QAZIZADA (Migration)

[2022] AATA 4854

QAZIZADA (Migration) [2022] AATA 4854 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdul Hanan QAZIZADA

VISA APPLICANTS:  Ms Hanifa ABDUL FAZLI
Mr Fazel Bari FAZLI
Ms Gulalai FAZLI
Mr Fazel Yosef FAZLI
Mr Fazel Rafi FAZLI
Mr Fazel Nafi FAZLI

CASE NUMBER:  2000601

HOME AFFAIRS REFERENCE(S):          OSF2016/036689, OSF2016/073670

MEMBER:Mila Foster

DATE:17 November 2022

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 17 November 2022 at 6:31pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– Tribunal was not satisfied that the first named visa applicant and his wife were sisters – first named visa applicant is not a carer at the time of decision – certificate provided does meet the requirements of reg 1.15AA(2) –not satisfied that assistance cannot be provided by or obtained from welfare, hospital, nursing or community services in Australia – decision under review affirmed  

LEGISLATION

Migration Act 1958, ss 65, 376

Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.221

CASES
Biyiksiz v MIMIA [2004] FCA 814

Hon Anh Vuong v MIAC [2013] FCCA 274

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 Home Affairs on 17 December 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 14 February 2016. At the 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 (Cth) (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 116 visa - the first named visa applicant on the basis that she is a carer of an Australian relative and the other visa applicants on the basis that they are members of her family unit (being her husband and children).

3. Relevantly, cl 116.211 requires that at the time of application the visa applicant claims to be a carer of an Australian relative and cl 116.221 requires that at the time of decision the visa applicant is a carer of the Australian relative. In the visa application form the first named visa applicant stated that she was applying for the visa to care for the review applicant who was married to her sister, Nazifa Nazifa.

4. The delegate found that the visa application was made on the basis that the first named visa applicant would provide assistance to the review applicant’s wife to provide direct assistance to the review applicant but did not make a finding on cl 116.211. Instead the delegate refused to grant the visas on the basis that the first named visa applicant did not meet cl 116.221 because it had not been demonstrated that the need for assistance the review applicant’s wife had in providing direct assistance to the review applicant cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and, hence, the first named visa applicant did not meet the definition of ‘carer’ in r 1.15AA.

5. The review applicant appeared before the Tribunal on 5 May 2022 and 25 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife and the first named visa applicant.  

6. The review applicant was represented in relation to the review. The representative attended both hearings. The representative also represented the visa applicants in connection with the visa application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Three issues arise in the present case. Firstly, whether at the time of application the first named visa applicant claimed to be a carer of a person who is an Australian relative. Secondly, whether the assistance needed by the Australian relative 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. Thirdly, whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

9. In addition to the oral evidence given at the hearing, the Tribunal has before it the Department of Home Affairs files relating to the visa application,[1] oral and written submissions made by the representative, and supporting material the review applicant presented on review. This decision does not record or detail all the evidence presented to the Department and the Tribunal, however the Tribunal has had regard to all the evidence before it.

   [1] OSF2016/036689 (DF1) and OSF2016/073670 (DF2).

10. The Department files contain a non-disclosure certificate issued under s 376 of the Act on 17 January 2020 by a delegate of the Minister of Home Affairs.[2] The certificate states that disclosure of material in certain folios of one of the files would be contrary to the public interest because it would ‘disclose lawful methods used for preventing, detecting, and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.’ Section 376 permits the Tribunal to disclose material subject to such a certificate to the applicant or another person if it thinks it is appropriate. The material to which this certificate relates is relevant to the review because it relates to the two of the issues in the review. Hence, the Tribunal invited the review applicant to comment upon the validity of the certificate.[3] The representative responded that it was not possible to respond to the question of the validity of the certificate without details of the information to which the certificate related.[4] The Tribunal is satisfied that the certificate is valid and has concluded that it is appropriate to disclose information to which the certificate relates as it is relevant to the issues in the review. The relevant information is referred to in the Tribunal’s reasoning below. The Tribunal has not however invited the review applicant to comment on or respond to the information because it was not the reason or part of the reason for affirming the decisions under review.

    [2] DF2, f.415.

    [3] Letter dated 11 July 2022.

    [4] Email received 20 July 2022.

    Whether the first named visa applicant claimed to be a carer of an Australian relative 

11. As already noted, cl 116.211 of the Regulations requires that at the time of application the visa applicant claims to be a carer of another person, an Australian relative.

12. Question 65 of the ‘Application for migration to Australia by other family members’ form (Form 47OF) which the visa applicants lodged, asked for the details of the relative(s) in Australia who need the applicant’s care. That part of the form allows for details of two family members to be provided in response to that question. The first named visa applicant provided the details for one person, the review applicant who she identified as her brother-in-law and who it was claimed was an Australian citizen.[5] In submissions accompanying the form,[6] the review applicant is referred to as the caree and as the Australian relative for the purposes of cl 116.211.

    [5] DF1, f.28.

    [6] The representative’s letter containing the submissions is dated 8 January 2015 however it is evident from all the other documentation that the date should have read 8 January 2016 and hence it is hereafter referred to as so dated.

13. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The term ‘relative’ is defined in r 1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. The term ‘close relative’ is defined in r 1.03 as the spouse or de facto partner of the person; a child, parent, brother or sister of the person; or a step-child, step-brother or step-sister of the person. As a brother-in-law is not a relative as defined in r 1.03, the first named visa applicant cannot satisfy cl 116.211 on the basis that she claimed to be a carer of the review applicant. The review applicant was invited to present written submissions on this issue on 16 March 2022. A response received on 30 March 2022 did not address the issue and thus the review applicant was invited to a hearing to present further evidence and arguments about the issue. At the first hearing the Tribunal obtained evidence about this issue from the review applicant as well as the review applicant’s wife and the first named visa applicant. They stated the first named visa applicant would be caring for the review applicant. The review applicant and his wife also gave evidence about the toll of being the sole carer for the review applicant, looking after their now three children and managing the household had taken on the review applicant’s wife and the need for her to be relieved of being his carer.

14. The representative made further written submissions on the issue after the hearing[7] in which it was submitted that the visa application had been made on the basis that the first named visa applicant would be providing care and assistance to the review applicant’s wife by providing direct assistance to the review applicant. It was submitted that the first named visa applicant is the carer, the review applicant’s wife is the Australian relative and resident, and the review applicant is ‘the one with the medical condition requiring care from the resident from the carer’. The submissions focussed on information provided by the first named visa applicant in response to a request for more information made by the Department on 12 September 2019 which included a request for a statutory declaration from the review applicant given that the first named visa applicant would be assisting his ‘Australian relative to provide care to a member of their family unit.’

    [7] Dated 24 May 2022.

15. While the first named visa applicant expressly claimed in the Form 47OF that she was applying to be the carer of the review applicant, upon further consideration of the evidence and post-hearing submissions the Tribunal concluded that it could be inferred from the material provided in connection with the visa application that at the time the visa application was made the first named visa applicant claimed to be a carer of the review applicant’s wife. According to documents accompanying the Form 47OF, the review applicant’s wife had been caring for the review applicant but was unable to continue doing so. In a statement dated 20 December 2015, the review applicant’s wife stated that she could not be her husband’s carer anymore because she wanted to look after her children and herself. The review applicant’s general practitioner stated that the review applicant’s wife was his full-time carer but the demands of children and the household and her own personal health was proving too much for her.[8] The representative’s written submission stated that the review applicant’s wife was no longer able to provide all the care the review applicant required because she had two young children to look after and had an entire household to manage, nor could it be provided by medical institutions or community organisations.[9] It was claimed that the first named visa applicant would provide full time care for the review applicant and relieve the review applicant’s wife from her struggle to attempt to care for him at the level which had been an ongoing and huge burden’.[10]

    [8] Letter dated 20 October 2015 from Dr Bernadette Dulawan.

    [9] Representative’s submission of 8 January 2016, p.5.

    [10] Representative’s submission of 8 January 2016, p.6.

16. A sister is a ‘relative’ within the meaning of reg 1.03 and the biodata page of the passport of the review applicant’s wife confirms that she was an Australian citizen at the time of application.[11]  Hence, if the first named visa applicant and the review applicant’s wife are sisters, the review applicant’s wife would be an Australian relative of the first named visa applicant and cl 116.211 would be satisfied on the basis that the first named visa applicant claimed to be a carer of the review applicant’s wife. Evidence submitted in connection with the visa application to support the claimed sibling relationship consisted of Afghan documents which stated that the name of the father of the first named visa applicant and the review applicant’s wife was Sami Abdul. The documents were an identification document issued to the first named visa applicant on 28 November 2015, the first named visa applicant’s marriage certificate issued on 22 December 2015, an identification document issued to the review applicant’s wife on 26 November 1979 and a marriage certificate issued on 18 August 2007 in relation to the review applicant’s wife. However, the Tribunal has doubts about whether the the first named visa applicant and the review applicant’s wife are sisters due to inconsistencies in information before it about the first named visa applicant’s siblings and mother. Information on the Department files indicate that the Department also had concerns about this but, as noted above, the delegate made her decision on a different basis.

    [11] DF1, f.105.

17. Question 13 of Form 47OF asks applicants to indicate whether they have been known by any other name. This was left blank by the first named visa applicant. Question 57 of the form asks applicants to provide details of their parents, including step-parents, and brothers and sisters including full, half, step and adopted brothers and sisters. In response, the first named visa applicant stated that her father’s name was Abdul Sami and her mother’s name was Gulandam Abdul. She stated that both her parents were deceased. In relation to her siblings, the first named visa applicant provided details for a sister, the review applicant’s wife, and three brothers - Faiz Rahman Abdul, Aziz Rahman Abdul and Wahid Rahman Abdul. The first named visa applicant stated that Faiz and Aziz were living in Afghanistan and that Wahid was deceased. The first named visa applicant provided the same details in response to similar questions in other forms submitted in connection with the visa application including a ‘Personal particulars for assessment including character assessment’ form (Form 80) and ‘Declaration of service’ form (Form 1399).[12] In the Form 80, she specified that Abdul Sami and Gulandam Abdul were her biological father and biological mother. Also submitted in connection with the visa application, was a ‘Family composition’ form (Form 54) completed by the review applicant’s wife.[13] She gave identical details about her parents and brothers to those the first named visa applicant provided. However, the material which is the subject of the non-disclosure certificate indicates that the first named visa applicant applied for a Last Remaining Relative (LRR) visa in 2011 using the name Samira Fazli Wardak and that she was sponsored for the visa by a brother named Wahid Rahman Wardak.

    [12] Both forms were signed by the first named visa applicant on 25 October 2019.

    [13] Form 54 signed by the review applicant's wife on 7 November 2019.

18. The review applicant was informed after the first hearing[14] that the Tribunal had inferred that at the time of application the first named visa applicant had claimed to be a carer of his wife but that the Tribunal was not satisfied that the first named visa applicant and his wife were sisters. In response the review applicant informed the Tribunal that the first named visa applicant and his wife were willing to undertake DNA testing to establish they were sisters. The Tribunal subsequently sought information from the review applicant about the first named visa applicant’s family and any previous LRR visa application.[15] In response,[16] the review applicant stated that in 2011 the first named visa applicant had apparently been sponsored for a family-based visa by Waheed Wardak, her father’s second wife’s son. The review applicant said the first named visa applicant did not know what name Mr Wardak used to make the visa application on behalf of the first named visa applicant. The review applicant stated that Mr Wardak completed all the forms and simply asked the first named visa applicant to sign it before it was lodged.

    [14] By letter dated 11 July 2022.

    [15] Invitation dated 8 August 2022.

    [16] Email received 22 August 2022.

19. At the second hearing the Tribunal asked the review applicant’s wife why she did not disclose in the Form 80 that she had a half-brother. She replied that Mr Wardak was not her blood brother – she stated that when her father married Mr Wardak’s mother, Mr Wardak was the child of his mother’s previous marriage. The review applicant’s wife stated that her father was not Mr Wardak’s father, Mr Wardak’s mother was Mastura and her mother was Gulandam. The Tribunal attempted to obtain oral evidence from the first named visa applicant about the matter but was unable to make telephone contact with her.

20. The review applicant’s written response and oral evidence given by the review applicant’s wife is not consistent with other information on the Department file about the first named visa applicant’s LRR visa application. For example, the information indicates that the first named visa applicant either knowingly applied for the LRR visa using the name Samira Fazli Wardak or was aware that the visa application had been made on her behalf in that name because she identified herself using that name when an officer telephoned her about the application (with the assistance if a Dari interpreter). Information on the Department file indicates that a taskera (Afghan ID document) had been provided for the first named visa applicant in connection with the LRR visa application – presumably in the name of Samira Fazli Wardak. The information indicates it was claimed in relation to the LRR visa application, that the first named visa applicant, Mr Wardak and the review applicant’s wife had the same mother and that their mother’s name was Mastura. Further, that their mother was living in Australia. The information indicates that the first named visa applicant and Mr Wardak underwent DNA testing for the purpose of the LRR visa application and the DNA results indicated that it was likely that they were half-siblings. The inconsistency between the material on the Department file about the LRR visa application and the evidence the first named visa applicant, the review applicant and the review applicant’s wife have provided in connection with the carer visa application and review raises doubts about whether the first named visa applicant and the review applicant’s wife have been truthful about who their parents and siblings are, and hence whether they are siblings. The material also raises doubts about the identity of the first named visa applicant and the genuineness of the documents she has provided to the Department in connection with her carer visa application. The Tribunal notes that her marriage certificate and identification document were issued in the two months before the carer visa application. Alternatively, it those documents are genuine then it would seem the taskera and documents the first named visa applicant presumably presented in connection with the LRR visa application to show that she and Mr Wardak were siblings were not genuine.

21. On the evidence currently before it, the Tribunal cannot confidently find that the first named visa applicant and the review applicant’s wife are sisters. The Tribunal decided not to request that the first named visa applicant and the review applicant’s wife undergo DNA testing because it appears the first named visa applicant previously underwent DNA testing using a different name which produced results inconsistent with the claims and evidence presented in connection with the carer visa application and on review. The Tribunal is thus not satisfied that further DNA testing involving the first named visa applicant would produce reliable results and even if they are sisters and the first named visa applicant satisfied cl 116.211, the Tribunal has concluded that the first named visa applicant is not a carer at the time of decision.

    Whether the first named visa applicant is a carer at the time of decision

1. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision. The visa applicant is a carer of the Australian relative who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the ‘resident’). In this case it is claimed, and Department movement records indicate, that the review applicant’s wife is usually resident in Australia. Thus, if the first named visa applicant and the review applicant’s wife were sisters then the review applicant’s wife would be the ‘resident’ for the purposes of reg 1.15AA.

   Applicant is a relative of the resident – reg 1.15AA(1)(a)

2. Regulation 1.15AA(1)(a) requires the visa applicant is a ‘relative’ of the resident. If the first named visa applicant and the review applicant’s wife were sisters, then the first named visa applicant would be a relative of the resident.

   Certification – reg 1.15AA(1)(b)

3. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the 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.

4. For a certificate to meet reg 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 or issued by a specified health provider in relation to a review of such an opinion. The Minister has specified Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services as the health provider in Legislative Instrument IMMI 14/085.

5. A marriage certificate for the review applicant’s marriage for to Nazifa Nazifa was presented in connection with the visa application. The totality of the evidence before the Tribunal indicates that he and Nazifa Nazifa are spouses. Having regard to the definition ‘a member of the family unit’ in reg 1.12, the Tribunal finds that the review applicant is a member of the family unit of his wife, the resident.

6. A certificate which meets the requirements of reg 1.15AA(2) was issued in relation to the review applicant on 3 November 2015. The certificate states that the review applicant has medical conditions causing impairments of his ability to attend to the practical aspects of daily life; the certificate states that because of the medical conditions the review applicant has and will continue to have for at least 2 years a need for direct assistance in attending to the practical aspects of daily life; and the impairments have an impairment table rating specified in the certificate. Specifically, the certificate states that the review applicant has four medical conditions: severe depression, lower back injury, right wrist fusion and right foot fusion. The certificate states that the review applicant’s medical conditions have caused functional impairment to his mental health, upper limb function, lower limbs, spine, and continence. It states that he requires assistance with mobility, showering, toileting, dressing and grooming, eating and feeding, supervision of his medication, constant supervision for his personal safety, and transportation. Overall, he is fully dependent.

7. The Tribunal thus finds that the certificate provided does meet the requirements of reg 1.15AA(2) and addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

   Residency status of person with medical condition – reg 1.15AA(1)(ba)

8. 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.

9. In the present case, the person with the medical conditions is the review applicant. A copy of the biodata page of the review applicant’s Australian passport was submitted in connection with the visa application.[17] It states that he is an Australian national. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

   Impairment rating – reg 1.15AA(1)(c)

   [17] At DF1, f.73.

10. 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. The relevant instrument for these purposes is IMMI 17/126.

11. In the present case, the impairment rating specified in the certificate is 45. This rating exceeds the impairment rating of 30 specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where they are not the subject of certificate) – reg 1.15AA(1)(d)

12. Where the person to whom the certificate relates is not the resident but a member of their family unit, reg 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 reg 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.

13. In the present case the resident, the review applicant’s wife, is not the subject of the certificate. However, evidence presented to the Department and the Tribunal indicates that she has been his carer for some time. She receives a Carer Payment and Carer Allowance from the Australian government to care for the review applicant[18] and is referred to her as his carer in various documents including letters and reports from the review applicant’s treating doctors.[19] The Tribunal is satisfied on the evidence before it that the review applicant’s wife provides the review applicant with the direct assistance he needs to attend to the practical aspects of daily life.

    [18] Department of Human Services, Income Statement, 24 September 2019.

    [19] Such as letters from Dr Dulawan dated 20 October 2015 and 18 October 2019.  

14. The certificate referred to above states that the review applicant’s need is permanent in that it will continue for at least two years. The Tribunal notes that it has been 7 years since the certificate was issued. However, given the nature of the review applicant’s medical conditions and medical evidence from his treating doctors provided since the certificate was issued,[20] the Tribunal is satisfied that the review applicant has continued to have a need for direct assistance in attending to the practical aspects of daily life since the certificate was issued and will continue to have that need into the future. Further, it is claimed and the Tribunal accepts that, in addition to caring for the review applicant, the review applicant’s wife is responsible for their children[21] and their household, and that she has her own mental health issues.[22]

    [20] See for example, letter from Dr Dulawan dated 30 July 2021; reports dated 23 September 2019, 4 February 2020 and 10 March 2022 by the review applicant’s psychologist Dr Ali Sahebi; and letter dated 10 March 2022 from the Dr Geoffrey Needham, Consultant in Rehabilitation and Pain Medicine.  

    [21] According to the evidence, the review applicant and his wife now have three children aged 13, 11, and almost 4 years.

    [22] Evidence includes oral evidence given at hearing, the review applicant’s wife’s letter of 30 October 2019, and letters from Dr Dulawan (such as those dated 20 October 2015 and 30 July 2021) in which she refers to the mental state and depression of the review applicant’s wife including post-natal depression after the birth of her third child.

15. The Tribunal is thus satisfied that the review applicant’s wife has a long-term need for assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv). Therefore, if the first named visa applicant and the review applicant’s wife were siblings the requirements of reg 1.15AA(1)(d) would be met.

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

16. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by any other relative of the resident or obtained from welfare, hospital, nursing or community services in Australia. 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].

17. Question 71 of the 47OF Form asks whether any assistance has been sought from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist the relative. This part of the form provides for the details of three organisations to be provided. The first named visa applicant provided one: the Afghan Community Support Association (hereafter the Afghan Association). She stated that long-term assistance from that organisation could not be provided. At Part O of the form, she stated that the Afghan Association asked that the carer’s family take care of him as they could not offer 24-hour care and support. However, the assistance required does not need to be obtained from one welfare, hospital, nursing or community service provider.

18. On 16 September 2019 the Department asked the first named visa applicant to provide additional supporting documentary evidence including evidence of care available from welfare organisations, community services, nursing homes and nursing (home care) agencies. The review applicant provided various documents in response to this request.[23]

    [23] On 14 October 2019 and 11 November 2019.

19. There is a letter dated 27 September 2019 from the Afghan Association stating that it wanted to help the carer but was unable to. The letter does not indicate what services the organisation does provide, what help was sought for the review applicant or his wife, or why the Association was unable to help the review applicant’s wife. Hence, the letter does not indicate that assistance of the kind needed by the review applicant or his wife cannot reasonably be obtained from the organisation.

20. There is a letter dated 17 October 2019 from the National Disability Insurance Scheme (NDIS). The letter indicates the review applicant inquired about NDIS assistance and states it was in the process of determining whether he met the requirements to access the NDIS and that it had written to him requesting evidence of his impairment and evidence of the impact of his impairment on his life. The letter asked the review applicant to provide that evidence within 28 days. As indicated below, the review applicant did not pursue any further the possibility of obtaining NDIS assistance.  

21. Also submitted were two Hardi Aged Care business cards, a Resident Care Enquiry form (not completed) and a Residential Care Agreement for the Blacktown Hardi Aged Care facility (not completed), a business card for the Opal Specialist Aged care facility in Blacktown, and a brochure for the St Hedwig Village in Blacktown. The St Hedwig brochure states that admission to its hostel, nursing home and Community Care Packages requires an Aged Care Assessment Team assessment.  There is no indication that assistance of the kind needed by the review applicant or his wife was sought from these services. But in any event, given the review applicant is 41 years old and these are aged care services whether assistance of the kind needed by the review applicant or his wife can or cannot be obtained from these services is not relevant in this case.

22. On review the review applicant provided three ‘letters of support’. There is a further letter from the Afghan Association dated 29 March 2022. The letter indicates the review applicant participated in various gatherings and events held by the Association and states that the association is unable to cater for the review applicant’s needs for a carer. The Tribunal notes that the review applicant’s treating psychologist has encouraged the review applicant to attend cultural and ethnic gatherings to assist with his social isolation. This letter indicates that even if the Afghan Association cannot provide a carer, the review applicant is able to obtain assistance for his mental health condition from the association.

23. There is a letter of support dated 8 March 2022 from Khatol Ahmadzay. The representative states that Ms Ahmadzay is a Generalist Casework at SydWest Multicultural Service however Ms Ahmadzay does not mention this in her letter; she states she is a JP. In her letter she essentially repeats what the review applicant told her. She states that the review applicant informed her that despite searching and contacting different providers and communities to find a carer he was not able to locate one. Even if Ms Ahmadzay is a caseworker of the kind claimed, she gives no indication that she attempted to help the review applicant obtain the direct assistance he needs or help his wife to obtain assistance to assist the review applicant. Nor does she give any indication of assistance from SydWest Multicultural Service or other community services that are or are not available to assist the review applicant or his wife. Thus, the letter is not evidence that the assistance the review applicant or his wife need cannot reasonably be obtained from community or other relevant services in Australia.

24. The third letter of support is from Pastor Israel Marquez of the Immanuel Missionary Baptist Church Sydney.[24] The letter states that the Pastor has known the review applicant for some years and his intention is to guide the review applicant ‘through the Word of God’. He states that the church can extend its ‘faithful service’ to the review applicant and his family and was privileged to give its ‘full support’ to them. It is not apparent from this letter what, if any assistance of the kind required by the review applicant or his wife could or could not be obtained from the pastor or the church.

    [24] Dated 18 April 2022.

25. The review applicant provided an email he received from the General Manager of the Blacktown Terrace Care Community on 17 March 2022 in response to his inquiry about 24-hour private nursing services which stated that the cost would be about $36,000 a month. Given the review applicant and his wife receive income support from the Australia government, the Tribunal accepts that private 24-hour nursing care is not an option to meet the review applicant’s need for assistance. However, there is no indication that the review applicant inquired about the cost of any services other than 24-hour nursing care.

26. Given Ms Ahmadzay’s statement that the review applicant had told her that he had contacted different providers and communities to find a carer, the Tribunal asked the review applicant at the second hearing what service providers he had contacted for assistance other the private nursing provider, nursing homes and Afghan Association referred to above. The review applicant stated that wherever he went they said they could not help and that NDIS was not in a position to provide 24-hour assistance from a carer of a similar culture and custom. In the absence of specific details, the Tribunal is not satisfied that the review applicant has contacted other welfare, hospital, nursing or community services regarding direct assistance that could be obtained to meet his need.

27. The Tribunal noted that the review applicant appeared to be claiming that he required 24-hour care to be provided by one person with a shared cultural background. The Tribunal questioned why assistance could not reasonably be obtained from a combination of welfare, hospital, nursing or community services. The review applicant stated that he would not require 24-hour assistance from the first named visa applicant and his wife could also help. He added that NDIS may provide an hour of cleaning but not help with showering and cooking or other work. This evidence indicates that while the review applicant’s wife is no longer able to provide all the direct assistance he needs, she could continue to provide some direct assistance to the review applicant.

28. Further, the Tribunal notes that the NDIS letter included a form asking the review applicant to provide details about the kind of assistance he required including assistance with showering. Asked whether he could provide a letter from the NDIS stating what assistance it could and/or could not provide him, the review applicant replied that he was sent a form to complete by NDIS but when he heard (from a telephone conversation) what they could offer he decided there was no need to complete the form. As the NDIS letter indicates, evidence of the review applicant’s impairment and the impact of his impairment on his life was required before NDIS could determine whether he met the requirements to access the scheme. The Tribunal does not regard a conversation requesting 24-hour care from one carer with the same cultural background to be a meaningful attempt to obtain services from NDIS or an indication that assistance the review applicant requires cannot reasonably be obtained from NDIS.

29. The review applicant stated that other organisations can help but not in a ‘complete manner’; they might be able to help for 30 minutes or an hour to take him to the doctor or other services. However, as noted already, the review applicant has not provided details of service providers he contacted for such services. The evidence he has provided indicates he sought 24-hour care provided by one carer from the service providers he did contact. The Tribunal is thus not satisfied that the review applicant has made meaningful inquiries with other service providers to ascertain what assistance could be provided to meet his need or to assist his wife.

30. The review applicant mentioned that before he married, he used a service to transport him to a medical appointment but the person left him stranded when his appointment was delayed. While this is certainly unsatisfactory, the Tribunal does not regard one instance of inadequate service that occurred years ago as an indication that assistance the review applicant needs now could not be obtained from relevant services in Australia.

31. The review applicant stated that he had emotional and mental disabilities in addition to his physical disabilities and needed someone to talk to and openly disclose his secrets to. The Tribunal accepts, on the basis of the Bupa certificate and medical evidence before it, that the review applicant has emotional and mental disabilities for which he requires assistance. The Tribunal notes on the evidence that the review applicant has been seeing a psychologist for many years to assist him with those disabilities and that his psychologist has encouraged him to interact with family and the community to improve his mental health. The Afghan Association letter and the letter from the Pastor indicate that the review applicant is willing and able to access support for his emotional and mental needs from different sources. The Tribunal does not accept that the review applicant needs one carer to assist him with his emotional and mental needs along with his physical needs or that such assistance cannot reasonably be obtained from other relevant services in Australia.

32. The Tribunal notes that although it has been claimed that the review applicant requires a carer familiar with his culture and custom and with whom he could communicate with in his first language, no documentary evidence has been presented to indicate that an attempt has been made to obtain cultural and linguistically appropriate services from any service other than the Afghan Association. Further, the Tribunal notes that while the review applicant stated at hearing that he was not fluent in English he also said he could understand English and communicate in simple terms and has contacted service providers himself (such as NDIS and Opal), and that his wife speaks English well. Hence, the Tribunal is not satisfied that lack of English language skills would be a barrier to the review applicant accessing the assistance he needs or his wife assisting him to obtain those services.

1. In conclusion, the Tribunal accepts that the review applicant has made some inquiries with service providers about obtaining a 24-hour carer. It is not however satisfied that relevant or adequate inquiries have been made to properly ascertain what other assistance can be obtained from welfare, hospital or nursing or community services to assist the review applicant’s wife in providing the review applicant’s need for direct assistance - in particular whether different forms of assistance can be obtained from different service providers so that collectively the review applicant’s need could be met. Thus, while the review applicant’s wife has a long-term need for assistance in providing the review applicant’s need for direct assistance in attending to the practical aspects of daily life, the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital or nursing or community services in Australia. Therefore, the requirements of reg 1.15AA(1)(e) are not met.

   Conclusion on the time of decision carer criterion

2. Having found that the requirements of reg 1.15AA(1)(e) are not met, the Tribunal concludes that at the time of decision the first named visa applicant is not a carer of the Australian relative, being the review applicant’s wife, and therefore does not satisfy cl 116.221.

   Concluding findings

3. As the first named visa applicant does not satisfy cl 116.221, she does not meet the criteria for a Subclass 116 visa. As the remaining visa applicants applied for the visa on the basis of that they are members of her family unit, they cannot meet the secondary time of decision criterion in cl 116.321.

4. In respect of the other visa subclasses there is no material which would permit a finding that any of the applicants meets the prescribed criteria for the visa sought.

5. The Tribunal finds that the visa applicants are not entitled to the grant of the Subclass 114 (Aged Dependent Relative) visa as there is no evidence before the Tribunal that any of the visa applicants is dependent upon the review applicant as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore cl.114.211 is not met.

6. Further, the Tribunal finds that the visa applicants are not entitled to the grant of Subclass 115 (Remaining Relative) visa as they each claim to have near relatives, as defined in r.1.15(2), residing in the same country (Afghanistan). As such, no visa applicant is a ‘remaining relative’ and therefore is unable to meet cl.115.211.

   DECISION

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

   Mila Foster
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   1.15AA Carer

   1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

   (a)the applicant is a relative of the resident; and

   (b)according to a certificate that meets the requirements of subregulation (2):

   (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

   (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

   (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

   (iv)because of the medical 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; and

   (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

   (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

   (e)the assistance cannot reasonably be:

   (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

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

   (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

   (2)A certificate meets the requirements of this subregulation if:

   (a)it is a certificate:

   (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

   (ii)signed by the medical adviser who carried it out; or

   (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

   (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.