Sidiqi (Migration)

[2018] AATA 4817

Sidiqi (Migration) [2018] AATA 4817 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abdul-Razaq Sidiqi
Mrs Angela Isabella Sidiqi
Master Najim Obaid Arman Alexander Sidiqi
Miss Najwa Afiyah Soraya Sidiqi

CASE NUMBER:  1601619

DIBP REFERENCE(S):  CLF2014/78509

MEMBER:Mary Urquhart

DATE:16 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 16 October 2018 at 2:09pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s various health issues – positive DNA testing – Carer visa assessment certificate – relatives in Australia – responsibilities of relatives – efforts to obtain assistance – affordability of assistance – willingness and ability to provide assistance – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s65,
Migration Regulations 1994 (Cth), r 1.03, 1.15AA, Schedule 2 cl 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
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 22 January 2016 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 29 May 2014. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B 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 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221.

3. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the applicant had not provided sufficient evidence to determine that the assistance cannot reasonably be provided by any other relative of the resident, or reasonably obtained from welfare, hospital, nursing or community services in Australia. Accordingly  the delegate found the applicant did not satisfy regulation 1.15AA(1)(e)(i) and regulation 1.15AA(1)(e)(ii). As the applicant does not meet the requirements as defined in regulation 1.15AA(1)(e)(i) and regulation 1.15AA(1)(e)(ii) the applicant is unable to meet the requirements of a Carer.

4. The primary applicant (the review applicant, “the applicant”) appeared before the Tribunal on 18 June 2018 and 5 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Abubaker Sidiqi. The Caree attended on the first hearing date but did not give evidence.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

7. Prior to the Hearing  and before the resumed hearing the Tribunal  received further submissions attaching inter alia the following documents:

   ·      A submission indicating the caree and sponsor Ms Parwin Sidiqi will not attend the hearing because of her medical condition. It was submitted the reason for this is that her attendance  may exasperate her condition;

   ·     Letter dated 13 August 2018 signed by Dr Anil Singh, provider number 047694AJ;

   ·     Letter dated 1 August 2018 signed by Dr N Mahalingam, Consultant Psychiatrist, provider number 007354AA;

   ·     Letter dated 12 July 2018 from NDIS responding to a request.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

9. The applicant is a 41 year old married man. His wife and two children are included in the application. Since making the application he has a further child born 17 November 2017.The applicant has made several visits to Australia; he most recently arrived in 2014 he said. He came on a Visitor visa. His wife and children followed also arriving on Visitor visas. The applicant was previously living in Germany. He said he has German citizenship having first travelled to Germany as a refugee.

10. The applicant gave evidence that the sponsor Ms Parwin Sidiqi was at home with his sister and unable to for medical reasons to attend the hearing. He relied upon a letter dated 13 August 2018 signed by Dr Anil Singh, and another dated 1 August 2018 signed by Dr N Mahalingam, in support of his mother’s non-attendance. As well he provided a medical certificate for 1-2 October inclusive, that she was unwell and a copy of a recent discharge summary from Monash medical in relation to a recent attendance there by his mother.

11. The applicant is the son of the sponsor. The evidence is that the applicant noticed his mother’s health had deteriorated over time and he observed her needs were neglected by other family members. After family discussions it was decided to sponsor the applicant to care for the mother in Australia supported financially by other family members. The applicant made the application for the carer visa on shore.

12. There is consistent and convincing medical evidence that the sponsor suffers from various health issues including depression, osteoarthritis, type ii diabetes and hypertension. Documents submitted to the Department bear evidence in support. Her medical conditions require direct assistance in attending to practical aspects of daily life that will continue for at least 2 years.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant is the carer of the review applicant as defined in reg.1.15AA.

    Whether the applicant has claimed to be a ‘carer’

14. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s mother, an Australian citizen. 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.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

15. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.

    Whether the applicant is a carer

16. Clause 836.221 requires that at the time of decision, the 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.

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

17. 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 applicant’s mother. Positive DNA testing has been provided in regard to the biological relationship between applicant and sponsor.

18. Therefore, as the applicant is the son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

19. 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.

    Impairment rating – r.1.15AA(1)(c)

    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 applicant has provided evidence of a Carer Visa Assessment Certificate for the resident, Parwin Sidiqi. The resident has been assessed as having an impairment rating of 30 under impairment rating specified in the Impairment Tables. The resident therefore meets the requirements of r.1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)

20. 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.

21. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

22. 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 an Australian citizen usually resident in Australia. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

23. 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. The Tribunal finds that the certificate provided does meet 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.

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

24. Significantly 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.

25. The Department file contains evidence in a number of documents, regarding the sponsor’s needs. The Tribunal accepts this evidence. The Tribunal also accepts the evidence given at the hearing that the sponsor has some 13 close relatives in Australia. As well the sponsor has some 19 nieces and nephews, 12 of whom are adults and 7 of these people are married. The Tribunal  notes that the relatives include the sponsor’s mother, who is in her 80’s, the sponsor’s siblings most of whom appear to have health issues of their own and in the next generation, family members claim to be working full time and or  bringing up young children. The Tribunal heard evidence that the sponsor’s husband Halim Sidiqi is estranged from her but continues to live in the same house even though they are now separated. Inconsistent evidence was given regarding the sponsor’s daughter Samira Sidiqi. It was inconsistent in that it was claimed that she lived with the sponsor and also that she had moved out. There is evidence that she was previously the carer but now has 2 young children to care for.

26. The Tribunal  notes the delegate at first instance was not satisfied that the parties provided sufficient evidence to demonstrate that it would be unreasonable for the sponsor’s relatives in Australia to provide assistance to the resident either individually or as a combined family unit on a roster. Clearly a lot of time and effort has gone into collecting statements, statutory declarations and other documentation from family members indicating reasons why they are unwilling and unable to care for the sponsor in all their and her circumstances. The Tribunal has carefully considered the statements and evidence both documentary and oral regarding the responsibilities of all these relatives and the reasons why they cannot reasonably care for the sponsor/resident. In so considering the Tribunal has given particular weight to the difficulty of caring for a person with mental health issues that are said to be serious, chronic and unstable. The Tribunal is satisfied that the assistance required by the sponsor cannot reasonably be provided by other relatives or indeed a combination of other relatives as defined.

27. The Tribunal questioned the applicant carefully about his efforts to obtain assistance for the sponsor from welfare, hospital, nursing or community services. A great deal of documentation has been provided in this regard including approaches to NDIS and a variety of Care Organizations and the City of Casey. One response to enquiries appears positive however the Tribunal accepts the associated costs of $120-$140 a day and $220-$440 for 24 hour care are prohibitive in terms of what the applicant and the sponsor could afford. Again given the nature of her health issues which include mental health, and based on the documentary evidence submitted, the Tribunal is satisfied the assistance the sponsor needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia: Biyiksiz v MIMIA [2004] at [20].

28. The Tribunal is satisfied that the requirements of r.1.15AA (1) (e) are met.

29. Regulation 1.15AA (1) (f) requires that the 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 applicant's state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

30. 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 r.1.03. 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.

31. On the basis of the applicant's evidence, relevantly supported by his brother Mr Abubaker Sidiqi, who spoke on behalf of the sponsor and her family, the Tribunal finds that the applicant is both willing and able to provide substantial and continuing assistance to the sponsor of the kind the sponsor requires. Accordingly the applicant meets the requirements of r.1.15AA (1) (f).

32. Given these findings, at the time of decision and at at the time of decision, the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.

33. Accordingly the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

34. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl.836.221 of Schedule 2 to the Regulations

    Mary Urquhart
    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.