ISSA (Migration)

[2021] AATA 1928

ISSA (Migration) [2021] AATA 1928 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Marguerite Youssef ISSA

VISA APPLICANTS:  Mrs Fabiene Azo
Mr Fares EL CHEMALY
Miss Melissa EL CHEMALY
Miss Serena EL CHEMALY

CASE NUMBER:  1815486

HOME AFFAIRS REFERENCE(S):          2014006453 OSF2014/006453

MEMBER:Helena Claringbold

DATE:30 April 2021

PLACE OF DECISION:  Sydney

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

Statement made on 30 April 2021 at 11:50am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia – impairment rating of 40 – living alone – Home Care Package statement – decision under review affirmed

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

CASES
Anveel v MIBP [2013] FCCA 2181

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 31 March 2014, Mrs Fabiene Azo, the primary visa applicant (the visa applicant), applied for an Other Family (Migrant) (Class BO) visa. The application was made on the basis she is available to act as a carer for her Australian citizen mother Ms Marguerite Youssef Issa, the sponsor and review applicant. Also included in the visa application are Mr Fares El Chermaly, the visa applicant’s partner and their two children. They are the second, third and fourth named visa applicants.

2. At the time of application, 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). 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. On 21 March 2018, a delegate of the Minister for Home Affairs refused to grant the visas. The delegate was not satisfied that the visa applicant did met cl.114.211, cl.115.211 and cl.116.221 of Schedule 2 to the Regulations made under the Migration Act 1958 (the Act). On 10 April 2018, the sponsor provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

4. On 10 March 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also took oral evidence from Mr SA, the sponsor’s son. The  Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. The sponsor confirmed that she understood the interpreter clearly.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

7. The issue in the present case is, whether assistance for the sponsor 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 or whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

   BACKGROUND

8. The visa applicant was born in 1973 in Beirut, Lebanon. She declared her parents as the sponsor and Mr MA. The visa applicant is married to Mr Fares El Chemaly. They have two children who were born in Lebanon in 2002 and 2005.

9. The sponsor was born in 1951 in Baghdad, Iraq. She is a Lebanese citizen. On 22 December 1999, she entered Australia. On 12 December 2007, she was granted Australian Citizenship. The sponsor was previously married to Mr AN.  She has three adult sons living in Australia and her daughter, the visa applicant who lives in Lebanon.

10. As detailed in the delegate’s decision record, the sponsor stated at the Departmental interview that she is divorced from her second husband Mr AN.

    Whether the visa applicant has claimed to be a ‘carer’ of an Australian relative

11. Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of her mother, the sponsor, who is an Australian citizen.

12. Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211 of Schedule 2 to the Regulations.

13. Regulation 1.03 provides that ‘carer’ has the meaning as given in r.1.15AA of the Regulations.

14. Regulation1.15AA provides that the assistance cannot reasonably be:

    (e)(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

    (e)(ii)      obtained from welfare, hospital, nursing or community services in Australia;

    Whether the assistance cannot reasonably be provided by any other relative

15. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

16. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

17. The sponsor provided information relating to her family circumstances and reasons why the assistance cannot be provided by her relatives living in Australia.

18. A letter dated October 2017, is from a psychologist who provided information about the sponsor’s health. 

19. A hospital discharge referral letter dated 5 May 2016, recorded the sponsor being admitted after having a fall. She sustained injury to her right rib with no demonstrated fracture and was discharged with analgesia. She was advised to follow up with her family doctor in view of mild renal impairment. She is recorded as living along with ‘strong family support’, ‘copes well and independent of ADLS’, ‘doesn’t want to call family as they will be overly concerned and kick up a fuss’ ‘she will call them when she gets home if discharged or to inform them of admission’. 

20. Various statements have been provided by the sponsor’s representative (the representative) and the sponsor’s children who live in Australia. They give reasons why they cannot provide care for the sponsor. They claim that the sponsor needs full-time care and assistance daily and at night and for long hours  including doctors’ visits, medication, daily chores, special dietary requirements and personal needs.  The Tribunal has not considered the requirements of r.1.15AA(e)(i).  It has gone on to consider the requirements of r.1.15AA(e)(ii).

21. The Tribunal considered the information provided about the sponsor’s family members being unable to care for her and the evidence given to the Tribunal that their circumstances remain unchanged; however, it has made no finding on these claims. The Tribunal will base its decision on whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor.

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

22. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

23. The representative stated the following. Homecare services were contacted on behalf of the sponsor. An assessment was undertaken at the sponsor’s residential property on 7 January 2014.  Homecare were able to provide one and a half hours of domestic assistance per fortnight and half an hour of personal care six times a week.  The Aged Care Assessment Team (ACAT) were contacted on behalf of the sponsor. They were advised that as she was under 70 years old and didn’t suffer age related illnesses such as dementia ACAT were unable to provide any assistance. She was referred to My Aged Care who referred her to Homecare, who had been contacted and Kincare who would be contacted soon.

24. A letter dated 7 January 2014 from Family and Community Services, advised the sponsor that after an assessment on 7 January 2014, she was provided one and a half hours of domestic assistance once per fortnight and half an hour of personal care six times per fortnight.

25. A Carer Visa Assessment Certificate (CVAC) dated May 2015 issued by Medibank Health Solutions, recorded the following: The sponsor was assessed with an impairment rating of 40.  She was assessed as having major depressive disorder, suicidal ideation, osteoarthritis, bilateral carpel tunnel syndrome, Morton’s neuroma in her right foot and diabetes.  She was recorded partially dependent and needing assistance with dressing and grooming, preparing food, eating, mobility, supervision, monitoring, assistance with transport and need for personal care daily. She needed regular support from her neighbours and needed assistance particularly with heavier tasks, shopping, cooking and social interaction or leaving her house. This certificate is now out of date and the Tribunal will rely on the information in the CVAC issued January 2020 as detailed below.

26. A letter dated October 2017, is from a psychologist who provided information including the following. The sponsor has attended the pain and trauma clinic since 2011. She presented with symptoms such as depressed mood, apprehension, irritability, poor self-esteem, memory/concentration impairment, lack of motivation and energy and reported diminished pleasure in many activities. She was unable to do most of her daily tasks and look after herself and needed someone to assist her. The sponsor reported difficulty in managing her mental illness and lacking motivation and energy to complete minor tasks. She was receiving a course of psychological intervention approaches in the form of cognitive behavioural therapy and relaxing and educational techniques. In her psychologist’s opinion it is recommended that the sponsor be provided with a carer for her functional impairment to avoid further degeneration to her mental and physical health.

27. A hospital discharge document dated October 2017, recorded the sponsor suffering from flu symptoms and muscular joint pain. The sponsor was advised to follow up with her family doctor on her return from Lebanon. Another hospital discharge referral letter dated 5 May 2016, recorded the sponsor being admitted after having a fall. She sustained injury to her right rib with no demonstrated fracture and was discharged with analgesia. She was advised to follow up with her family doctor in view of mild renal impairment. She is recorded as living along with ‘strong family support’, ‘copes well and independent of ADLS’, ‘doesn’t want to call family as they will be overly concerned and kick up a fuss’ ‘she will call them when she gets home if discharged or to inform them of admission’.

28. A CVAC dated January 2020 and issued by Bupa Medical Services, recorded the following: The sponsor was assessed with an impairment rating of 40.  She was assessed as having bilateral carpal tunnel with functional impairment present with an inability to perform fine motor skills such as turning a door handle. Assessed with severe impairment of function. She had spondylosis of the cervical and lumbar spine with functional impairment present with significant pain and reduced mobility and walking with an unsteady gait. Unable to stand for more than a couple of minutes and unable to sit for more than 15 minutes and unable to bend forward and pick up a light object such as a handbag. Assessed with severe impairment of function. She was also assessed as having no functional impairment in the following conditions, limiting exertion and stamina, impacting lower limbs, mental health conditions, alcohol, drug or substance abuse, brain function, communication, intelligence, digestive and reproductive health, hearing and ears, vision and the eyes, continence, skin and consciousness. Her current living arrangements were that she lived alone and had a carer for one to two hours daily six days a week.  The carer helped with cleaning, showering, shopping, transport and preparation of simple meals. She is recorded as being partially dependent and requiring assistance with mobility, bathing/showering, toileting, dressing grooming, supervision for safety and transportation. It was noted that in summary she has musculoskeletal issues that make most ADL’s (activities of daily living) very difficult and requires someone to assist her at all times. As is required, the Tribunal relies on this latest certificate to determine the assistance the sponsor requires.

29. A hospital discharge document recorded the following. The sponsor was admitted to hospital on 11 February 2021 and discharged on 17 February 2021. She presented after a syncopal episode from home. She reported watering plants in the garden when she suddenly collapsed landing on her face and losing consciousness. She screamed for help and a neighbour called the ambulance. She had a loop recorder implanted at left sternal edge. She was discharged with follow up to take place in the Blacktown device clinic in four weeks time. 

30. Mr DA, is the sponsor’s son.  He lives in Carlingford. In an undated statutory declaration he declared that his mother needs full-time care.

31. Mr DA, is the sponsor’s other son. He lives in Carlingford.  In a statutory declaration dated 9 October 2017 he stated the following. His mother needs are full-time including doctors’ visits, medication, daily chores, special dietary requirements and personal needs. His mother needs assistance daily and at night and for long hours.

32. Mr SA, is the sponsor’s son. He lives in Smithfield. In a statutory declaration dated October 2017, he stated the following. His mother needs full time support and assistance in all aspects of her daily life such as medical appointments, shopping and cleaning. While working on West-Connex he received SMS messages that his mother had a fall. His mother’s needs and the assistance she needs conflict with his work.  Two weeks ago, after he left his mother’s home she fell in the garden. It took him 15 minutes to reach her and he found her lying face down in the garden.

33. A letter dated 12 July 2019 refers to a Home Care Package (HCP) Level 3 statement for June 2019. It recorded the following. The sponsor received domestic assistance, personal care, social support and grocery shopping. The sponsor had available funds from the previous months of $238.64. Government subsidy allocated to the sponsor $90.62 daily, total $2,718.60. Available funds for June were $2,957.24. Total spend for June was $2,550.20. Available funds for future use were $407.04 which would roll over in available funds for her to use in the next month.  It stated that ‘You could increase your current services or add new services and stay within your budget. For more information speak to your Home Care Team’ (HCT).

34. A letter dated 8 October 2020 refers to a home care package statement for September 2020. It recorded the following. The sponsor received personal care and in-home meal preparation. The sponsor had available funds from the previous months of $2,048.91. Government subsidy allocated to the sponsor was $93,63 daily, totalling $2,808.90. Available funds for September were $4,857.81. Total spend for September was $951.00. Available funds for future use were $3,906.81 which would roll over in available funds for her to use in the next months.  It stated that ‘You could increase your current services or add new services and stay within your budget. For more information speak to your Home Care Team’.

35. A letter dated 11 February 2021 refers to a HCP Level 3 statement for January 2021. It recorded the following. The sponsor received routine cleaning, personal care, occupational therapy, goods and equipment, in home meal preparation and other wellness services. The sponsor had available funds from the previous months of $7,715.20. Government subsidy allocated to the sponsor $93.63 daily, totalling $2,902.53. Available funds for January were $10,617.73. Total spend for January was $2,234.26. Available funds for future use were $7,924.67 which would roll over in available funds for her to use in the next month.  It stated that ‘You could increase your current services or add new services and stay within your budget. For more information speak to your Home Care Team’.

36. Mr SA provided information about his circumstances and other information as follows. He had an accident and is off work.  He has been able to visit the sponsor. He didn’t know whether the services being provided to the sponsor were enough for her care. The HCT sent a person who showers the sponsor and every second day someone comes to prepare food. The sponsor can request more services and he will try to get her to use her entitlement. He is concerned that when someone is not with her an accident could happen. Previously he was investigating a nursing home but colleagues told him they would need $200,000 which is not feasible, nor is home care at night. 

37. The sponsor told the Tribunal the following. In the mornings she has a carer with her for an hour. She will shower her and do some cleaning if this is necessary.  She does not see anyone and has no place to go to and nothing to do.  She sits, watches television and lies in bed. She does not cook, but during the day prepares light meals such as a sandwich. She uses her walking stick and the walls to support her manoeuvre to the bathroom. Sometimes during the night, she falls. When she  had her most recent fall, she pressed the emergency call button she wears around her neck and the ambulance came. At the hospital, she had a heart monitoring device implanted and this will be reviewed. Since the fall she has lost the capability of managing her daily life and feels scared being alone. It has been two or three years since she drove a motor car and the car sits outside the house. Four years ago, she travelled to Lebanon and had four months with the visa applicant.  She then travelled to America and had two months with her family. During her time in Lebanon she was assisted by the visa applicant and in America she was assisted by family members. Every Tuesday there is a van that provides transport to an entertainment session and then returns her home. Of her three sons, only Mr SMA visited her. Her other sons visit her once or twice a year. Some time ago her family doctor referred her to a psychologist and they prescribed medication. The family doctor is to refer her to a new psychologist but she doesn’t know when that will happen. She is only entitled to two to three hours help a week and this is why she didn’t seek additional services. She wants someone to come and stay with her all the time. She has not made any enquiries about nursing home care and it has never come into her mind.

1. The Tribunal discussed with the sponsor the information about the services she received in January 2021 as detailed in the Home Care Package statement she provided to the Tribunal. This includes personal care, occupational therapy, meals and grocery shopping. The sponsor stated the following. She doesn’t require any more services and what is provided to her is fine. She wants someone to stay with her at night and wants the visa applicant to come and stay with her all of the time.

2. The Tribunal told the sponsor that a non-disclosure certificate dated 7 June 2018, has been issued pursuant to s.376 of the Act in relation to certain material which is on the Department file. The Department has sought to restrict the disclosure of folios 128 to 129 and 212 to 217 of file number OSF2014/006453 on the basis that it was given in confidence to the Minister or an Officer of the Department in confidence.  The Tribunal considers that the s.376 certificate is not valid because it is unsigned.

3. The Tribunal told the sponsor that a non-disclosure certificate dated 14 December 2020, has been issued pursuant to s.376 of the Act in relation to certain material which is on the  Department file. The Department has sought to restrict the disclosure of folios 128 to 129 of file number OSF2014/006453 on the basis that disclosure of this information contained in these folios would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law and would likely prejudice the effectiveness of those methods. The Department has sought to restrict the disclosure of folios 212 to 217 of file number OSF2014/006453 on the basis that it was given in confidence to the Minister or an Officer of the Department.  The Tribunal considers that the s.376 certificate is not valid because it does not clearly articulate the adverse effects that may result due to of disclosure of the information.  The information relating in folios 128 to 129 relates to a report from the Department of Human Resources that confirms that no one is in receipt of a carer pension in relation to the sponsor and is not adverse information. For clarity the information put to the sponsor is identified by a lowercase letter and the sponsor’s response for each section of information is recorded directly underneath.

4. The Tribunal put the core of the information the subject of the certificate relating to folios 212 to 217 to the sponsor under s.359AA of the Act. The sponsor was told the relevance and consequence of the information.  She was invited to comment on or respond to the information and advised that she could seek additional time to do so.  The core of the information is as follows:

   a.On 18 October 2017, the Department received information that Mr SA also known as Mr SIS born in 1969, living at Horsley Drive, Smithfield provided a statutory declaration as part of the visa application containing false information about his wife and child and his employment to assist the visa application. Mr SA was not travelling around Australia to work. He worked for West-Connex and lived in Sydney. He lived in Sydney and had another address in Queensland.

   The sponsor responded and stated the following. Mr SMA has family problems.  His wife tried to kill him.  The police intervened and his wife was arrested.

5. The Tribunal put other information to the applicant under s.359AA of the Act. The sponsor was told the relevance and consequence of the information.  She was invited to comment on or respond to the information and advised that she could seek additional time to do so. The information is as follows:

   b.On 14 April 2014, during a Departmental interview the visa applicant stated that she was registered with Centrelink as the sponsor’s carer. She said that Centrelink sends people to help the sponsor.

   The sponsor responded and stated the following. The visa applicant is not registered with Centrelink as the sponsor’s carer. The plan is that if the visa applicant comes to Australia, they will all move to Queensland to live

   c.On 14 April 2014, during a Departmental interview the sponsor stated the following Her neighbour used to assist a long time ago. Her sons  live 7 minutes and 30 minutes away from her. She has two helpers from a government agency, one gives her a bath three times a week and the other cleans the apartment. Her neighbour also calls in each day to see if she needs anything. She goes to her medical appointments by taxi. 

   The sponsor responded and stated the following. Her sons do live seven and 30 minutes away from her. Currently she receives assistance five days a week.  She is helped with showering and cleaning and taken shopping.

   d.On 18 February 2021, the Tribunal received information that the sponsor is providing false information relating to the visa application and review and that she is an active person who is driving a car.

   The sponsor responded and stated the following. She used to be able to drive but because of her knee problems she does not drive now.

6. The Tribunal accepts that the sponsor suffers from the conditions as detailed in the CVAC and as detailed by her health care professionals. It understands that the sponsor is concerned about living alone. That she would rather remain in her own home and have the visa applicant live with her and provide care and assistance.

7. It is apparent that the sponsor is having trouble looking after some aspects of her welfare. It follows that it is a matter for her and her family to decide how best to care for her.  It is evident that the sponsor wants to live with the visa applicant and for her to provide the care and assistance she requires. However, there is no independent evidence before the Tribunal that assistance for the sponsor cannot reasonably be obtained from services in Australia. The sponsor simply stated that she hadn’t thought of investigating these services.  While Mr SA appears to have accepted the advice of his colleagues, about the cost of services for the sponsor, this does not necessarily mean that the assistance for the sponsor cannot reasonably be obtained from services in Australia including 24-hour services from welfare, hospital, nursing or community services in Australia.

8. The Tribunal is sympathetic to the sponsor’s circumstances.  However, the Tribunal is not satisfied that the evidence provided demonstrates that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, because there is little evidence to support this claim from relevant service providers.  Ultimately, other than statements given by the applicant and family members and the representative about obtaining services, the applicant has not provided any independent information that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor; rather, the sponsor has stated that she only wants the visa applicant to provide her with assistance and there is no capacity available to the Tribunal to waiver this requirement. This has led the Tribunal not to accept that assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

   Other considerations

9. The Tribunal told the sponsor of its concern regarding her comments during the Tribunal hearing about committing suicide. The Tribunal’s concern for the sponsor is paramount.  It encourages the sponsor to seek assistance from her medical professionals during any time of anxiety, stress, depression or suicidal ideations.

10. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. Having considered the evidence individually and as a whole, the Tribunal is not satisfied  that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, therefore r.1.15AA(1)(e)(ii) is not satisfied.

11. As the Tribunal has determined that the criteria for the grant of the visa have not been satisfied, the Tribunal has not considered the remaining criteria.

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

13. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought. There are no claims or evidence that the applicant meets the criteria for any of the other subclasses contained in Class BU.

14. As the visa applicant has not satisfied the criteria for the grant of the visa, it follows that the second, third and fourth named visa applicants do not meet the criteria for the grant of the visas.

    DECISION

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

    Helena Claringbold
    Member