Shah (Migration)

[2019] AATA 3654

Shah (Migration) [2019] AATA 3654 (18 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nazmul Mohammad Shah

VISA APPLICANTS:  Mr Sha Mohammad Mahbubul Alam
Mrs Nurunnhaer Parvin
Ms Jannat Sha
Mr Miqdad Sha

CASE NUMBER:  1621965

DIBP REFERENCE(S):  OSF2015/040117

MEMBER:Kira Raif

DATE:18 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·cl.116.221 of Schedule 2 to the Regulations

Statement made on 18 June 2019 at 8:38am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – carer of an Australian relative – no support available – decision under review remitted 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 116.221, rr 1.03, 1.15A, 1.15AA

CASES

Perera v MIMIA [2005] FCA 1120

Xiang v MIMIA [2004] FCAFC 64

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 6 November 2016 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 are nationals of Bangladesh. The first named applicant (‘the visa applicant’) was born in July 1974. He applied for the visa on 24 June 2015. The application includes his partner and two children. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant was a carer of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s spouse. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages. The review applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. 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.

5. 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.116.221. 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.

   Is the visa applicant a ‘carer’?

6. 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 brother. The Tribunal is satisfied the visa applicant is a relative of the sponsor. The Tribunal is satisfied the sponsor is an Australian citizen or permanent resident who is usually resident in Australia. The visa applicant meets the requirements of r.1.15AA(1)(a).

7. 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.

8. 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 or issued by a specified health provider in relation to a review of such an opinion.

9. The visa applicant provided with his application a Certificate issued by Bupa Medical Visa Services in April 2015 indicating that the sponsor met the requirements for a carer as he had an impairment rating of 35 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. The review applicant subsequently obtained a new BUPA Carer certificate in March 2019. The Certificate assigns the rating of 30.

10. 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 impairment 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.

11. 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 citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

12. 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 earlier certificate is 35 and in the current certificate the rating is 30. This rating equals or exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

13. The Tribunal acknowledges a number of other medical reports that has been submitted with the application and to the Tribunal concerning the sponsor’s condition. These include a statement from the WorkCover Authority and a number of doctors’ reports. There is also evidence referring to the surgeries that the sponsor had undergone and the need for further medical intervention. The applicant provided to the Tribunal an updated medical report from January 2019 and the Tribunal accepts the evidence in that report. Following the hearing the applicant provided to the Tribunal additional medical evidence and the Tribunal accepts these reports. The Tribunal accepts that the sponsor has medical needs that cause him to require assistance.

14. 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.

15. 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.

16. The visa applicant stated on the application form that his brother was injured at work and had two surgeries in 2012 and his condition deteriorated. The visa applicant states that he would assist his brother with the daily needs such as eating, showering, using the toilet, grooming, giving medication, dressing, mobility and anything else that it needed.

17. The delegate wrote to the visa applicant seeking information about the relatives in Australia and their availably to provide the requisite care to the sponsor. The delegate noted that the spouse of the sponsor has siblings and parents living in the same area as the sponsor. Each of the wife’s relatives provided a declaration indicating why they are unable to care for the sponsor. The delegate found that it would not be unreasonable for these individuals to care for the sponsor on a shared basis. The Tribunal finds that reasoning problematic because the legislation refers to assistance provided by ‘relatives’. Relatives of the partner are not ‘relatives’ for the purpose of the Act or the Regulations and cannot be considered as such when determining whether assistance can be provided. The Tribunal finds that the parents and siblings of the review applicant’s partner are not relatives for the purpose of r. 1.15AA(e). The only relative the review applicant has in Australia is his spouse.

18. The review applicant told the Tribunal his wife works as a teacher from 8.30 to 3.30 pm. He states that in the mornings, his wife helps with medication and personal hygiene and at night, she helps with medication. He takes medication for pain and depression and cannot sleep at night. They have three daughters aged 9, 3 and 7. The Tribunal is satisfied that the commitments for the care of three young children, in addition to domestic responsibilities and employment commitments, prevent the applicant’s partner from providing the degree of care required by the review applicant. The Tribunal finds that there are no other relatives available to care for him in Australia. The Tribunal is satisfied that assistance cannot reasonable be provided by other relatives of the resident.

19. With respect to other assistance, the review applicant told the Tribunal that he was told by Centrelink that they cannot provide any help until he turns 65. With other organisations, the review applicant states that the services are very expensive and would not be covered by insurance, so he cannot afford these. The applicant told the Tribunal that he could not get the supporting evidence from Centrelink or from the insurer.

20. The review applicant provided a statement to the Tribunal dated 6 April 2019. He states that prior to 2016 the insurance company provided him with salary and other help and in 2016 the case was settled and he received a lump sum. As a result, he was not eligible to receive Centrelink payments until October 2021. They used the funds to pay the lawyer and to purchase a home. He is provided with costs of medication by the insurance company but with no other service.

21. The applicant states that he contacted a number of facilities but the cost of ongoing care was too high and other facilities were not able to provide the care required. The applicant indicated he was seeking further help from NDIS. The review applicant states that nursing homes had refused any ongoing permanent care without fees. On 17 June 2019 the review applicant provided to the Tribunal advice that NDIS would not be available to him.

22. The Tribunal is satisfied, having regard to the presented evidence, that the assistance cannot obtained from welfare, hospital, nursing or community services in Australia.

23. The Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are met.

24. Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

25. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

26. The review applicant told the Tribunal that his brother is a kind person and said that he would help. The review applicant said they have a large house and he will provide his brother with a room in their house and cover their financial costs. Ms Shah told the Tribunal that she has the financial capacity to support the visa applicants.

27. The Tribunal is mindful that the visa applicant has expressed his willingness to care for the sponsor. The Tribunal is satisfied that he is aware of the level and the nature of support that is required. The Tribunal is also satisfied that the sponsor will provide his brother and family with financial support to cover their living expenses. The Tribunal is satisfied that the visa applicant is willing to provide requisite assistance and, on balance, the Tribunal is also satisfied that he is able to do so. That is, the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

28. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfiescl.116.221.

    Conclusion

29. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.

    DECISION

30. The Tribunal remits the application for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

    ·cl.116.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member