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

1. 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).

2. 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.

3. 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.

4. The review applicant (sponsor) appeared before the Tribunal on 22 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s daughter (Mariam Azmy). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The sponsor 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. 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.

8. 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

9. 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.

10. 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.

11. 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?

12. 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

13. 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.

14. 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.

15. 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?

16. 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.

17. 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.

18. In summary of the sponsors medical conditions, her GP states:

    Due to the above conditions Mrs Mekhail needs help with all daily activities such as showering, grooming, dressing, cooking etc. Mrs Mekhail needs a full-time carer to assist with her care.

    Because of Anxiety and Depression Mrs Mekhail saw Mr Chafic Awit (Psychologist). Mrs. Mekhail cannot be placed in a nursing home as this will deteriorate her psychological condition.

19. The Tribunal has regard to, and accepts, the report provided by the sponsor’s Psychologist  Mr Awit, dated 14 April 2021 who states the sponsor has a number of triggers underlying her psychological condition, which includes a number of psychological issues, as well as continued serious physical ailments. The sponsors condition is further exacerbated due to her lack of English language skills, which has made integration into the Australian culture quite difficult for her. The sponsor suffers from Polycystic Kidney disease, which led to kidney failure. Due to her physical ailments, she requires a carer for assistance with bathing, showering, toileting, grooming, eating, cooking and dressing/undressing. Further, her right arm is used for Dialysis, and this has caused issues in her right fistula, leaving her fingers and arm quite stiff and painful which significantly impacts her ability to care for herself. The sponsors kidney issues have further led to bone disease, anaemia, cramps, increased body weight and high blood pressure.

20. The sponsor received a kidney transplant in 2019 and following this, she has suffered chronic lower back pain, diabetes and a suppressed immune system making her vulnerable to illness and bilateral pain in the kidneys.

21. All of the above has greatly impacted the sponsors mood. This has caused an exacerbation of her condition, leading to panic attacks, racing heartbeat, breathlessness, trembling, nausea, memory/concentration issues and decline in energy and mobility. The psychologist’s evaluation and recommendation states the following:

    Mrs Mekhail is not fit for a nursing home as this will further deteriorate her psychological condition. She has sought the assistance of community organisations such as NDIS and is waiting for assistance on a very long que. This prolonged wait to gain assistance from welfare organisation, and the limited number of hours of care they have been advised they will be able to receive once they do get to her in the queue, exasperates the need for her daughter to come and care for her. Furthermore, the daughter who lives with her is unable to provide her with the care due to her fulltime study and workload.

    It is the professional opinion of the writer that the Mrs Mekhail is suffering from Generalised Anxiety Disorder and Major Depressive Disorder-Recurrent Episodes. She requires a significant amount of care and it is best that this care be provided by a person she knows and feels comfortable with. This will enable her to obtain the care needs she requires from her daughter Mrs Hanady Wagih Rafla Azmy, which is the professional opinion of the writer will improve Mrs Mekhail’s conditions.

22. The Tribunal places significant weight on the abovementioned reports as to the assistance the sponsor requires and supports the visa application of her daughter (Mrs Azmy) to come from Egypt to become her full-time carer. The Tribunal accepts that the sponsor has significant care needs given her medical diagnoses.

    Cannot reasonably be provided by certain other relatives

23. Regulation 1.15AA(1)(e) requires identification of those relatives of the sponsor who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.

24. The term “relative” is defined in r.1.03 of the Regulations as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. A close relative is a spouse, de-facto partner, child, parent, brother or sister or a stepchild, stepbrother or stepsister.

25. As this applies to the sponsor this includes her husband and two adult children (daughters Walaa and Mariam) who are residents of New South Wales. 

26. Regulation 1.15AA(1)(e)(i) was considered by Judge Nicholls in Anveel v Minister for Immigration and Border Protection,⁵ in which he said that this provision requires an examination of whether, from the perspective of the relative, they cannot provide the care,⁶ and requires a focus on the reasons the relatives cannot provide the care.⁷ Judge Nicholls remarked that it is important to note that the test is stated in the negative and said: ‘It is not whether the care “can” be “provided”, it is whether it “cannot” be provided by relatives’. The focus of the Tribunal therefore must be the reasons as to why the relatives cannot provide the care.

27. In Jajo v MIBP,⁹ Judge Emmett stated that on the facts of that case, where there were a number of children in Australia, it was open to the Tribunal to conclude that a number of relatives can provide the assistance required by the person needing care.

28. It is therefore necessary to look at the circumstances of each of the relevant relatives and the reasons the relevant relative state they cannot provide care.

29. The sponsor gave oral evidence and provided a written submission through her authorised representative stating that she has two daughters and her husband present in Australia and care cannot reasonably be provided by these Australian relatives.

30. The sponsor provided oral evidence and a written submission to the Tribunal showing the inability of her older daughter, Walaa to provide care and assistance stating she is a single mother, caring for her two sons, one of which is in year 12. She is also working full time and is the sole provider for her family. She sees her mother rarely and she is unable to provide any care for the sponsor.

31. The sponsor has also submitted to the Tribunal medical certificates, hospital discharge letters and medical reports which show that the sponsors husband (Mr Rafla) is unable to provide any care for his wife due to his own medical condition. The sponsors husband also provided a detailed statutory declaration outlining his medical conditions and current circumstances. The sponsors husband was diagnosed with prostate cancer the same year that the sponsor had her kidney transplant operation and he himself requires care. The sponsor provided a medical report for her husband dated 29 April 2021, Dr. Attia states:

    Mr Wagih Rafla is unable to assist his wife with daily activities such as showering, shopping, cooking and administering of her medications. I believe that Mr Wagih Rafla himself may need help in the near future. Mr Wagih Rafla and Mrs N. Mekhail need their daughter to come and care for them.

32. The sponsor’s youngest daughter (Mariam) at the hearing stated that she is providing limited care to her mother due to her study schedule, work commitments and circumstances which require her to do placements out of Sydney four to six weeks at a time; she is unable to provide the required level of care needed by the sponsor. She further stated that she is studying a Bachelor of Nursing full time and working part time to try to look after herself financially.

33. Mariam gave evidence that she bares the load of responsibility of her mother’s personal care, driving her to medical appointments, attending the appointments with her due to her limited communication due to her lack of education, doing the shopping, cleaning, cooking and most importantly looking after her medications, which are numerous.  She further stated that as a 19-year-old this is a huge burden upon her that is causing her enormous stress and undue pressure and is impacting on her ability to complete her studies and future employment.

34. The sponsor provided evidence she has had to postpone an important operation until Mariam is available, and she often postpones or misses physiotherapy treatments. At times when in hospital on her own and unable to contact her family members in Australia she had to resort to contacting the visa applicant who is in Egypt via telephone, asking her to translate because she was unable to understand the requests or instructions made by the doctors/ nurses. This is evidenced in numerous hospital reports outlining the situation.

35. The sponsor provided evidence that she does not know how to administer her own medications, especially the Insulin, and as Mariam gives her the Insulin needle at different times of the day due to her shift work, this deteriorates her diabetes condition, as her insulin should be taken at the same time every day.

36. Evidence has been submitted to the Tribunal in relation to Mariam’s enrolment at university, her need to go on placements outside of Sydney for over four to six weeks at a time a few times a year, evidence of her part time employment and how her mother’s condition affects her employment growth and stability. A detailed Statutory Declaration by Mariam was provided to the Tribunal detailing all the above. A detailed Statutory declaration was also provided by her daughter, Walaa detailing her circumstances and inability to provide care and assistance to the sponsor.

37. The sponsor provided a letter from her GP dated 19 April 2021, stating the sponsor receives some care and assistance from her daughter Mariam who is unable to fulfill all her needs.

38. Based on the evidence provided, the Tribunal determines that none of the relatives could individually or collectively, provide the assistance required by the sponsor (Mrs Mekhail) and therefore, the assistance required by the Australian resident cannot reasonably be provided by the Australian relatives

    Assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

39. Regulation 1.15AA(1)(e)(ii) requires that the assistance the sponsor needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal must look to the sponsor’s particular circumstances in deciding whether the assistance cannot reasonably be obtained, as this is more than whether the services are merely available to her.

40. The Tribunal accepts that the sponsor has lived in Australia since 2012 while confirming that she speaks little English and has sought assistance from the Coptic Orthodox Church Community and Aged Care Services through a social worker, but they are not able to assist her with the level of in-home assistance she requires.

41. The Tribunal appreciates the sponsor does not qualify for an ACAT assessment and any services that may flow from that assessment because she does not meet the age criteria.

42. Evidence was submitted to the Tribunal in the form of a copy of the formal application made to the NDIS and a customer number given by the NDIS to the sponsor as clear evidence that the NDIS has formally been applied for, many years back.

43. The sponsor also provided to the Tribunal a letter from the Social worker in 2017 and an updated medical report, and evidence provided in the Statutory Declarations as evidence that an application was made to the NDIS in 2017 and she has not yet been assessed.

44. The sponsor and her daughter gave evidence that they make enquiries every month or 6 weeks with NDIS and are continually informed that the sponsor is on a long waiting list and she will not be prioritised, as she is living with family members. The NDIS has informed the sponsor that even if she is approved, they will only be able to assist by providing limited hours of care per week and this is not sufficient to satisfy the sponsor’s required level of care. The Tribunal accepts that the documentary evidence provided indicates the sponsor requires a high level of care.

45. As previously stated, the sponsor’s GP/Psychologist provided a medical report that indicates the sponsor  needs help with all daily activities such as showering, grooming, dressing, cooking etc. The sponsor needs a full-time carer to assist with her care, and because of anxiety and depression, the sponsor cannot be placed in a nursing home as this will deteriorate her psychological condition.

46. The sponsor submits that the services offered by the NDIS, even when obtained by her, will not be sufficient to meet the care required, as she clearly needs 24-hour care by a person living with her. The sponsor submits that she has made reasonable attempts to obtain assistance from Australian services through various organisations, not just NDIS, but they are either all private services which require a payment, which she doesn’t have funds for, or they require NDIS funding.

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 either individually or cumulatively, and therefore the requirements of r.1.15AA(1)(e) are met.

   Regulation 1.15AA(1)(f) is the applicant willing and able to provide assistance of the kind required?

2. 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.

3. 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.

4. A detailed Statutory Declaration has been provided by the Visa Applicant explaining her ability and willingness to care for the sponsor. The visa applicant declares that she used to care for her mother while she was in Egypt and she is able and willing to live with her mother as a full-time carer upon her arrival to Australia. The Statutory Declaration also includes evidence that the visa Applicant and her husband have funds which they will bring to Australia which will assist them to settle in the country and care for the sponsor comfortably. She further states that she has not been working, hence she will not forgo a career by caring for her mother.

5. The Tribunal accepts the oral evidence of the sponsor that they are extremely close, and have always been, and that they are in contact nearly every day.

6. The Tribunal is satisfied that the visa applicant is willing and able to provide substantial and continuing assistance of the kind required by the sponsor, and therefore meets the requirements of r.1.15AA(1)(f).

   Are the sponsorship requirements met?

7. 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).

8. The Tribunal determines the visa applicant is sponsored by an Australian relative, with the sponsor over 18 years of age.

9. Therefore, at the time of application, the visa applicant was sponsored as required by the legislation and satisfies cl.116.212.

10. Given these findings, the Tribunal concludes that at the time of decision the first named visa applicant is to become the carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221.

11. 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

12. 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 Matheson
    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.