Khan (Migration)

[2019] AATA 1668

Khan (Migration) [2019] AATA 1668 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Zilpukar Khan

CASE NUMBER:  1720944

HOME AFFAIRS REFERENCE(S):           CLF2016/10393

MEMBER:Justin Owen

DATE:30 January 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 30 January 2019 at 3:09pm

CATCHWORDS
MIGRATION – Other Family (Residence)(Class BU) – Subclass 836 (Carer) – permanent or long-term need to provide direct assistance – insufficient evidence to determine assistance could not be provided by other family member or service – unconvincing and weak evidence to the needs of the primary carer requiring direct assistance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, r 1.15AA, cl 836.221

CASES

Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554

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 and Border Protection on 24 August 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 February 2016. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B 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 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221. Clause 836.221 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.

3. The delegate refused to grant the visa on the basis that under cl.836.221 the applicant had not provided sufficient evidence to determine that the resident had a permanent or long-term need for assistance in providing direct assistance mentioned in regulation 1.15AA(1)(b)(iv) and therefore did not meet regulation 1.15AA(1)(d).  The delegate also found that the applicant had not provided sufficient evidence to determine that the assistance cannot be reasonably be provided by any other relative of the resident, or reasonably obtained from welfare, hospital, nursing or community services in Australia: regulation 1.15AA(e)(i) and regulation 1.15AA(1)(e)(ii).  As the applicant did not meet these requirements the delegate found the applicant was unable to meet the requirements of a Carer as defined in regulation 1.15AA.  As the applicant did not satisfy regulation 1.15AA, the delegate found the applicant did not meet cl.836.221 in Schedule 2 to the Regulations.  

4. The applicant appeared before the Tribunal on 24 January 2019 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. As stated in the decision record the applicant provided the Tribunal, the applicant has provided evidence of a Carer Visa Assessment Certificate for the daughter of the Australian resident, his niece Miss Ayesha Saima Ali.  The decision record states that Miss Ali was assigned a rating of 30 under the Impairment Tables in her Carer Visa Assessment Certificate.  The delegate’s decision states that Miss Ali has Downs Syndrome. 

7. The applicant claims to reside with Miss Ali, her mother (and his sister) Mrs Saira Ali and his brother in law, Miss Ali’s father.  The Tribunal accepts the applicant is Miss Ali’s uncle and he is currently residing with Miss Ali and her parents.   

8. The Tribunal discussed with the applicant the care he currently provides his niece Miss Ali who is 15 years of age.  The applicant said he has resided with Miss Ali and her parents since his relationship with his partner ended in November 2015.

9. The applicant said he cares for Miss Ali by taking her to and from school (she is a student at Cecil Hills High).  He said he does the shopping for the house with Miss Ali (with funds provided by Miss Ali’s mother and her husband). 

10. The Tribunal asked what Miss Ali’s mother, given she lives under the same roof, did for her daughter in terms of the provision of care.  The applicant said Miss Ali’s mother does all the showering and toileting related activities with Miss Ali.  He said that if he was feeling unwell then she does the activities he would normally do with Miss Ali.  The applicant said Miss Ali’s mother also would clean around the house. Mr Ali’s claim is that he is the carer of Miss Ali.    

11. Where the person to whom the Carer Visa Assessment 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 as a result of the medical condition.

12. In the present case the Australian relative (resident) is not the subject of the certificate. The person to whom the certificate relates to is Miss Ayesha Saima Ali who at the time of decision is 15 years old.  The decision record states that Miss Ali was assigned a rating of 30 under the Impairment Tables in her Carer Visa Assessment Certificate.  The delegate’s decision states that Miss Ali has Downs Syndrome.  The Australian relative claiming to have a permanent or long-term need for assistance in providing the direct assistance needed in attending to the practical aspects of Miss Ali’s daily life for at least 2 years as a result of the medical condition is the applicant’s sister, the mother of Miss Ali, Mrs Saira Ali. 

13. Mrs Saira Ali provided an undated written statement to the Tribunal (T1, Folio.46).  In the statement she writes ‘I am a sick woman and suffer depression and anxiety, especially because of the medical condition of my daughter and I have been seeing doctors since my daughter was diagnosed with downs syndrome…..I provide many medical certificates from various doctors namely Dr H Ortiz dated 12/9/2016; Dr Nicole Robinson, Clinical Psychologist dated 24 April 2012, Dr H M dated 7 December 2015 and discharge referral from Liverpool Hospital.’ 

14. Mrs Ali’s correspondence claims the applicant has assisted her in caring for her daughter Miss Ayesha Saima Ali. She writes that her daughter is improving because of the dedication of the applicant and she ‘totally support that my brother Mohammed be approved as a carer for my daughter.’ 

15. The applicant provided the Tribunal with a written statement (T1, Folio.43) where he claims Miss Ali ‘only feels secure with me around rather with her mother who suffers depression.’  The applicant in support of his assertions concerning the mental state of Mrs Ali also stated in his correspondence ‘The Department refused an application because at the time the Department said that the mother of Ayesha failed to submit evidence that she suffers from anxiety and depression.  I am pleased to submit a certificate which was given to the Department and maybe was not on file.  I submit the following: a) Pro Active Psychology Report dated 24 April 2012; b) Medical report from Dr H.M. To dated 7 December 2015; c) Discharge referral dated 9/9/2015.’

16. The written statement from Mrs Ali’s sister Miss Shakila Khan Koya (T1, Folio.48) also attested to Mrs Ali’s ‘major depression.’ Mrs Ali also provided a statutory declaration to the delegate that the Tribunal has considered (D1, Folio.90) where she claims to suffer from depression and anxiety. 

17. The Tribunal notes the claims made by the applicant and Mrs Ali concerning the provision of supporting medical evidence in relation to the claim she is suffering from major depression.  The only medical evidence however pertaining to the claims concerning Mrs Ali’s depression were a letter from a GP Dr H. Ortiz of Green Valley Medical Practice dated 10 January 2019 (T1, Folio.53) stating Mrs Ali ‘…suffers from major depression and is receiving psychological treatment and is taking Diazepam as needed’ and a medical discharge referral from  September 2015 where Mrs Ali had presented to Liverpool Hospital after experiencing cramps, pins and needles in her lower limbs before being discharged the next day.

18. At the hearing the Tribunal noted to the applicant the claims he had made in his correspondence to the Tribunal that he submitted with his letter: a) Pro Active Psychology Report dated 24 April 2012; b) Medical report from Dr H.M. To dated 7 December 2015; c) Discharge referral dated 9/9/2015.’  The Tribunal noted that only the discharge referral from 2015 had been received (only on the morning of the hearing) as well as a letter dated 10 January 2019 from Dr Ortiz.  The Tribunal noted that the first two mentioned pieces of medical evidence had never been received.  The Tribunal found the applicant to be evasive when questioned about this and he conceded he didn’t have the documents at the hearing and had not sent them to the Tribunal. 

19. Given the paucity of corroborative evidence concerning Mrs Ali’s mental health and her claims of depression and anxiety – and the impact that has on her ability to care for her daughter Miss Ali – the Tribunal is unconvinced that she has a permanent or long-term need for assistance in providing care and assistance to her daughter.  The Tribunal questions the credibility of the applicant’s evidence given the clear claim in his correspondence to supply the Tribunal with supporting corroborative evidence concerning his sister Mrs Ali has largely not been substantiated. 

20. The Tribunal has noted the claims made by the applicant and his sister Mrs Ali that her husband – the father of Miss Ali who resides under the same roof – is working and ‘does not have the patience to spend enough time with his daughter.’  The Tribunal accepts that the father of Miss Ali works full-time in a factory as attested to in oral evidence by the applicant which inevitably limits the amount of time he can spend assisting Mrs Ali in her responsibilities to care for her daughter. The Tribunal does not however accept, in the absence of any evidence whatsoever, that this precludes him from providing care, support and assistance to his wife Mrs Ali in her own provision of direct assistance to their daughter. 

21. The Tribunal furthermore notes from the oral evidence of the applicant that Miss Ali is a student at Cecil Hills High School who derives an enormous amount of enjoyment and joy from regularly attending school and is looking forward to returning for the 2019 school year.  The Tribunal notes the role Cecil Hills High School plays in providing a level of care and assistance to Miss Ali.      

22. The Tribunal asked the applicant if Miss Ali’s mother was working.  He said she had not worked since Miss Ali was born.  The applicant initially said to the Tribunal he was not sure if Miss Ali’s mother Mrs Saira Ali was collecting a Carer’s payment before agreeing that she was receiving a Carer’s payment.  The Tribunal notes from the Form 40 Sponsorship for Migration to Australia form submitted as part of the application that Miss Ali’s mother, Mrs Saira Ali, claims to have received a Carer’s Allowance since 15 June 2010 (T1, Folio.31).  There is no claim made or evidence before the Tribunal that Mrs Ali is not continuing to be supported by Centrelink as the Carer of her daughter Miss Ali.    The Tribunal furthermore notes from the correspondence of 10 January 2019 the applicant provided from Mrs Ali’s GP Dr H.Ortiz who whilst acknowledging the applicant was looking after Mrs Ali, claimed ‘Saira is the main carer for her 15 years old daughter Ayesha.’  

23. The Tribunal has found the evidence that the resident Mrs Ali has a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv) both weak and unconvincing. The Tribunal finds that the applicant does not meet regulation 1.15AA(1)(d). 

24. 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.

25. The applicant has claimed that he is the carer of his niece Miss Ali.  In his written statement to the delegate (D1, Folio.97) he claimed ‘Aysha is not able to receive help from her father who has a full-time job and even my sister, Saira Ali, Aysha’s mother, is very happy that I have been taking the responsibility of looking after her daughter Aysha’ and ‘My sister cannot get support from any other siblings because they all have full-time jobs and families.’  At the hearing the Tribunal enquired as to assistance and support that was being provided by other relatives. 

26. The applicant said that Mrs Ali had a second daughter, Zahira who is 32-years old and resides in Kellyville Heights.  He stated that she has a full-time job and has a young daughter.  He stated that she comes around to the home of her mother and sister Miss Ali about every two months and has little to do with Miss Ali. 

27. The applicant said that his sister Miss Shakila Khan Koya visits occasionally but speaks to her mother Mrs Ali more frequently.  A signed written statement from Miss Koya was provided (T1, Folio. 48) that states she works at IGA Parramatta six days a week and for over 60 hours per week.  She claimed to have no time to assist her niece Miss Ali but maintains contact with her sister Mrs Ali.  She claims in her written statement that ‘neither I nor Ayesha’s mother can replace’ the care provided by the applicant and ‘Ayesha cannot obtain proper assistance from anybody else.’

28. The Tribunal asked about other family members.  The applicant said he had two brothers that had lived for 35 years and 30 years in Brisbane and Melbourne respectively.  He said they had their own lives and children and were unable to provide any support for Mrs Ali. 

29. The applicant said that he also had three aunts and three uncles who lived around Liverpool but were in the 60s and 70s and were mostly retired. 

30. Apart from the signed statement by his sister Miss Koya and the statutory declaration and statement of Mrs Ali (D1, Folio.91 and T1, Folio.46) the applicant provided no other corroborative evidence to substantiate any of the claims concerning the inability of his other family members to provide any assistance to the resident Mrs Ali.

31. Despite the lack of evidence the Tribunal is prepared to accept that the interstate location of his two brothers precludes them from providing any assistance to Mrs Ali.  The Tribunal also accepts that the claimed circumstances of Mrs Ali’s daughter Zahira make it difficult for her to provide assistance.

32. The Tribunal notes that care may be provided collectively by more than one relative. In Jajo v 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. The Tribunal is not satisfied that Mrs Ali’s sister Miss Koya is unable to provide at least some degree of support and assistance to her sister Mrs Ali on a needs basis. The Tribunal furthermore is not satisfied that Mrs Ali’s husband – who resides with both her and her daughter Miss Ali – is unable to reasonably provide the assistance required. The Tribunal accepts the applicant’s claim that Mrs Ali’s husband works full-time in a factory. The Tribunal accepts this would be tiring work. The Tribunal does not however based on little more than the oral and written statements of the applicant and written claims of Mrs Ali – consider he is unable to reasonably provide the assistance the resident Mrs Ali requires. There is no claim made or evidence before the Tribunal that he is suffering from any physical or mental impediments that would preclude him from assisting his wife Mrs Ali with the care of their daughter.

33. 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].

34. On the evidence before it, the Tribunal is not satisfied that the assistance required by the resident Mrs Ali cannot be reasonably provided by a relevant relative: namely, her husband with occasional support from her sister Miss Koya.   The applicant does not meet 1.15AA(1)(e)(i).       

35. The Tribunal has also considered whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: 1.115AA(1)(e)(ii).

36. The Tribunal discussed with the applicant whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.

37. The applicant said that Miss Ali is receiving some support through the NDIS.  He claimed he had been provided with a Companion Card through NDIS.  He stated that Miss Ali is receiving speech therapy and free gymnasium through the NDIS.  He stated he takes her to these services. 

38. The applicant said he had attempted to get assistance for Miss Ali and had telephoned a number of establishments but was unable to obtain care.  The Tribunal asked when he had done this.  He stated he had attempted about a year ago.  The Tribunal notes his written statement to the Tribunal (T1, Folio.43) that he had contacted the Bankstown Aged Care facilities at 74 Chiswick Rd, Bankstown and had been told they cannot assist.  He writes that with his sister they had made ‘many enquiries’ concerning a full-time carer but none was available. 

39. The applicant said he had made enquiries in the last week and at the hearing showed the Tribunal a telephone number..  He also submitted at the hearing a copy of an email from his sister Miss Koya (T1, Folio 60).  In the correspondence dated 23 January 2019 Miss Koya claims  ‘I have contacted company called uniting called Bankstown hospital  Bupa care/Bass hill care ERN Vine village.’ Miss Koya claimed she tried these services as her sister is not well and Miss Ali requires care.  She wrote that unfortunately these community services were unable to help Miss Ali.

40. The Tribunal enquired as to evidence of contact that had been made with the providers of any community or welfare services.  The applicant showed the Tribunal a telephone number and the name of a provider at the hearing.  No further corroborative evidence of any attempts to obtain welfare, hospital, nursing or community services were submitted to the Tribunal. 

41. The Tribunal considers on the evidence before it that the attempts that have been made to obtain welfare, hospital, nursing or community services have been extremely limited.  There is little evidence of any genuine attempts that have been made to procure such services.  On the basis of such little corroborative and supportive evidence, the Tribunal is not satisfied that the assistance (needed) cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met. 

42. The Tribunal is furthermore not satisfied that a combination of assistance provided by Mrs Ali’s husband and her sister cannot provide the assistance she claims to require, especially in conjunction with any available services from welfare, hospital, nursing or community services. 

1. The Tribunal is not 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 r.1.15AA(1)(e) are not met.

2. As discussed earlier in this decision record, the Tribunal has also found the evidence that the resident Mrs Ali has a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv) both weak and unconvincing. The Tribunal finds that the applicant does not meet regulation 1.15AA(1)(d). 

3. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is not a carer of an Australian relative, being the review applicant, and therefore does not satisfy cl.836.221. 

4. For the reasons stated, the visa applicant does not meet the criteria for a Subclass 836 visa. 

5. 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

6. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

   Justin Owen
   Senior 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.