GORGEES (Migration) - [2019] AATA 3828

GORGEES (Migration) [2019] AATA 3828 (1 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Emmanuel Matti GORGEES
CASE NUMBER:  1830994
HOME AFFAIRS REFERENCE(S):           CLF2013/311683
MEMBER:Kira Raif
DATE:1 July 2019
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 01 July 2019 at 5:11pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – court remittal – certificate provided meets the requirements of r.1.15AA(2) – inadequate evidence with respect to the assistance from other relatives –assistance can reasonably be provided by the other relatives of the sponsor – applicant is not a carer of the Australian relative – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 1, Schedule 2, cl 836.221

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 9 September 2014 to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 .
The applicant is a national of Canada, born in January 1969. He applied for the visa on 19 December 2013. 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 of the sponsor. The Tribunal, differently constituted, affirmed the delegate’s decision in September 2015 because the Tribunal was not satisfied the applicant was willing and able to provide the requisite assistance. The applicant sought judicial review in relation to the Tribunal’s finding and the matter was remitted for reconsideration.
The Tribunal wrote to the applicant on 5 April 2019 inviting him to attend the hearing on 9 May 2019. On 6 May 2019 the Tribunal received a request from the newly appointed migration agent to postpone the hearing to enable the applicant to obtain more evidence. The Tribunal has considered the request but decided not to adjourn the hearing. The Tribunal is mindful that the applicant was given more than a month’s notice to appear before the Tribunal, well in excess of the period prescribed by the statute. The issues that arise on review are the same issues that were raised in the primary decision record, and the applicant had ample time to familiarise himself with these issues since the primary decision was made. The Tribunal has formed the view that the applicant had sufficient notice and sufficient time to prepare his submissions and arguments that he wished to put forward at the hearing. It is also not entirely clear to the Tribunal why the applicant chose to appoint a migration agent three days prior to the hearing, given the period of notice he was given. In such circumstances, the Tribunal determined that the hearing would proceed without adjournment.
The applicant appeared before the Tribunal on 9 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s cousin and the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the 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 (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.
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 r.1.15AA of the Regulations.
Whether the applicant is a carer
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother. Therefore, as the applicant is the child of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister.
The applicant provided with his application a Certificate issued by Medibank Health Solutions in September 2013 indicating that the sponsor met the requirements for a carer as she had an impairment rating of 30 points on the Impairment Rating Tables. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life.
The Tribunal is satisfied that the certificate meets the requirements of r. 1.15AA(2). The Tribunal is satisfied that according to the Carer certificate, the sponsor has a medical condition causing impairments of his ability to attend to the practical aspects of daily life and as a result of such condition, which will continue for at least 2 years, there is a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In the present case, the person with the medical condition is the sponsor and there is evidence that the sponsor is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
The Tribunal acknowledges the other medical evidence that has been submitted with the application and to the Tribunal concerning the sponsor’s condition. The Tribunal accepts that the sponsor has medical needs that cause her to require assistance.
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.
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.
The applicant stated on the application form that his parents and four siblings reside in Australia. All of the sponsor’s children have provided statements or declarations outlining why they are unable to care for their mother and their updated, albeit brief, declarations are before the Tribunal. They did not attend the hearing and the Tribunal was unable to test their evidence.
The applicant presented to the Tribunal a statement about the nature of the assistance he would provide and his capacity to do so. The applicant states that his sister Helen suffers from depression and back pain and has family responsibilities including her disabled husband, mother in law and children. the applicant states that his brother Youhanan works six days a week and has three young children and due to his family and work commitments he cannot provide the care. The applicant states that his brother Steve runs a small business and has three children. The applicant states that there are no house services available to meet his mother’s needs unless there is a ‘tremendous cost’. As noted above, the applicant provided brief declarations from his siblings, as well as evidence of having contacted other carer organisations, and a number of photographs depicting the applicant with his mother. The applicant also provided to the Tribunal a statement from the Aged Care Assessment Team NSW Local Health District stating that the sponsor has been approved for residential care at high level and Home care package Level 3.
In oral evidence, the applicant explained that none of his siblings are able to provide the required assistance.
The applicant said that his sister lives in Melbourne. He said his mother lived with her in Melbourne between 2002 and 2010 and then his mother returned to live in Sydney. The applicant was not entirely sure why the arrangements changed in 2010 but said that due to her age, it is difficult to care for his mother and she is becoming more of a burden. The applicant said that he does not have a good relationship with this sister and they have not spoken for ten years. He does not think his mother communicates with this daughter because they had an argument. The Tribunal accepts that given the distance, assistance cannot be reasonably obtained from this relative.
The applicant told the Tribunal that his brother Youhanan has three children, aged 20, 18 and 15. The Tribunal is of the view that given their ages, these children do not require continuous supervision. The applicant also said that this brother had his own construction business which he has now left and he now works in a factory. The applicant said that his brother’s hours are such that he cannot care for their mother. This brother works night shifts, roughly from 8 pm to 7 am, six days a week. During the day he does various things and he also sleeps. The applicant said that he asked his brother to help but he said he cannot help. The Tribunal is prepared to accept that this relative has work commitments but does not accept that he has refused to help. The Tribunal is mindful that he works at night and appears to be available at least some time during the day. The Tribunal is not satisfied that he cannot contribute towards his mother’s care.
The applicant said that his brother Steve works as a truck driver and works up to 60 hours a week. He also looks after his children, who are aged 15, 13 and 9. The applicant said that his brother’s wife looks after the children while his brother works to meet the family’s financial obligations. The Tribunal accepts that this relative has family and work commitments, but given the support from his wife in caring for the children, the Tribunal is not satisfied he cannot contribute towards his mother’s care.
The applicant said that his sister Helen does not get along with her mother and this sister also has a health condition. Her children are aged over 25. The Tribunal is prepared to accept that due to her own health condition, this relative cannot provide extensive care, but in the Tribunal’s view, some types of care – for example, cooking, driving to appointments, etc – may still be reasonably obtained.
The applicant also confirmed in his evidence to the Tribunal that the sponsor has 14 grandchildren in Australia and of them, seven are over the age of 18. The applicant said one of the grandchildren has “problems with the law” and is now on probation. Two of the grandchildren have their own children. The applicant said his mother does not want the care of his sister’s children because she does not believe they care for her wholeheartedly.
The applicant told the Tribunal that his sisters provide him with financial support and he has also been working part-time. The applicant said that when he works, he prepares everything for his mother and he sometimes asks his siblings to help. He said that once he is entitled to a carer payment, he would not be working. The applicant also said that there are times where he could not go to work because there was nobody available to care for his mother. The applicant said that the grandchildren do not have a close relationship with their grandmother.
The applicant’s relative also gave evidence to the Tribunal. Mr Hurmoz’s evidence to the Tribunal is that it is the applicant who provides the care to his mother and not the other children, who only come to visit. He said the other relatives have their own commitments. Mr Hurmoz confirmed that the applicant worked in the afternoons and said he did not know who took care of the sponsor while the applicant worked.
With respect to services from other sources, the applicant provided with his application a list of organisations he claims to have contacted but who have not agreed to provide written confirmation of advice on the availability of services. The applicant suggested that the Tribunal can verify the information. With respect, the Tribunal does not consider it is required to contact a large number of organisations to seek advice on the availability of assistance required by the sponsor. It is for the applicant to satisfy the Tribunal that these organisations are unable to offer the requisite services.
The applicant subsequently provided to the Tribunal a copy of correspondence from My Aged Care inviting his mother, Ms Hanna to choose a home care provider and work out costs. The applicant said that the service has not yet started but when it does, it would only be for a few hours a week. The applicant said that he had approached other organisations and they can help her with some tasks and provided him with the prices. On 3 June 2019 the applicant provided further evidence to the Tribunal. He states that his mother has been assigned a level 2 Home Care package (due to the long wait for a level 3 package), and she is allowed five hours of care each week, which is insufficient to cover her needs. The applicant provided confirmation from the Department of Health that his mother has applied for Level 3 high care and has been placed in a queue. The applicant also provided a list of services he claims to have contacted.
The Tribunal generally found the applicant to be a truthful witness, but considers his evidence inadequate with respect to the assistance from other relatives. The Tribunal accepts his evidence that his siblings have work and family commitments and cannot provide full-time care to their mother. The Tribunal also accepts that one of the children resides in Melbourne and cannot contribute to the assistance required. The Tribunal is prepared to accept that the adult grandchildren have some commitments, although there is minimal information before the Tribunal about their commitment and willingness to care. The Tribunal is not satisfied on the evidence before it that at least some of the sponsor’s children, as well as her adult grandchildren, cannot contribute to her care, despite their various commitments. The Tribunal is mindful that all but one of the sponsor’s children live in Sydney, where the sponsor also resides and it appears that her grandchildren also live in Sydney. The applicant has not satisfied the Tribunal that there are any geographical restrictions to the provision of care.
The Tribunal also acknowledges the applicant’s evidence that the others are either unwilling to provide the care or that his mother prefers that the care be provided by him. There is little or no evidence before the Tribunal to confirm the applicant’s claim that the other children and, in particular, grandchildren, are unwilling to contribute to the care required. Further, the Tribunal does not consider that the sponsor’s preference to be cared for by the applicant and not other relatives is a barrier to the assistance being provided by such relatives.
It is not necessary for the Tribunal to determine precisely how each of the relatives can contribute to the care of the sponsor and how such relatives can collectively provide the assistance required. It is not possible for the Tribunal to do so, given very limited, or non-existent, evidence concerning some of the relatives, such as the sponsor’s adult grandchildren.
Overall, the Tribunal has formed the view that inadequate evidence has been presented with respect to the assistance that can be provided by relatives. On such evidence, the Tribunal is not satisfied that the requisite assistance cannot reasonably be provided by any other relative of the sponsor, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal is not satisfied that the requirements of r. 1.15A(1)(e) are met. It is not necessary for the Tribunal to consider whether assistance can be obtained from other sources.
Given these findings, the Tribunal concludes that at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.
The applicant is not old enough to be granted the age pension and he is not an aged dependent relative of an Australian citizen. The applicant stated on the form that several of his siblings reside in Canada, USA and Iraq. The Tribunal finds they are near relatives, so that the applicant does not meet the requirements for the grant of the Remaining Relative visa.
Conclusion
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.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Kira Raif
Senior Member