Melhem (Migration)

Melhem (Migration) [2021] AATA 4596 (17 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Elias Melhem
CASE NUMBER:  1834070
HOME AFFAIRS REFERENCE(S):          CLF2016/21606
MEMBER:Jennifer Cripps Watts
DATE:17 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 17 November 2021 at 10:04am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – sponsor’s adult children nearby – some care already provided by relatives and services in Australia – COVID-19 restrictions in Sydney – collective family contribution to care – no enquiries into availability of residential care – sponsor has not accessed hospital or nursing services – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 836.212, 836.221; rr 1.03, 1.15
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 Home Affairs on 31 October 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 7 April 2016. 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 836.221 of Schedule 2 to the Regulations.
The Minister refused to grant the visa on the basis that cl 836.212 was not met because the applicant was found not to be a ‘carer’ within the meaning given in reg.1.15AA of the Regulations.
The applicant appeared before the Tribunal by MS-Teams video link, on 16 November 2021, to give evidence and present arguments. The Tribunal also received oral evidence from a son of the sponsor, Elias Boutros, who also assisted the applicant with the technology being used. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, Mr Melhem, is a ‘carer’ within the meaning given in reg.1.15AA(1)(a)-(f), (2) and (3) of the Regulations. The Minister was not satisfied that the applicant met:
·reg.1.15AA(1)(e)(i) – the assistance cannot reasonably be provided by any other relative of the resident (as defined) who is an Australian citizen or permanent resident; or
·reg.1.15AA(1)(e)(ii) – the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia
At the commencement of the hearing, the applicant was reminded that it was these issues that were the reason for the refusal of the visa. He was also informed that all matters in reg.1.15AA, applicable in his circumstances, must be met for the Tribunal to be satisfied that he is a ‘carer’ for the purpose of satisfying the primary criteria for a subclass 836 visa. Facts and circumstances relating to all reg.1.15AA matters, applicable in Mr Melhem’s case, were discussed with the applicant at the hearing.
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of his sister, Mrs Marie Boutros, who is an Australian citizen.
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, which are defined in reg.1.03 of the Regulations.
A summary of facts and matters relating to the application is included in the primary decision record, which was provided to the Tribunal by the applicant. These matters were referred to and discussed, and the applicant provided some additional information in his oral evidence, at the hearing. In summary, the history of the matter is as follows.
The applicant, a Lebanese national, says he has never been married and that he has no children. He said he cared for his mother in Lebanon from 2000 until she passed away in 2008. He had made several trips to Australia over the years to visit family. On 24 April 2015, he arrived in Australia for a three month visit. Around a year later, he applied onshore for the subclass 836 visa that is the subject of this review, to provide care to his Australian citizen sister, Marie Boutros, and her husband, Youssef Boutros, who lived in Croydon. The applicant lived in the family home with them and with one of their sons, Vince. He continues to live there, at the time of this decision.
When the application was lodged on 6 April 2016, a Carer Visa Assessment Certificate (CVAC) was provided relating to Youssef Boutros. Up until the death of Youssef Boutros, on 8 July 2017, Vince was his father’s carer and in receipt of an Australian government carer payment. He had been living with his parents since 2013 and moved out after the death of his father
Upon the death of her husband Youssef, the applicant’s sister Marie Boutros became the sole person the applicant was claiming to provide care for. A CVAC for Mrs Boutros, dated 7 June 2016 was provided at the time of application. The applicant gave oral evidence that he and Mrs Boutros are the sole occupants of the house in Croydon now.
Whether the applicant is a carer
Clause 836.221 requires that, at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.
For the purpose of considering and making findings relating to reg.1.15AA(1)(e)(i) and (ii), the Tribunal accepts that the sponsor is a relative of the applicant who is an Australian citizen, and that the direct assistance required by the sponsor is as described in the CVAC dated 7 June 2016, but makes no findings about these matters.
The CVAC specifies an impairment rating of 45 and includes that the impairments are ‘permanent (for at least 2 years)’. The sponsor is described as ‘partially dependent’ and the CVAC examining doctor declares that the sponsor has:
·A medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life.
·A need for direct assistance in attending to the practical aspects of daily life because of the medical condition.
·Because of the medical condition, the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.
Given the sponsor’s advancing age, the findings made in the CVAC on file, and a letter relating to the sponsor from Tower Medical dated 18 June 2020 listing the sponsor’s conditions and medications, the Tribunal considers it reasonable to think that her overall condition would not have improved. In addition, during the period of the review, the provision of CVAC’s was essentially suspended for all but the most critical cases. A new CVAC was not requested by the Tribunal. The applicant and his nephew, Elias Boutros, both gave generally consistent evidence about Mrs Boutros’ condition and the assistance she requires and receives. Their evidence is supported by a written document entitled ‘Discussion points’, referred to later in this decision, from George Boutros, another one of the sponsor’s sons.
Additional documents provided to the Tribunal confirm that the sponsor was referred and approved for prescribed medicinal cannabis for pain management. Oral evidence was given at the hearing that Mrs Boutros’ conditions are chronic and that she had recent shoulder surgery and now has limited use of her arm and shoulder, and she requires assistance opening doors and the fridge. She uses a wheelchair and a walking frame and a number of health care professionals attend to her in her home each week.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
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. This is the substantive issue on which the visa was refused.
There is no evidence before the Tribunal that Marie Boutros has any adult grandchildren. She has four adult children who are Australian citizens, ranging in age from about 53 down to 34:
i)Vince Boutros, married with a baby, currently residing in Lebanon with his wife and child, they have a house in Greenacre nearby to Vince’s mother that the applicant said they live in up until around April 2021 when they travelled to Lebanon. He said the home has been unoccupied since then, but he does not know when Vince and his wife plan to return
ii)George Boutros, married with children, works full time and lives about 20 minutes away from his mother, in Merrylands
iii)Jamila Boutros, married with four children, two under school age, not working, lives nearby to her mother, in Greenacre
iv)Elias Boutros, married, works full time, and also lives not far from his mother
In the primary decision record, it is included that in June 2018 when the application was being assessed that it was requested in writing that the applicant provide statutory declarations from each of Mrs Boutros’ adult Australian relatives. Specifically, it was requested that they address whether they could provide any of the required assistance to their mother, Mrs Boutros; whether they had previously provided assistance to her; and why they could not provide all or any part of the assistance the sponsor required. It is recorded in the decision record that there was no response and the Minister’s finding was that it was not ‘satisfactorily demonstrated that it would be unreasonable for Mrs Boutros’ adult children to contribute in any way to the assistance their mother requires’. This same issue has been considered by the Tribunal.
The applicant’s son, George, provided a bundle of documents to the Tribunal on 19 July 2021, including letters and information about medicinal cannabis that is prescribed and taken by his mother. A letter dated 18 June 2020, from Victoria Tower Medical (already referred to earlier), confirms the sponsor’s conditions and the medication she takes. In a document titled, ‘Discussion Points’, these matters or claims were included, relating to the sponsor, Mrs Boutros:
·24/7 care required especially at nights
·Risk of fall “high” due to multiple knee, shoulder replacements and lack of mobility due to chronic arthritis, and curved spine due to collapsed lower disks.
·Unable to cook, open fridge or be self-sufficient due to limited mobility
·Unable to walk without support with a wheel chair and walking stand
·Unable to enter and exit motorised bed
·Unable to walk outside unassisted
·Administration of medications between 8am to 10pm, 7 days a week
·Administration of legally administered Cannabis Oil for severe pain management relief
·Unable to open and close doors and / or windows due to limited mobility
·Wheel chair vehicle required to travel to Doctors, X-rays and surgeries
·Home visited with family doctor only due to mobility constraints
·Dependence others to buy groceries, women’s essentials, adult nappies and personal hygiene kits
·Limited social services for bathing, i.e. 3 times a week
·Limited cleaning services, i.e. 2 times a week
·Limited physiotherapy services, i.e. 23 times a week
·Counselling for mental health and welfare, 1 hour a week (on-going)
·Due to COVID restrictions, nil relative, family or friend visits over the last 18 months (since March 2020) due to original outbreak
There is little up-to-date or current supporting medical or other documentary evidence that has been provided to substantiate these claims, particularly the claim that the sponsor requires ‘24/7’ care, especially at night. However, the Tribunal is satisfied that the applicant and the sponsor’s son, Elias Boutros, gave generally consistent oral evidence as to other matters listed above.
At the scheduled hearing, the applicant gave oral evidence about the assistance that he claims to provide and that others provide to Mrs Boutros. It is accepted that Mrs Boutros has the physical conditions described above and that she has mobility problems and difficulty opening doors.
Oral evidence was given, and the Tribunal accepts, that Mrs Boutros uses a wheelchair and, it is reasonable to think, in her circumstances, that her physical conditions would put her at a higher than usual risk of falling. However, whilst in a wheelchair, the Tribunal considers that the risk would be somewhat reduced. The applicant said that the sponsor has trouble getting up and down stairs; he was asked what stairs there were in the house and explained that he meant that the difficulty related only to one step at the entry to the house.
At the scheduled hearing, the applicant said that Mrs Boutros has trouble opening doors, including the fridge door. It is accepted, particularly on the basis of the sponsor’s shoulder surgeries, that she would have difficulty with these tasks.
The applicant was asked at the hearing who usually does the cooking in the home he and Mrs Boutros live in. He said ‘usually’ the sponsor’s daughter, Jamila (Jamie), cooks and brings dinner over, puts it in the fridge and then when he and Mrs Boutros want to eat, he serves it for them. It is accepted that Mrs Boutros may not be able to cook due to her physical limitations, but the Tribunal is not satisfied that the applicant does or assists with cooking in any significant way. It is accepted, as he says, that the applicant makes coffee for himself and Mrs Boutros in the mornings.
During the COVID-19 restrictions in Sydney, during 2020 and 2021, it is accepted that movement around the city was limited and strictly regulated. These matters were very widely reported in the media, frequently and regularly. While the claim has been made that no relatives, family or friends visited the sponsor ‘over the last 18 months, the Tribunal finds it difficult to accept that none of the sponsor’s adult children have seen her at any time from February 2020 to July 2021. The applicant said, in his oral evidence, when asked how he and the sponsor managed throughout 2020 and 2021, that no-one came to see them at all except a woman who came to administer the vaccine. The applicant was asked if the woman who comes three times a week to assist Mrs Boutros with her showering, washing and cleaning was able to come to the house and he said she did continue to come to the house for that purpose three times a week. The applicant was asked whether Jamie still delivered food to them and he said he did, but that she would come and drop it off at the door, but stay outside.
Later in the hearing, the applicant confirmed that all the usual in home services continued throughout COVID lockdowns, including the personal care/cleaning, weekly physiotherapy and counselling sessions. The Tribunal considers that the original answer the applicant gave, when he said no-one came to see them at all, was to imply that he and Mrs Boutros were alone throughout the relevant 2020-2021 and that it was he who was responsible for and providing the sponsor with assistance. The Tribunal, relying on the clarification that was sought and given, is not satisfied that it is the case that ‘no-one’ came to the house during the 2020/2021 COVID lockdowns.
In addition, whilst there were periods where people and areas of Sydney were locked down, sometimes for months, there were significant periods of time where they were not. It is not accepted that ‘no-one’ in the family came to see their mother in 2020 and 2021, as claimed by the applicant.
The applicant was asked if he himself has any medical conditions and how he gets to doctor’s appointments if he needs to. He said that he sometimes goes with his sister to doctor’s appointments, but that he only goes to the doctor if he has the flu, that Jamie would take, and that he only takes ‘Panamax’ occasionally. The applicant was asked how often he and Mrs Boutros see Mrs Boutros’ daughter Jamie and he said that if they need something, he tells her and she attends to it.
There has been no up-to-date written or oral evidence given by Jamie. However, it is accepted that she assists in the way the applicant has described, that is, cooking meals, arranging appointments, booking transport to take her mother to appointments and assisting the applicant and sponsor when she is asked to.
Medications taken by the sponsor include medicinal cannabis and other medications. At the hearing, the applicant said he gives her the cannabis, in oral and liquid form in the morning, afternoon, at dinner time and late at night. He said that the sponsor’s son, Elias collects his mother’s cannabis medication. The Tribunal accepts both these matters to be true.
At the hearing, the Tribunal was told by the applicant that Mrs Boutros has access to a booking system for a special vehicle to take her doctor’s and other appointments. He said because of his limited English that Jamie arranges the vehicle for her mother when it is needed. The applicant said he does not have a licence and does not drive, so does not take Mrs Boutros anywhere himself, although occasionally he accompanies her to appointments.
Both the applicant and Elias gave oral evidence that Mrs Boutros has a woman who comes to the home for two hours, three days a week to assist with showering, laundry and some basic cleaning; a physiotherapist who comes once a week for an hour; a mental health professional who attends to Mrs Boutros in her home once a week; and Mrs Boutros’ GP is on call for home visits. It is accepted that these in home care arrangements are in place at the time of this decision.
The applicant’s evidence was variously highly embellished or vague, in a manner that appeared to be to support his claim that he provides the required assistance to Mrs Boutros. The Tribunal does not suggest that he doesn’t provide his sister with companionship in the home. However, a significant amount of assistance relating to the sponsor’s day-to-day needs, in evidence given by the applicant, are provided by her daughter, Jamie. On the oral evidence given at the hearing by the applicant, Jamie appears to make regular trips to the house, provides meals for both the sponsor and applicant, sometimes takes the applicant and/or her mother to appointments, makes transport and other arrangements and does the majority of the shopping. The applicant said that he will walk to the shop to get bread, but that personal shopping for Mrs Boutros is done by Jamie. Most of the remainder of the direct assistance required by Mrs Boutros is provided by the health and medical professionals who attend her home, weekly on a regular basis.

At the time of application, a written statement was provided by the applicant, dated 7 October 2017, in which he states:
‘I am the person who prepares her (Mrs Boutros) food, cleans the house, talking to my sister, giving her medication as her son, Vince, has been out of work for three years and must meet mortgage and her son, George is a full-time employee at the airport and has children, her daughter, Jamila, has young children under 6 years to look after and Elias Boutros is a full-time employee.’
The Tribunal accepts that the sponsor’s adult children’s circumstances were, at the time, as described above and are essentially the same or similar now, with the exception of Vince who is now married and living in Lebanon. At the time of this decision, the Tribunal is not convinced that the applicant provides the type and level of care he claimed to provide at the time of application. It is accepted that he resides in the house with his sister and provides some basic incidental assistance to Mrs Boutros and that the two of them are companionable.
Although no recent reliable or supporting documentary evidence has been provided, the Tribunal accepts that Mrs Boutros is provided with in home personal care, physiotherapy and counselling for mental health. Clearly this was arranged by someone, although it is not clear who. What the Tribunal considers reasonable to think, on the basis that the applicant has said his English is limited and the sponsor’s children, mainly Jamie, make appointments and arrangements, is that it was not the applicant himself who looked into or made the in home care arrangements that have been described and that it is accepted are currently in place. The applicant was asked at the hearing whether he or any of the family had looked into residential care facilities and availability and indicated that this had not been considered. It is noted that no claim has been made, and no evidence provided, that the availability of residential care is something that has been considered or inquired about for Mrs Boutros.
Notwithstanding the claim that the sponsor requires 24/7 care, there is no probative evidence before the Tribunal that the sponsor requires or receives assistance from the time she goes to bed at night until she gets up in the morning. The applicant said he takes her to get settled in bed at around 11.30 each night and then gets her up at 6:30am, takes her to the bathroom and waits outside the bathroom until she is ready and then he makes coffee for them.
In the hearing invitation the Tribunal sent to the applicant, information is provided in writing about things to do before the hearing, which includes:
‘The decision made by the department should set out the reasons for the decision, and you should have regard to these, and any changes in your circumstances, in providing documents and preparing for the hearing.’
Together with this suggestion by the Tribunal, and despite concerns raised in the primary decision record, the applicant has still not provided satisfactory or informative written statements with supporting documents from the sponsor’s children as to why they cannot provide some or all of the assistance their mother requires.
It was included in the primary decision record that the applicant was requested to provide documentary evidence as to why the assistance Mrs Boutros requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. It has been accepted by the Tribunal that the sponsor receives some in home services. However, at the time of application and still, at the time of this decision, no evidence has been provided that any genuine inquiries have been made into what residential care services may be available for Mrs Boutros.
The care required by Mrs Boutros is direct assistance with the practical aspects of day-to-day living. While it is accepted that the applicant lives in the sponsor’s home, the majority of the direct assistance provided to Mrs Boutros appears to be from the in home services she has and from her daughter and occasionally, from time to time, one or more of her sons.
The Tribunal heard evidence, which is accepted, that there are adult children of the sponsor who live close by and who do, to varying degrees, provide assistance to their mother. There is no probative evidence before the Tribunal that would support a claim that it is not reasonable for the adult children, individually or collectively, and in collaboration with the service providers already attending to their mother in her home, to provide her with the required assistance.
In the circumstances of this case, where the documentary evidence provided was minimal, particularly relating to why the sponsor’s adult children cannot provide assistance to their mother, the Tribunal took care to obtain as much oral evidence as possible, ensuring that all relevant matters material to the issue on review where discussed with the applicant, and that his oral evidence was recorded and thoroughly considered. As has been noted in the decision, while there were concerns about some matters, others were accepted on the face of it where the Tribunal considered the information was generally consistent between the applicant and his witness or other information before the Tribunal.
Before concluding, the applicant was told that a decision would be provided to him in writing after careful consideration of the evidence and he was informed that it may be positive or unfavourable. The applicant was asked if he was sure he had provided the Tribunal with all the information he intended to and that he wished to be considered. The applicant said he was sure he had provided everything he wanted to.
Having carefully considered all facts and matters relevant to the material issues, as specified in reg.1.15AA(1)(e), the Tribunal concludes that a full range of care arrangements for the sponsor have not been investigated and that collectively, the in home care arrangements currently in place from together with some participation by all of some of her adult children, is possible. Three of them live in Sydney, two nearby, and one only a bit further away, 20 minutes. There is no suggestion that there is any estrangement between the siblings and their mother.
The Tribunal is not 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 not met.
Conclusion
Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.
For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Jennifer Cripps Watts
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.

[2021] AATA 4596

17 November 2021

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Immigration

Administrative Law

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Judicial Review

Procedural Fairness

Statutory Construction

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