Nazari (Migration)

[2018] AATA 5729

Nazari (Migration) [2018] AATA 5729 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Hamideh Nazari

VISA APPLICANTS:  Miss Mina Nazari
Miss Sara Khaksar
Mr Aman Ullah Khaksar
Mr Mehdi Khaksar

CASE NUMBER:  1809320

DIBP REFERENCE(S):  F2015/045138

MEMBER:Helen Kroger

DATE:8 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 November 2018 at 10:14am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer)  – assistance for sponsor can be provided in Australia – cultural and gender sensitivities as Muslim – support of extended family – relevant care is reasonably obtainable – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65,
Migration Regulations 1994, Schedule 2, cls 116.211(1), 116.221, r 1.15AA(1)(e)

CASES
Biyiksiz v MIMIA [2004] FCA814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263

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 19 February 2018 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 8 February 2015. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.211(1). A carer is further defined at Regulation 1.15AA of the Migration Regulations 1994.

3. The delegate refused to grant the visas on the basis that cl.116.211(1) was not met because he/she was not satisfied that assistance for the sponsor could not be provided in Australia.

4. The review applicant appeared before the Tribunal on 23 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from her mother, Mrs Bibigol Nazari, and one of her sisters who lives in Australia, Ms Fariba Nazari. The Tribunal hearing was conducted with the assistance of two interpreters in the Dari, Persian and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the grounds to support the subclass 116 (Carer) visa are met. Regulation 1.15AA(1)(e) requires that assistance cannot reasonably be provided by: (i) any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or (ii) obtained from welfare, hospital, nursing or community services in Australia. The Tribunal accepts from all the evidence before it that the assistance (needed) cannot reasonably be provided by other relatives in Australia: Regulation 1.15AA(1)(e)(i).

8. The Tribunal considered submissions to the delegate, documentation presented to the Tribunal along with the representations made at hearing.

   BACKGROUND

9. The Review applicant is a 27 year old Australian citizen who arrived in Australia from Iran in 2009 as a refugee, accompanied by some members of her family. Medical documentation indicates that she is subject to a genetic disorder, that developed at the age of 6, causing limited hand/finger mobility and limited movement below her knees. She has been assessed with an impairment rating of more than 30 (folio 46) and evidence submitted at hearing indicates that the condition is static, with recommendations for physiotherapy to develop mobility. The Tribunal has considered all evidence before it and is satisfied that the Carer Visa Assesment Certificate, dated 17 February 2014, undertaken by Medibank Health Solutions to provide the impairment rating is a genuine document. The Tribunal has also considered the evidence at hearing given by the applicant, her mother and sister, indicating the advice of medical practitioners that suggested that the condition would stabilise after 18 years, with recommendations for physiotherapy to develop the restoration of mobility. The applicant was first diagnosed at the age of 6 and there is no evidence before the Tribunal to indicate that the condition is continuing to degenerate or indeed has stabilised.

10. In a lengthy statement submitted by the appointed representative of the family (folio 28), the care and support necessary and provided is detailed, including the contemporary limitations of Australian relatives due to their own personal circumstances and medical conditions. (folios 19,22,23). The review applicant lives at home with her mother, previously also sharing the home with her step-mother and brother.  The applicant’s mother and one of her sisters gave evidence, confirming that the mother is currently the sole carer.

11. The Tribunal at hearing discussed with the review applicant at length whether the assistance (needed) cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Both the applicant and her mother explained they had received limited support, in the nature of one visit  through the local Council, detailing a visit, what services they could provide in relation to personal hygiene and extraneous issues in relation to the provision of that support. The applicant submitted that she was not satisfied with the support they offered to provide and her mother also explained that the applicant was not satisfied with the service they could provide. They indicated that the Council visited only a couple of times to provide support services. Whilst the Tribunal accepts that the applicant, through her mother, has sought support through the local Council, it does not find that this one attempt is indicative of a genuine endeavour to ascertain what services are/are not available through the welfare, hospital, nursing or community services in Australia. The Tribunal questioned the applicant about any possible attempts to secure culturally sympathetic services that could potentially address any cultural sensitivities, and in particular, concerns she may have as a woman. The applicant explained that she had not made such inquiries as she was not interested in services provided by a person/persons she did not know.

12. Given the evidence provided above, the Tribunal accords little weight to the endeavours undertaken by the applicant, in considering local support services that might be available in Australia at the time of decision.

13. From the evidence submitted there is no indication that they have sought a formal assessment through the referral of a medical practitioner, nor have they lodged any application through the National Disability Insurance Scheme, through local support agencies, local community support groups or considered applications for support through local culturally based organisations. The applicant indicated that she was not interested in applying for support through agencies who she did not know and that she was not positively disposed to receiving care from people who she did not know. The applicant cited her concerns as a Muslim woman, indicating that her cultural values precluded her from seeking support from unknown parties. Whilst the Tribunal sought clarification from her on this point, the applicant did not specifically detail what that issue was. Accordingly, clarification was sought from her, specifically whether she would consider a woman sympathetic to the Muslim culture, as an acceptable solution in providing local support. The Tribunal also questioned whether she had made endeavours through the local Afghan community to ascertain if any appropriate services were available through those channels.  The applicant explained that she was not interested in making such inquiries, reaffirming her contention that she was not interested in someone she did not know. 

14. The Tribunal carefully considered the applicant’s submission and does not find an aversion to receiving care from someone the applicant does not know to be a reasonable impediment from seeking care, especially given the availability of culturally specific care that could operate, to mitigate the undesirability of this care.

15. Ms Nazari explained that she was in need of more than physical support and needed companionship, someone who she could spend her time with and who would take her out during the day. She continued that it was for this reason that she was sponsoring her sister (and secondary applicants), as they were very close and that she could provide the companionship along with the physical support.

16. Whilst the Tribunal is not unsympathetic with the concerns that the applicant holds in relation to the values she upholds as a Muslim woman, the Tribunal is not satisfied that these values can only be respected by sponsoring her sister. The multicultural nature of Australia, and in particular, the strength and breadth of the Afghan community, that exists in and around the area where the applicant resides, is significant.  Given the strength of the Afghan community in the area, and furthermore, the significance and size of the local Muslim population, the Tribunal is not satisfied that the applicant has considered local opportunities that would respect her cultural sensitivities as a woman and as a Muslim and gives no weight in its considerations to this aspect. The Tribunal has also considered her stated requirement for company in addition to the physical support she needs, physical support that her mother is currently solely providing. Whilst the Tribunal is sympathetic to the companionship issues raised by the applicant, it has regard to the family members who currently live in Melbourne, notwithstanding their own individual circumstances that affect the available time they can spend with the applicant. Evidence presented to the Tribunal shows that the extended family have supported the needs of the applicant to date, and the capacity and/or will to continue this has diminished over time. The Tribunal has regard to all the circumstances and finds that the applicant’s aversion to receiving care from someone she does not know is not a reasonable impediment to seeking care locally.

17. The applicant was previously cared for by her mother and step mother, and suggested that after some sort of family disagreement, that the step mother now lives with her brother, and her mother is now the sole carer. She has a sister, who has two children, who lives nearby and visits on a weekly/fortnightly basis.

18. The Tribunal has carefully considered the evidence before it, and given particular regard to the submission provided by the applicant at hearing. Whilst it has sympathy with the applicant’s circumstances, it is not satisfied that the cultural concerns noted by the applicant, whilst not expressly articulated by her, and cannot be addressed within the diverse multicultural community in which she resides. The Tribunal also recognises the significant support provided by the family to date and is mindful that further support could provide greater participation opportunities for the applicant. There is no evidence before the Tribunal to indicate that the applicant has made any attempt to identify any possible services that would satisfy her cultural and gender sensitivities.

19. Whilst the applicant chose to communicate through the services of the Interpreter, the applicant’s sister indicated that she was fluent in English. She explained to the Tribunal that the visa applicant, Ms Mina Nazari, is the closest sibling to the review applicant and that they have been close since childhood. The review applicant indicated that her sister could look after her as she required, that she would be able to keep her company, and that she would have the time capacity to do this as both her children were of school age.

20. 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] FCA814. 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]

21. The Tribunal also considers it can look at whether the assistance the review applicant requires can be met by a combination of assistance from her family together with welfare, hospital, nursing or community services in Australia. This approach was adopted without comment in Lam v MIBP [2013] FCCA 1263.

    FINDINGS

22. Given all the above, the Tribunal is not satisfied that at the time of decision, the assistance (needed) cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met. 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.

    DECISION

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

    Helen Kroger
    Member