JABRO (Migration)

[2020] AATA 2804

JABRO (Migration) [2020] AATA 2804 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Elshoah Esho Jabro

VISA APPLICANTS:  Ms Hanan J. Bious
Mr Mazin Salim Zaya
Miss Noor Mazin Zaya
Miss Reta Mazin Zaya
Miss Raneya Mazin Zaya

CASE NUMBER:  1707431

HOME AFFAIRS REFERENCE(S):          OSF2015/038629

MEMBER:Moira Brophy

DATE:12 March 2020

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:

·cl.116.211 and cl.116.221 of Schedule 2 to the Regulations;

With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:

·cl.116.312 of Schedule 2 to the Regulations.

Statement made on 12 March 2020 at 3:01pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – Carer Visa Assessment Certificate – assistance cannot be reasonably obtained / provided – current circumstances of sponsor’s children – welfare or community services – residential care option – overnight care required – willing and able to provide ‘substantial and continuing assistance’ of the kind needed – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.211, 116.221, 116.312

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lin v MIMIA [2004] FCA 606
Perera v MIMIA [2005] FCA 1120
Rafiq v MIMIA [2004] FCA 564
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the first named visa applicant (the applicant), Ms Hanan J Bious, is a ‘carer’ of her mother and sponsor, Mrs Elshoah Esho Jabro.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 February 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

3. The visa applicants applied for the visa on 23 March 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). 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.

4. The delegate refused to grant the visas on the basis that cl.116.211 and cl.116.221 were not met because the delegate was not satisfied the applicant met the definition of ‘carer’ in relation to her mother.

5. The review applicant, Mrs Elshoah Esho Jabro appeared before the Tribunal on 4 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant Ms Hanan J Bious and from the daughters of the review applicant Ms Ibtesam Jamil Yousif and from Ms Janan Biouz. The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also taken into account the Carer Visa Assessment Certificate dated 4 September 2019 provided at the request of the Tribunal prior to hearing.

   Whether the visa applicant has claimed to be a ‘carer’

9. Clause 116.211 of the Regulations requires that the applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is a carer of the review applicant, who is the applicant’s mother.

10. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the 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.

11. There is a copy of the Carer visa application made by Ms Hanan Bious and her mother on the Department file. On that application Ms Hanan Bious claims to be the carer of her mother who is the sponsor, Mrs Elshoah Esho Jabro (the caree). The caree is an Australian citizen, as evidenced by the copy of the citizenship certificate provided.

12. Therefore, at the time of application the applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl.116.211.

    Whether Ms Hanan Bious is a ‘carer’

13. Clause 116.221 requires that at the time of decision, the applicant is a 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.

    Whether Ms Hanan Bious is a relative of the resident – r.1.15AA(1)(a)

14. Regulation 1.15AA(1)(a) requires the applicant to be 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 applicant’s mother.

15. The Department file contains identity documents of Ms Hanan Bious and her mother. The Tribunal is satisfied on the evidence before it that Mrs Elshoah Esho Jabro is the mother of Ms Hanan Bious and meets the definition of close relative. The Tribunal is also satisfied that Mrs Elshoah Esho Jabro is an Australian citizen and is ‘usually resident’ in Australia.

16. Therefore, as the applicant is the daughter of the Australian relative, the 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)

17. Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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.

18. 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 (see Legislative Instrument IMMI 17/126), or issued by a specified health provider in relation to a review of such an opinion.

19. Prior to hearing Mrs Jabro’s migration agent provided a Carer Visa Assessment Certificate from Bupa Medical Visa Services issued on 4 September 2019. The Tribunal is satisfied the certificate meets the requirements of r.1.15AA(2).

20. The certificate states that Mrs Elshoah Esho Jabro has medical conditions, which are causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life. The impairment has an impairment rating specified in the certificate and Mrs Elshoah Esho Jabro will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. Mrs Elshoah Esho Jabro is suffering from thyroid papillary cancer, osteoarthritis of the knee and hip, cervical and lumbar spine degenerative disease and severe major depression with psychotic features. Mrs Elshoah Esho Jabro has an impairment rating of 40 and requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating and feeding, supervising of medication, supervision for personal safety and transport.

21. The Tribunal finds that the certificate provided meets 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)

22. 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.

23. In the present case, the person with the medical condition is Mrs Elshoah Esho Jabro who according to documents on file is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

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

24. 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. The relevant instrument for these purposes is IMMI 17/126.

25. In the present case, the impairment rating specified in the certificate is 40. 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 because 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia. In determining whether the assistance cannot reasonably be obtained for the purposes of r.1.15AA(1)(e), the Federal Court has held that the question is whether the Australian relative can reasonably obtain assistance from the person or services; not whether that person is able to reasonably provide the required assistance, or those services are reasonably available: Lin v MIMIA [2004] FCA 606, Rafiq v MIMIA [2004] FCA 564 and Biyiksiz v MIMIA [2004] FCA 814.

29. The medical reports provided to the Department and the Tribunal indicate that Mrs Elshoah Esho Jabro is suffering from a variety of serious medical conditions including thyroid papillary cancer, osteoarthritis of the knee and hip, cervical and lumbar spine degenerative disease and severe major depression with psychotic features.

30. There was consistent oral evidence at the hearing regarding the arrangements for Mrs Jabro’s care. Mrs Jabro lives with her daughter Ms Ibtesam Jamil Yousif, her son-in-law and their son. The family lives in a three-level house with Mrs Jabro having a ‘granny flat’ on the ground level. Mrs Jabro receives a Centrelink payment and she uses that to pay for her medication and other needs. Her daughter and son-in-law meet her housing and food costs. Ms Yousif gave oral evidence that her mother requires assistance with many activities of daily living, including moving around her home and toileting. She said their biggest issue in providing care is the night time. There needs to be someone with her mother to tend to her needs during the night. If she needs to go to the toilet, they worry about her falling. The Tribunal accepts that Ms Yousif is reluctant to leave Mrs Jabro alone due to concerns for her safety and, as a consequence, she is constantly trying to balance her caring responsibilities to her mother with her need to work and care for her other family members.

31. The Tribunal accepts that Mrs Jabro has significant care needs given her multiple medical diagnoses. She requires supervision and assistance with many activities of daily living and cannot be left alone due to the risk of falls.

32. The Tribunal took oral evidence at the hearing from two of Mrs Jabro’s daughters. Many of Mrs Jabro’s relatives provided statutory declarations to the Tribunal. The following is a summary of the evidence regarding the personal circumstances of Mrs Jabro’s relatives:

    Children

    Nawal Jamil Biouz: daughter of Mrs Jabro currently living in Melbourne. Nawal has three children, two living in Melbourne and one daughter Diana in Sydney. She is in receipt of a carer payment for care she provides to her husband and is not able to provide any assistance to her mother because of distance and her own family commitments.

    Her daughter Diana is currently living in Sydney. She is working and has two young children. In a statutory declaration, she declared she was not able to provide any assistance in the care of her grandmother because of her own caring responsibilities.

    Janan Jamil Biouz: daughter of Mrs Jabro. Janan lives nearby and visits her mother two to three times per week helping in whatever way she can, given she is working full time (split shifts) and has five children. Janan’s husband is employed full time as a truck driver. Her eldest daughter lives in New Zealand with her partner and her four other children are still living at home. Her daughter is studying architecture and working. Her next child is studying a Diploma of Child Care and working in the industry. Her son Rami is studying to be a personal trainer and works at Kmart and her youngest son is aged 13 and at high school.

    Ibtesam Jamil Yousif: daughter of Mrs Jabro. Mrs Jabro currently is living in a granny flat on the ground level of Ibtesam’s home. Ibtesam lives with her husband who has a dental practice. Ibtesam works as a practice manager at the dental practice. She has three children, her youngest son lives at home and is in year 9.

    Her son Mathew is married and lives with his wife. He is employed full time as a driver and his wife is working in child care. He and his wife have two young children aged three years and six months. In a statutory declaration provided, he declared he was not able to provide any assistance in the care of his grandmother because of his work and family responsibilities.

    Her daughter Sarah is married with one child 18 months old and another due this month. She lives with her husband and child. She and her husband both work in a child care centre run by his family. She has very limited capacity to assist with the care of her grandmother given her own caring responsibilities and advanced pregnancy.

    Layla Jamel Peyos Namoos: daughter of Mrs Jabro. She has recently been resettled in Australia as a refugee with her husband and one son. She is currently caring for her husband who according to the medical evidence provided suffers from multiple medical conditions and he has recently undergone a coronary artery bypass graft. Evidence was given that the family were recovering from their traumas prior to coming to Australia and with the effects that had on their physical health. They too were requiring the assistance of other family members at the present time and they did not have the capacity to provide additional care to Mrs Jabro.

    Batool Namoos Jabro: daughter of Mrs Jabro. She too has recently been resettled in Australia as a refugee with her husband and three sons. According to the medical evidence, she was not able to work and she has a history of breast cancer, osteoarthritis, depression and numerous other health conditions. Her husband and sons were adjusting to their new country and assisting their mother with her health needs. The members of the family unit were not able to assist with Mrs Jabro’s caring needs. It was envisaged their own needs would prevent them from providing care for the foreseeable future.

33. The Tribunal is mindful that Mrs Jabro has five children and 10 adult grandchildren living in Australia. It is troubling that many of Mrs Jabro’s relatives told the Tribunal at the hearing that it is culturally appropriate to continue to provide care to Mrs Jabro in her own home rather than residential care, but no family member other than Ms Bious is apparently willing to provide the required assistance to enable her to remain in her home.

34. The Tribunal accepts that Mrs Jabro has limited contact with her daughter who lives in Melbourne and that her time is taken up caring for her husband. Ms Yousif works full time in their family dental practice. Ms Janan Biouz provides what assistance she can but she is in full-time employment and she has five children. Her two daughters who have recently arrived in Australia are both dealing with health concerns including the scars they bear from having to leave their home country and the practical dislocation of relocating their family to a new country. The Tribunal acknowledges that Mrs Jabro requires assistance with personal care tasks such as showering and toileting and would not feel comfortable having these tasks performed by a person other than one of her daughters. While Mrs Jabro’s children and adult grandchildren would undoubtedly be able to organise a roster to ensure her needs are met, the Tribunal accepts that constantly changing caregivers may be unsettling for her. No relative is prepared to make a full-time commitment to Mrs Jabro because they are caring for their immediate family members, working and/or have their own health problems. As Finn J stated in Rafiz v MIAC [2004] FCA 564, what a relative is capable of doing and what that person is willing to do are not necessarily the same. Despite having significant concerns about the evidence presented to support this application, particularly as Mrs Jabro has so many family members living in Australia, the Tribunal has concluded that none of Mrs Jabro’s relatives in Australia is willing to provide her with the care that she requires.

35. For the above reasons, the Tribunal is satisfied that the assistance required by Mrs Jabro cannot reasonably be obtained from her Australian relatives.

36. The Tribunal has also considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

37. 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].

38. An Aged Care Assessment Team (ACAT) Assessor, Ms Ariarne O’Connell, wrote in her letter of 12 March 2015 that Mrs Jabro was assessed in 2015 and approved for the highest level of care – high-level home care package, high-level respite and residential care. The Tribunal was mindful that further ACAT assessments are not conducted where a client has been approved for the highest levels of care.

39. The Tribunal discussed welfare, hospital, nursing or community services, including a residential care option, with Mrs Jabro’s daughters. Ms Yousif gave oral evidence that her mother would not be comfortable with strangers in her home. She prefers to receive care from those with whom she has a close personal relationship, in particular Ms Bious who was her primary carer before she came to Australia. Ms Yousif said that her mother does not want to go into residential care. It would also be inconsistent with their culture to place her mother in respite or full-time residential care and Ms Yousif considered it would be detrimental to Mrs Jabro’s mental health. The Tribunal accepts that Mrs Jabro requires 24-hour care because she needs supervision and assistance with toileting at night. It also accepts that Mrs Jabro strongly prefers to remain in her own home.

1. The NSW and Australian governments provide various services to assist elderly people to continue to reside in their homes. Mrs Jabro has been assessed as eligible to receive a high-level home care package, and that provides her with assistance four days a week for two to three hours. That assistance is with cleaning, meals and shopping. The Tribunal accepts that there would be no obtainable welfare or community services that could provide 24-hour assistance to Mrs Jabro. While community assistance is in place for Mrs Jabro, the Tribunal is not satisfied that such services are sufficient to meet Mrs Jabro’s needs, which include overnight care.

2. Based on the evidence before it, the Tribunal is satisfied that the assistance required by Mrs Jabro cannot reasonably be obtained from welfare, hospital, nursing or community services.

3. The Tribunal is satisfied that the assistance cannot reasonably be obtained from a relevant relative or service in Australia and therefore the requirements of r.1.15AA(1)(e) are met.

   Willing and able – r.1.15AA(1)(f)

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

5. 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.

6. The Tribunal is satisfied that Ms Bious is aware of and familiar with her mother’s medical conditions and care needs. Previously Mrs Jabro resided with Ms Bious. While there is no doubt Mrs Jabro’s medical needs are higher now than they were prior to her coming to Australia the Tribunal accepts Ms Bious is aware of her mother’s needs. The evidence was that Mrs Jabro has high care needs due to poor mobility and complicated medical problems and the ACAT Assessment confirms this. Without her daughter’s care, she would be required to enter a high care bed in a nursing home.

7. Ms Bious is not currently in the paid workforce and understands that in order to provide the care her mother needs she will be required to prepare all of her mother’s meals and do her washing, shopping and pay her bills. She will be required to assist her mother with showering, assist her with toileting and ensure she gets to medical appointments. The Tribunal is satisfied that Ms Bious is able to provide care to her mother despite being the primary carer for her three young children because they will live in the same household and Ms Bious will receive some assistance to juggle the competing demands on her time from her husband and other family members. Ms Bious’ evidence regarding her concern for her mother’s welfare impressed the Tribunal as sincere.

8. The Tribunal accepts this evidence and concludes therefore that Ms Bious is willing and able to provide to her mother substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

9. Given these findings, at the time of decision Ms Bious is a carer of the Australian relative, being Mrs Jabro, and therefore satisfies cl.116.221.

10. Therefore, Ms Bious 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

11. Given these findings, at the time of decision Ms Bious is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.116.221.

12. 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.

    Secondary applicants

13. The secondary applicants are Ms Bious’ husband and three children. The Tribunal is satisfied that the sponsorship mentioned in cl.116.213 of the person who satisfies the primary criteria includes sponsorship of the family members. Consequently, the secondary applicants meet cl.116.312.

    DECISION

14. 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.116.211 and cl.116.221 of Schedule 2 to the Regulations;

    With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:

    ·            cl.116.312 of Schedule 2 to the Regulations.

    Moira Brophy
    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.