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

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).
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.
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.
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.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nazari (Migration)

Details

AGLC: Nazari (Migration) [2018] AATA 5729
Case: [2018] AATA 5729
Decision Date: 8 November 2018

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, subclass 116 (Carer), where the review applicant was an Australian citizen with a genetic disorder affecting her mobility. The applicant’s mother was the primary carer, and the applicant sought to have her mother granted a visa to continue providing care in Australia. The decision under review was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Regulation 1.15AA(1)(e) of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the necessary assistance for the Australian citizen could not reasonably be provided by either another relative in Australia or obtained from welfare, hospital, nursing, or community services in Australia.

The Tribunal accepted that the assistance could not reasonably be provided by other relatives in Australia. However, it found that the applicant had not made a genuine endeavour to ascertain the availability of services from welfare, hospital, nursing, or community services in Australia. The Tribunal noted that only one attempt had been made to engage with local council services, which the applicant found unsatisfactory. Furthermore, the applicant had not made inquiries about culturally sympathetic services, citing a preference for care from known individuals. Consequently, the Tribunal was not satisfied that the assistance could not reasonably be obtained from such services in Australia, and therefore, the requirements of Regulation 1.15AA(1)(e)(ii) were not met.

As a result of these findings, the Tribunal concluded that the visa applicant did not satisfy the criteria for a carer visa, and accordingly, affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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). The Tribunal considered submissions to the delegate, documentation presented to the Tribunal along with the representations made at hearing. BACKGROUND 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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