Mati (Migration)

[2023] AATA 1239

Mati (Migration) [2023] AATA 1239 (27 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Jinan Mati
Mr Emanuel Mati
Mr Mattias Mati

CASE NUMBER:  2011983

HOME AFFAIRS REFERENCE(S):          CLF2018/171507 CLF2020/28390

MEMBER:Brendan Darcy

DATE:27 January 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that:

·     the first named applciant meets the criteria under cl 836.221 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa; and

·     the other named applicants meet the criteria under cl 836.321 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa.

Statement made on 27 January 2023 at 10:29am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – personal preference – general familiarity – complex psychological and physical conditions – cultural background – culturally appropriate services – specific ethnicity, religion and language needs – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 836.211, 836.212, 836.321

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 13 July 2020 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. For the purposes of this decision, the first named or primary applicant will be referred to as the first applicant or the applicant; the second named applicant as the second applicant or the applicant’s spouse; and the third named applicant as the third applicant or the applicant’s child.

3. The applicants applied for the visa on 25 June 2018. 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 (Cth) (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 836.212 and cl 836.211.

4. The delegate refused to grant the visas on the basis that cl 836.221 was not met because first applicant met the definition of ‘Carer’ under part (1)(e)(ii) of regulation 1.15AA.

5. The applicants appeared before the Tribunal on 20 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from each of the applicants. Present at the haring was the sponsoring relative, Mrs Mary Polus Hirmiz Bebozi

6. In this matter, the applicants were represented by a registered Migration Agent 

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Chaldean (Assyrian/neo-Aramaic) and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

9. The first applciant was born on 12 September 1966 and claims to be married to the second applicant born on 1 April 1971. The first and second applciants were born in Iraq. The first applciant subsequently migrated to the Kingdom of Sweden (Sweden) in 1998 and was followed by the second applicant in 1999. Swedish citizenship was conferred upon them in 22 April 2005.

10. The third applciant was born on 12 September 2005 in Sweden and is a Swedish citizen.

11. The applicant visited Australia on visitor visas between December 2016 and January 2017 and between June 2017 and August 2017. They returned to Australia on 14 December 2017 on a visitor visa and were granted further visitor visa on 29 January 2018 which was set to expire on 25 July 2018. 

12. The applicants applied for Class Bu Subclass 836 Carer visas on 25 June 2018 on the basis of first applciant will be the carer of the sponsoring relative, her biological mother, Mrs Mary Polus Hirmiz Bebozi.

13. Mrs Bebozi was born on 1 July 1943 in Iraq. She has been a widow since 2005. Along with other family members, Mrs Bebozi resettled in Australia while she and her other family members were holding Subclass 200 humanitarian visas.

14. On Departmental file is a copy of March 2018 Carer Visa Assessment Certificate (CVAC) and Medical Adviser’s Report pertaining to Mrs Bebozi. The CVAC indicates the applciant has an impairment reading of 35 (This rating is measured against the Tables for the Assessment of Work-related Impairment for Disability Support Pension for permanent medical conditions which is part of Schedule B of the Social Security Act)

15. A delegate acting on behalf of the Minister refused the applciants Carer visas on 13 July 2020.

16. The delegate determined that reg 1.15AA(1)(e)(ii) within the definition of ‘Carer’ at reg 1.15AA was not met at time of its decision. The delegate found for those reasons cl 836.221 of Schedule 2 was not met. The decision record cited comments on behalf of the sponsor that she did not want to anyone else helping her or to leave the house. The representative stated on 19 June 2018 that community services in Australia do not provide 24 hours cars except for care provided in a nursing home. The agent claimed the first applciant tied to contact aged care services and was advised it was a difficult process and there is a waiting list.

17. On 12 May 2020, the Department wrote to the applcaint stating they had 28 days to submit further evidence that the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. On 12 June 2020, the applciant provided a myagedcare support plan dated 27 May 2020 including that the assess discussed personal care assistance, in home respite, social support groups, physiotherapy sessions. A letter from the Victorian Arabic Social Services was submitted which indicated the organisation does not provide the support with the sponsor with her daily personal needs.

18. The delegate placed little wright on the claims that obtaining care was difficult or there were waiting times and did not accept the parties meaningfully engaged with nursing homes to discuss the sponsor’s care needs.

19. On 22 July 2020, the applciants applied to have the delegate’s refusal decision to be reviewed by the Tribunal with the decision record attached to the application for review.

20. On 17 December 2021, the Tribunal received an updated CVAC and Medical Adviser’s Report pertaining to Mrs Bebozi.  Diagnoses leading to that rating include physical deterioration through osteoarthritis in the hands, shoulders, knees and lumbar spine; and psychological conditions including major depressive disorder, anxiety disorder and post traumatic stress disorder. In the CVAC, the medical adviser mentioned the sponsor as someone who psychological complaints are related to war experiences in Iraq and that she is dependent on the first applicant for her activities of daily living, and that care without the support from a family member would result in the need of the sponsor to enter into residential aged care and care provision by an external service. Due to her mental health, language barrier and cultural sensitivity issues, this would likely have a detrimental effect on the sponsor’s psychological health.

21. On 5 January 2022, the Tribunal received a legal submission from the applicants’ representative which included (not exhaustively listed):

    ·Statutory declaration signed by the first applicant;

    ·Statutory declarations from other relatives of the sponsor residing in Australia;

    ·A 2021 medical summary by the sponsor’s general practitioner;

    ·2018, 2020, and 2021 reports by the sponsor’s clinical psychologist;

    ·Various letters from the sponsor’s medical specialists;

    ·Various email exchanges between the first applciant and residential age care homes; and

    ·Various other health related documentation pertaining to the sponsor.

22. As mentioned above, the parties attended a scheduled hearing on 20 January 2023. At the end of the hearing, no more submissions were required.

    APPLICANT CLAIMS TO BE CARER

    Whether the applicant has claimed to be the ‘carer’

23. Under cl. 836.221, the applicant is a carer of a person referred to in clause 836.212, at the time of decision. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative (or resident) at the time of application.

24. The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this decision

25. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s biological mother on a continual basis since the visa application was lodged.

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

26. 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 applicant’s mother.

27. It is not in dispute the applicant is a relation of the Australian relative, or that the applicant does not meet the definitions of ‘relative’ and ‘close relative’ in reg 1.03. Neither is it in dispute that the sponsor as the relative in question is an Australian citizen who is ‘usually resident’ in Australia.

28. Therefore, as the first applicant is the biological daughter of the Australian relative, the 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)

29. 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.

30. 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 IMI 07/013, or issued by a specified health provider in relation to a review of such an opinion.

31. On examination of the December 2022 CVAC received by the Tribunal, it is issued by BUPA Medical Visa Services to the abovementioned person with a medical condition.

32. Legislative Instrument IMMI 07/013 specified BUPA Medical Visa Services as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

33. The certificate specifies that:

    ·the caree has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life;

    ·the impairment has an impairment table rating specified in the certificate; and

    ·because of the medical condition, the caree has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

34. The CVAC indicates the resident in this matter has a medical condition causing impairments of the person’s ability to attend the practical aspects of daily life; an impairment rating of 50 in accordance; and because of the medical condition, the person has and will condition to have for at least two years, a need for direct condition assistance in attending to the practical aspects of daily life. The CVAC indicates a notable deterioration since her earlier rating of 35.

35. Regulation 1.15AA(3) stipulates that the opinion in a certificate from the health service provider is to be taken as correct for the purposes of whether or not the applicant satisfies the impairment criterion.

36. 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)

37. 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.

38. In the present case, the person with the medical condition is an Australian citizen and has been since the year April 2013. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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

39. 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 07/012.

40. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

41. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 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 reg 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.

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

    Assistance cannot be provided by other relatives – reg 1.15AA(1)(e)(i)

43. Regulation 1.15AA(1)(e)(i) requires that the assistance required by the Australian relative cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent Australian resident or an eligible NZ citizen.

44. A number of statements by relatives of the sponsor claiming that they do not have the capacity to provide the assistance to the sponsor, were received by the Tribunal. This includes from the sponsor’s adult children with either Australian citizenship or permanent residency. During the hearing, the first applicant outlined some of the reasons they were not able to assist arising from medical conditions and care responsibilities of their own.

45. Noting that the delegate did not make any adverse findings in this regard, the Tribunal does not consider it necessary to request further documents be submitted to corroborate the claim that the assistance required by the sponsor is not required by another relative who is an Australian relative or citizen.

46. sponsor was the sister of the visa applicants’ biological mother, and therefore, the aunt of the visa applicants. A ‘relative’ under regulation 1.03 includes an aunt.

47. The Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, therefore the requirements of reg 1.15AA(1)(e)(i) are met.

    Assistance cannot be reasonably obtained from the community– reg 1.15AA(1)(e)(ii)

48. Regulation 1.15AA(1)(e)(ii) requires that the assistance required by the Australian relative cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

49. During the hearing, the Tribunal spent considerable amount of time with the visa applicants outlining to them that decision makers need a good more evidence than just a personal preference or the general familiarity between the carer and the sponsor who requires assistance.

50. The Tribunal places little weight on the correspondence between residential aged care authorities and the visa applicant. These efforts were not conscientiously done. Waiting lists do not point to the assistance required cannot not be reasonably required from services in Australia.

51. When cumulatively considering the level and kind of care available in the community, the Tribunal assesses that the assistance to treat the Australian relative’s complex psychological and physical conditions and to meet her cultural background cannot not be reasonably obtainable in the community.

52. The sponsor is ethnically Chaldean or Assyrian from Iraq. She is a Chaldean Catholic and speaks Chaldean (and can understand some Arabic).  Chaldean Catholics are among many of the ethnic and religious minorities in predominately Muslim and Arabic Iraq. Born in Baghdad, the sponsor was raised and lived her life in sheltered family orientated manner. When the sponsor married, she was reliant on husband as the sole breadwinner. During the Iran-Iraq war, her husband was conscripted to fight and was absent for some time. During the 1990-91 First Gulf War, the Iraqi authorities attempted to forcibly recruit her husband to fight the international coalition to evict the Ba’athist led invasion of Kuwait. However, he managed to evade this. In more recent times, Chaldean community members have been targeted by Islamic extremists. At times, the sponsor had no or little means of providing for your family and endured the likelihood of deprivation arising from arbitrary actions by the Saddam Hussein’s government and other actors that have caused her family great suffering. Sustained uncertainty, sectarian conflict, and Ba’athist political violence and war has triggered in the sponsor depressive and anxious disorders. She has been further been authoritatively diagnosed with post trauma syndrome disorder with related symptoms include insomnia, nightmares and social withdrawal. Her mental health needs are manifestly complex.  The psychologist’s evidence is that the sponsor has benefited psychologically by her close proximity to the visa applicants who support her medically, psychologically, culturally, linguistically and religiously.

53. The sponsor and her family have settled in the northern suburbs of Melbourne. There are no Assyrian community owned and operated residential aged care facilities in metropolitan Melbourne. In metropolitan Sydney, St Sergius Aged Care offers Assyrian specific services, albeit being auspiced by the local Russian community. The Tribunal is unable to locate any comparable service in Melbourne. In the absence of culturally appropriate services, the Tribunal reasonably assesses residential age care will adversely affect her psychological conditions. 

54. In this context, it has placed notable weight on the clinical psychologist’s report that the sponsor’s psychological is unlikely to remain stable with care provided by residential carer and external providers.

55. The Tribunal relatedly rules out any Arabic speaking run service for nursing care in Melbourne as culturally inappropriate considering the sponsor’s ethnic and religious background.

56. The Tribunal has also placed weight on the oral evidence which indicated the low tolerance of the sponsor to consume prescribed pharmaceuticals to address symptoms of depression and anxiety. This is related to the sponsor’s limited renal function. Fortunately, the sponsor’s mental health symptoms have benefited from her participation in counselling with the first applcant has facilitates over a sustained period.

57. Taking all these factors into account, the Tribunal does not accept the sponsor’s desire to have the applicant care for her is merely a preference for receiving at home care from a family member. In the absence of an Assyrian or Chaldean specialist aged care service in Melbourne, it would not be appropriate or reasonable for the sponsor to obtain residential age care services given her specific ethnicity, religion and language needs and the likelihood of her complex mental and physical health complaints will suddenly hasten beyond the otherwise inevitable deterioration, including death, arising from senescence, if the care provided by the first applicant was not available.

1. 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)

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

3. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicia     l 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.

4. The first applicant has been providing the assistance to the Australian relative over a sustained period of time. The medical evidence is that she provides that care conscientiously and that it is psychologically suitable and culturally appropriate. Noting that the delegate did not make any adverse findings in this regard, the Tribunal does not consider it necessary to request further evidence to corroborate the claim.

5. Therefore, the 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).

   Conclusion on ‘Carer’ criterion

6. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

   Other applicants

7. Clause 836.321 states that the unless the first applciant satisfied the relevant criteria under clause 836.221, the other applicants who claim to be members of the same family, will have their Carer visas refused.

8. Given the abovementioned finding that the first applciant meets the criteria under cl 836.221, the Tribunal has considered whether the other applciants satisfy cl 836.321 on the basis that they are they are members of the same family unit as the first applciant at the time of making this decision.

9. Regulation 1.12(2)(a) states that a person is a member of the family unit if the person is a spouse or de facto partner of the family head. The Tribunal accepts the first and second applciants have been and remain in a married spousal relationship for some considerable time. The Tribunal therefore is satisfied the second applciant meets the relevant criteria under regulation 1.12(2).

10. Regulation 1.12(2)(b)(i) states that a person is a member of the family unit of a person if the person is a child or stepchild of the family head and if the person has not turned 18. The third applciant was born in 2005 and at the time of writing this decision is aged 17 years and 5 months and is engaged in his studies on a full-time basis. It is accepted the third applicant is not in spousal relationship. The Tribunal is satisfied the third applciant meets the relevant criteria under regulation 1.12(2).

11. As the other applicants are members of the same family unit as the first applicant who satisfies cl 836.221, they both met the criteria under cl 836.321.

    Conclusion

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 836 visa.

    DECISION

13. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that:

    ·the first named applciant meets the criteria under cl 836.221 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa; and

    ·the other named applicants meet the criteria under cl 836.321 of Schedule 2 to the Regulations for a Subclass 836 (Carer) visa.

    Brendan Darcy
    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.