MOUSSA (Migration)

[2021] AATA 3862

MOUSSA (Migration) [2021] AATA 3862 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lar MOUSSA

CASE NUMBER:  1822884

HOME AFFAIRS REFERENCE(S):          CLF2017/35469

MEMBER:Helena Claringbold

DATE:23 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an, Other Family (Residence) (Class BU) Carer visa.

Statement made on 23 September 2021 at 4:03pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could be provided by relatives and services in Australia – collective family contribution to care – sponsor has not accessed welfare, hospital, nursing or community services – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.221; r 1.05

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 10 May 2017, Ms Lar Moussa, the applicant, applied for an Other Family (Residence) (Class BU) Carer visa. The application was made on the basis of the applicant providing assistance to her mother, Ms Naouf Moussa, the sponsor.

2. On 2 August 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that care could not be provided by relatives and services in Australia. Therefore, the visa applicant did not meet cl.836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958. On 3 August 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. At the time of application, 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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.

4. On 10 August 2018, the Tribunal wrote to the applicant and advised her that if she wished to provide written material or any other material, she believed supported the application she should do so as soon as possible. On the 15 April 2021 and 16 June 2021, the Tribunal wrote to the applicant and invited her to provide all documents she intended to rely on to support her case.  She was advised that the decision made by the Department should set out the reasons for the decision and she should have regard to these, and any changes in her circumstances, in providing documents and preparing for the hearing.  

5. On 7 September 2021, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Lebanese and English languages. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal considered, individually and completely, the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing. 

   ISSUE

8. The issue in the present case is whether the assistance for the sponsor cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulations.

   BACKGROUND ON THE EVIDENCE

9. The applicant was born in 1962 in Karm El Mohr, North Lebanon. She was married to Mr B, who is deceased. She had four children with him, three who live in Lebanon and one in Australia. Her mother and siblings live in Australia and her half-sister lives in the USA. On 2 August 2018, the applicant was refused an, Other Family (Residence) (Class BU) Carer (Subclass 836) visa.

10. The sponsor was born in 1937 in Lebanon. She was married to Mr M who died on 6 February 2021. She has four sons and one daughter living in Australia and one daughter living in the USA.

    Does the applicant claim to be the carer of an Australian relative?

11. Clause 836.221 requires that at the time of decision the applicant is a carer of an Australian relative (or resident). The term ‘carer’ is defined if reg.1.15AA of the Regulations.

    Whether the assistance cannot be reasonably obtained or provided

12. 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 New Zealand citizen as required by r.1.15AA(1)(e)(i); or

    that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by r.1.15AA(1)(e)(ii).

    Whether the assistance cannot reasonably be provided by any other relative of the Australian relative of the sponsor

13. 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.

14. In March 2018, the applicant stated the following: she is the only one available and committed to assisting the sponsor who suffers from serious medical conditions. She looks after the sponsor in all aspects and attends to her hygiene and prepares her special food.  She ensures that the sponsor takes her medication on time. On the Form 80 she declared that she is the sponsor’s full-time carer and accompanies her. The sponsor is unable to communicate in English and unable to obtain assistance from a nursing home or from any other source. She is determined to remain in her home. They contacted community services and were assured that assistance could not be provided seven days a week. The assistance she provides the sponsor and the sponsor’s needs cannot be provided by other professionals. 

15. In a letter dated 3 March 2021, the applicant declared living at Inverary Street. She provided the following information: On 6 February 2021, her father died and the sponsor’s health is deteriorating and she continues to care for the sponsor. She has previously provided information about why her siblings and community services cannot provide assistance for the sponsor.

16. In 2018 and 2021, the sponsor’s children living in Australia provided statutory declarations providing reasons why they cannot reasonably provide assistance to the sponsor. They stated that they require the applicant to care for the sponsor full-time.

17. For clarity the sponsor’s relatives are in three different residences in Lloyd George Avenue and are identified below as address one, address two and address three.  Other relatives live at Inverary Street.  Lloyd George Avenue and Inverary Street are minutes away from each other.

18. Mr Moussa Boutros Moussa, the sponsor’s son lives at Inverary Street. In 2018, he provided the following information: he is the father of three children in high school or university. He is employed as a senior news correspondent.  He works long hours and is on call 24 hours a day. He rarely spends time at home at reasonable hours during the weekend. He also suffers chronic back pain.  In 2021, he provided the following information: his address is Inverary Street. He is employed as a senior producer for television. He works more than normal working hours and cares for his children. Due to his heavy workload and family commitments he is unable to care for the sponsor. A letter confirms his employment and that his working hours are not limited to 9:00am to 5:00pm. The applicant told the Tribunal that Mr Moussa Boutros Moussa’s daughter is in her 20s and his sons are 22 and 18 years old.

19. Mr Elias Katrib, the sponsor’s son lives at Lloyd George Avenue (address one). In 2018 he provided the following information: he is the father of six children. In 1999, he was diagnosed with diabetes which is managed with medication, diet and exercise. In 2012, his wife had a double mastectomy and continued hormone therapy for 10 years. She has constant swelling in her arms which is exacerbated by everyday tasks such as housework. She is self-employed and the work she undertakes is physical. Her conditions affect her ability to do everyday tasks. As a result, he has to assist her and this is difficult at times, because of his diabetes. In 2021, he provided the following information: he suffers multiple chronic illnesses and also cares for his wife who is recovering from breast-cancer. He constantly needs medical attention and is unfit to care for the sponsor. A medical certificate is provided detailing his medical conditions as type 2 diabetes mellitus; ischaemic heart disease; left diabetic retinopathy and gastro oesophageal reflex disease.  The certificate provides his address as Lloyd George Avenue. The applicant told the Tribunal that Mr Elias Katrib has six children.  The eldest is 41 years old and the youngest is roughly 21 years old.

20. Mr Habib Moussa, the sponsor’s son lives at Lloyd George Ave, (address two). In 2018 he provided the following information: he is a father of six children and a grandfather of eight grandchildren.  In 1991, his son was diagnosed with a rare disease. He lives with him and he requires 24-hour care seven days a week, which is provided by him and his wife. In 2009, he had surgery on his lumbar spine. In 2015, he had open heart surgery and is on a waiting list for a hernia surgery. He is unable to undertake physical work as it exacerbates his back condition. In 2021, he provided the following information: his address is Lloyd George Avenue. He suffers from multiple medical conditions which require ongoing treatment. He is unable to care for the sponsor. A medical certificate is provided detailing his medical conditions as hypertension; dyslipidaemia; coronary artery disease; vertigo benign positional and neck pain with radiculopathy.  The applicant told the Tribunal that Mr Habib Moussa has six children.  One son is disabled and in a wheelchair.  Four children are married and one aged 25 years old is single.

21. Ms Claude Moussa, the sponsor’s daughter lives at Lloyd George Ave (address three). In 2018 she provided the following information: she is employed full time as a practice manager and on call 24 hours a day. In 2015, she was diagnosed with breast cancer. She underwent treatment and continued hormone treatment for 10 years. She experiences side effects affecting her ability to carry out daily tasks. In the past year she was diagnosed with plantar fasciitis and also diagnosed with tendinitis.  Her doctor advised that physical tasks exacerbate her conditions. In 2021, she provided the following information: she lives at Lloyd George Ave. She is employed as a practice manager and unable to care for the sponsor on a full-time basis. She provided a letter dated May 2021, for a medical practice which confirmed that she is employed as practice manager.

22. Mr Tannous Moussa, the sponsor’s son lives at Lloyd George Ave (address three). In 2018 he provided the following information: He is a single father of three children aged 8, 11 and 14 years.  He has medical conditions and needs assistance caring for his own family. In 2021, he provided the following information: he lives at Lloyd George Ave. His wife died in 2012 and he is a single father.  He is the sole owner and employee of his business which supports his family financially. His family and business are his priority and he is unable to care for the sponsor. The applicant told the Tribunal that Mr Tannous Moussa has three children aged 18, 14 and 12 years old.

23. The applicant told the Tribunal that she arrived in Australia in 2017 and has lived at Inverary Street with her sister Ms Claude Moussa, her brother Mr Moussa Boutros Moussa and his wife and three children aged 22, 20 and 18 years old.  Her parents lived here until her father’s death (6 February 2021) and her mother continues to live here. She was unsure why the sponsor declared Lloyd George Avenue (address one) as her address as she lives at the Inverary Street address. Maybe the family lived there previously but her brother lives there now. The Inverary Street property was owned by her father. He also owned Lloyd George Avenue (address one). She wasn’t exactly sure of the properties owned by her father or who he left them to in his will. The properties in Lloyd George Avenue and Inverary Street are minutes away from each other. The sponsor has a large number of grandchildren who are working and married.  She also has two grandchildren who are under 18 years old. She assists the sponsor by giving her breakfast and medication. The sponsor is incontinent and wears protective underwear and needs assistance in hygiene and showering.  The applicant cooks for the sponsor and they watch television together.  Mr Moussa Boutros Moussa is a journalist and his wife is a teacher and their children are at school or university. Her sister Ms Claude Moussa is employed. They cannot assist the sponsor. She is the person who assists the sponsor and the person the sponsor wants to provide her with care. The sponsor does not want or need anyone else but the applicant to assist her. She does not want to be assisted by strangers and everyone else is busy.

24. The sponsor told the Tribunal the following: she needs assistance to shower and dress and to be taken for walks. She needs to have her laundry and bed tended to. The applicant washes her clothes, mops the floors and cooks for her and does whatever she asks.  She wants the applicant to care for her.

25. Mr B, the applicant’s son told the Tribunal the following: the sponsor needs someone to stay with her all of the time. More especially since her husband died and since her fall. His aunts and uncles have their own lives and employment and stress and can’t care for the sponsor. The applicant provides her with care, she provides her medication and ensures that she stays active and doesn’t become bed ridden.

26. The Carer Visa Assessment Certificate (CVAC) dated 18 May 2021, recorded a total rating of 40 points. Noted on the CVAC is the following: the sponsor address is Lloyd George Avenue (address one). Since 2017, the sponsor’s condition has deteriorated, she needs full supervision and assistance mobilising as well as with her personal activities of daily living and there is no prospect of significant improvement. The sponsor has cardiac failure; osteoarthritis bilateral knees and osteoporosis with multiple fractures including a recent right hip fracture. She is fully dependent and requires assistance with mobility; bathing/showering; toileting; dressing/grooming; eating/feeding; supervision with medication and personal safety and transportation. She is currently living with family and receiving informal family support. 

27. The Tribunal accepts that the sponsor has the conditions as set out in the CVAC. It understands that she needs full supervision and assistance mobilising as well as with her personal activities of daily living, that she is fully dependent and requires assistance with mobility; bathing/showering; toileting; dressing/grooming; eating/feeding; supervision with medication and personal safety and transportation.

28. The Tribunal considered the information provided about why the assistance cannot reasonably be provided by the sponsor’s relatives. The Tribunal understands that the family members have their own responsibilities, stresses and medical conditions (given their reasons as set out above).  The sponsor lives with her daughter and son and his wife and children.  She lives within minutes of her other children and their families. Because the sponsor requires full-time supervision, it’s not clear that any of her relatives can provide the standard of care.  However collectively they may be able to contribute to assisting in some capacity given they are either living with the sponsor or nearby.

29. The Tribunal does not accept that collectively some assistance cannot reasonably be provided to the sponsor by her relatives.  However, the Tribunal will base its decision on whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor.

30. The Tribunal is not satisfied that some assistance cannot reasonably be provided to the sponsor by her relatives.  The Tribunal will go on to consider the requirements of r.1.15AA(e)(ii).

    Whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

31. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

32. On the visa application form dated 24 April 2017, the applicant stated the following: that since June 2015, she lived at Inverary Street. At question 71 which asked ‘Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative? The applicant ticked yes. However, no details are provided about the assistance sought. The applicant declared that the sponsor has multiple medical conditions and requires full care for life. She declared that no other relatives other than her could provide the assistance required.

33. On the visa sponsorship form dated 26 April 2017, the sponsor stated the following: Her address is Inverary Street. She lived in a four-bedroom house which she owned, with four persons living in the house. She is in a married relationship and has seven children. She was assisted in completing the form by Ms Claude Moussa, who lived with her.

34. The CVAC dated 1 June 2017, recorded a total rating of 30 points. Noted on the CVAC is the following: the sponsor has a history of chronic back pain. She sustained a severe T12 fracture in November 2013 with 90 per cent loss of height.  Bone scan showed multiple rib fractures.  She reported progressively worsening back pain since then. She is unable to bend forward to pick up a light object placed at knee height. She needs assistance to get up out of a chair. She reported significant difficulty turning her trunk. She requires assistance in dressing and undressing her lower body partly due to the back pain. On examination she was noted to have significant restriction in ROM of thoraco-lumbar spine with positive straight leg raise test. Neurologic examination was grossly normal. This condition is assessed as causing moderate functional impact on activities involving spinal function.

35. The CVAC recorded that the sponsor lived at Lloyd George Ave (address one) with husband and her daughter Claude. Her husband is 89 years old with a few medical problems and unable to assist. The applicant was temporarily staying with her to assist in most of her activities of daily living. No services were engaged other than informal family support. She requires assistance with mobility; bathing/showering; dressing/grooming; eating/feeding; supervision of medication and transportation. She mobilises with a walking stick and is unable to stand for more than five minutes without a rest, uses a shower chair but requires some assistance in transfers. She requires some assistance dressing/ grooming due to back and knee pain. She requires assistance in meal preparation and assistance and reminders for medication.

1. The CVAC dated 18 May 2021, recorded a total rating of 40 points. Noted on the CVAC is the following: the sponsor’s address is Lloyd George Avenue (address one). Since 2017, the sponsor’s condition has deteriorated, she needs full supervision and assistance mobilising as well as with her personal activities of daily living and there is no prospect of significant improvement. The sponsor has cardiac failure; osteoarthritis bilateral knees and osteoporosis with multiple fractures including a recent right hip fracture. She is fully dependent and requires assistance with mobility; bathing/showering; toileting; dressing/grooming; eating/feeding; supervision with medication and personal safety and transportation. She is currently living with family and receiving informal family support.  

2. In a letter dated April 2021, Dr W stated the following: the sponsor is 91 years old and has been his patient since 2002. She suffers from heart failure; atrial fibrillation; valvular heart disease; severe osteoporosis with multiple fractures and advanced osteoarthritis of her knees.  She recently had a hip fracture needing surgery and is prone to falls.  She uses a walking frame.  There is no prospect of improvement and it is likely that she will get progressively worse. She needs help getting in and out of bed and chairs; help cutting her food and cannot prepare her food and needs help showering.

3. The applicant told the Tribunal the following: when the sponsor broke her hip, she was hospitalised for one month. However, she returned home early to recover at home. The hospital sent someone to the home to get the sponsor out of bed and shower her and help her walk and recover. She is much better now and uses a walker to assist with walking. She also uses the walker to lean on when getting into and out of a chair. The sponsor and her family have not investigated whether there are services that could assist the sponsor. She has not been accessed by the Aged Care Assessment Team (ACAT) to access services that may be available to her. No one has applied for any services or residential care for the sponsor. The applicant is the one who provides the sponsor with assistance and care.  

4. The Tribunal accepts that the sponsor suffers from the conditions as described.  She may be dependent on the applicant and not want the assistance of other people and may be reluctant to engage other services. It is apparent that the sponsor is having trouble looking after her welfare.  It follows that it is a matter for her family to decide how best to care for her.  It is evident that the sponsor wants to remain in her own home with the applicant caring for her. However, this does not necessarily mean that the assistance cannot reasonably be obtained through services in Australia.  The Tribunal does not consider it to be reasonable for the sponsor to refuse services in Australia. 

5. The Tribunal is sympathetic to the sponsor’s circumstances. However, the Tribunal has not been provided any independent evidence to support that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor. The evidence is that there has been no assessment of the sponsor by ACAT to determine that the assistance cannot be reasonably obtained. There has not been any investigation to determine whether the assistance cannot be reasonably obtained from any services in Australia. The Tribunal acknowledges that there is no requirement for the sponsor to be ACAT assessed or to investigate whether any services can provide assistance.  However, in the absence and lack of information before the Tribunal and combined with the fact that the applicant has been provided opportunity to provide information including at the Tribunal hearing, the Tribunal is not satisfied that the assistance cannot be reasonably obtained from welfare nursing or community services in Australia.

6. The sponsor appears to have unreasonably rejected any option, other than the applicant providing her with assistance and there is no capacity available to the Tribunal to waiver this requirement. Neither is the Tribunal satisfied that cultural factors, such as language barriers mean that the assistance cannot reasonably be obtained from welfare, nursing or community services in Australia because no evidence has been provided to support that service providers cannot cater to the sponsor’s cultural needs.

7. The Tribunal is not satisfied that the evidence provided demonstrated that collectively the sponsor’s relatives could not provide her with some assistance or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, or that the assistance cannot reasonably be obtained for the sponsor through a combination of her relatives collectively and services in Australia.

8. The Tribunal considered the evidence individually and completely. The Tribunal is not satisfied  that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, therefore r.1.15AA(1)(e)(ii) is not satisfied.

9. Therefore, the applicant does not meet cl.836.221 of Schedule 2 to the Regulations.

10. As the Tribunal has determined that the applicant has not met cl.836.221 of Schedule 2 to the Regulations it has not considered the remaining criteria.

11. 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 the prescribed criteria for the visa sought.

12. There are no claims or evidence that the applicant meets the criteria for any of the other subclasses contained in Class BU.

    DECISION

13. The Tribunal affirms the decision not to grant the applicants an Other Family (Residence) (Class BU) Carer visa.

    Helena Claringbold
    Member