Hanyani (Migration)

[2022] AATA 4832

Hanyani (Migration) [2022] AATA 4832 (11 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Dumisani Hanyani

VISA APPLICANTS:  Ms Mary Norah Chiweshe
Mr Tarisayi Benson Chiweshe
Ms Kudzai Amanda Chiweshe
Ms Dumisani Hanyani
Ms Wadzana Shirley Chiweshe

REPRESENTATIVE:  Mrs Ashani Yapa (MARN: 1913368)

CASE NUMBER:  2004380

HOME AFFAIRS REFERENCE(S):          OSF2016/073637 OSF2016/075735

MEMBER:Andrew McLean Williams

DATE:11 November 2022

PLACE OF DECISION:  Brisbane

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 11 November 2022 at 3:34pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– 24-hour high dependency assistance required – visa applicant is willing to provide the assistance – ongoing medical health issues – applicant’s care requirements are not able to be reasonably or practicably provided by welfare, hospital, nursing or community services – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15AA, 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 13 February 2020 refusing to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The visa applicants applied for the visa on 4 May 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 (Cth) (‘the Regulations’). Here, 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 visas on the basis that clause 116.221 in Schedule 2 of the Regulations was not met, because the Delegate was unable to be satisfied that Mr Ezra Hanyani - as the Australian Citizen or permanent Australian resident claiming to require the assistance of a carer for purposes of regulation 1.15AA of the Migration Regulations - could not otherwise obtain those services from any other relative in Australia or via welfare, hospital, nursing or community services in Australia. In these circumstances the visa applicant Ms Mary Norah Chiweshe was determined as not qualifying as a ‘carer’ for purposes of Regulation 1.15AA, which is a necessary precondition in order to meet the requirements of clause 116.221.

4. This matter was scheduled for a Tribunal hearing on 31 October 2022.  The hearing was subsequently postponed, until 9 November 2022.  On 2 November 2022 the Tribunal received further written evidence and submissions from the review applicant, and determined that this further evidence was amply sufficient to enable the Tribunal to make a favourable determination ‘on the papers’ without any further need for a hearing in this matter.

5. The review applicant was represented in relation to the review by Mrs Ashani Yapa of Sirus Migration (MARN 1913368).

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 the visa applicant meets the requirements of clause 116.221.

8. Clause 116.221 requires that the visa applicant qualify as a “carer” of the Australian relative mentioned in clause 116.211. The Australian relative referenced in the visa application for purposes of clause 116.211 is Mr Ezra Mthandazo Hanyani, who is the nephew of the primary visa applicant, Ms Mary Norah Chiweshe, who is the sister of the review applicant.

9. In order to qualify as a ‘carer’, a visa applicant must satisfy the definitional requirements in Regulation 1.15AA in Schedule 2 of the Regulations. In short compass, these require that the visa applicant be:

   ·A relative of ‘the resident’; and

   ·The resident, or a member of the family unit of the resident has a medical condition; and

   • The person with the medical condition is an Australian citizen, or permanent resident, or an eligible New Zealand citizen; and

   ·The medical condition causes an impairment that impairs the ability of the person with the medical condition to attend to the practical aspects of daily living; and

   ·The medical condition has been assessed in a manner required by the Migration Regulations and now gives rise to an impairment rating that meets or exceeds the level specified on the prescribed impairment tables for the assessment; and

   ·The medical condition will persist for at least another two years; and

   ·The required assistance cannot reasonably be provided by another relative in Australia or via welfare, hospital, nursing or community services in Australia.

10. In this case the resident for purposes of reg.1.15AA is the review applicant Ms Dumisani Hanyani, and the person requiring care assistance is her adoptive son, Ezra Mthandazo Hanyani, who was adopted by Ms Hanyani, together with Ezra’s older brother Emmanuel from Zimbabwe, where they were living in dire and traumatising circumstances. 

11. Ezra suffers from albinism, a permanent genetic condition and in consequence of same has very significant vision impairment: a recognised and common consequence of albinism.  Due to his condition, Ezra requires assistance with transport, and requires constant general assistance in the form of, (for example), supervision in relation to meal preparation, personal hygiene, navigation in the home environment, as well as daily assistance with the application of topical sunscreen creams, etc.  There is also medical evidence before the Tribunal that specifies that Ezra has been diagnosed as suffering from generalised anxiety.  This appears to be as a consequence of the cultural persecution of albinism in Africa, coupled with the traumatic experiences of his early life in Zimbabwe.  A global reading of the materials before the Tribunal also gives rise to the clear impression that Ezra is still struggling with cultural adjustment to life in Australia, particularly in consequence of his adverse experiences while still living in Zimbabwe.

12. There are medical assessment certificates before the Tribunal prepared in conformity with the requirements of regs.1.15AAS(1)(b) and 1.15AA (2), that indicate that Ezra’s condition has been assessed in the manner required by the Migration Regulations, and that he has the level of ongoing impairment necessary in order to qualify as requiring the assistance of a carer. However, at first instance, the Delegate was not satisfied that Ezra’s care requirements could not be provided by another relative in Australia, or via welfare, hospital, nursing or community services in Australia.  In particular, the Delegate noted the presence of other family members living in the same house as Ezra.

13. The Review Applicant - Ms Dumisani Hanyani - is a qualified solicitor and works for the United Nations on contract as part of peacekeeping missions in Mali in Africa, and is required to work ‘4 weeks on 4 weeks off’ in Mali, yet is often unable to return to Australia until after the expiration of 6 or more weeks in Africa, due to the remoteness of the localities within Mali where she is required to work.  It is particularly during the periods when Ms Hanyani is away from Australia and in Africa, when difficulties arise in Australia in terms of meeting the on-going daily care requirements for Ezra, who remains living in Ms Hanyani’s home, in Brisbane.  For a period, Ezra’s needs were being met on an ad hoc basis by his brother Emmanuel, however this is no longer possible.

14. The Tribunal notes the medical report dated 4 November from Doctor Katrina Neal of the Greenslopes Surgery.  Dr Neal confirms that she is the treating general practitioner for both Ezra and Emmanuel and she details the scope of Ezra’s care requirements, and states that Ezra requires ‘24/7’ assistance, and outlines the practical difficulties that confront the adequate provision of same within Ms Hanyani’s home environment in Brisbane, given her on-going foreign work commitments.  Dr Neal also notes that Ezra’s older brother Emmanuel who used to stay with Ezra when Ms Hanyani was away with work in Africa now suffers from a significant mental health condition, and is himself insufficiently well enough to provide care and assistance for Ezra and is himself now in a position of requiring assistance.  The Tribunal accepts that evidence in its totality.

15. The Tribunal further notes the presence of statutory declarations from other family members in Australia, including Mr Tanaka Nhongo (who lives in Sydney), Mr Sipho Nhongo (who lives in Melbourne), and from Ezra’s older brother Emmanuel Hanyani, who does also live in Brisbane, yet who now has the medical conditions previously described by Dr Neal. 

16. On the basis of the various matters described by each of them in their statutory declarations the Tribunal is now satisfied that none of these other family members are reasonably placed to be able to provide on-going daily assistance of the type required by Ezra.  The Tribunal notes that Ezra has a disability pension and an NDIS package, yet that the scope of Ezra’s NDIS benefits package is quite confined, and it does not extend so far as to the provision of daily living services, of the type now required by Ezra. 

17. On reading all of the material the Tribunal is further satisfied that Ezra’s care requirements are not able to be reasonably or practicably provided by welfare, hospital, nursing or community services in Australia, and that Ezra’s care requirements need to be met by a person ‘living in’ the home with Ezra.  The Tribunal notes the statutory declaration evidence from the review applicant, expressing the reasons why her sister Norah Chiweshe is optimally placed to provide assistance as a carer for Ezra, and the Tribunal now accepts that evidence and notes that Norah has previously expressed her own willingness to fulfill this role.  This evidence satisfies the specific requirements of reg.1.15AA(1)(f).

18. 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

19. 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.

    Andrew McLean Williams
    Member