Menzalji (Migration)

[2018] AATA 1929

Menzalji (Migration) [2018] AATA 1929 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ahmad Issam Menzalji

VISA APPLICANTS:  

Mr Nasser Manzelgi

Mrs Maha El Dib

Mr Omar Manzalji

Miss Jana Manzalji

Mr Bachar Manzalji

Miss Hiba Manzalji

CASE NUMBER:  1714548

DIBP REFERENCE(S):  OSF2015/054825 OSF2017/055622

MEMBER:Helena Claringbold

DATE:10 May 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 10 May 2018 at 3:26pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Impairment rating of 50 – Several adult children in Australia – Other family members able to provide care either individually or collectively – Other care services available – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15AA Schedule 1 Item 1123A Schedule 2 cls 116. 211, 116.221

CASES
Anveel v MIBP [2013] FCCA 2181
Jajov MIBP [2013] FCCA 1554

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 6 June 2015, Mr Nasser Manzelgi, the primary visa applicant (the visa applicant) applied for an Other Family (Migrant) (Class BO) visa.  The application was made on the basis of him being the carer for             Mr Ahmad Issam Menzalji, his father and the sponsor in this application. Mrs Maha El Dib, Mr Omar Manzalji, Miss Jana Manzalji, Mr Bachar Manzalji and Miss Hiba Manzalji, are secondary visa applicants.

2. On 10 May 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visas. The refusal was based on r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(b)(iv) or (d) of the Migration Regulations 1994 (the Regulations) and cl.116.221 of Schedule 2 to the Regulations not being satisfied. This is a review of the delegate’s decision.

3. At the time of application, 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 (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.

4. On 2 May 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Mr Manzelgi, Ms Joumana El Jamal and Mr Mohammad Manzalji. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese), Arabic and English languages. The sponsor was represented in relation to the review.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence given at the Tribunal hearing.

   ISSUE

7. The issue in the present case is, whether assistance can be reasonably provided to Mr Menzalji, the sponsor by family members who are living in Australia, or reasonably be obtained through welfare, hospital, nursing or community services in Australia.

   Claims and findings

   Has the visa applicant claimed to be a ‘carer’ of the sponsor?

8. Clause 116.211 of Schedule to the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the visa applicant applied for the visa based on claiming to be the carer of his father, who is an Australian citizen.

9. Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211.

   Are the requirements of r.1.15AA(e)(i) and r.1.15AA(e)(ii) satisfied?

10. Regulation1.15AA provides that the assistance cannot reasonably be:

    (e)(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

    (e)(ii)      obtained from welfare, hospital, nursing or community services in Australia;

11. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

12. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

    Can assistance reasonably be provided by another relative?

13. The sponsor was born on 15 March 1935.  He is an Australian citizen. According to the primary decision, the sponsor has two adult children and ten grandchildren living in Australia.  The visa applicant, is his son.

14. The sponsor previously lived in Riverwood.  He subsequently moved to public housing accommodation in Market Street, Condell Park and told the Tribunal he has lived there for approximately three years. He said he is happy living there, as it is a modern ground floor flat.

15. In May 2015, Bupa Medical Services assessed the sponsor with an impairment rating of 50 and as needing assistance with hygiene, toileting, dressing, preparing food, with mobility and  with transport. Bupa Medical Services recorded him as suffering from medical conditions including peripheral vascular disease, ischemic heart disease, emphysema and myositis.

16. Bupa Medical Services recorded him at the Riverwood address for 13 years. Other information is that, at that time and because he needed more care, he was spending most of his time at his daughter’s place. Additionally, Bupa Medical Services stated that when he slept at his own home, his daughter ensured someone stayed with him.

17. Information about the sponsor’s health includes a psychologist’s letter dated August 2017.  Concluding comments include that the sponsor advised that he is managing his conditions better; however, he would like to continue counselling sessions. Other information describes the sponsor’s leg and feet issues, and lists his conditions and procedures and an upcoming operation.  One author notes that the sponsor expressed his uneasiness, loneliness and lack of ability to self-care and of a frustration about his son’s visa application. A letter, dated June 2017, from a social worker, urges that that the visa applicant be granted a visitor visa.

18. Mr Manzelgi, the visa applicant, was born in 1963 in Hadid, Lebanon. Mrs Maha El Dib Ep Nasser Manzalji is his spousal partner.  They have six children; four of their children are the secondary visa applicants. They have another child living in Lebanon and a son living in Australia.

19. Ms Joumana El Jamal, was born in 1966, she is the sponsor’s daughter and she lives in Greenacre. She is an Australian citizen. She is married and lives with her spousal partner. She has three married children and two single children. Information provided to the Tribunal by the sponsor, visa applicant and Ms Jamal is that she previously provided her father with care.  She took him to medical appointments and sometimes cooked for him and other times the sponsor ate food delivered to his home. Other information is that as a result of an accident Ms Jamal had an eye removed and is unable to continue caring for the sponsor. A Centrelink statement dated 31 August 2015, recorded Ms Jamal as receiving a carer payment. In April 2018, she stated that two days a week she babysits four of her grandchildren, two days a week she works, one day she helps her mother and one day she sometimes helps her dad; however, her help is not enough for his condition.  She stated that due to her commitments she is unable to care for the sponsor to satisfy his needs.  Ms Jamal told the Tribunal that her commitments and condition prevent her from caring for her father.  She said that she cannot care for him full-time and can assist for a maximum of one hour a week. The Tribunal considered Ms Jamal’s evidence about her commitments.  However, the evidence before the Tribunal is that prior to the loss of her eye, Ms Jamal provided her father with care and that he spent time at her home and when he slept in his own home Ms Jamal ensured that someone would be there with him. The Tribunal accepts that Ms Jamal has faced challenges due to the loss of her eye.  It appears to the Tribunal that Ms Jamal now leads an active life and it does not accept that the assistance cannot reasonably be provided by Ms Jamal to her father with the assistance of the sponsor’s other family members.

20. Ms Jinan El Samman, was born in 1969, she is the sponsor’s daughter and she lives in Fairfield. She is an Australian citizen. She is married and lives with her husband and five-year-old son.  She has three adult children from her first marriage. The sponsor told the Tribunal that Ms Samman has psychological issues and cannot care for her father and he cannot rely on her. The Tribunal does not accept the claim that Ms Samman cannot help her father because of her psychological condition. There are no medical or psychological reports about Ms Samman’s condition from her health professionals. The Tribunal does not accept that assistance cannot reasonably be provided to the sponsor by Ms Samman, collectively with other members of the sponsor’s family.

21. Mr Mohammad Manzalji, is the sponsor’s grandson and the visa applicant’s son.  He lives in Chester Hill. He is an Australian permanent resident. At the time of visa application, he stated that he works from 7am to 11pm. He told the Tribunal that he is going through personal difficulties and is unable to care for his grandfather. The Tribunal is not satisfied that the some assistance cannot reasonably be provided by Mohammad, to his grandfather even if Mohammad is experiencing personal difficulties. 

22. The sponsor has nine other adult grandchildren living in Sydney. Approximately six of them are married and have families. The sponsor told the Tribunal that his grandchildren are busy and do not want to live with him.  While the Tribunal may accept that the sponsor’s grandchildren are busy, it does not accept that at least some of them could not contribute to their grandfather’s care.

23. As detailed in the delegate’s decision record, during the Departmental interview the visa applicant stated that he does not speak English. Additionally, he stated that he is travelling to Australia to be close to family members and his son. The visa applicant told the Tribunal that he wants to care for his father. He said that ‘they’ have many accommodation options; his wife and children can live with his sister and he can live with his father, or when the lease on his sister’s rental property ceases the family and sponsor can move there.

24. The sponsor told the Tribunal that he lives alone. He said that he does not have anyone because his family do not have time for him.  He stated that sometimes he prepares his food and on other occasions, a neighbour or friends will provide him with food.  He said that he moves about the flat on his frame and although he gets tired, he manages to shower himself and purchase groceries.  In addition, he receives assistance four hours a week from a woman sent by an organisation. She assists him by cleaning the flat, taking him to medical appointments and sometimes by buying groceries. He explained to the Tribunal about his medical conditions and the medication he takes. He said that he is lonely and because his knees give way he is in fear of falling. The Tribunal accepts that the sponsor has the conditions as claimed and is listed for a medical procedure.  However, the Tribunal is not satisfied that care cannot be provided to him collectively by his family members.

25. The Tribunal considered the evidence, individually and as a whole and on the evidence, the Tribunal is not satisfied that assistance with hygiene, toileting, dressing, preparing food, with mobility and transport cannot reasonably be provided to the sponsor collectively by his family in Australia. Therefore the first named visa applicant does not satisfy r.1.15AA(1)(e)(i).

    Can the assistance be reasonably obtained from welfare, hospital, nursing or community services in Australia?

26. The sponsor stated that three years ago he had an ‘assessment’.  After this assessment, he received four hours a week in care assistance. He was unable to say who assessed his needs.  The Tribunal notes that an Aged Care Assessment Team (ACAT) would normally undertake this type of assessment. He said that he has not had any other assessments. He stated that there may be other services available but he needs someone with him all the time. The Tribunal asked if he had made any enquiries about community services or aged care facilities.  He told the Tribunal that he does not ‘go along’ with anyone who is not family.  He said that he wants to stay by himself and that he cannot stand noise or people talking and does not like crowded places. He told the Tribunal that he has been told about poor service and support and when he asked whether someone could live with him and ‘they’ asked why he does not go to a place for elderly people?  Ultimately, the sponsor’s evidence is that he wants to live with the visa applicant and his family.

27. In the visa application form in response to  question 71, Has anyone sought assistance from an Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative? is that - ‘Evidence will be provided in due course of the visa application’. At the time of the delegate’s decision, the sponsor had not provided any information about any approaches to these entities. Neither, has the Tribunal been provided any substantive information about any approaches to obtain any additional services for the sponsor.

28. While the sponsor stated that he wants someone to live with him, fears falling and wants to live with his son, the Tribunal is not satisfied that there are not services available to the sponsor appropriate to his needs and of the nature that is required to assist him in attending to the practical aspects of daily life. The sponsor is receiving assistance for four hours weekly.  He told the Tribunal that this resulted from an assessment approximately three years ago.  There is no evidence that, he has been assessed since that time, or that any investigation has taken place to determine what assistance can be reasonably obtained for him, or tests have been done for him to determine how these services may assist him and alleviate his fear of falling. 

29. The sponsor may be reluctant to think of other aged care services.  However, it appears to the Tribunal that no investigation has taken place to determine whether permanent residential care, residential respite care or any other aged care package, appropriate to the sponsor’s needs, may be reasonably obtained. The Tribunal is not persuaded that any investigation has taken place to establish that the assistance for the sponsor cannot be reasonably obtained from welfare, hospital nursing or community services in Australia.

30. The visa applicant told the Tribunal that the idea of ‘throwing our parent’ into an elderly facility is excluded by cultural stigma and obligation to one’s parents. The Tribunal accepts that people are culturally different; however, as detailed above, it does not accept that the sponsor’s family in Australia cannot collectively care for the sponsor. Neither is it satisfied that the assistance for the sponsor cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.

    Other considerations

31. At the end of the Tribunal hearing, the sponsor’s migration agents challenged the interpreting during the Tribunal hearing.  The Tribunal invited the sponsor’s migration agent to obtain a copy of the recording of the hearing.  It invited the sponsor’s migration agent to provide the Tribunal with a translated record by a relevant person of the Tribunal hearing and to present arguments about the inconsistencies in interpreting. The sponsor’s migration agent stated that he would not provide a translation of the Tribunal hearing, as the inconsistencies were minor.  The Tribunal notes that the sponsor and the visa applicant told the Tribunal that they had understood the interpreter.

32. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the sponsor cannot reasonably obtain assistance from community services in Australia; therefore r.1.15AA(1)(e)(ii) is not satisfied.

33. As the Tribunal has determined that the criterion for the grant of the visa has not been satisfied the Tribunal has not considered the remaining criteria.

34. As the Tribunal is not satisfied that assistance cannot reasonably be provided to the sponsor by his family members or that the sponsor cannot reasonably obtain assistance from community services in Australia, so r.1.15AA(a)(e)(i) and r.1.15AA(a)(e)(ii) are not met. As a result, the visa applicant does not satisfy cl.116.221 of Schedule 2 to the Regulations.

35. As the Tribunal has determined that cl.116.221 is not met it has not gone on to consider the other requirements for the grant of the visas.

36. As a result of the above the Tribunal is not satisfied that at the time of decision, the visa applicant, is the carer of his Australian relative who is the sponsor; therefore, the visa applicant does not meet cl.116.221 of Schedule 2 to the Regulations.

37. It follows that as the visa applicant does not meet the requirements for the grant of the visa, Mrs Maha El Dib, Mr Omar Manzalji, Miss Jana Manzalji, Mr Bachar Manzalji and Miss Hiba Manzalji, the secondary visa applicants do not meet the requirements for the grant of visas.

38. For the reasons above, the visa applicants do not meet the criteria for a Subclass 116 visa.

39. There are no claims or evidence before the Tribunal that the visa applicants satisfy the requirements of the other subclasses within Other Family (Migrant)(Class BO).

    DECISION

40. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Helena Claringbold
    Member