Haider (Migration)

[2019] AATA 815

Haider (Migration) [2019] AATA 815 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Haider

VISA APPLICANTS:  Mrs Fatima Ali
Mr Asghar Ali
Miss Nazia Ali

CASE NUMBER:  1618330

DIBP REFERENCE:  OSF2011/004766

MEMBER:Rosa Gagliardi

DATE:21 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·cl.116.221 of Schedule 2 to the Regulations.

Statement made on 21 January 2019 at 4:33pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsor’s medical condition – certification – spinal cord injury – paraplegic in a wheelchair – provision of assistance – aged father – injuries sustained by sister during the provision of care – willing and able – physically demanding nature of care responsibilities – relieved of the burden of constant care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 116.211, 116.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 on 27 September 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 11 June 2011. 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.116.211 and cl.116.221.

3. The delegate refused to grant the visas on the basis that cl.116.211 was not met because it was not accepted that the first named visa applicant was the carer of the sponsor at the time of application.

4. The review applicant/sponsor is represented in relation to the review by his registered migration agent.

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

   Please note that the term “the first-named visa applicant” is used interchangeably with “the visa applicant” for ease of reference throughout this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

6. The sponsor is a 39 year old single male who the Tribunal understands was born in Pakistan, even though in his Protection visa application he claimed to be from Afghanistan.

7. The sponsor has a spinal cord injury sustained in Indonesia on his way to Australia on a boat with his sister, Ms Sahar Ali, whose name the Tribunal understands is actually Fouzia.  The sponsor is a paraplegic in a wheelchair. It is claimed that Ms Sahar Ali has cared for the sponsor since they arrived in Australia in 2009.  The sponsor has had multiple lower back surgeries and according to his treating general practitioner, had a chronic lumber wound that was not healing (as at 9 November 2010).  His general practitioner reported that there was no hope of recovery from his condition in a wheelchair as a paraplegic.  The report dated
   9 November 2010 also notes, “He is severely disabled and requires daily attention for toilet, clothing and food.  He needs a full time carer.  Mr Ali is isolated at home at this stage, due to a lack of support.  He is depressed due to his chronic pain and also being unable to do his daily activities, but, otherwise his cognitive function is normal.   Mr Ali does not have a good prognosis, his recovery is impossible and needs attention for most of living support including, toileting, bathing, washing and shopping”. 

8. In a later letter dated 22 December 2014, the general practitioner reported that the sponsor had been experiencing severe depression and anxiety that led to PTSD and was reliant on multiple antidepressants and narcotics medication for his lower back chronic pain.

9. More recent medical evidence dated 28 May 2018 indicates that the sponsor’s condition has not improved. 

10. Ms Sahar Ali claims that she no longer can continue to look after her brother due to back difficulties she is having because of her care for her brother and the physically demanding nature of the work.  The Department rejected the application because it was considered that given caring for the sponsor had taken its toll on Ms Sahar Ali, it was unclear why the sponsor’s mother who is older, would be able to cope any better.

11. The sponsor is therefore seeking that his mother and his siblings travel to Australia to care for him.  The applicant’s documents show that the first named visa applicant was born in 1954 (to the extent that documents presented in terms of identity can be relied upon) and is now 62 years of age.  It was claimed at application that the first named visa applicant was living with her four other children in Pakistan and that these children were:

    ·Zahra (DOB 1983) who is widowed with two children;

    ·Sajad (DOB 1997);

    ·Ashgar (DOB 1994); and

    ·Nazia (DOB 1998).

12. It is claimed that Sajad will remain in Pakistan to look after his sister Zahra. 

13. In a statutory declaration to the Tribunal, dated  30 November 2017, the sponsor wrote that he wanted to clarify his and his family members’ true identities, which he has not discussed with the Department previously:

    My true name is Ghazanfar Ali.  I was born on 9 April 1978.  I am now 39 years of age.

    I am the second eldest of five children, born to my mother and father, Qambar Ali and Fatima Ali.  My parents and my siblings’ names are correctly reflected in my mother’s Carer visa application, with two exceptions.  Firstly, as I said, my name is Ghazanfar Ali.  My sister, Sahar Ali, is in fact Fouzia Ali.  And Zahra Ali, who is listed as one of our adoptive sisters, is in fact the widowed younger sister of my mother, since her husband disappeared en route to Afghanistan many years ago.

    Also, I must make one important correction.  In our Carer visa application, each member of the family is recorded as being an Afghan national.  This is not correct.  With the exception of my father, who was born in Bamiyan, Afghanistan, the rest of us were born in Quetta, Pakistan…

14. In another statutory declaration, undated, by the sponsor’s mother, the first named visa applicant, it was stated of her husband and the father of the sponsor, Mr Qambi Ali:

    In late 2011, my husband, Mr Qambar Ali, was forced to leave Quetta because of the problems we have here as Hazaras.  It was a very difficult decision to let him leave.  I was afraid of what might happen to him on the way, because of what happened to my son when he went to Australia.  But at the time that he left, there were targeted killings all through Quetta.  I either had to let him go or live in fear for him every day.

    When my husband arrived in Australia, he told the truth about who were.  He have our real names and told the Australian authorities what was happening to us in Pakistan.  Eventually, he was granted his visa.  My husband is a very sick man and a heart patient…

15. The issue of the identities of the applicant and his family to some extent does not go to whether or not the first named visa applicant is the carer of the sponsor.  It would appear that the family has provided incorrect information in previous applications and this may raise questions over the identity and place of birth of all the family members. 

16. For the purposes of this review, however, the Tribunal is satisfied that:

    ·The applicant is the mother of the sponsor as claimed;

    ·The sponsor’s sister has been looking after him in Australia;

    ·Qambi Ali is the father of the sponsor;

    ·There are other siblings living in Pakistan;

    ·On the evidence before it, the Tribunal is not aware that there are any other siblings (apart from Ms Sahar (Fouzia)) living in Australia.

    Whether the visa applicant is a ‘carer’

17. Clause 116.221 requires that at the time of decision, the visa applicant is the 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.

    Applicant is a relative of the resident – r.1.15AA(1)(a)

18. 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 visa applicant’s son.  This is a matter that can be confirmed with the sponsor’s initial migration documentation identifying family members.

19. Therefore, as the visa applicant is the mother of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

20. 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.

21. 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.

22. The initial certificate was obtained several years ago (2010) now but given the medical information, including the most recent, the Tribunal accepts that the sponsor’s condition has not ameliorated.

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

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

24. 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.  There are no issues identified by the Tribunal that would go to the sponsor’s Australian status.   Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

25. 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 (that is, a rating of 30). In the present case, the impairment rating specified in the certificate is 80.  This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

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

26. 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.

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

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

28. 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.

    Assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or eligible NZ citizen

29. There are two persons in Australia who potentially could care for the sponsor, that is, the sponsor’s father, Mr Qambar Ali and his sister Ms Sahar Ali.  Whether they can reasonably provide the requisite care is examined below.

    Mr Qambar Ali

30. Mr Qambar Ali is 76 years of age and is on a Home Care Package Level 1 with the City of Greater Dandenong’s Community Care Team and has been supported by the program since April 2013 (evidence sighted).  He is primarily provided with assistance transport so he can access the community and attend his medical appointments.  He suffers from left ventricular failure and has a pace maker and it appears that at some point he was attempting to have the first named visa applicant, his wife, travel to Australia to care for him.  The medical information before the Tribunal indicates that Mr Qambar is getting frail and has had multiple hospital admissions. 

31. A report prepared by MonashHeart, MonashHealth, (date unclear) states that Mr Qambar presented for emergency coronary angiography after collapsing.  The incident was referred to as a ventricular fibrillation cardiac arrest occurring in the setting of an exacerbation of his heart failure.  Following the angiograph the medical practitioners became aware of an echocardiogram performed in 2013 which showed dilated cardiomyopathy (global impairment, severe dysfunction).  It also showed he had a history of a right hilar pulmonary lesion being investigated and managed by the respiratory clinic. 

32. Taking into account the medical information submitted in relation to Mr Qambar’s condition, and given his age, the Tribunal is satisfied that the assistance required by the sponsor cannot reasonably be provided by Mr Qambar.

    Ms Sahar/Fouzia Ali

33. The sponsor has declared that his sister has been caring for him continuously since 2009 and that she is his full-time carer.  She is single and is 30 years of age.  The Tribunal has no reason to doubt that this has been the case and indeed, the delegate in his/her decision also accepted this to be the case.  A medical report dated 16/4/2011 states that Ms Ali suffers from chronic back pain due to a degenerative lumber disc and that she was on regular analgesia, having issues with lifting, bending.  The doctor also states that she was finding it hard to look after her brother who has paraplegia and recommended that she not undertake any lifting or recurring bending.  Other medical evidence submitted supports the existence of moderate central spinal canal stenosis.  Change, by way of degeneration, is also present in several discs.

34. A report dated 7 August 2018 has also been provided by Ms Ali’s psychologist, stating that she had been referred by her family doctor on 23 July 2018, for the treatment of her depression, stress and “emotional regulation issues”.  The report also refers to her back and shoulder injuries sustained due to providing care to her paraplegic brother.  The psychologist states that the sponsor’s depression and frustration also affected Ms Sahar Ali as she had been caring for her brother from a young age and bore the shock of seeing her brother injured so severely.  The report also notes that Ms Sahar is single at the age of 30, which is unusual in her culture as at her age it would be expected that she would have had children and would be living married life.  Ms Ali also believed that her options for starting a normal family life were getting narrower with time due to her age and responsibility of her brother’s care.  She was afraid of her responsibilities interfering in any marriage and that such responsibilities could lead to a union failing.  The psychologist reports that she felt very guilty even at the thought of abandoning her disabled brother to move on with her life.  Ms Ali was frustrated because she had to keep compromising her ambitions to study, skills development and employment.  She felt stuck with her situation and needed relief from her monotonous life.

35. The psychologist also refers to the fatigue Ms Ali is experiencing in dealing with all her brother’s medical emergencies as well as her housekeeping responsibilities and that she is leading a painfully isolated life with no support.  Finally, the psychologist states that the ongoing hopelessness, social isolation and excessive responsibility were extremely detrimental for Ms Ali and the sponsor.

36. Having had regard to the circumstances of Mr Qambar and Ms Sahar Ali, the Tribunal is satisfied that even in combination, the assistance required by the sponsor cannot be reasonably provided by these two family members.

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

37. While medical evidence has not put forward an opinion in this regard, it is likely that the only suitable accommodation, were Ms Ali unable to care for the sponsor any longer due to her own conditions, would be residential care.  Given the sponsor’s cultural background, together with his high care needs, and his relatively young age, such an outcome would be detrimental to both his physical and emotional well-being.  To force the sponsor into such a situation would be unreasonable.

38. In terms of assistance in the community, the sponsor has submitted a letter from the Greater Dandenong City Council dated 6 March 2018, in response to the migration agent’s request for assistance for the sponsor.  The letter states “You advise your client has a physical disability (paraplegia), requires a wheelchair for mobility and has multiple health conditions including post-traumatic stress disorder.  Unfortunately Community Care is only able to provide a basic level of support and are therefore unlikely to be able to provide the substantial amount of care you state Mr Ali requires”. 

39. Given the sponsor is on Centrelink payments, the Tribunal does not have information before it that he could afford to purchase any in-home assistance.

40. Given the extent of the sponsor’s care requirements, including his psychological need for familial support to overcome his isolation, and other mental health conditions, the Tribunal is 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 met.

    Willing and able – r.1.15AA(1)(f)

41. Regulation 1.15AA(1)(f) requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

42. 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.

1. The Tribunal is satisfied that the sponsor’s mother is willing and able to provide assistance to the sponsor.  The Tribunal appreciates that the sponsor’s needs are numerous, and that questions were raised by the Department as to why, if the current, younger carer is unable to cope, a decision maker should be satisfied that a woman who has now entered her 60s would be able to do so.  It appears that some of the heavy lifting of the sponsor is now being done by a lift that has been installed in the home, however, the sponsor still requires cleaning and every day care.  Importantly, he also needs stimulation from the isolation and alleviation from the guilt of having required his sister to care for such a lengthy period for him. 

2. The Tribunal can see no reason why the first named visa applicant together with Sahar Ali and her other children could not all assist provide the sponsor with a greater quality of life to ensure that Sahar Ali can continue to provide some assistance, but is relieved of the burden of constant care. 

3. Therefore, the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

   Conclusion on ‘Carer’ criterion

4. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221.

5. 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

6. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

   ·cl.116.221 of Schedule 2 to the Regulations.

   Rosa Gagliardi
   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.