Jabr (Migration)

[2023] AATA 1839

Jabr (Migration) [2023] AATA 1839 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jamilah Jabr

VISA APPLICANTS:  Mr Gerios Jabr
Ms Hanan Merhej
Mr Jubran Jabr
Ms Joelle Jabr

CASE NUMBER:  2212042

HOME AFFAIRS REFERENCE(S):          OSF2019/021709

MEMBER:Kira Raif

DATE:13 June 2023

PLACE OF DECISION:  Sydney

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 by the first, second and third named visa applicants:

·cl 116.221 of Schedule 2 to the Regulations

The Tribunal affirms the decision not to grant the fourth named visa applicant the Other Family (Migrant) (Class BO) visa.

Statement made on 13 June 2023 at 1:02pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of Australian relative – sponsor’s daughter/applicant’s sister currently caring informally for both sponsor mother and father – home care package for limited hours – physical and mental health – other specified relative studying and caring for own parent – assistance reasonably obtained from service providers – sponsor distrustful of strangers and unwilling to enter nursing home – applicant willing and able to provide substantial and continuing assistance required – members of family unit – oldest child over 23 and financially dependent on father at date of decision – not member of family unit as defined and decision affirmed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(2), 1.15AA, Schedule 2, cls 116.221, 116.321

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 Home Affairs on 24 June 2022 to refuse 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 are nationals of Lebanon. The first named visa applicant (the visa applicant) is the son of the sponsor. The application includes his partner and two children.

3. The visa applicants applied for the visa on 15 September 2019. The delegate refused to grant the visas on the basis that cl 116.221 was not met as the delegate was not satisfied the visa applicant was a carer of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

4. The review applicant and the visa applicant appeared before the Tribunal on 13 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration in relation to all the visa applicants except Ms Joelle Jabr.

   Relevant law

   Carer visa

5. At the time the application was made, 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. Relevantly to this matter, the primary criteria to be met include cl 116.221.

6. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations.

   Member of the family unit (Joelle Jabr)

7. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

8. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

   Joelle Jabr – member of the family unit

9. There is no evidence to indicate that Ms Joelle Jabr meets the primary criteria for the grant of the visa. Clause 116.321 relevantly requires Ms Jabr to be a member of the family unit of a person who is a holder of a Carer visa at the time of decision. Joelle Jabr is not the spouse, nor a dependent child of a dependent child of the family head. She is a child of the family head.

10. The review applicant provided to the Tribunal a copy of the primary decision record in relation to Joelle Jabr. It indicates that Miss Jabr was born in January 1999. At the time of this decision, Ms Joelle Jabr is over 23 years of age.

11. There is no evidence to indicate that  Ms Joelle Jabr is incapacitated for work due to total or partial loss of her bodily or mental functions. All participants in the hearing who gave oral evidence confirmed that no such incapacity exists. The Tribunal finds that Joelle Jabr is not incapacitated for work.

12. As Joelle Jabr is now over 23 years of age and the Tribunal finds that she is not incapacitated, the Tribunal is not satisfied she meets the definition of  being a member of the family unit of her father, the primary visa applicant, at the time of this decision. The Tribunal is not satisfied Joelle Jabr meets cl. 116.321.

13. The review applicant and Mr Jabr told the Tribunal that Joelle cannot remain in the country on her own and that she continues to be financially dependent on her father. The Tribunal acknowledges that this may be the case but the Tribunal has no discretion to recommend the grant of the visa in circumstances where one of the statutory requirements is not met.

14. The Tribunal affirms the decision under review in relation to Joelle Jabr.

    Whether the visa applicant is a ‘carer’

15. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 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 mother. The Tribunal is satisfied that the visa applicant is the child of the sponsor. Therefore, as the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

16. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 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.

17. For a certificate to meet reg 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, or issued by a specified health provider in relation to a review of such an opinion.

18. The primary application was accompanied by a BUPA certificate issued on 1 May 2018. The Tribunal is satisfied the certificate meets the requirements of reg 1.15AA(2). According to the certificate, the sponsor has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. It is stated that because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

19. 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 an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

20. 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 35. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

21. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 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 reg 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.

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

23. 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.

24. The visa applicant provided a number of documents with the application. This includes an Aged Care Plan prepared through My Aged Care which refers to the sponsor’s diagnoses of degeneration of the spine, diabetes, dementia, ischaemic heart disease, sleep apnoea, hypertension, falls, injuries to hands post falls, urinary incontinence and congestive heart failure. It is stated that her daughter Hanni, who lives with the sponsor and is her only support in Australia, is a carer for both parents.

25. The visa applicant provided a statement from Reliable Nursing indicating that the sponsor Ms Jabr receives services from Reliable Nursing under the Home Care Package. It is stated that Mr Jabr is frail and needs 24/7 assistance and her funding is not enough to meet her needs as the provider can only offer 8 hours of services per week while she needs a full-time carer. It is stated that her son is able to provide that assistance and he has made an application for a Carer visa. The Tribunal acknowledges that evidence and accepts the evidence in relation to the provision of care to Ms Jabr. However, in the Tribunal’s view, it is not the role of the service provider to determine whether the review applicant’s son should be granted the visa or whether he should act as a carer. It is not apparent to the Tribunal that the director of the service provider who had prepared that statement has any expertise to comment on the visa issues.

26. The review applicant subsequently provided to the Tribunal a copy of her ACAT assessment. It indicates that she and her husband receive informal care from their daughter who lives with them and acts as a full-time carer for both parents. It is stated that the daughter is exhibiting carer stress and needs assistance in looking after her mother when taking her father to appointments. It is stated that the review applicant also receives formal care through a Home Care Package Level 3, which includes domestic chores and other support.

27. In oral evidence Ms Jabr told the Tribunal that she lives with her husband and daughter. Her grandson is 16 years old and attends school (her daughter Hanni Jabr told the Tribunal her son is 20, attends university and lives elsewhere). She confirmed she receives formal help with cleaning but she said the carers do not do anything else. Her daughter does the cooking, helps with medication, takes her to medical appointments and helps with personal hygiene. Ms Jabr told the Tribunal that her daughter is getting tired and needs help. She said that she does not wish to consider a nursing home and prefers for her son to take care of her.

28. Ms Jabr’s ability to give evidence and meaningfully participate in the hearing was limited due to her dementia. Ms Jabr agreed for her daughter Hanni Jabr to give evidence on her behalf.

29. Ms Hanni Jabr told the Tribunal that she takes care of both parents. She helps with personal hygiene, takes them to doctors and cooks for them. The help her mother receives through the Home Care Package is primarily with cleaning. Ms Hanni Jabr said that she has bulging disks from lifting her mother who is a high falls risk. Ms Hanni Jabr states that her parents needs 24 hour need and if anything happens to her father, she cannot leave her mother. Ms Jabr gave an example that she had to take her father to the hospital and she could not take her mother with her. As she left her mother, her mother wandered outside of the house, due to her dementia, and the neighbours had to call her. Ms Hanni Jabr states that her mother falls all the time and she struggles to lift her. Her mother is incontinent and her father cries all the time.

30. Ms Jabr told the Tribunal that she cannot leave home without her parents and even has to take them to her own appointments as they cannot stay at home. She cannot handle the stress and the pressure. She cannot carry or lift her parents if they have a fall and neighbours do not often come to help.

31. Ms Hanni Jabr said both her parents have been approved for a Home Care Package for limited hours. Her father gets help with being taken to see doctors and sometimes if there is a long wait, one visit can take up the allocated hours. Her mother’s HCP is 8 hours a week, which includes shopping and taking her to medical appointments as she does not drive. Ms Jabr states that her parents are distrustful of others who attend the house, such as support workers.

32. Ms Hanni Jabr said that her mother would not consider a nursing home, and gets depressed when it is mentioned, stating that her children want to ‘get rid of her’. Ms Hanni Jabr was not sure if her mother has been approved for residential care. She showed to the Tribunal a copy of the ACAT assessment which does not seem to include approval for residential permanent or respite care.

33. Ms Hanni Jabr told the Tribunal that her son is 20 years old and lives with his father. She said that her son comes for short visits and talks to his grandparents but he does not offer any help and does not want to spend time with ‘old people’. Ms Hanni Jabr told the Tribunal that her former spouse has health issues, including heart issues and needs dialysis, and her son needs to help his father. She said that her son attends university and does not have time to provide care.

34. The Tribunal has generally found Ms Hanni Jabr to be a truthful witness. The Tribunal accepts that she provides care and support to her parents but the Tribunal also accepts that she is experiencing carer stress and that she is finding it difficult to provide some type of care (such as lifting her parents after a fall or taking them to appointments, which may necessitate leaving one at home where there is a risk of wandering and of falls). The Tribunal accepts, having regard to the above evidence that Ms Hanni Jabr is not able, on her own, to offer the assistance required by the sponsor.

35. The only other relative is the sponsor’s grandson. He does not live in the same household, attends university, has carer responsibilities in relation to his father (although there is no documentary evidence to support these claims) and is generally unwilling to offer help. The Tribunal is prepared to accept these claims.

36. Having regard to the extent and type of care that is required, the Tribunal accepts that assistance cannot be reasonably provided by an Australian relative.

37. As for other services, Ms Hanni Jabr’s evidence is that her mother is distrustful of strangers and is unwilling to enter a nursing home. The Tribunal also acknowledges that there may not be at present an ACAT approval for residential care, although that evidence is unclear.

38. Having regard to the sponsor’s strongly held beliefs and preferences, the Tribunal accepts that at least at present, a residential aged care facility may not be a reasonable option. There do not seem to be other alternatives that would be adequate, given the level of care required. The Tribunal is prepared to accept that assistance cannot reasonably be obtained from welfare, hospital or nursing or community services.

39. 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 reg 1.15AA(1)(e) are met.

40. 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.

41. 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.

42. In oral evidence, the visa applicant Mr Gerios Jabr explained the nature of care that his parents require and the medication his mother takes. Mr Jabr said that he has a driver license and will be able to take his parents to medical appointments. He also stated that he will be able to communicate with others when supporting his parents.

43. Ms Hanni  Jabr and Mr Gerios Jabr told the Tribunal that the visa applicants have some savings, and the visa applicant’s spouse and children can work to support the family without Mr Jabr having to seek employment. The evidence before the Tribunal is that the visa applicants can stay at the sponsor’s home.

44. The Tribunal is satisfied the visa applicant is able and willing to provide the substantial and continuing assistance required. Therefore, the visa applicant meets the requirements of reg 1.15AA(1)(f).

    Conclusion

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

    Conclusion

46. 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

47. 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 by the first, second and third named visa applicants:

    ·cl 116.221 of Schedule 2 to the Regulations

1. The Tribunal affirms the decision not to grant the fourth named visa applicant the Other Family (Migrant) (Class BO) visa.

   Kira Raif
   Senior Member