Lazarevic (Migration)

[2022] AATA 4869

Lazarevic (Migration) [2022] AATA 4869 (22 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dalibor Lazarevic

VISA APPLICANTS:  Mr Goran Mitrovic
Ms Dragica Mitrovic
Ms Gordana Mitrovic
Mr Mitar Mitrovic

REPRESENTATIVE:  Ms Danijela Stojanovic (MARN: 0958278)

CASE NUMBER:  2007889

HOME AFFAIRS REFERENCE(S):          OSF2016/029162 OSF2019/021707

MEMBER:Justin Meyer

DATE:22 November 2022

PLACE OF DECISION:  Melbourne

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 116.221 of Schedule 2 to the Regulations

In relation to the secondary applicants, the Tribunal remits the applications for the visas to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 22 November 2022 at 11:41am

CATCHWORDS  
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsorship requirements – carer of an Australian relative – assistance from other relatives – assistance from certain services – cultural barriers – agoraphobia – decision under review remitted 

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 116.212, 116.221

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 1 April 2020 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 applied for the visa on 5 July 2016. 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 (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.

3. The delegate refused to grant the visas on the basis that cl 116.221 was not met because (per the delegate’s decision):

   The Department accepts that the sponsor preferred to be cared for by a family member, this does not negate the requirement for the family to thoroughly investigate a broad range of other suitable care arrangements for the purposes of this application. I am not satisfied that this has occurred.

   Having assessed all of the information available to me, I am not satisfied that it has been demonstrated that a full investigation on the availability of in-home welfare/community facilities has been made.

   While I accept that the sponsor requires care, I do not find that it has been demonstrated that the care he requires has been sought and cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant does not meet regulation 1.15AA(1)(e)(ii).

   As the requirements of regulations 1.15AA(1)(e)(ii) have not been met, I further find that regulation 115AA(1)(e) within the definition of ‘Carer’ is not met.

   As I have determined that regulations 1.15AA(1)(e) within the definition of ‘carer’ at regulation 1.15AA are not met at time of decision on this application. I also find that Clause 116.221 of the Schedule 2 of the Migration Regulations is not met.

4. The review applicant appeared before the Tribunal on 15 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from, the primary visa applicant Mr Goran Mitrovic who is the review applicant's uncle, and Mr Michael Misa Todorovic, a cousin of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in Australia.

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

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

9. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa 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 reg 1.03 of the Regulations.

   SPONSORSHIP

   Are the sponsorship requirements met?

10. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).

    Family relationships

11. The relevant family relationships in this case are:

    ·Mr Dalibor Lazarevic (the review applicant (sponsor)), a 33 year-old married father, an Australian citizen.

    ·Mr Goran Mitrovic, (the visa applicant), the 50 year-old uncle of the sponsor, who resides in Serbia. The second, third and fourth visa applicants (Ms Dragica Mitrovic, Ms Gordana Mitrovic, and Mr Mitar Mitrovic) are Goran Mitrovic’s wife and children.

    The claims

12. The review applicant (sponsor) in essence claims that only his uncle can provide the type of care that he needs.

    The conditions of the review applicant (sponsor)

13. As confirmed by a 25 August 2021 letter from Dr Ahmed Hassan, a general practitioner in Geelong, the review applicant (sponsor) suffers from, or experiences:

    ·    Macular dystrophy with vison of 2/60 in both eyes.

    ·    He is legally blind.

    ·    Chronic depression

14. A treating psychologist (Mr Zac Stojcevski), who the review applicant (sponsor) regularly consults, wrote on 29 October 2021 that he suffers from conditions as follows:

    ·     Congenital vision deficit/blindness and a deteriorating condition with retinal atrophy.

    ·     Psychologically he fulfills the diagnoses of severe adjustment disorder. Mixed anxiety and depressed mood present. Elements of trauma and agoraphobia.

    ·     Deteriorating physical and psychological condition. He is alone at times and ruminates.

    ·     Severe range of impairment. He has varying needs with dressing and grooming, bathing, restroom use and ambulation. He would benefit from intense and reassuring assistance of his uncle as carer.

15. Mr Stojcevski wrote a second letter dated November 13th, 2022 describing the review applicant (sponsor) as follows:

    Comorbidly, his psychological condition satisfies the DSM-V Criteria for a Severe and Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.

    Symptoms of trauma and agoraphobia are also present in his overall clinical presentation.

    I opine that his condition is deteriorating both physiologically and psychologically. For instance, as his family have adjusted to life and independence, he needs to spend more time on his own, aggravating his psychological symptomatology.

    He has limitations that translate to poor independence with respect to activities of daily living (ADL’s). As reported in other documentation, which holds consistent – appears as below:

    Dressing and Undressing: Moderate to severe impairment with some elements.

    Meal Preparation and Feeding: Moderate to severe impairment with some elements.

    Functional Transfers: Moderate to severe impairment with some elements.

    Safe Restroom Use and Maintaining Continence: Moderate to severe impairment with the former, though the latter is under control.

    Ambulation: Moderate to severe impairment with some elements as independent movement is unsafe.

    Memory Care and Stimulation: No impairment with memory though stimulation is definitely required.

    All of the above listed ADLs can be moderated with the assistance from his uncle and have at various times been enacted by him. In his absence, there is more of a piecemeal approach to the completion of these activities.

    The patient can reside in the family environment but would benefit from the ongoing intense and reassuring assistance from his uncle in the carer capacity. The difference here is very much measured qualitatively in terms of, naturally – quality of life, not mere existence.

    Due to his history of isolation and displacement, the sanctuary and safety of his uncle in his formative years was somewhat replaced in his new family setting. However, with the demands of everyday life of his supports - his wife, children and extended family mean that he is being left to be alone more often which causes unnecessary anxiety, stress and trauma. This was somewhat in remission when living overseas in an extended family, and replaced the role that his uncle fulfilled and the need for the restitution of that role from his uncle is clearly suggested in the patient's clinical presentation.

    I am informed by the patient that the Department is suggesting that there are adequate community services to take on the role that would be taken by Dalibor’s uncle.

    There is no doubt that there are services available on a local level that at least on face evidence suffice for the patient’s needs.

    Professional carers and services can even provide language specific care. Well, at least some times.

    This is the core of this application review, in my opinion. Dalibor’s uncle has been the backbeat for Dalibor’s prosperity and success, not for just getting by.

    The services available after application – and if successful - have time and shift restrictions. The patient would be subject to a continuing cavalcade of different workers with different capacities of providing the care needed for Dalibor’s wellbeing. Though theoretically available to Dalibor, they are subject to funding evaluation and thereafter regular re-evaluation that will add additional and unnecessary psychoemotional loading on this symptomatology.

    In the absence of his sight, he has sensorial over reactions to factors such as sounds and smells that would vary and have been known to provide undue and unnecessary distress for the patient. This can be avoided with Dalibor’s uncle where the additional avuncular senses represent safety and good mental health outcomes, especially in times of adversity.

    Some organisations rotate staff in case of burnout and emotional transference issues and in this instance, the patient’s uncle will remain his blood relative irrespective of boundary changes, staffing alterations and like.

    Constancy in the presence of a single carer around the clock and as necessary would provide more benefits than any costs associated with his uncle taking on the carer role with the additional benefits of creating a larger, stable and safe (family) unit, aiding his mental health outcomes. Carers abd services are run to the schedule of the provider with at times only lip service to the needs to the client’s scheduling and needs.

16. Dr Keisha Riddington, an eye specialist & surgeon wrote on 25 August 2021 that the review applicant (sponsor) has macular dystrophy and is legally blind. He has 2/36 vison in the right eye and the same in his left eye.

17. The oral evidence of the review applicant (sponsor) and his cousin and uncle confirmed to the Tribunal’s mind the presence of these conditions. I note that the review applicant (sponsor’s) cousin Mr Michael Misa Todorovic has the same eye condition, macular dystrophy, which is a genetic mutation that can express itself in young adulthood or even childhood. I note that both men experienced this in childhood to the present. They both needed white canes and human assistance in order to attend the Tribunal hearing. I accept from his oral evidence that Mr Todorovic has a good knowledge of the review applicant (sponsor) applicant’s condition and that it is more severe than his own.

    The claimed merits of having the visa applicant assisting in the review applicant (sponsor’s) care

18. It was submitted that the review applicant (sponsor) is married with a young child of 3 years. His wife is working full time and can work as much as seven days a week as a cleaner. The review applicant (sponsor) applicant lives with his small family with his parents in Geelong. His parents are in their fifties but are unable to work as they both have had severe heart conditions including strokes and heart attacks in recent times. I accept from consistent oral and written evidence that the review applicant (sponsor) applicant’s parents are in need of help themselves and are unable to care for him. They are not people of means in any event.

19. The review applicant (sponsor) applicant’s brothers are his other family in Australia and I accept from consistent oral and written evidence that the review applicant (sponsor) applicant’s brothers have a family of their own with young children and a full time job, or have full time medical studies respectively. I accept that they cannot fully assist the applicant with his needs.

20. At present the review applicant (sponsor) receives only very limited care from his wife first thing in the morning and in the evenings due to her other responsibilities. I find the applicant is unable to work. He has a year 8 education, few marketable skills and a very serious number of disabilities, having almost no vision. I find that he spends his days with little communication with others, rarely leaves the house and has to spend considerable time on medical appointments and treatments.    

21. The Tribunal was left with an impression of a depressed man, who was on the edge of despair about his situation.

22. The prospect of help from the community sector or government appears to be slim. The review applicant (sponsor) is from a Romani family of Serbian origin. His involvement with the Serbian community is very minimal. The parties have written (as evidenced) to the community’s offices seeking a guidance for help with his condition, but the response had been that there is no program for him. I note that the community in Geelong is not large and there are cultural barriers between Romani Serbian and other Serbian people. The review applicant (sponsor) attends a Serbian church on main feast days but is not further involved.

23. There do not seem to be specific programs or intensive assistance for the applicant from the government or community sector. The review applicant (sponsor’s) cousin, Mr Todorovic, told the Tribunal he had sought NDIS assistance but had been denied it and was appealing this matter to another division of the Tribunal.

24. The Tribunal has turned its mind to community care as a possibility for assisting the review applicant (sponsor). That which exists is limited, but I also accept that there is another impediment, which is that the review applicant (sponsor) is highly sensitive, disconcerted by strangers and reluctant to be touched and helped. I accept that there are cultural barriers about females seeing him in intimate situations for example. I also accept that he is a member of a somewhat isolated social/ethnic group, which might be concerned about outsiders. He also has agoraphobia and departing his house and new situations are very traumatic. The prospect of being in a facility is not feasible, as he is a young person, and for example is used to Serbian food and traditions which would be unlikely to be accommodated.  The review applicant (sponsor) was notably upset in the hearing and under a great deal of strain being outside of his comfort zone.     

25. After examining his options, the Tribunal has come to the conclusion that there is negligible care outside of available family, in this case his uncle.

26. I am prepared to accept after hearing detailed oral evidence that the applicant’s few times of contentment in life were when he was living in Serbia as a youth more than a decade ago, where his visa applicant uncle, Mr Mitrovic, was like a second father to him. He would take him fishing, guide him and talk to him about his problems. I am satisfied that the visa applicant took care of his young vision impaired relative and that the two are in constant contact with each other electronically over the years. The visa applicant also gave corroborative unvarnished evidence on these points. Having questioned him in detail he had a viable plan for helping his nephew and knew his nephew and his family deeply. He was willing and able to undertake a serious role.

27. The visa applicant also gave a plausible plan of what he would do as care for his nephew and was very aware of the expectations and needs here. His wife he believed would work and he extended family would live together. This had been thought out in some detail.

28. I have had the advantage of interviewing the parties, which did not occur when the delegate was making their decision.

29. I am satisfied that the visa applicant is willing and able to provide the care and it is care not otherwise available.

30. Having questioned the parties in detail I find the other relatives in Australia are either young people with their own serious work, family and study demands or incapacitated. Their abilities to help at this needs level are not present despite the supportive care they already give.

31. I accept from consistent evidence that the visa applicant is that person and no other person can match this or provide the care needed. It appears that it is a rare event that a person with as many challenges as the review applicant (sponsor) accepts without qualification the care of another. That has occurred in this case.

32. There is a wide variety of medical and other evidence to support these conclusions.

33. I also find that the review applicant (sponsor) has in fact sought information and help outside of their family. They have evidenced enquiries of government departments and other services.

34. The Tribunal has had the benefit of a detailed submission and an extensive hearing which explains its divergence from the delegate’s approach.

    Findings

35. I am satisfied that the assistance the review applicant (sponsor) requires cannot be reasonably obtained from any other relative or from welfare, hospital, nursing or community services in Australia. I find therefore that the applicant is a carer within the meaning of Regulation 1.15AA(1) and meets 1.15AA (1) (e) (i) and (ii) specifically. As a result I find that the applicant meets the requirement at subclause 116.221 of the Migration Regulations.

36. The 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).

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

37. The visa applicant is a relative of the resident shown by identity documents to be his nephew, as noted by the delegate.

38. 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 uncle.

1. Therefore, as the visa applicant is the uncle of the Australian relative, 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).

   Certification – reg 1.15AA(1)(b)

2. 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.

3. 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 (see Legislative Instrument or issued by a specified health provider in relation to a review of such an opinion.

4. There is a certificate as required in the regulations, as provided to the Tribunal. The certificate meets the requirements of reg 1.15AA(2).

5. According to the certificate the resident has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life

6. The impairment has an impairment table rating specified in the certificate 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

7. 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.

   Residency status of person with medical condition – reg 1.15AA(1)(ba)

8. 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.

9. 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.

   Impairment rating – reg 1.15AA(1)(c)

10. 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.

11. In the present case, the impairment rating specified in the certificate is 40. This rating is exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

12. 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. For the reasons detailed above I am satisfied of this.

13. 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.

    Willing and able – reg 1.15AA(1)(f)

14. 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.

15. 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.

16. For the reasons stated above I find that the visa applicant is both willing and able to provide substantial and continuing assistance required.

17. Therefore, the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

18. There is a valid sponsorship that is still in force. Therefore, at the time of application, the visa applicant was sponsored as required by the legislation and satisfies cl.116.212.

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

20. 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

21. The Tribunal is satisfied that the sponsorship mentioned in cl.116.221 of the person who satisfies the primary criteria includes the sponsorship of the family members.

    DECISION

22. 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.116.221 of Schedule 2 to the Regulations

    In relation to the secondary applicants, the Tribunal remits the applications for the visas to the Minister to consider the remaining criteria for the grant of the visa.

    Justin Meyer

    
    

    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.