Mekhail (Migration) - [2021] AATA 2739

Mekhail (Migration) [2021] AATA 2739 (30 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Nadia Fayez Fouad Mekhail
VISA APPLICANTS:  Mrs Hanady Wagieh Rafla Azmy
Ms Britney Gerges Nady Nassief Abdelmalak
Mr Gerges Nady Nasseif Abdelmalak
Ms Perpetua Gerges Nady Nassief Abdelmalak
CASE NUMBER:  2006217
HOME AFFAIRS REFERENCE(S):          OSF 2016/030478
MEMBER:Russell Matheson
DATE:30 July 2021
PLACE OF DECISION:  Sydney
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.116.211 of Schedule 2 to the Regulations; and
·cl.116.221 of Schedule 2 to the Regulations.

Statement made on 30 July 2021 at 12:44pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance reasonably provided by other relatives or obtained from service providers – sponsor’s multiple physical and mental health conditions – husband’s own medical conditions – other children’s study, work and care for own children – some social support from church and service providers – long waiting list for NDIS assessment, with only limited care available if approved – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 116.211, 116.221
CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
Lam v MIBP [2013] FCCA 1263
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 2 August 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 23 August 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.
The delegate refused to grant the visas on the basis that cl.116.221 was not met because they were not satisfied that the assistance the review applicant requires cannot be reasonably obtained from any other relative of the review applicant or from welfare, hospital, nursing or community services in Australia. They therefore found that the visa applicant is not a carer within the meaning of r.1.15AA(1) of the Regulations and does not meet 1.15AA (1) (e) (i) and (ii) specifically. As a result, it was found that the visa applicant does not meet the requirement at cl.116.221.
The review applicant (sponsor) appeared before the Tribunal on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mekhail (Migration)

Details

AGLC: Mekhail (Migration) [2021] AATA 2739
Case: [2021] AATA 2739
Decision Date: 30 July 2021

CaseChat Overview and Summary

This matter concerned an application for a Subclass 116 (Carer) visa by Mrs Hanady Wagieh Rafla Azmy, who sought to provide care to her mother, Mrs Mekhail, an Australian citizen. The central dispute revolved around whether the applicant could satisfy the criteria for being a "carer" as defined in the Migration Regulations 1994, specifically whether the required assistance could not reasonably be provided by other relatives or obtained from Australian services. The decision was made by Russell Matheson, a member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicant, Mrs Azmy, met the requirements of regulation 1.15AA(1)(e) and (f) of the Migration Regulations 1994. Regulation 1.15AA(1)(e) requires that the assistance needed by the sponsor cannot reasonably be provided by other eligible relatives or obtained from Australian welfare, hospital, nursing, or community services. Regulation 1.15AA(1)(f) requires that the applicant be willing and able to provide substantial and continuing assistance.

The Tribunal accepted that the sponsor, Mrs Mekhail, met the health provider assessment requirements, including having a medical condition causing impairment and a need for direct assistance for at least two years. However, the Tribunal found that the reasonableness of assistance from other relatives and the availability of services from Australian welfare, hospital, nursing, or community services required further consideration. The Tribunal noted the sponsor's multiple health conditions, including polycystic kidney disease, diabetes, pericarditis, osteoarthritis, hypertension, chronic lower back pain, and sleep apnoea, which necessitated significant care. It also considered the sponsor's other children's work and family commitments, and the limited availability of NDIS assessments and services.

Given the need to fully assess the remaining criteria, the Tribunal remitted the applications for the Subclass 116 (Carer) visas for reconsideration. The Tribunal directed that the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Regulations were met, and that the applications of the secondary applicants should also be reconsidered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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. As the visa applicant (Mrs Azmy) meets this criterion, her husband and daughters meet the secondary criteria for the grant of the visa, and it is appropriate to remit the visa application of the secondary applicants for reconsideration.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.116.211 of Schedule 2 to the Regulations; and·cl.116.221 of Schedule 2 to the Regulations.Russell MathesonMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In this case, the visa applicant (Mrs Hanady Wagieh Rafla Azmy) is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. If the applicant meets the primary criteria in Part 116 to be granted the visa, her husband and two daughters need only meet the secondary criteria. The primary criteria to be met include cl.116.221 which requires that the visa applicant is to be the carer of the Australian relative. The term “carer” is defined in r.1.15AA As the sponsor is an Australian citizen, and the visa applicant is her daughter, the Tribunal accepts that r.1.15AA(1)(a) is met. The Tribunal accepts that the sponsor (Mrs Mekhail) has the required health provider assessment that specifies that she has a medical condition that causes impairment of her ability to attend to the practical aspects of daily life, she has the required number of impairment points and she has a need for direct assistance in attending to the practical aspects of daily life for at least two years. As a result, the requirements of r.1.15AA(b) and (c) are met. In issue in this matter is whether r.1.15AA(1)(e) and (f) of the definition are met at the time of this decision.Regulation 1.15(1)(e) – can the assistance be reasonably provided by certain relatives or obtained from certain services? The definition of ‘carer’ in r.1.15AA includes at r.1.15AA(1)(e) that:(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 As it applies to the sponsor (Mrs Mekhail), r.1.15AA(1)(e)(i) requires a consideration of the assistance she requires, the reasons put forward by her relatives for being unable to provide her with this assistance, and whether these reasons are reasonable. Regulation 1.15AA(1)(e)(ii) involves a consideration of whether the assistance the sponsor needs cannot be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal can look at whether the assistance the sponsor requires can be met by a combination of assistance from her family together with welfare, hospital, nursing or community services in Australia. This approach was adopted without comment in Lam v MIBP.3 What assistance does the sponsor require? In looking at the type of assistance required, the Tribunal is not required to turn its mind to the nature and scope of the assistance required, and is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider. The Tribunal has regard to, and accepts, the reports provided by the sponsor’s General Practitioner (Dr Attia) dated 12 April 2021 and 29 April 2021 who identifies that the sponsor suffers the following medical conditions:·Polycystic kidney disease she received a kidney transplant in September 2019 and requires assistance with a number of medications to help stop the rejection of her kidney;·Type 2 Diabetes Mellitus requiring treatment with insulin and tablets;·Peracarditis (November 2018) which necessitated admission to hospital on a number of occasions;·Advanced osteoarthritis of both knees and joints limiting her movement and ability to climb stairs;·Hypertension and Hypercholesterolaemia controlled with medication; ·Chronic lower back pain which is treated with Physiotherapy; and·Sleep Apnoea affecting her sleep, mental health and causing depression.