Sorisho (Migration)

[2019] AATA 2504

Sorisho (Migration) [2019] AATA 2504 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sam Sorisho

CASE NUMBER:  1804028

DIBP REFERENCE(S):  CLF2012/98714

MEMBER:Justin Owen

DATE:18 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 18 February 2019 at 11:59am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – applicant had not provided from his sponsor an updated sponsorship form – applicant is carer for Australian relative – not satisfied that the applicants sisters are unable to provide at least some degree of support – no further corroborative evidence of any attempts to obtain welfare, hospital, nursing or community services – no material which would permit a finding – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1 item 1123B, Schedule 2 Part 836, cls 835.212, 836.213, 836.221, 836.223, 836.227, 838.212, rr 1.03, 1.15AA, 2.03AA, Public Interest Criterion (PIC) 4001

CASES

Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554

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 30 January 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 May 2012. 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. Clause 836.221 requires that at the time of decision, the applicant is a 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.

3. The delegate refused to grant the visa on the basis that cl.836.213 and cl.836.227 was not met because the applicant had not provided from his sponsor an updated sponsorship Form 40 confirming the sponsorship was still in place at the time of decision. The delegate furthermore refused to grant the visa as cl.836.223 was not met. Cl.836.223 states that an applicant must satisfy public interest criteria (PIC) 4001. PIC 4001 requires a s65 delegate to assess a person against the terms of the ‘character test’. Under policy, a component of this assessment against PIC 4001 for temporary or permanent migration is the provision of a Police clearance certificate for each country in which that person has lived for 12 months or more, over the last 10 years since turning 16 years of age. As the applicant was required to satisfy PIC 4001 for the grant of the visa, reg.2.03AA applies. The applicant was requested to provide an Australian Federal Police certificate and Form 80 for the delegate to assess the character requirements. At the time of the delegate’s decision the applicant had failed to provide the AFP certificate or the Form 80. Therefore the delegate found the applicant did not meet the requirements of cl.836.223 in Schedule 2 of the Regulations.

4. The applicant appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence from witness Mr Toufic Laba Sarkis.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant post-hearing on 4 February 2019 provided evidence to the Tribunal of a new Carer Visa Assessment Certificate for his father and sponsor Mr Karim Yousif.  The Certificate is dated 29 January 2019 with Mr Karim assigned a rating of 50 under the Impairment Tables in her Carer Visa Assessment Certificate.  The certificate states he has osteoarthritis of the hand; osteoarthritis of the knees and foot; back ache and osteoporosis of the spine; and dementia and depression (T1, Folio 102-119).  

7. The applicant claims to reside with the sponsor Mr Karim and his mother.  The Tribunal accepts the applicant is Mr Karim’s son and he has resided with his parents since coming to Australia in November 2011.      

8. Clause 836.221 requires that at the time of decision, the applicant is a 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.  The Australian relative is his father Mr Karim.

9. 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.

10. The Tribunal discussed with the applicant the care he currently provides the sponsor, his father.  The applicant said his father was a sick man with mobility issues.  He said that he essentially provides 24 hour a day care.  The applicant said he cuts his father’s hair, cleans his teeth, assists him with toileting numerous times every evening, sleeps in the same room as him and tests his blood pressure and his sugar levels.  He said he manages the sponsor’s medication and massages his legs and arms to deal with the pain he is suffering.   

11. The Tribunal noted that the applicant’s mother lived at the same residence and asked what care she provides to her husband the sponsor.  The applicant said that his sister Eptesam is the carer for his mother.   He said that she comes to the house every day of the week.  He said that she is divorced with three children aged 28, 24 and 21 years of age respectively.  The applicant said his mother was not well and needed his sister’s help.  He said that she had previously been diagnosed with thyroid cancer in 2007.  The Tribunal asked the applicant if he had any other evidence at the hearing concerning his mother’s health.  He said he did not.  The applicant said his sister Eptesam was receiving a Carer’s pension for her work with his mother. 

12. The applicant informed the Tribunal that he had four sisters living in Australia.  The Tribunal noted that the applicant had provided at the hearing documentation concerning his four sisters and their ability to support their father.  The applicant provided copies of the Pensioner Concession Cards belonging to each of his sisters (T1, Folio.76).     

13. The Tribunal noted the statement from Salma, the eldest sister who is 57 years old.  The applicant said that Salma has back problems and has mobility and weight issues. He said that she was previously in hospital for heart issues.  The applicant said she could not help his father as he needed someone strong that could life his father.  The Tribunal noted these and asked the applicant if there was anything that would preclude her from assisting her father.  He replied that she has a sore back and sore legs.  The applicant said Salma is not working but receiving Centrelink.  He said she was married with four children aged between 40 and 24.  He said that Salma lives in Fairfield close by to the sponsor. 

14. The Tribunal asked if he asked Salma for assistance with their father.  He said that she claimed she can’t.  He said he can’t force that upon anyone.  The applicant said his younger sister Ekhlas looked after his father before he came to Australia. 

15. The Tribunal noted Salma had four adult children and asked if they provide any support for the sponsor.  He said that they come by about once a month and two of the grandchildren live in Melbourne.  He said they have their own lives. 

16. The Tribunal discussed with the applicant his sister Eptesam and the support she was providing his mother.  He said that she comes over for between two and four hours a day.  She lives close by to her mother and the sponsor in Fairfield.  The Tribunal asked if she has any health issues.  The applicant said that Eptesam was sick but he didn’t have medical reports.  He said that she had problems with her hands but wasn’t sure what her health problems were.  He said she does as much for his mother as she can but there were some things she can’t do.  The applicant said that Eptesam’s children lived with their father.  He said her children only visited the sponsor and his mother on special occasions like Christmas. 

17. The Tribunal notes that the name of the applicant’s sister born 23 October 1965 has been spelled ‘Eptesam’ by the applicant in his original Form 80 from 15 May 2012 (D1, Folio.17) but in more recent documents is referred to as ‘Abtisam’.  For the purposes of simplicity the Tribunal has utilised the original name ‘Eptesam’ in this decision record.  

18. The Tribunal discussed with the applicant his sister Intesar who also lived close by in Fairfield.  The Tribunal asked why she was unable to assist the sponsor.  The applicant said that she has a son Jonathan that has cancer and it was hard to look after him.  The Tribunal asked if Intesar’s son was in remission.  The applicant agreed he was but said Jonathan was still very weak and has to have check-ups. 

19. The applicant said his sister Intesar has a problem with her joints and said that she got depressed after her son was diagnosed with cancer.  He said that she had other health problems but he wasn’t sure what they were.  The Tribunal asked for any medical evidence concerning these claims.  The applicant said he did not have any. 

20. The applicant said Intesar visited the sponsor and his mother once a week for between half and one hour. He said that he asked her for help but she does not do so.  He said that she is married.  The applicant said that Intesar’s husband is not in employment. 

21. The Tribunal discussed with the applicant his youngest sister Ekhlas and the support she provides the sponsor.  The applicant said she does not help his father.  He said she used to be his father’s carer but after the applicant’s arrival in Australia it ended.  The applicant said his father’s condition was worse since she cared for him.  The applicant said she lived about 15 minutes away from the sponsor’s home.  The applicant says she visits between once a week and every ten days.  The applicant said she can’t do things his father the sponsor requires such as lifting him.  The applicant said Ekhlas is not working and receiving Centrelink.  He said that she is divorced with two children aged 26 and 22 who live with her.  The applicant said that Ekhlas’ children visit once every one to two months as they are busy with working. 

22. The Tribunal asked why Ekhlas cannot help out, noting that whilst she is smaller, she could potentially assist her father in other ways.  The applicant claimed Ekhlas has some health issues and he can’t force someone to assist the sponsor. 

23. The Tribunal asked the applicant if his siblings collectively could look after the sponsor, especially combined with some external government assistance.  The applicant said that was not possible as his father needed someone 24 hours a day.  The applicant said he did contact ‘Homecare’ but they were charging $50 to $52 an hour and they could not afford such an amount. 

24. The Tribunal asked the applicant how he looks after himself financially.  He replied that he has few expenses and lived with his parents, sharing with them.  He said he has no other sources of income.  The applicant had previously had some American dollars but these had been exhausted.  He said he has not worked at all since arriving in Australia.

25. The Tribunal enquired as to whether there were any other family members that could assist his father.  He said that there were not. 

26. The Tribunal asked the applicant about the undated written statements that he provided from his sisters concerning their ability to care for the sponsor.  The applicant said their statements which he provided to the hearing were only written in Arabic as they could not write in English.  He volunteered that the interpreter could translate these statements.  The Tribunal accepted this.  The statements were translated by the Tribunal’s interpreter at the hearing. 

27. The statement by Ekhlas stated that she could not take care of the sponsor because of her illnesses.  She said the disc in her back, depression and arthritis in her hands precluded her from being of assistance. She provided copies of medical correspondence including a review of her thyroid in July 2015, January 2017 and June 2018; letters relating to a gastroscopy from May 2012; a letter from a vascular surgeon Dr Eric Farmer from November 2017 recommending she not have any intervention for 4 spider veins in her lower limbs; a letter from a breast and general surgeon Dr A.J. Shah from July 2018 stating her mammograms and ultrasound show no cause for concern and a report from an x-ray of her spine from September 2018 (T1, Folio.79-88).   

28. The statement by Salma said that she had family and was unable to assist her father.  She said she was sick and health issues including joints, depression, migraine, diabetes, high blood pressure, cholesterol and heart problems (T1, Folio.100).  She also provided copies of correspondence from her cardiologist Dr Prashil Ganda to her GP from 2018 concerning her cardiac risk factors and possible gastric reduction surgery; correspondence from her rheumatologists from 2018 and a psychological report from March 2017 from psychologist Dr Shameran Selwa-Younan stating Salma has been his patient since 2010 and exhibits symptoms consistent with the diagnosis of a major Depression Disorder (T1, Folio.89-99).

29. The statement by Intesar said she was a carer for her youngest son Jonathon who had cancer and she cannot care for her father at the same time.  She also provided a final report dated 23 August 2017 outlining some behavioural issues pertaining to her son as well as testing during his remission from Hodgkin’s Lymphoma (T1, Folio.77-78).    

30. The statement by Eptesam (T1, Folio.121) said that she is a carer for her mother and cannot take care of her father at the same time.  She also provided a copy of a request for nuclear medicine testing for vascular invasive follicular cancer for her mother dated 19 February 2007 (T1, Folio.120).   

31. The Tribunal asked who wrote the statements.  The applicant said that Eptesam wrote her own statement.  He said the others told him what they wanted to say and his brother in law wrote them down before them signing the documents.

32. The Tribunal asked why his four siblings in conjunction with external welfare and community services could not provide the assistance and care his father requires.  The applicant replied that his sisters are sick and have their own health issues.  He said one was a carer for their mother and another was caring for their son.  He said he could not force them to care for him.

33. The applicant said that his mother was unable to provide her father with any assistance and care.  The Tribunal asked the applicant what was the most recent medical information he provided about his mother’s health.  He indicated he had no further evidence. 

34. The Tribunal has had regard to the applicant’s testimony concerning the inability of his siblings to provide care to his father.  The Tribunal has noted his claims but also is aware of the fact that at least one of his sisters has previously provided care to the sponsor. 

35. The Tribunal notes that care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. The Tribunal is not satisfied that the applicant’s sisters are unable to provide at least some degree of support and assistance to their father on a needs basis.

36. The Tribunal notes that three of the applicant’s four siblings live in Fairfield – the same suburb as the applicant’s father. 

37. The Tribunal notes from the applicant’s oral testimony that the applicant’s sister Eptesam is at his father’s property every day for between two and four hours a day.  The Tribunal found the applicant’s claims that Eptesam was sick – thereby precluding her from assisting and caring for her father – as vague and lacking in detail and corroborative evidence.  The Tribunal notes that these conditions have not been an impediment to visiting the same property and caring for her mother on a daily basis.  The Tribunal notes her claim that she is caring for her mother and cannot take care of her father at the same time.  The Tribunal accepts that she would not be able to provide full-time care for her father.  The Tribunal is not however convinced she cannot make a meaningful contribution – in conjunction with assistance from others - to the care of her father if she so wished.  The Tribunal notes she is at the applicant’s father’s home already for between two and four hours a day and resides in Fairfield like the applicant’s father.

38. The Tribunal has taken into account the claims that have been made concerning his sister Intesar and her ability to assist in the care of the applicant’s father.  The Tribunal accepts the evidence that Intesar’s son has previously had cancer but notes it is in remission.  The Tribunal accepts, based upon the evidence provided, her son’s behaviour at school may cause some extra challenges to her daily life.  The Tribunal is not however satisfied that Intesar is unable to provide some level of care and support to her and the applicant’s father, particularly when her son is at school.  The Tribunal notes that Intesar is not in employment.  The Tribunal has noted the evidence from 2012 provided to the delegate previously considering Intesar’s physical and mental wellbeing (D2, Folio. 78-79) but is not satisfied on the evidence before it today there are any medical issues precluding her from assisting with the care of her father.                

39. The Tribunal accepts that the applicant’s sister Salma’s health conditions may preclude her from providing a significant amount of care to her father, the applicant’s sponsor.  The Tribunal, noting Salma resides in the same suburb as the applicant’s father, can still provide even occasional support to the applicant’s father from time to time if she so desires.     

40. The Tribunal notes the fourth sister, Ekhlas, lives in Edensor Park –less than 10Km from Fairfield - and has on the evidence of the applicant experience with previously caring for her father.  The applicant pointed out to the Tribunal that Ekhlas too is not in employment and has two adult children.  The Tribunal is not satisfied by the medical reports provided to the Tribunal and previously to the delegate that she is medically incapable of providing a level of care and assistance to her father.  The Tribunal is not convinced that she is unable to make a contribution to the care of her and the applicant’s ageing father.      

41. There is little recent evidence before the Tribunal concerning the ability of the applicant’s mother – who lives with his father – to provide some of the care required by his father.  The Tribunal notes the applicant’s mother is 71-years old and has taken into account the medical evidence to the delegate from 2012 and 2013 which includes reports about her back and her knees.   When enquiring about the assistance she provides his father, the applicant said that his sister is caring for his mother.  The Tribunal accepts this and accepts that she has previously had treatment for cancer.  The Tribunal accepts the applicant’s mother is limited as to the assistance she can provide her husband, the applicant’s father.  In the absence of recent corroborative medical evidence, the Tribunal however cannot conclude that the applicant’s mother is entirely incapable of making any contribution whatsoever to the overall care of her husband, the applicant’s father. 

1. The Tribunal notes from oral evidence that there are a range of adult grandchildren of the applicant’s father that reside locally and beyond in Sydney.  Whilst the Tribunal accepts they have their own lives and, on the basis of the oral testimony of the applicant, only visit their grandparents occasionally, the Tribunal considers these nephews and nieces of the applicant are also able to provide a level of assistance and care in conjunction with other family members. 

2. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

3. On the evidence before it, the Tribunal is not satisfied that the assistance required by the sponsor Mr Karin cannot be reasonably provided by a relevant relative: namely the applicant’s sisters with occasional support from the applicant’s mother who resides with Mr Karim as well as the sponsor’s adult grandchildren.   The applicant does not meet 1.15AA(1)(e)(i). 

4. The Tribunal has noted the applicant’s claims that the need to lift his father is difficult for his sisters.  The Tribunal notes that there are community, welfare and nursing services available to elderly citizens to assist with a wide range of in-the-home requirements.        

5. The Tribunal has also considered whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: 1.15AA(1)(e)(ii).

6. The Tribunal discussed with the applicant whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.

7. The Tribunal asked the applicant what care the sponsor receives from any external providers such as welfare, nursing or community services.  The applicant said he didn’t receive any external support.

8. The Tribunal asked the applicant what actions he or the sponsor had undertaken to acquire any services.  The applicant said they didn’t receive any help.  The Tribunal asked if they had attempted to acquire any of these services.  The applicant said he did contact ‘Home care’ but they were charging $50 to $52 an hour and they could not afford such an amount.  The Tribunal asked the applicant when he made contact with Home Care to enquire about services for his father.  He said it was ‘a few days ago’.  The Tribunal noted that the name of the organisation purportedly contacted is BUPA Uniting Care.  The applicant claimed they tried to contact other providers but didn’t have any answers.  No corroborative evidence was submitted to the Tribunal in support of this claim to have contacted other providers.    

9. Given the needs of the applicant’s father, the Tribunal asked the applicant if his father had been assessed by an Aged Care Assessment team (ACAT).  The applicant said no, he had not. 

10. The Tribunal accepts that $50 to $52 an hour – as quoted by the applicant 1 would be a prohibitive cost for a pensioner for in the home assistance.  The Tribunal notes that the applicant’s father can avail himself of the Commonwealth Home Support Program (CHSP) which provides specific services at a basic level of care with much more affordable fees.  If the applicant’s father’s cares are greater then he can access a Home Care Package after his eligibility is assessed by the Aged Care Assessment Team (ACAT).  On the evidence contained in the sponsor’s recent Carer Visa Assessment Certificate (T1, Folio.102-119) the applicant’s father and sponsor would in all likelihood be eligible for a Home Care Package if he were to undertake an ACAT assessment.     

11. No further corroborative evidence of any attempts to obtain welfare, hospital, nursing or community services were submitted to the Tribunal. 

12. The Tribunal considers on the evidence before it that the attempts that have been made to obtain welfare, hospital, nursing or community services have been extremely limited.  There is little evidence of any genuine attempts that have been made to procure such services.  On the basis of such little corroborative and supportive evidence, the Tribunal is not satisfied that the assistance (needed) cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met. 

13. The Tribunal furthermore is not satisfied that a combination of care provided jointly by the applicant’s sisters and his mother cannot provide the assistance the applicant’s father requires, especially in conjunction with any available external assistance from welfare, government, hospital, nursing or community services. 

14. The Tribunal is not 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 not met.

15. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

16. The Tribunal discussed the delegate’s decision record with the applicant. 

17. It was noted by the Tribunal that in the decision record the applicant provided, it stated that the applicant had not provided a range of documentation, such as the Carer Visa Assessment Certificate, the AFP certificate and the Form 80, to the Department when assessing the visa application.  The Tribunal asked why this information was not provided when requested.  The applicant said he could not read English properly.  He said he was about to send the information requested to the Department when he received the delegate’s letter refusing his visa.  The Tribunal asked how he could send the Carer Visa Assessment Certificate if the assessment was only being held on 29 January 2019, a year after the delegate’s refusal.  The applicant responded that he did apply for the Certificate a long time back but it was delayed due to some mistakes from the doctors.  The Tribunal asked the applicant for any evidence to support this claim.  The applicant said he applied for the Carer Assessment in August 2018.  The Tribunal noted that the applicant had said in oral evidence to the hearing that when he received the letter refusing his visa in January 2018 he had been about to send the Department the documents which would have included the Carer Visa Assessment Certificate.  The applicant said he was going to apply for the Carer Visa Assessment Certificate.  The applicant said he can’t read and write English.  The applicant confirmed he first applied for the new Carer Visa Assessment Certificate in August 2018.  

18. Mr Sarkis asked if he could explain to the Tribunal.  Mr Sarkis said when the letter came from the Department he helped explain to the applicant the requirements of the Department.  He said the applicant had to obtain specialist geriatric reports and there were delays in getting the medical reports to apply on time.  Mr Sarkis said in August 2018 an application was prepared and sent by post to BUPA but they were subsequently informed the application had to be made on-line. 

19. The Tribunal noted these responses but noted that the applicant had claimed in oral evidence that in January 2018 he was about to provide the delegate with the outstanding documentation it had requested when he received the notification of the refusal of his visa which included the Carer Visa Assessment Certificate. The applicant responded said he had been to see the family doctor and been referred to a specialist to obtain the reports needed as part of the assessment process. The applicant said he was still acquiring the medical reports and specialist reports that were needed before making the application to BUPA.  He said that it was then they had received a refusal from the Department: that is prior to receiving reports from the specialists. The Tribunal notes the applicant’s explanation.    

20. The Tribunal notes that whilst some of the documentation the delegate requested and did not receive have subsequently been provided to the Tribunal (ie the Australian Federal Police Certificate and since 4 February 2019 the Carer Visa Assessment Certificate) the applicant has still not provided a completed and updated Form 80 – personal particulars for character assessment as requested by the Department of Home Affairs on 3 October 2017.       

21. The Tribunal notes the claims at the hearing by Mr Sarkis that he had provided the documentation provided on the applicant’s behalf to the Department.  Mr Sarkis – who the Tribunal notes specifically attended the hearing not as the applicant’s representative but as an ‘observer’ then as a witness - said he could prove this. The Tribunal also notes from the delegate’s decision the applicant provided the extensive efforts the delegate made in requesting the required documentation.  The Tribunal nevertheless notes there is no evidence before it that the updated Form 80 was submitted.  There remains no completed Form 80 from the applicant before the Tribunal.  The Tribunal notes that the applicant must satisfy public interest criteria (PIC) 4001 for the grant of this visa.  PIC 4001 requires the applicant to be assessed against the terms of the ‘character test’.  As the applicant is required to satisfy PIC 4001, Regulation 2.03AA applies.  Regulation 2.03AA(2)(b) states that the applicant must have provided a completed form 80.  The applicant was requested to provide a Form 80 for the delegate to assess the character requirements.  At the time of the Tribunal’s decision there is no evidence before it that the applicant has provided the Form 80.  The applicant therefore also does not meet the requirements of cl.836.223 in Schedule 2 of the Regulations.

22. Notwithstanding the applicant failing to meet cl.836.223, the Tribunal also notes that the applicant has also failed to meet cl.836.221 as the Tribunal is not satisfied that the assistance the applicant’s father requires 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 not met.         

23. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.

24. The evidence before the Tribunal is that the applicant was born on 6 July 1968.  The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

25. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country as the applicant has two brothers that resides permanently offshore.  As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

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

    DECISION

27. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Justin Owen
    Senior 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.