Naser (Migration)

[2018] AATA 1485

Naser (Migration) [2018] AATA 1485 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Saleh Naser

VISA APPLICANT:  Mrs Mona Al-badri

CASE NUMBER:  1605795

DIBP REFERENCE(S):  OSF2015/036120

MEMBER:Kira Raif

DATE:2 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 May 2018 at 10:46am

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Carer of an Australian relative – Daughter of a permanent resident  sponsor –  Carer certificate provided – Parents’ preference is to be cared for by the visa applicant  – Sponsor has six adult children in Australia – Assistance can reasonably be obtained from other sources – Decision affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15AA Schedule 1 Item 1123A Schedule 2 cls 116.211, 116.221

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 on 2 April 2016 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Iraq born in October 1978. The review applicant’s evidence to the Tribunal is that she has moved to Jordan. The visa applicant applied for the visa on 30 November 2015. The primary application included the applicant’s partner and five children. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied the applicant was a carer of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal notes that the primary application includes the visa applicant’s partner and children. They were not included in the application for review. The review applicant (who is unrepresented on review) explained to the Tribunal that he did intend to include the entire family but made a mistake. The Tribunal finds that if the family members have not been included in the application for review, it would have no jurisdiction with respect to these applicants. However, if substantial compliance with the forms can be found and if the family members were to be included in the application for review, for the reasons set out above, the Tribunal found that the primary visa applicant does not meet the requirements for the grant of the visa and the secondary applicants would not meet the secondary criteria.

4. The review applicant appeared before the Tribunal on 2 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse and son. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard), Arabic and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, 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 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.

   Whether the visa applicant is a ‘carer’

6. Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision.

7. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s father. Evidence of the relationship has been provided and the Tribunal is satisfied the visa applicant is the daughter of the sponsor who is an Australian permanent resident. The visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

8. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

9. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister.

10. The visa applicant provided with her application a Certificate issued by Bupa Medical Visa Services in relation to her father indicating that the sponsor met the requirements for a carer as he had an impairment rating of 30 points on the Impairment Rating Tables. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life.

11. The Tribunal is satisfied that the certificate meets the requirements of r. 1.15AA(2). The Tribunal is satisfied that according to the Carer certificate, the sponsor has a medical condition causing impairments of his ability to attend to the practical aspects of daily life and as a result of such condition, which will continue for at least 2 years, there is a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

12. The visa applicant also provided a Carer certificate issued in relation to her mother, with an impairment rating of 40. The Tribunal acknowledges that evidence but for the purpose of r. 1.15AA(1)(b), the only relevant certificate is one that relates to the sponsor.

13. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In the present case, the person with the medical condition is the sponsor and there is evidence that the sponsor is an Australian permanent resident. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

14. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. In the present case, the impairment rating specified in the certificate exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c). There is other medical evidence before the Tribunal concerning the sponsor and the Tribunal accepts that he has a medical condition and requires medical support.

15. The primary decision record indicates that the delegate was concerned with the sponsor’s capacity to make regular overseas trips to visit the visa applicant and for other purposes, given his physical condition. The Tribunal is of the view, however, that the valid Carer certificate with impairment rating is sufficient to establish that the sponsor has the requisite medical condition. The sponsor’s ability to travel is not relevant to determining whether the requirements of r. 1.15AA(1)(c) are met.

16. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

17. 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. In making this assessment, the Tribunal has had regard to the applicant’s particular circumstances, the nature of his condition and the specific needs that arise from his condition.

18. According to the primary decision record, the sponsor has six adult children in Australia. The sponsors’ children provided statements indicating their inability to care for their father. The Tribunal finds such evidence unconvincing and inadequate.

19. The sponsor’s son Ahmad refers to his knee injury and family commitments. The review applicant explained to the Tribunal that this son had four surgeries on his leg and these were not successful and this son does not work. It is unclear why a knee injury would necessarily preclude this son from providing some degree of care to his father, including assistance with domestic chores, medication, medical appointments, etc. Ahmad also refers to family commitments and the review applicant explains that he takes the children to and from school, so the injury does not completely preclude him from performing at least some domestic tasks. The Tribunal accepts that this son may have family commitments and that his capacity to help would be limited as a result of his injury. However, the Tribunal does not accept that the existence of family necessarily precludes one’s ability to provide a degree of care to others.

20. The sponsor’s son Mohamed also refers to being a carer to his son, who is a diabetic, and to family commitments and he provided the same oral evidence to the Tribunal. The review applicant said he has a good relationship with this son but the son has work and family commitments. The Tribunal accepts that due to his son’s medical condition and family commitments, Mohamed may be unable to act as a full-time carer to his father but, again, these circumstances do not preclude the provision of some care. The applicant has not satisfied the Tribunal that Mohamed’s commitments to his family and his son are so onerous that he cannot provide some contribution to the care of his father.

21. The sponsor’s daughter Zaynab refers to her family commitments. She provided a medical certificate with very little useful information and which is inadequate to satisfy the Tribunal that Zaynab’s condition prevents her from acting as a carer and, indeed, her evidence is that she is a carer to her spouse. The review applicant’s evidence to the Tribunal is that this daughter looked after her husband before she was diagnosed with the medical condition but cannot do that anymore. He could not state who takes care of the family but thought they help each other. There is insufficient evidence to satisfy the Tribunal that this daughter cannot at least contribute to the care of the review applicant.

22. Two other daughters, Fatima and Sarah, also refer to family commitments and their study commitments, stating they cannot care for their parents. The review applicant told the Tribunal that he does not have a good relationship with Fatima and she is not psychologically well. There is little medical evidence to support these claims. With respect to Sarah, the review applicant said she works and has her own children to take care of. Again, the Tribunal does not consider these commitments would preclude the provision of some degree of assistance to the review applicant.

23. The sponsor’s son Fahed refers to being a full-time employee and to his family commitments. The review applicant said he works full-time and has children to take care of and he might also move to Melbourne. The Tribunal accepts that he works full-time and has other commitments but there is no expectation that he would be a full-time carer to his father. The Tribunal is not satisfied he cannot contribute to the provision of care to his father.

24. The review applicant told the Tribunal that he does not want to rely on his children and does not want to ask for help all the time. The review applicant said that his relationship with the children is not very good. The Tribunal does not accept that evidence, noting that all the children who provided statements do not refer to their poor relationship with the parents and do not state their unwillingness to help. The review applicant then said that his relationship with the children is good but they cannot help.

25. The review applicant and his partner told the Tribunal in oral evidence that the children in Australia are all married and have other commitments and they cannot expect the children to leave their family to care for the parents on a full-time basis. However, that appears to be the expectation in relation to the visa applicant who has five children of her own. It is unclear to the Tribunal why the visa applicant would be expected to give up her family responsibilities to care for the review applicant when the review applicant claims his six children in Australia cannot.

26. The review applicant also told the Tribunal that his children in Australia could all contribute financially to support the visa applicant and her family. When asked if that financial support could be used to hire a carer, the review applicant said he would be uncomfortable with a female carer. The Tribunal acknowledges that this may be the case but the Tribunal is not satisfied that either a male carer or an appropriate carer that the review applicant would be comfortable with would be unavailable.

27. The Tribunal also discussed with the review applicant whether he has approached any other organisations for help. The review applicant said that they did not explore these options because he wants to bring his daughter to Australia. The review applicant’s spouse told the Tribunal they have a close relationship with their daughter, who has lived in Australia before and who is their eldest daughter. She also said that having their daughter here would help them emotionally and psychologically. The review applicant told the Tribunal that he had lived with the visa applicant many years ago and wants to be with his daughter but that is not sufficient. The Tribunal accepts that evidence and accepts that the parents’ preference is to be cared for by their daughter. However, that is not sufficient. In particular, the Tribunal does not accept that the assistance cannot reasonably be obtained from other sources. The Tribunal is also of the view that the visa applicant can provide emotional support to her parents irrespective of her country of residence.

28. The review applicant provided to the Tribunal evidence that his daughter and her family are seeking asylum in another country and have registered with UNHCR. The Tribunal acknowledges that evidence but has no power to grant the visa on humanitarian grounds.

29. Overall, the Tribunal is not satisfied that the review applicant’s children in Australia cannot at least contribute to the requisite care. The Tribunal is also of the view, having regard to the review applicant’s evidence, that they have financial capacity to contribute to the cost of a carer. There is also no evidence that the review applicant has explored any options relating to welfare, hospital, nursing or community services in Australia. In the Tribunal’s view, the combination of such care would be sufficient to meet the sponsor’s needs.

30. On the evidence before it, the Tribunal is not satisfied the visa applicant meets r. 1.15AA(1)(e). Given these findings the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

31. The review applicant informed the Tribunal that he has another child living in the UK. The Tribunal finds that the visa applicant has a near relative as defined at r. 1.15(2). The Tribunal is not satisfied that the visa applicant meets r. 1.15(1)(c) or that she is a ‘remaining relative’ of the review applicant as required by cl. 115.211. The Tribunal is not satisfied that the visa applicant meets cl. 115.211 of the Regulations. The applicant is not old enough to be granted an aged pension and she is not an aged dependent relative of an Australian relative

    Conclusion

32. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 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

33. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    Kira Raif
    Senior Member