Heidari (Migration)

[2018] AATA 5929

Heidari (Migration) [2018] AATA 5929 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aref Heidari

VISA APPLICANTS:  Mr Nisar Ahmed Heidari
Mr Wakil Ahmed Heidari
Mrs Nazifa Heidari
Mr Mohammad Heidari
Mr Gul Ahmed Heidari

CASE NUMBER:  1812913

HOME AFFAIRS REFERENCE(S):           OSF2015/045119

MEMBER:Mary Urquhart

DATE:4 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2019 at 2:59pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – carer deceased – secondary applicant – did not claim to be carer at time of application – credibility issues – vague evidence  – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 116.211(1), r 1.03

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 25 April 2018 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 5 January 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).

3. The delegate refused to grant the visas on the basis that cl.116.211 (1) was not met because the visa applicant who claimed to be the carer of the Australian relative at time of application is now deceased.

4. The review applicant sought a review.

5. The review applicant appeared before the Tribunal on 18 June 2019 and on 2 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s son Mr Mohammad Nabi Haidari, from Ms Saamya Kittanpahuwa, a carer of the review applicant and from Mr Wakil Ahmed Heidari, a secondary applicant now seeking to be the carer of the review applicant, the Australian relative.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Pashto and English languages.

7. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue is whether the primary visa applicant meets the criteria in subclause 116.211 of the Migration Regulations 1994 to be the carer of the Australian relative.

10. Clause 116.211 of the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant Mr Nisar Ahmed Heidari is the carer of the review applicant, who is the visa applicant’s uncle.

11. At the hearing on 18 June 2019, it was submitted that as Mr Nisar Ahmed Heidari had passed away, his brother Mr Wakil Ahmed Heidari, a secondary applicant, would now assume the role of primary visa applicant and carer of the Australian relative.

12. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

13. The Tribunal finds that the secondary visa applicant Mr Wakil Ahmed Heidari  is the nephew of the Australian relative and accordingly if finds that he is a ‘relative’ of the resident within the meaning of r.103 and therefore meets the requirements of r.1.15AA(1)(a).

14. The review applicant is a 54-year-old married man and father of eight children having sadly lost his eldest son in 2015. He is married to Zahra. He has a married daughter aged 25. She lives with her husband and two children. His next son is aged 18 he is studying. He gave evidence that he moved out of home some 4 months ago. The Tribunal notes that as yet he has not changed his address on his driver’s permit. He now lives with his married sister. He said he visits his father 2-3 times a week usually with his brother in law. They stay for about 3 hours. In response to questioning, he said he helps his father when visiting. The review applicant also has twin boys born in 2006 and now aged 13, a son born in 2008 who was said to be aged 12, another son aged six and a baby daughter aged 8 and half months. The review applicant said his wife is a busy homemaker and has a bad back.

15. The review applicant spoke of his care needs. The review applicant also said his eldest son had passed away in 2015 and because of his sadness, he has trouble sleeping. Significantly, he explained that currently he has a carer Saamya. He said and she confirmed that she has been with him for 4/5 years he said. He said she takes him to swim, out walking and to appointments; as well she cooks meals and looks after his medications. Asked how often she is with him he replied 4 days. He then said she had been sick and away. He said she now only comes 2 days a week. She is paid by Carer Choice.

16. The review applicant’s carer Saamya gave evidence that she looks after the review applicant presently, 2 days a week. She said this is because she is studying; she said in July she will return to caring for the review applicant 4 days a week. She gave evidence that another carer attends to the review applicant on Wednesdays. Evidence was given that as well the review applicant has a case manager “Ursula” with whom he has contact and who also looks after his occupational and physiotherapy requirements.

17. The review applicant gave evidence that his current carer did not spend enough time taking him to the pool. He said his daughter was too busy with her children to help and that his son had moved out and “had no time” for him. Asked if he had spoken to his case manager about increasing his care he said he had and that Ursula had arranged for another carer, Mary, to come to look after him. He said she does the same things as Saamya. He said he needed a carer to take him to the park and to restaurants. He said his current carer is limited and that he cannot do a lot. He said he was lonely and often left at home alone when everyone went out.

18. Asked why he thought the application was refused the review applicant said it was because his nephew Nisar, the visa applicant, was killed by enemies and that was why the application was refused.

19. Asked about Wakil’s occupation the review applicant said he was an electrician and that he had studied to become one. Asked where he had studied the review applicant replied he learned “on the job”. He was unable to say for whom Wakil worked. He said however that he had been working 7-8 years; then said 5-6 years.

20. The review applicant said Wakil and his brothers were attacked at the border on their way to Iran. He could not say when that had occurred. He could not say when it was that Nisar had been killed. He said he had been working with Wakil he stayed back for overtime; he said the government might have thought he was a spy and on his way home, he was shot and killed. He gave evidence that he had requested a death certificate to be sent to him. He said it was obtained from a doctor in Iran.

21. The Tribunal questioned the applicant about his nephew Wakil, one of the secondary applicants seeking now to be the carer. The review applicant explained that he had travelled to Iran in about 2011 and that Nisar and his brother Wakil had at that time “carried” him around, “showered him” and therefore he said Wakil could help him now. Asked how old Wakil was during that visit the review applicant replied he did not know but said that Wakil was “an adult”. Questioned about his evidence that Wakil was an adult at the time the review applicant then replied he was not sure if he was an adult. Asked whom he had travelled to Iran with at that time, the review applicant said he went with his whole family except the youngest. Asked what if any evidence the review applicant had that Wakil had been a carer at that time he replied “they helped me”.

22. The criteria for a Subclass 116 (Carer) visa are contained in Part 116 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Significantly, there are both time of application and time of decision criteria.

    Time of application criteria

23. At the time of application, the primary applicant must satisfy two criteria. These are: 

    ·the applicant claims to be the 'carer' of an 'Australian relative';

    ·the applicant is sponsored by the Australian relative or by the partner of the Australian relative. The sponsor must have turned 18. If the partner is the sponsor, he or she must cohabit with the Australian relative and also be an Australian citizen, permanent resident or eligible New Zealand citizen.

    Time of decision criteria

24. At the time of decision, the primary visa applicant must satisfy the following criteria:

    ·the applicant is the carer of the 'Australian relative'.

    ·the Australian relative must be the same relative that the applicant claimed to be carer of at the time 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 (1).

25. The Tribunal accepts that the secondary applicant Mr Wakil Heidari is the brother of the deceased primary applicant Nisar and nephew of the review applicant who is the Australian relative.

26. The Tribunal has carefully considered whether at the time of application (5 January 2015) Mr Wakil Heidari claimed to be a carer of the Australian relative.

27. In his Form 80 Wakil, states his date of birth as 5 September 1999.This is confirmed in the Birth Certificate submitted.  On this basis, he was aged 16 at the time the application was lodged and a minor. Asked his age and date of birth at the hearing he said, somewhat implausibly, that he did not know or have a date of birth. He explained that such things are not so important in Afghanistan. Asked if he knew how old he is today, he replied “19”. Asked when it was that he went to Iran from Afghanistan he replied 7-8 years ago. Asked whom he went with to Iran Wakil replied he went with his brother Nisar who has passed away. Asked if anything happened on the way he replied that his parents went missing and that he does not know if they are alive or not. Asked when it was that his brother Nisar died he replied 2 years ago.

28. The Tribunal asked Wakil about the circumstances of his brother Nisar’s death. His evidence is that he was working with his brother, his brother stayed later and the next day he learned that his brother had been killed. Asked what work they were doing he replied he was working in a family business. Asked what that business was he replied “work in a factory’ making electrical equipment. He said he could not remember the name of the business. Asked how long he had worked there he replied 4-5 years. Asked how old he was when he began working there he replied 13 or 14.

29. The Tribunal asked the applicant whom he lives with in Iran. He replied he lived with his wife and younger brother. No previous evidence had been submitted regarding his marital status. Wakil explained to the Tribunal that 4-5 months after his brother Nisar died he married his brother’s wife Nazifa. He said he was 17 and a half when he married.

30. Asked about the household the applicant said he and his wife and younger brother are renting a house. He gave evidence that his wife works as a tailor and his brother is studying. He gave evidence in relation to his earnings and those of his wife, the secondary applicant Nazifa.

31. The Tribunal asked if it was the case that the applicant was seeking a visa to come to Australia as a carer. He replied “yes”. Asked if he knew when the application was made he replied he did not remember the date. Asked if he remembered anything about the application he replied “yes”. He said he wanted to come to Australia to look after his uncle. Asked what his understanding was about the visa at the time it was made the applicant replied it was for his brother. He then explained that at that time it was intended that his brother would look after his uncle. He then added that “then his uncle came to Iran and he wanted us to look after him”. Asked when his uncle’s trip to Iran was. Wakil said it was 5 years ago and that he had helped look after his uncle. The Tribunal notes the review applicant’s evidence that he travelled to Iran in about 2011 and that movement records indicate the review applicant was offshore from 6 May 2012 to 25 July 2012.

32. At the hearing, the review applicant claimed that when he travelled to Iran in 2011 and whilst there, his nephews Nisar and Wakil acted as his carers. The evidence is that at that time the review applicant travelled with his wife and older children. The review applicant’s son gave evidence about this time. He said his older brother looked after his father’s care whilst they were in Iran showering him and pushing his wheelchair. The review applicant commented on his son’s evidence contradicting it and saying as they were guests of Nisar, it was Nisar and his brothers who looked after him.

33. Asked what he did to help his uncle, Wakil’s evidence was that when his uncle visited he “helped look after” him. Of some concern was his vague evidence and claim that during the visit he “took him (the review applicant) to the doctor”. Wakil also said he “helped” his uncle with medication. Asked what the medication was Wakil replied vaguely it “was the same as now”; he said that his uncle bought it with him from Australia and took it 4 times a day. This evidence though vague also appeared rehearsed. Asked if he drove a car he replied that he is not allowed to drive in Iran.

34. The Tribunal finds that there are significant credibility issues arising from inconsistent information and lack of probative evidence supporting the claims made by both the review applicant and the visa applicant Wakil about claimed care given by Wakil to the review applicant in 2012 during the review applicant’s visit to Iran. For this reason the Tribunal does not accept that Wakil, a minor at the time, had responsibility for the care of the review applicant in the past taking him to see a doctor in Iran in 2012 and assisting with medication as claimed. The Tribunal formed a view that the evidence is likely to be of recent invention to strengthen the application to substitute the applicant as carer. And whilst the Tribunal accepts that the review applicant and his family may have been guests of the visa applicants’ and as such afforded hospitality and assistance, the Tribunal is unable to be satisfied that there is plausible evidence of care given by Wakil to the review applicant in 2012 such as to support him claiming to be a carer in 2015 at the time of application.

35. The Tribunal  has also carefully examined the visa application at the time of application and notes that Wakil states in response to Q 23 of Form 80 that he will be travelling to Australia with his brother Nisar Ahmed “who is my guardian”. In it, he states clearly that Nisar “is travelling to act as the carer for my uncle Mohammed Aref Heidari”. He states in response to Q26 of Form 80 that he will be remaining in Australia with his brother Nisar Ahmed “who will be taking care of fulfilling duties as a carer.”

36. On the evidence before it, the Tribunal finds that the primary applicant who claimed to be the carer at time of application is deceased he is unable to meet the requirements for the visa. The Tribunal further finds that the secondary applicant Wakil did not claim to be a carer of the Australian relative at time of application and does not meet the criteria in cl.116.211 (1).

37. For the reasons above, the secondary applicant Wakil Ahmed Heidari does not meet the criteria for a Subclass 116 visa. As the criteria for the visa has not been met by the primary applicant or by the secondary applicant Wakil Ahmed Heidari the criteria for the visa is not met. Accordingly the Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas

38. The Tribunal did not proceed to determine whether the assistance the review applicant requires cannot reasonably be provided by any other eligible relative or obtained from welfare, hospital, nursing or community services in Australia.

39. 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

40. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Mary Urquhart
    Member