicant said that she was receiving assistance from Baptist Care who provided assistance such as all the household shopping, cleaning the whole of the house and washing the dishes. She said that the service has now been restricted so that they only clean her room and her bathroom but not the rest of the house. She said they only provide two hours’ assistance each week.

15. The review applicant said that she has suffered from falls and has required assistance from her children to give her care. She said that her daughter, Rania, usually helps her in the shower and when she needs to go to the toilet. She said that if her daughter is not with her then she is able to go to the toilet by herself. She said that she needs 24-hour assistance. She said that even cumulatively her children would not be able to provide the assistance she requires because they are busy with their own lives. She said that she needed somebody to be with her all the time to talk to.

16. The review applicant said that she usually wakes up at 7:00 am and then takes her medication. She will then go back to sleep until about 11:00 am and stay in bed until 1:00 pm or 3:00 pm. She will then get up and walk herself downstairs to watch television. She said that she does not leave the house much but occasionally one of her children will take her for a drive. She said her medication is organised for her by her pharmacist but sometimes she makes mistakes when she takes it herself.

17. The review applicant’s sister-in-law gave evidence as to her husband’s work commitments. She was not able to provide any details of the work and study commitments of the review applicant’s children.

18. The visa applicant gave evidence in support of the application. She said that Rania is currently providing the majority of care for the review applicant. She provided details of the care that was required. She said that it was very difficult to think about what her sister’s situation would be if she could not care for her.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the visa applicant is a carer of the review applicant as defined in r.1.15AA.

    Whether the visa applicant is a ‘carer’

21. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision.

22. The Tribunal has first considered the requirements of r.1.15AA(1)(e).

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

23. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

24. The applicant has six children who reside in Australia over the age of 18 years. She has a brother who also resides in Australia. The Tribunal has considered each of their circumstances and whether, either individually or in combination, those relatives cannot reasonably provide the assistance required by the review applicant.

25. The review applicant suffers from Parkinson’s disease and is increasingly incapacitated. She claims she requires 24-hour care. The Tribunal has taken into account the care needs as described by the review applicant and the associated medical reports.

26. The review applicant’s daughter, Nancy, was previously receiving a carer payment to enable her to care for the review applicant. She has since moved out of the review applicant’s home and is working. There is limited information as to the work hours of Nancy or when she would be available to provide assistance to the review applicant. The visa applicant claimed that she lived about 45 minutes away from her, but did not know where she was currently living.

27. As Nancy was previously the primary carer for the review applicant, the Tribunal finds that she has all the necessary skills to be able to provide the assistance required by the review applicant. Although there is only little information available as to Nancy’s work hours, the Tribunal accepts that she is currently working at least five days a week, 40 hours a week. This would allow her time on weekends to provide direct physical assistance for the review applicant. She would also be available on occasion to provide other assistance, such as shopping and transporting the review applicant when needed.

28. The review applicant’s daughter, Rania, is currently in receipt of a carer payment to be able to provide the care for the review applicant. She currently lives with the review applicant. She claims to be currently studying for a Bachelor of Social Work at the Australian Catholic University. Details of the hours of study she is required to attend the university have not been provided. The review applicant believed that she was required to attend university 17 or 25 hours per week or per fortnight. She is not in any paid employment and although she is claiming that she plans to stop living with the review applicant and to marry and live with her partner, there is no information which would indicate that she plans to marry at any time soon or that she has any plans to move out of the home of the review applicant.

29. The Tribunal finds that the review applicant’s daughter, Rania, would be able to reasonably provide the review applicant with a substantial amount of care. Apart from her university studies, she would be able to provide supervision and direct physical assistance to the review applicant all the time. For much of the time, the review applicant does not require any direct assistance apart from supervision. Rania would be able to maintain her off-campus studies over these periods. She has the necessary skills to be able to provide the assistance required by the review applicant and is currently undertaking this assistance. Although it is claimed that when she finishes her study she will “no longer be capable of holding the responsibility of care for (her) mother” the Tribunal does not accept this. There is no evidence to show that Rania would not be able to continue to live with the review applicant, even if she did get married, or provide the substantial amount of care that she currently provides to her. The qualifications, if she achieves them, of social work would provide her further skills to be able to provide the assistance required by the review applicant.

30. The review applicant’s daughter, Nevine, currently lives with the review applicant. She is working full-time and claims to work between 50 to 60 hours per week. It was claimed that she has limited time to look after herself, let alone providing assistance to the review applicant. The Tribunal does not accept this.

31. As Nevine is living in the home of the review applicant she is able to provide assistance to the review applicant overnight if required. This is likely to be of only limited burden to Nevine. She would also be available on weekends, if not working, to provide all the direct personal assistance requirements of the review applicant. As she lives in the house, it would be expected that she would also be able to provide assistance with housework, cooking and shopping for the household. The assistance that Nevine would be providing in this manner would be of little burden to her when taking into account that she would be required to do this if she were living by herself. The assistance that can reasonably be provided by Nevine would reduce the obligations of Rania in the care that she would be required to provide to the review applicant and allow her greater flexibility in her personal activities.

32. The review applicant’s daughter, Randa, lives with the review applicant and is currently studying for the Higher School Certificate. As she is still a schoolchild, the assistance that she would be able to provide to the review applicant is limited. The Tribunal finds, however, that she would be reasonably able to provide assistance over the weekend and also for a limited time in the afternoon on weekdays. This again would reduce the assistance that would be required to be provided by Rania to the review applicant.

33. The review applicant’s daughter, Marian, is married with a young child. It is claimed that she works five days per week and leaves her child in daycare. There is limited information as to Marian’s work or why she would not be able to provide any assistance to the review applicant. The Tribunal does not accept that Marian would not be able to provide any assistance to the review applicant. The Tribunal finds that she would be able to provide limited assistance, such as shopping and supervision on weekends for a limited time. As no clear information has been provided as to her work hours, it is likely that she may also be able to provide limited assistance during the week when she is not working, even if this does require her to be with her child.

34. The review applicant’s son, Nagi, resides with the review applicant. He is studying at university and claims to plan to study for the next three to five years as a full-time student. He is also working casually. He provided three payslips showing he worked either three or two days per week for between 4.3 to 7.2 hours per shift. There is little information as to the hours Nagi is required to attend university. His course is described as a Diploma in Business Extended. It appears that in the first semester he was only enrolled in two or possibly three subjects. The Tribunal is not satisfied that completing a Diploma in Business Extended over a three to five year period would indicate that he is studying full-time or that he would not be reasonably available to provide some assistance to the review applicant.

35. The assistance the Tribunal finds Nagi would reasonably be able to provide to the review applicant include supervision during the week when he is not studying and at weekends. He would be able to provide physical assistance and also provide assistance in maintaining the household. This includes cleaning, shopping and cooking. He would also be able to provide any transport needs for the review applicant.

36. The applicant’s brother, Ayman, is married and runs his own business as an electrician. Although there is limited independent information as to his work hours, it is claimed that he works Monday to Friday and half day Saturdays. He is also on call to do emergency repairs under a contract he has with a real estate agent. This would prevent him from being a reliable source of assistance to the review applicant.

37. There is little information as to what steps have been taken by the review applicant to obtain assistance from welfare, hospital, nursing or community services in Australia. It is claimed that assistance has been sought from the NDIS, however, those requests have been refused for what the review applicant described as “trivial reasons”. It is not clear why the applicant has been assessed by the NDIS as not being entitled to assistance or what assistance the review applicant may be entitled to if she did provide the necessary information to the NDIS, such as information from her neurologist obtained within the previous six months which the review applicant complained was too difficult to obtain.

38. The review applicant currently receives assistance from Baptist Care for two hours each week. This is restricted to cleaning her bedroom and her bathroom. She claimed they did provide other services previously, including shopping, cleaning the rest of the house and doing the dishes in the house, however, this has now ceased. The Tribunal accepts that it is unlikely that assistance can be obtained from community services in Australia more than what is being currently provided by Baptist Care.

1. The Tribunal has considered the circumstances of all the relatives of the review applicant resident in Australia and whether the assistance required by the review applicant cannot reasonably be provided by those relatives. As set out above, the Tribunal finds that it would be reasonable for the applicant’s daughter, Rania, to provide substantial assistance to the review applicant. She has been the primary caregiver in the past and is currently receiving a carer payment. The Tribunal is not satisfied that the claims that have been made as to her future plans would prevent her from continuing to provide substantial care to the review applicant.

2. The Tribunal finds that it would be reasonable for other children of the review applicant to provide limited assistance to the review applicant. Three of those children reside in the same home as the review applicant and would be able to provide supervision and assistance to the review applicant overnight. As this assistance could be shared by all four children residing with the review applicant, any overnight assistance would not be burdensome for any one of them. It is likely that Nagi would also be able to provide some assistance during the day during the week. The Tribunal finds that all of the children of the review applicant, including the two who do not live with her, can reasonably provide assistance to the review applicant at different times over the weekend.

3. The Tribunal finds that a combination of the relatives of the review applicant could reasonably provide all the assistance needs of the review applicant. When the community assistance which is currently being provided to the review applicant is taken into account this means that the assistance requirements of the review applicant can be more than catered for.

4. For the above reasons, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.

   Conclusion on ‘Carer’ criterion

5. As the Tribunal has concluded that the requirements of r.1.15AA(1)(e) are not met it is not necessary to consider whether the other requirements of r.1.15AA are met.

6. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

7. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 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.

   DECISION

8. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

   Hugh Sanderson
   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.