Mahumed (Migration)

[2022] AATA 5175

Mahumed (Migration) [2022] AATA 5175 (7 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Adan Hussein Mahumed

VISA APPLICANT:  Miss Anisa Hussein Mahumed

REPRESENTATIVE:  Mr Gerrit Jansen Van Rensburg (MARN: 1175375)

CASE NUMBER:  1914447

HOME AFFAIRS REFERENCE(S):          OSF2014/032628

MEMBER:Joseph Francis

DATE:7 July 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa 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

Statement made on 7 July 2022 4:22pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – reasonable assistance from other relatives – reasonable assistance from other services – willingness and ability to provide care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 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 Home Affairs on 23 April 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 24 December 2014. 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 visa on the basis that cl 116.221 was not met because the delegate was not satisfied the resident provided sufficient information on what direct assistance, he provides the child with the medical condition, and therefore regulation 1.15AA(1)(d) is not met.

4. The review applicant appeared before the Tribunal on 6 July 2022 to give evidence and present arguments. The Tribunal also received evidence from Ms Hudan Mahumed, the sister of the person requiring care.

5. The review applicant was represented in relation to the review.

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 resident provides direct assistance (non-financial) to the Australian citizen requiring care.

8. The Tribunal considered the matter with regard to all clauses of Reg 1.15AA for carers.

   BACKGROUND

9. The visa application was lodged on 24 December 2014. 

10. The visa applicant (the carer) is Ms Anisa Hussein MAHUMED, DOB 26 April 1991. Ms Mahumed is a Somali national currently residing in Malaysia. She is the aunt of the Australian citizen requiring care and is capable and willing to provide the required care.

11. The Australian citizen requiring care is Mr Hasham MAHUMED, now aged 19 at the time of this decision. Mr Hasham Mahumed was aged 12 at the time of the visa application. The latest Carer Visa Assessment Certificate dated 19 August 2021 indicated that Hasham Mahumed was given an impairment rating of 30. Hasham requires 24-hour assistance and supervision.

12. Hasham resides in Perth with his father, Mr Adan Mahumed, his mother, Ms Houda Mahumed, and his sister, Ms Hudan Mahumed.

    Reg 1.15AA(1)(e)(i)

13. Reg 1.15AA(1)(e)(i) requires that the assistance cannot be reasonably 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.

14. As such, the Tribunal considered all of the family members of the Australian citizen requiring care who meet this regulation, with the following findings:

15. The review applicant is Mr Adan Hussein Mahumed. He is the father of the Australian citizen requiring care and the brother of the visa applicant. Mr Adan Mahumed works six days each week as a bus driver.

16. The Tribunal accepts the evidence that, as the father of Hasham, Mr Adan Mahumed provides financial support for his son and day to day physical support, particularly at night when he is home. The Tribunal also accepts that if Mr Adan Mahumed was to spend less hours at work in order to provide more hours offering physical care, it would result in financial hardship for the family. As such, the Tribunal finds that Mr Adan Mahumed contributes to the physical and financial care of his son Hasham and is significantly limited in his ability to provide more care.

17. Ms Houda Mahumed is the mother of Hasham, the Australian citizen requiring care. Houda resides in the family home with her son Hasham, her partner Mr Adan Mahumed, and their daughter Huddan Mahumed (aged 24). Ms Houda Mahumed attempts to provide full-time care for her son Hasham. The Tribunal accepts, however, that Ms Houda Mahumed suffers from her own health conditions and challenges. Additionally, it is not reasonable to expect her to provide the care required by Hasham on an ongoing basis and without respite.

18. The Tribunal finds that Ms Houda Mahumed is unable to meet the care needs for her son to the level that is required on an ongoing basis.

19. Ms Hussan Mahumed, the sister of the Australian citizen requiring care, is employed as a registered pharmacist and works six day per week. Hussan intends to undertake further university study, and as such the Tribunal finds that it is not reasonable for her to provide additional care for her brother Hasham.

20. Mr Hussein Mahumed (aged 22) is the brother of Hasham and resides overseas. The Tribunal finds it is not practicable or reasonable for him to provide care in Australia for his brother Hasham.

21. There are no other members of the family to be considered within Reg.1.15A(1)(i).

    Reg 1.15AA(1)(e)(ii)

22. Reg 1.15AA(1)(e)(ii) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing, or community services in Australia.

23. The Tribunal considered the family’s experiences in trying to obtain care as required by Reg 1.15AA(1)(e)(ii).

24. The Tribunal accepts that the family has previously attempted to utilise Community Access services. However, a combination of staffing pressures, unpredictable behaviour by the resident, inconsistency with staff, limited engagement time and the inability to provide after-hours care has resulted in insufficient care.

25. The Tribunal finds that assistance cannot be reasonably provided in accordance with Reg 1.15AA(1)(e)(ii).

    Reg 1.15AA(1)(f)

26. Reg 1.15AA(1)(f) requires the visa applicant, Ms Anisa Hussein MAHUMED, to be able to provide the resident with substantial and continuing assistance of the kind needed.

27. The Tribunal accepts the evidence that, as the aunt of the resident, Ms Anisa Mahumed can provide care to a far greater degree than other service providers. The Tribunal heard evidence that she will reside in the family home, allowing her to provide around the clock care as required.

28. The Tribunal accepts that Ms Anisa Mahumed is willing and able to provide the care required. 

29. The Tribunal finds the visa applicant meets Reg 1.15AA(1)(f).

30. As Reg 1.15AA for carer is met, the Tribunal finds that the applicant meets clause 116.221 in Schedule 2 of the Regulations.

31. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.

    DECISION

32. The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa 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

    Joseph Francis
    Member