Sourori (Migration)

[2022] AATA 2684

Sourori (Migration) [2022] AATA 2684 (29 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bobby Sourori

REPRESENTATIVE:  Mr Emil Kalouch (MARN: 0637601)

CASE NUMBER:  1822312

HOME AFFAIRS REFERENCE(S):          CLF2016/47216

MEMBER:Moira Brophy

DATE:29 June 2022

PLACE OF DECISION:  Sydney

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

·cl 836.211 and cl 836.221 of Schedule 2 to the Regulations.

Statement made on 29 June 2022 at 1:57pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – DNA evidence – strong evidence (99.936%) of the applicant and the sponsor being maternal relatives – updated Carer Visa Assessment Certificate provided –visa applicant is a carer of the Australian relative – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.211, 836.221

CASES

Biyiksiz v MIMIA [2004] FCA 814

Lin v MIMIA [2004] FCA 606

Rafiq v MIMIA [2004] FCA 564

Hon Anh Vuong v MIAC [2013] FCCA 274

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 Home Affairs on 25 July 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 8 August 2016. 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 (Cth) (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 visa on the basis that cl 836.212 and cl 836.221 were not met because the delegate was not satisfied the applicant was a carer to an Australian relative as defined in reg 1.03, and further, that the assistance required could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 27 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Shahrzad Sourori, who is the applicant's sister.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

8. The primary visa applicant, Mr Bobby Sourori, is a 34-year-old male. He was born in Tehran and is a citizen of the Netherlands. He has declared no previous relationships.

9. Mr Bobby Sourori has frequently travelled to Australia on temporary entrant visas since 2005. He studied in Australia in the period from December 2008 to March 2010. In 2011 and in 2014 he entered Australia on electronic visas for short terms. He was in Australia on a Visitor visa granted on 9 March 2016 when his present application was lodged.

10. The sponsor, Mrs Shahrzad Sourori, has sponsored the applicant to provide care to a member of her family unit, Mr Mahan Kousedghi.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the primary visa applicant is the carer of the review applicant as defined in reg 1.15A and whether the review applicant’s needs could not be reasonably provided by community health care providers in Australia.

12. The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall.

13. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 10 December 2021 provided, which the Tribunal requested prior to the hearing.

    Whether the primary visa applicant has claimed to be a ‘carer’

14. Clause 836.212 of the Regulations requires that the primary visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the primary visa applicant is a carer of a member of the sponsor’s family, who is the primary visa applicant’s nephew.

15. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the primary visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

16. There is a copy of the Carer visa application made by Mrs Sourori and her brother, Mr Bobby Sourori (the primary visa applicant), on the Department file. On that application the primary visa applicant claims to be the carer of his nephew, who is the son of the sponsor, Mr Mahan Kousedghi (the caree). The caree is an Australian citizen, as evidenced by the copy of the birth certificate provided.

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

    Whether Mr Sourori is a ‘carer’

18. Clause 836.221 requires that at the time of decision, the primary visa applicant is a carer of an 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.

    Whether Mr Sourori is a relative of the resident – reg 1.15AA(1)(a)

19. Regulation 1.15AA(1)(a) requires the primary visa applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03, that is, a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the primary visa applicant’s nephew.

20. The Department file contains identity documents of the primary visa applicant, his mother Leya Zabeheyan and his sister, the sponsor.

21. At the time of the delegate’s decision, it was noted the applicant was not included on his mother’s birth certificate. His mother had not added either his name or that of his younger sister. Other documents provided (extract from the Register of Population from the Netherlands) listed his father as Nabi Sourori and his mother as Leya Zebehayan. The sponsor provided a copy of her birth certificate, which listed her father as Nabi Sourori and her mother as Leya Zebehayan. The applicant claimed his birth was not registered as he was born in Iran and his mother moved to the Netherlands in 1993. The delegate did not find this to be a plausible explanation for his birth not having been registered and found there was insufficient evidence of the claimed relationship between the visa applicant and his sponsor.

22. On 17 May 2021 the Tribunal wrote to Mr Sourori and provided him with the opportunity to provide DNA evidence of the claimed biological relationship between himself and his sponsor.

23. A report provided dated 26 July 2021 was not conclusive as to the claimed relationship. Further testing was carried out, and the resultant report dated 15 October 2021 stated there was strong evidence (99.936%) of the applicant and the sponsor being maternal relatives.

24. The Tribunal is satisfied that the results of the DNA testing establish the relationship between the applicant and sponsor as claimed. The Tribunal is satisfied on the evidence before it that Bobby Sourori is the brother of the sponsor Mrs Shahrzad Sourori and meets the definition of close relative. The Tribunal is also satisfied that Mrs Shahrzad Sourori is an Australian citizen and is ‘usually resident’ in Australia.

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

    Certification – reg 1.15AA(1)(b)

26. Regulation 1.15AA(1)(b) requires that a certificate be provided, which meets the requirements of reg 1.15AA(2), and 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

27. 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 (see Legislative Instrument IMMI 17/126) or issued by a specified health provider in relation to a review of such an opinion.

28. On 27 July 2021 the Tribunal requested the applicant’s migration agent provide an updated Carer Visa Assessment Certificate from BUPA Medical Visa Services as the one currently held on file was dated 2016. That 2016 certificate stated Mr Kousedghi had an impairment rating of 90, he had medical conditions that impacted the practical aspects of daily life and a need for assistance for at least two years. The medical conditions were spastic diplegia affecting lower limb function, cerebral palsy affecting communication function, anxiety affecting mental health function and cerebral palsy affecting intellectual function.

29. After the hearing, a certificate dated 10 December 2021 was provided. The Tribunal is satisfied the certificate meets the requirements of reg 1.15AA(2).

30. The certificate states that Mr Kousedghi has medical conditions, which are causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life. The diagnosed conditions listed were generalised anxiety with associated behavioural disturbance, spastic quadriplegic cerebral palsy (resulting in lower limb dysfunction), spastic quadriplegic cerebral palsy (resulting in impaired cognitive functioning), spastic quadriplegic cerebral palsy (resulting in impaired communication), and spastic quadriplegic cerebral palsy (resulting in upper limb dysfunction).The impairments have an impairment rating specified in the certificate and Mr Kousedghi will continue for at least two years to have a need for direct assistance in attending to the practical aspects of daily life. Mr Kousedghi has an impairment rating of 90 and requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating, feeding, supervision of medication, and supervision for personal safety and transport. His overall level of dependence was assessed as ‘fully dependent’.

31. The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the certificate 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)

32. 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.

33. In the present case, the person with the medical condition is Mr Kousedghi who, according to documents on file, is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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

34. 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.

35. In the present case, the impairment rating specified in the certificate is 90. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

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

36. Where the person to whom the certificate relates is not the Australian relative (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 two years because of the medical condition.

37. In the present case, as the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

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

38. 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia. In determining whether the assistance cannot reasonably be obtained for the purposes of reg 1.15AA(1)(e), the Federal Court has held that the question is whether the Australian relative can reasonably obtain assistance from the person or services; not whether that person is able to reasonably provide the required assistance, or those services are reasonably available: Lin v MIMIA [2004] FCA 606; Rafiq v MIMIA [2004] FCA 564; and Biyiksiz v MIMIA [2004] FCA 814.

39. According to the BUPA Assessment conducted on 10 December 2021 Mr Kousedghi suffers from spastic quadriplegic cerebral palsy- a permanent condition with no known cure. In addition, he has long standing generalised anxiety with significant behavioural disturbances. Mr Kousedghi has had lifetime specialist care to address the functional deficits resulting from his cerebral palsy and has undergone all reasonable treatment available to him with limited improvement over the years. He has significant difficulty with basic cognitive tasks without constant prompting and supervision by those around him. He also has impaired muscle coordination and weakness affecting both his upper and lower limbs. As a result, he is completely and heavily dependent on another person for all activities of daily living. His personal safety would be compromised without supervision at all times. In their opinion he satisfied the criteria for a Carer visa.

40. There was consistent evidence regarding the arrangements for Mr Kousedghi’s care. He lives with his mother, sister and the applicant in a rented four-bedroom home. Mr Kousedghi is in receipt of a disability support pension and his mother receives a carer payment. She also works on a part time basis. The applicant is prevented from working because of his visa conditions. Mrs Sourori is the only person earning an income to meet their housing, personal and medical needs. Her employer is very accommodating of the demands placed on her by Mr Kousedghi’s medical conditions, but she is very conscious of that and tries to always ensure she meets the requirements of her job.

41. Mrs Sourori gave oral evidence that her son requires assistance with many activities of daily living, but their biggest issue is providing care in the night-time. There needs to be someone to tend to his needs during the night. He frequently wakes and disrupts the household. The continual broken sleep impacts on her ability to concentrate at her work. Mrs Sourori said her health has suffered as a result of the caring responsibilities she has, and she suffers from depression as evidenced from the medical evidence provided by her doctor. She also has cervical spine problems which limit her ability to manage her son given his height and weight.  Mrs Sourori said she is constantly stressed, and she does not have anyone who can support her in her caring role apart from her brother. She is also conscious of the needs of her daughter and the impact of the constant care required by Mr Kousedghi on her ability to care for her daughter.

42. The Tribunal accepts that Mrs Sourori is reluctant to leave Mr Kousedghi alone due to concerns for his safety and wellbeing, but she has to continue to be in paid employment to meet their housing, medical and personal needs. As a consequence, she is constantly trying to balance her caring responsibilities to her son with their financial needs.

43. The Tribunal accepts that Mr Kousedghi has significant care needs given his multiple medical diagnoses. He requires supervision and assistance with many activities of daily living and cannot be left alone for long periods of time.

44. At the time of hearing the Tribunal asked Mrs Sourori about family members in Australia. Mrs Sourori told the Tribunal that she does not have other family members in Australia. Her parents are deceased, and she has one sister living in the Netherlands.

45. The Tribunal accepts that in the context as outlined above, the support and care required by Mr Kousedghi could not reasonably be obtained or provided by members of Mrs Sourori’s extended family.

46. The Tribunal accepts that Mrs Sourori has limited capacity to provide care over and above what she is presently providing. She is carrying a cultural expectation of her role in providing care while at the same time she has financial obligations that must be serviced.  The Tribunal accepts that Mrs Sourori does not have family members in geographical proximity to her who are able to provide assistance to her in caring for her son.

47. The Tribunal acknowledges that Mr Kousedghi requires assistance with personal care tasks such as showering and toileting and would not feel comfortable having these tasks performed by a person other than a male person. While there may be scope for further involvement and community assistance, the Tribunal accepts that constantly changing caregivers may be unsettling for Mr Kousedghi.

48. For the above reasons, the Tribunal is satisfied that the assistance required by Mr Kousedghi cannot reasonably be obtained from any other relative in Australia who is an Australian citizen, permanent resident or an eligible New Zealand citizen.

49. The Tribunal has also considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

50. 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].

51. The Tribunal discussed welfare, hospital, nursing or community services, including a residential care option, with Mrs Sourori.  Mrs Sourori had earlier provided evidence of difficulties encountered at the disability employment provider and the challenging behaviours Mr Kousedghi exhibited. It was evident Mr Kousedghi did not cope when there was a change of personnel he was dealing with, as often happened with the care package. He prefers to receive care from those with whom he has a close personal relationship. He expressed his desire to have a male family member care for his personal needs. Mrs Sourori said she did not want Mr Kousedghi to go into residential care given his age and his previous experiences. It would also be inconsistent with their culture to place her son in respite or full-time residential care and Mrs Sourori considered it would be detrimental to Mr Kousedghi‘s mental health. As was noted in the Bupa Assessment Mr Kousedghi has ‘extreme difficulties with self-care and independent living, social activities, and interpersonal relationships (particularly with females), concentration and task completion (requires prompting every few minutes at home or at supported employment) and with behaviour planning and decision-making’. The Tribunal accepts that Mr Kousedghi requires 24-hour care because he needs constant supervision. It also accepts that Mr Kousedghi strongly prefers to remain in his own home.

1. The NSW and Australian Governments provide various services to assist people to continue to reside in their homes. Given Mr Kousedghi’s relatively young age and the complexity of his needs, the Tribunal accepts the options for him are very limited. The Tribunal accepts that there would be no obtainable welfare or community services that could provide 24-hour assistance to Mr Kousedghi. While some further community assistance may be accessed for Mr Kousedghi, the Tribunal is not satisfied that such services are sufficient to meet his particular needs.

2. Based on the evidence before it, the Tribunal is satisfied that the assistance required by Mr Kousedghi cannot reasonably be obtained from welfare, hospital, nursing or community services.

3. The Tribunal is satisfied that the assistance cannot reasonably be obtained from a relevant relative or service in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

   Willing and able – reg 1.15AA(1)(f)

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

5. 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.

6. The Tribunal is satisfied that the primary visa applicant is aware of and familiar with his nephew’s medical conditions and care needs. The visa applicant is currently living at the home of his sponsor and is caring for Mr Kousedghi. The Tribunal accepts the visa applicant is aware of his nephew’s needs. He was able to describe in detail the care needs of his nephew.

7. The visa applicant is currently not in the paid workforce; he understands that in order to provide the care his nephew needs he will be required to prepare his meals and do his washing and shopping and tend to other personal needs. He will be required to assist his nephew with his personal needs, assist him to maintain emotional stability and ensure he gets to his medical appointments. The Tribunal is satisfied that the visa applicant is able to provide full-time care to his nephew. The Tribunal accepts this evidence and concludes therefore that the visa applicant is willing and able to provide to his nephew substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

8. Given these findings, at the time of decision the visa applicant is a carer of the Australian relative, being Mr Kousedghi, and therefore satisfies cl 836.221.

9. Therefore, 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 reg 1.15AA(1)(f).

   Conclusion on ‘carer’ criterion

10. Given these findings, at the time of decision, the primary visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl 836.221.

11. 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 836 visa.

    DECISION

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

    ·cl 836.211 and cl 836.221 of Schedule 2 to the Regulations.

    Moira Brophy
    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.