Javoric (Migration)

[2017] AATA 2627

Javoric (Migration) [2017] AATA 2627 (8 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Samir Javoric

VISA APPLICANTS:  Mrs Indira Sahovic
Mr Samir Sahovic
Mr Asmir Sahovic

CASE NUMBER:  1602507

DIBP REFERENCE(S):  OSF2013/014128

MEMBER:Kira Raif

DATE:8 December 2017

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 08 December 2017 at 9:55am

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Not genuinely separated from wife – Wife receives Carer payments – Contribution by two children – No reasonable inquiries made to agencies

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cl 116.221

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 December 2015 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 are nationals of Bosnia and Herzegovina, currently resident in Italy. The first named applicant (‘the visa applicant’) is the sister of the sponsor. She was born in April 1971. The visa applicants applied for the visa on 17 September 2013. The application includes her partner and child. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant was the carer of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 14 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s former spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Bosnian and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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 (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.

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

   Whether the visa applicant is a ‘carer’

6. Regulation 1.15AA(1)(a) requires the applicant is 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 visa applicant’s brother and the Tribunal is satisfied the visa applicant is a ‘relative’ of the resident within the meaning of r.1.03. The visa applicant meets the requirements of r.1.15AA(1)(a).

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

8. 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 or issued by a specified health provider in relation to a review of such an opinion.

9. The visa applicant provided with her application a Certificate issued by Medibank Health Solutions in April 2013 indicating that the sponsor met the requirements for a carer as he had an impairment rating of 35 points on the Impairment Rating Tables. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life. Given the age of that Certificate, the Tribunal invited the review applicant to obtain an updated Carer Certificate. The applicant provided to the Tribunal the new Certificate dated 30 November 2017 which confirms that the applicant has a medical condition that is causing physical, intellectual or sensory impairment and a need for direct assistance. The rating of 30 has been assigned.

10. The Tribunal is satisfied that the certificate meets the requirements of r. 1.15AA(2). The Tribunal is satisfied that according to the Carer certificate, the sponsor has a medical condition causing impairments of his ability to attend to the practical aspects of daily life and as a result of such condition, which will continue for at least 2 years, there is a need for direct assistance in attending to the practical aspects of daily life. 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.

11. 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 the sponsor and there is evidence that the sponsor is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

12. 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 current certificate is 30. This rating equals the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c). The Tribunal also acknowledges the additional medical evidence presented by the review applicant and accepts that he has a number of medical conditions.

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

14. 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.

15. The review applicant provided a declaration with the primary application in which he claims that he is estranged from his wife who cannot care for him. A declaration from his former wife, dated October 2015, also refers to separation and her unwillingness to care for the sponsor. The review applicant states that he has approached a number of organisations, including the local City Council and Centrelink and Community Support (Disability) South Australia but these organisations cannot provide the in-house support that he requires. The Tribunal is mindful that it is not the responsibility of at least some of these organisations (such as City Council or Centrelink) to provide the support of the kind that may be required by the review applicant and to approach such organisations for the purpose of establishing that relevant support cannot be obtained is unhelpful.

16. The review applicant provided a statement from his GP at Galway Medical Centre indicating that the review applicant and his wife had separated in September 2013 but continue to live in the same house for financial reasons and because of their children but his former wife does not want to continue to care for him. With respect, the Tribunal does not consider it to be the role of a general practitioner to describe one’s marital status or the circumstances of the separation and the couple’s living arrangements. The Tribunal finds that evidence unhelpful. The review applicant also presented a statement from Centrelink issued to his former spouse in October 2015, which indicates that she is ‘partnered’, which appears to contradict the review applicant’s claim that they separated in 2013.

17. In oral evidence to the Tribunal, the review applicant confirmed that he has been separated from his wife but they have not divorced. The applicant said that they had been informed by Centrelink that the separation has not been accepted and Centrelink considers them to be a couple. In the Tribunal’s view, that decision contradicts the applicant’s evidence that he and his wife have separated and are no longer a couple and brings into question the review applicant’s evidence that his wife is either unwilling or unable to look after him. Further, if the review applicant considered the Centrelink finding to be wrong, he had the option of appealing that decision. The review applicant told the Tribunal he had not appealed the Centrelink decision because he did not know how to and did not want to. The Tribunal is mindful that the Centrelink appeal process is not dissimilar to the appeal process relating to an immigration decision and the applicant’s ability to engage in the review process relating to the visa refusal suggests that he was equally able to engage in the review process with respect to the Centrelink finding. That is, if the applicant believed the Centrelink decision about his relationship status with his partner to be wrong – if he and his partner had genuinely separated as they claim – the applicant had the opportunity to appeal the Centrelink decision which identifies them as a couple.

18. The applicant’s evidence is that his former partner continues to receive a Carer Allowance. The applicant also told the Tribunal that they have not considered formal divorce. They continue to live under one roof and although the applicant claims they have their own lives, there is little documentary evidence of their arrangements being separated. The applicant told the Tribunal they share their finances and the children also contribute to the household expenses. There appears to be a sharing of financial arrangements. In these circumstances, the applicant has not satisfied the Tribunal that he and his partner have separated or that they are no longer in a spousal relationship. The Tribunal considers the applicant’s spouse to be a ‘relative’ for the purpose of this application.

19. The Tribunal questioned the review applicant about the assistance he requires. He said he requires assistance with taking medication and reminding him about medication and sometimes with getting dressed. The applicant said he sometimes needs assistance with social interactions and meal preparation. The review applicant said he did not know or could not remember what other assistance he requires.

20. The review applicant said his daughter, who is aged 19, has completed high school and is now in the second year of university. The review applicant said his daughter does not attend university every day but he was not sure what her study hours were and he said she also works. The review applicant said his daughter cannot help but there is no obvious reason why his daughter cannot help with at least some tasks, such as cooking and reminding the review applicant about medication or supervise the taking of medication. The review applicant then said that his daughter refuses to help and he referred to his daughter’s written statement. The Tribunal does not accept that evidence and does not accept that the review applicant’s daughter has refused to provide at least some assistance required. While the Tribunal accepts that the daughter is unable to provide the requisite assistance on a full-time basis, due to her study and work commitments, the Tribunal is not satisfied that the daughter is unable to contribute to the assistance the review applicant requires.

21. The review applicant told the Tribunal that his son is 26 years old and has his own life. The Tribunal accepts that this is the case but the Tribunal is also mindful that the son lives in the same household and, despite his age and desire to have his own life and work commitments, the Tribunal is not satisfied that the son is unable to provide at least some assistance to his father. The Tribunal acknowledges the son’s statement that he may wish to start his own family but there is no evidence before the Tribunal that the son does have other family commitments and a mere possibility of a future change of circumstances is not sufficient to establish the son’s inability or unwillingness to provide the care. The Tribunal acknowledges the applicant’s evidence that the children may decide to move out one day in the future but there is no evidence that any arrangements have been made at present or that such arrangements are likely to be made in the foreseeable future.

22. Further, for the reasons stated above, the Tribunal is not satisfied that the applicant and his partner have separated, so the Tribunal considers the applicant’s wife to be a relative for the purpose of r. 1.15AA(e). Ms Javoric told the Tribunal about her own medical needs but she confirmed that despite these, she continues to provide assistance to the review applicant. The Tribunal is mindful that the applicant’s spouse does presently provide the requisite assistance, despite her evidence is that she is unwilling to continue to provide such assistance in the future. The Tribunal is not satisfied that the spouse is either unwilling or unable to provide assistance.

23. The review applicant presented additional evidence to the Tribunal concerning the availability of assistance. In his submission to the Tribunal the review applicant claims that the assistance he receives from his family is not adequate, for example his children are not at home most of the day and during the evening and his daughter, who is a minor and a student, cannot be expected to provide much care. His son has a cleaning business and works various shifts and he plans to move away from his parents’ home. As noted above, the Tribunal has formed the view that the two children are able to contribute to the provision of assistance, even if not provide such assistance on a full-time basis due to their commitments. The review applicant also states that his wife continues to live in the same household, despite the separation, and receives the Carer payment from Centrelink but she wants to move on with her life and does not wish to continue to provide the assistance. The review applicant claims his wife is not willing to continue to care. As noted above, the Tribunal finds that evidence unconvincing. The Tribunal is not satisfied that the couple have genuinely separated. They appear to have little issue with the Centrelink determination that they are a couple and with the wife’s receipt of a Carer allowance. No evidence has been presented of any arrangements that the review applicant’s partner has made, or intends to make, to move out or ‘move on’.

24. Generally, the Tribunal accepts that none of the review applicant’s relatives in Australia are able to provide the requisite assistance on a full-time basis due to various commitments. The Tribunal does not accept the review applicant’s evidence that his children are unwilling to care. Their own statements refer to various commitments and lack of availability, rather than unwillingness to care. Neither does the Tribunal accept that assistance cannot reasonably be provided by the applicant’s spouse. The Tribunal is also not satisfied that the review applicant’s partner is unwilling to provide care.

25. The Tribunal also questioned the review applicant about inquiries he made with other organisations. The review applicant said they are not able to provide the assistance however, as noted above, the Tribunal is not satisfied the review applicant made adequate inquiries about the availability of such assistance. The Tribunal accepts that the applicant had contacted some organisations but the Tribunal is not satisfied that the appropriate organisations have been contacted or that the assistance cannot be provided. Following the hearing, the review applicant provided to the Tribunal a list of other agencies he claims to have contacted. There is no evidence of such contact, merely a list of organisations, and no evidence of any responses. The review applicant claims that he was advised these organisations cannot help until he registers for NDIS, which takes time, but again the applicant presented no evidence to show that NDIS is unable to offer service within a reasonable timeframe in the applicant’s circumstances. The presented evidence is not sufficient to satisfy the Tribunal that the applicant had made reasonable inquiries about the availability of support from other agencies. The Tribunal is not satisfied on the limited evidence before it that at least some degree of assistance cannot be obtained from various organisations in Australia.

26. The Tribunal has formed the view that assistance from a combination of the various sources – the applicant’s relatives and assistance from other organisations - could meet the review applicant’s needs. The Tribunal is not satisfied on the evidence before it that the requisite assistance cannot be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services. The Tribunal is not satisfied the visa applicant meets the requirements of r.1.15AA(1)(e).

27. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221. The secondary applicants do not meet cl. 116.321 and there is nothing to suggest they meet the primary criteria for visa grant.

28. The visa applicant indicated on the application form that he and his partner have siblings in Bosnia and Herzegovina. The Tribunal finds that such relatives are ‘near relative’ as defined at r. 1.15(2). The Tribunal is not satisfied that the visa applicant has no near relatives other than near relatives usually resident in Australia. The Tribunal is not satisfied that the visa applicant is a ‘remaining relative’ of the review applicant as required by cl. 115.211. The visa applicant is not old enough to be granted an aged pension and he is not an aged dependent relative of the Australian relative.

    Conclusion

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

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

    Kira Raif
    Senior Member