Yacoub (Migration)

[2023] AATA 2593

Yacoub (Migration) [2023] AATA 2593 (20 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Selma Yacoub

VISA APPLICANTS:  Mrs Shatha Ibrahim
Mr Nabil Sulaiman
Mr Ghaith Ishaq
Miss Roula Ishaq
Mr Ewan Ishaq

CASE NUMBER:  2113004

HOME AFFAIRS REFERENCE(S):          OSF2018/031561

MEMBER:Meena Sripathy

DATE:20 July 2023

PLACE OF DECISION:  Sydney

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

Statement made on 20 July 2023 at 11:03am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care reasonably obtained from welfare, hospital, nursing or community services in Australia – collective family assistance available – review applicant under-utilising current home care package – limited efforts to obtain care services – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 116.221; rr 1.03, 1.15

CASES

Biyiksiz v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 9 August 2021 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The Mrs Shatha Ibrahim (the visa applicant) applied for the visa on 13 March 2018, on the basis of providing care assistance to her mother, Mrs Salma Yacoub. The visa applicant’s husband and three children were included in the application as members of her family unit. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The applications were sponsored by Mrs Salma Yacoub who completed a sponsorship form. 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.

3. The delegate refused to grant the visas because the delegate concluded the requirements of r.1.15AA(1)(e)(i) and (ii) of the definition of Carer in the Regulations were not met because the delegate was not satisfied on the evidence provided that the care required by the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, and also found that there was inadequate evidence that a combination of family support and in-home assistance would not be sufficient to service the care needs of the resident. Therefore, the delegate found cl 116.221 was not met.

4. The sponsor (the review applicant) applied for review of the decision to the Tribunal on 26 September 2021.

5. The review applicant appeared before the Tribunal on 4 July 2023 by video hearing to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s children, Ms Wafa Ibrahim, Ms Shatha Ibrahim (the visa applicant), Ms Ranaa Ibrahim, Ms Hadeel Ibrahim and Mr Duried Ibrahim.  The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. 

6. The issue in the present case is whether the applicant meets r.1.15AA(1)(e) of the Regulations, that is, whether the assistance required by the Australian resident cannot reasonably be provided by any other relative of the resident or obtained from welfare, hospital, nursing or community services in Australia.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

8. The visa applicant is an Iraqi born US citizen, born in 1972. Her husband and three children, born in 2002, 2004, 2006 (aged 15, 13, and 12 at time of application – now aged 21, 18 and 16 respectively) are included in the application as members of her family unit.  The visa applicant indicates her parents, three sisters and two brothers reside in Australia. 

9. She is applying for the visa to provide care for her mother, Selma Shaba Yacoub, who has numerous medical conditions including dementia with Alzheimers disease, cervical radiculopathy and bilateral rotator cuff tear, bilateral knee OA, degenerative disease of thoraco-lumbar spine and urinary incontinence.

10. The application is sponsored by Ms Yacoub, who completed a Sponsorship form 40, and is an Iraqi born, Australian citizen. The sponsor indicates in the form that she lives with her husband, son and grandson, and has two sons, and two daughters in Australia.

11. Documents submitted to the Department in support of the application, relevant to the review, included:

    a.Various identity documents relating to the primary visa applicant, including Certificate of Iraqi Citizenship, Iraqi Identity Card, Baptism Certificate and Marriage Certificate and contract

    b.US Social Security cards and evidence of permanent residence cards for all the visa applicants; California identity cards for all the visa applicants

    c.Sponsor’s Certificate of Australian citizenship acquired on 19 November 2008 and Australian passport issued 18 May 2009

    d.US Passports for all the visa applicants

    e.BUPA letter and CVAC dated 25 August 2017 indicating an impairment rating of 45

    f.Various medical reports considered for the CVAC including :  9th March 2017 - Dr Ernest Tam (Geriatrician Report); 20th July 2015- Laura Lee (Physiotherapist); 10th March 2017-Dr Vincent Caristo (Xray L Knee report); 26th May 2015- Dr Balsam Darwish (Neurosurgeon); 20th May 2015-Dr Jay Dave (Orthopaedic Surgeon); 18th March 2013- Neil Griffith (Neurologist); 18t December 2012- Dr Ian Goti-Graham (Rheumatologist); 21st July 2014- Dr Con Moshegov (Ophthalmologist); 9th April 2013- Dr Albert Shafransky (Cardiologist); 1st October 2009 - Dr S Benjamin (Psychiatrist)

    g.Health summary for Wafa Ibrahim dated 6 October 2017 and various medical reports relating to an MRI scan on Ms Wafa Ibrahim dated  September 2015.

    h.Letter dated 23 April 2017 from Hande Honeine, Social Worker addressed to sponsor and address her request for assistance for referrals to home care services, setting out contacts made to services for a home care package suitable for her needs, and copies of email correspondence relating to enquires made.

    i.Statutory Declaration by Zahir Thomas dated 26 February 2018  - stating that he has multiple sicknesses and his wife is a carer for him.  He is unable to care for his mother. He has two children who his wife also cares for. Letter from his GP, Dr Werdi dated 15 February 2017 attached in support.

    j.Statutory Declaration from Hadeel Ibrahim dated 28 February 2018  - declaring she cannot care for her mother because she has a 5 month old baby and is also a carer for her husband, who suffers from neck and back injury. Letter attached from her GP, Dr Werdi dated 9 October 2017 regarding her medical conditions.

    k.Statutory Declaration from Renaa  Ibrahim dated 28 February 2018 -stating multiple reasons she cannot care for her mother – she has 4 minor children, her husband works fulltime and she has health problems impacting her daily life and does not live near her mother. Letter attached from GP, Dr Werdi dated 10 October 2017 regarding her reasons for not being suitable carer for mother.

    l.Statutory Declaration by Duried Tomas Ibrahim dated 28 February 2018 – he cannot care for his mother because he is a carer for his father and also suffers from chronic lymphocytic leukaemia (CLL). Medical letter attached in support. 

    m.Statutory Declaration by Wafa Ibrahim dated 28 February 2018 – declaring that she cannot look after her mother 24 hours because she is also caring for her infant child. She describes an accident involving spilling boiling water on her infant son while caring for mother.  She also has own health issues which affects ability to care for mother. Medical letters attached, including evidence of accident involving her son on 25 July 2017 and letter from GP, Dr Werdi dated 10 October 2017.

12. On 9 August 2021 the delegate refused the application, having considered the evidence and documents submitted and applying the criteria set out in r.1.15AA.  The delegate considered the explanations provided by the family members for why they were unable to provide the required care to the sponsor, but was not satisfied that it was unreasonable for Wafa Ibrahim to contribute to the care in conjunction with assistance from other family members and including assistance from the care available through services after the ACAT assessment conducted in November 2020.  The delegate did not consider sufficient evidence was provided for why the other children of the sponsor could not jointly contribute to the assistance she requires and the delegate was not satisfied that the applicant had adequately demonstrated that the care cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as the evidence submitted pre-dated the ACAT assessment conducted in November 2020 and no further evidence of what services were accessed after this was provided. 

    Evidence before the Tribunal

13. On 15 October 2021 the Tribunal received the following further evidence in support of the application:

    a.Letter from Wafa Thomas Ibrahim dated 11 October 2021 setting out her current circumstances: she lives with her 5 year old son and parents in Gregory Hills.  Her son has health issues, including respiratory issues and vision impairment.  She also has her own health issues and struggles to care for her mother and father. She has twice been taken to hospital as a result of bouts of dizziness and random nausea. Her siblings also have similar issues, including family responsibilities and health issues and are unable to help her. They considered sending their parents to an aged care facility but they refused to go. They have been offered 1.5 hours a week domestic assistance but to date this has not occurred and in any event it is insufficient for their needs.

    b.Various documents in support of the above submissions, including a letter from physiotherapist dated August 2021.

    c.Guardianship Order made on 27 August 2021, continuing the appointment of Wafa Ibrahim as limited guardian for the sponsor in respect of the stated functions, including making decisions relating to visa applications that would ordinarily be made by the sponsor.

    d.Letter dated 15 September 2021 from Hande Honeine to review applicant setting out her advice regarding whether services are reasonably obtainable by her and enquires made on her behalf.

    e.Statutory Declaration purportedly by the review applicant (undated) setting out her family composition and their circumstances. It is indicated that she is booked in for an assessment with My Aged Care assessment and is on a waiting list for an appointment.

    f.Aged Care Support Plan dated 1 December 2020.

    g.Updated letter from Hadeel Ibrahim, dated 12 October 2021, and evidence supporting claims.  She has two young children she cares for and a husband with a disability, for whom she receives Carer Payment.

    h.Updated letter from Duried Ibrahim, dated 12 October 2021, and evidence supporting claims.  He is a carer for his father, works part time as an electrician and has his own health conditions.  

    i.Updated letter from Ranaa Ibrahim, dated 18 September 2021. She is a stay at home mother of 4 children who are between primary school and university ages and is continuously occupied with domestic duties. Her husband works as a school teacher.

    j.Letters from Daniel, Angela and Majid Jabur, explaining why they rely on their mother to drive them to university classes and work.

    k.Updated letter from Zahir Thomas Ibrahim, dated 8 October 2021 stating he has disabilities as well as a son with autism and his wife is carer for him and his son. Medical letters and reports attached in support.

14. On 26 May 2023, following constitution of the matter to the presiding member, the Tribunal invited the review applicant to provided updated information about the care assistance and services she is receiving. 

15. On 1 June 2023 the Tribunal received:

    a.An ACAT Assessment Report dated 22 October 2021 recommending an HCP Level 3 to be used for flexible respite, personal care, domestics, social support, allied health., continence support and domestics. She was informed of an extensive waitlist for HCPs and offered CHSP in the interim.

    b.Monthly Home Care Package Statement for period 1 April 2023 to 30 April 2023 relating to a Home Care Package Level 3 showing a balance of $6,963.69.  The statement shows 2 hours per week being used of services and $2,888.10 per month of government subsidy.

    c.Statutory Declaration from Renaa Ibrahim dated 17 June 2023, Wafa Ibrahim dated 23 June 2023, Duried Ibrahim dated 24 June 2023 and Hadeel Ibrahim dated 23 June 2023 setting out their current circumstances and why they are unable to provide the care assistance for their mother.

16. Movement records before the Tribunal indicate that the visa applicants arrived in Australia on 15 June 2023 on visitor visas (Subclass 601) valid to 15 September 2023. 

    Tribunal hearing 4 July 2023

17. The hearing was conducted by video conference, and the Tribunal took evidence, separately, from the review applicant, Ms Wafa Ibrahim and Ms Shatha Ibrahim, followed by telephone evidence from Ms Ranaa Ibrahim, Ms Hadeel Ibrahim and Mr Duried Ibrahim.  A summary of the evidence obtained at the hearing follows.

    Evidence from the review applicant

18. The Tribunal asked the review applicant basic questions, taking into consideration the medical evidence before it relating to her mental and cognitive health conditions.  She confirmed her current address and that she lived with her husband who is disabled, her daughter Wafa and Wafa’s son, Jonathan who has health issues including allergies and poor vision. Sometimes other people come to the house but she is not sure who they are.  She could not answer clearly how many children she has and when asked if her other children visit her she said they come sometimes, but she forgets their names.

19. The Tribunal asked who helps her through the day and night.  She said that Wafa does everything for her.  She makes her food and washes her and takes her to the toilet.  When she has to go to the doctor Wafa takes her. If she cannot, she asks someone else but the review applicant doesn’t know who it is. She said her other children do not come often.

20. The Tribunal asked who helps her husband who she indicated was also disabled. She said Wafa also helps him, and he manages on his crutches.  Once a month or so her son comes to help her husband take a shower. Ranaa only comes once a year to visit her and Hadeel also does not come often because she has children who have allergies and asthma.

21. The Tribunal asked the review applicant if her daughter Shatha, the visa applicant, is here now. She said she is here visiting, and she and her family are staying at the house with them. When asked what Shatha is doing for her since she came, she said she is helping with the cooking and cleaning. She stands at the door when she is showering. 

22. The Tribunal asked if apart from family members, anyone else comes to help her. She said there is someone who comes to help with the cleaning but that is all.  When asked how she feels about that, she said she does not like strangers in the house. She does not know what they will do to her and she does not want it. When asked how she feels when the person who does the cleaning comes, she said she does not see her because she is sleeping.

    Evidence from Wafa Ibrahim

23. The witness confirmed her address and persons living with her at this time, including the visa applicants who are visiting from the USA since last month and are due to leave next week. They came because it has been 18 years since Shatha has seen her parents and her father was sick recently.  When asked why the visit was so short given this period of time, she said the children have university and school to return to.

24. Previous to this address, her parents lived at Horningsea Park with their son Duried.  They lived with him since he came to Australia.  He was granted a carer visa to care for his father and he did that until he also became ill with leukemia and was unable to continue to care for the parents.  This was about 4-5 years ago and they came to live with her. Now Duried, Hadeel and Zahir all live together with their respective families at Sitella St Gregory Hills. The witness confirmed this was close by to her house. Both of these properties are owned by family members. Their other sister Ranaa lives separately with her family at Hoxton Park.  She has 4 children, 3 are adults and one in high school. She rarely comes to visit her parents.

25. When asked how often her siblings visit, she said Duried works full time from 5am to 9pm and also has a family and his own health issues.  The Tribunal put to her the apparent contradiction in her explanations that Duried was unable to continue to care for his father because of his own ill health, but now works very lengthy full time hours. She said then that he does not work those hours everyday, only some days and he still has the health condition but is receiving treatment.  She calls him from time to time when her father needs help, for example with showering. 

26. The Tribunal discussed with the witness her mother’s conditions.  She described the various conditions and illnesses she has, including memory issues, high blood pressure, cholesterol, issues with her neck, vertebrae, shoulders, knees; she is incontinent and has had eye surgery. When asked about the assistance she gives her, the witness said she helps her all day and all night.  The review applicant does not sleep through the night, and constantly calls out for her and needs to be taken to the bathroom.  When she wakes at 5-6am she takes her to the bathroom, washes her face and then takes her back to bed.  She then makes breakfast.  She also has her own child, a son who is 7 years old.  He has health issues also and she is struggling to care for him and her parents. She has to take her son to regular specialists and also takes her parents to their doctors.

27. The Tribunal asked if she asks her siblings to help her. She said when she asks they come up with many excuses. They are all busy with their own lives, children, and health. She cannot force them to help her. If, for example, she asks them to take her parents to an appointment, or to sit with her parents while she takes her son to an appointment, they say they would like to but they cannot because of their own commitments. The witness repeated the explanations they have each given.

28. The Tribunal asked what assistance they have obtained from care services, noting the evidence that the review applicant has a HCP Level 3 and does not appear to be using it all.  She said the only assistance they can use is 2 hours a week for cleaning because this is the only thing her mother will accept. She refuses to have a stranger help with personal care or cooking, or overnight assistance.

29. The Tribunal put to the witness that while she is saying her mother only wants this assistance from her children and not strangers, her children in Australia are not willing to provide it, and she has unused funds for care assistance available to her.  The Tribunal asked why it should be confident that the visa applicant if granted a visa, would provide the care and not do as all the other siblings have done. Wafa said that if the visa applicants come to Australia they would live with her and Shatha has promised her she will serve her mother, and her husband and children will help. She is her daughter, not a stranger, and she will do it. The Tribunal asked why Shatha has only visited her family after 18 years and why did not come sooner to see her parents and help out, given she could have travelled from the USA.  She said she was initially in Syria for many years and only then came to USA and then they had issues setting in as new migrants there and her children were very young. Now her children have grown up and she has the opportunity to come here.

1. The Tribunal put to her that her failure to come earlier may suggest she is not willing and able to provide the care to the review applicant as she has not demonstrated it to date and also given how the other siblings have been.  Wafa said in response that when her brother came here to be carer for his father he did it for 10 years before he ceased because of his own health, so he did not just abandon his responsibility straight away. Her sister has promised her that she will take care of the parents and she believes that she will.  She is not coming from a refugee country, she has a settled life in the USA and is prepared to come here with her family for this purpose. 

2. Regarding use of the care package, she said there is no point using services her mother won’t accept, for example cooking and personal care.  If her sister comes she can do these things for her. 

   Evidence from Shatha Ibrahim

3. The visa applicant arrived in Australia around 20 days ago for a visit to see her parents, especially as her father had been unwell lately. She last saw them 18 years ago because she was in Syria for 7 years and then the USA for the last 10 years and there was no way for them to see each other. Her family went to the USA in 2013, initially on a temporary visa and then after 5 years they obtained permanent residency.  The Tribunal asked why she did not seek to visit Australia after that.  She said they had commitments at that time as her children were at school.

4. The Tribunal asked what her children are now doing. They are all studying, the eldest one is at university and the younger two are at school. They all live at home together.  The Tribunal asked about her husband’s work.  He was working prior to COVID 19 but since then job opportunities have been less.  He has held many varied jobs in the USA.  Previously in their home country he was a university graduate and worked as a maths teacher, but he has not been able to do that work due to language barriers. She does not work outside the home and has been caring for her children at home.

5. The Tribunal asked what their plan is if granted the visa. Her husband would work and support the family, the children are grown up now and would also work and contribute. At the present time they are supported by them.

6. The Tribunal asked about her knowledge of her mother’s conditions and care needs. She said she is aware she has multiple health conditions including memory loss and mobility issues. When asked if she was able to remember and recognise her after so many years, she said she did not at first but now she knows who she is.  She has been in continuous contact with her all these years.

7. Regarding her care needs the witness said she is aware she needs 24 hour assistance.  She always needs someone to be with her to help her with toileting, medications, showering etc. At present her sister Wafa is doing all of this, but she has been helping her.

8. When asked about her observations of assistance from other siblings’ she said they do not do anything because they are all busy with their own lives. The Tribunal asked how it can be satisfied that she would not do the same if granted a visa. She said she started this application 5 years ago for this purpose and has spent a lot of money on the process to date. Her intention is and has been only to help her parents, so how can she not do this. The Tribunal asked why then it took so long for her to even come for a visit. She said previously her parents were unwell but not as bad as they are now.  Her children then were younger and it was more difficult for her but now they are grown up.  The Tribunal asked what the plan is now regarding her children, would they also come with her.  She said they would because the family wants to stay together. They would continue their education in Australia.

9. The Tribunal asked the witness why her mother cannot use care services she is eligible for here. In response she said those services are not 24 hour care and it is not enough. The Tribunal put to her that given she is not using what is available and she has numerous other children here, it may find the care assistance can reasonably be obtained by these sources.  In response she said that her mother refuses assistance from strangers and only trusts her children. Her siblings have their own issues particular to them. She has been waiting for 5 years to be able to serve her mother and is willing to do it.

   Evidence from Hadeel Ibrahim

10. The witness confirmed her address and family circumstances.  She does not work outside the home. She is a carer for her husband who is a disability pensioner. He has mental health and physical back injuries. She does everything for him.  Her children are aged 7 and 3 and also have various health issues including asthma and allergies. She does not visit or assist her mother often because of her other commitments. Wafa does everything for her mother and it is very difficult for her as she also has her own son who has health issues.

11. The Tribunal asked why, then, can’t she and her siblings help her.  She said they are all busy with their own issues. When asked why the same wouldn’t apply to the visa applicants if they came, she said her children are older. The witness said she does not know why Ranaa does not come to assist.  Regarding care services, the witness said she was aware that someone comes to do the cleaning but nothing more because as far as she understands overnight supervision is not available and that is what her mother requires.

    Evidence from Ranaa Ibrahim

12. She confirmed her address and family composition.  She said it takes over one hour to drive to her mother’s house from her place during peak period and traffic. She has no time because she is very busy driving her children to and from work and school. She also has her own health issues. She is aware of her mother’s multiple health conditions and that her sister Wafa is struggling as she has a child of her own, but she maintained that she is not able to assist her because she has no time. She only sees her parents at Easter and Christmas. When asked why the visa applicant would be able to given the excuses she has provided, and noting she too has children of her own, the witness said the visa applicant is in good health and her children are older and independent.

    Evidence from Duried Thomas Ibrahim

13. He confirmed his address and living arrangements, with his sister and brother and their families. He confirmed his parents live close by with his other sister and her son. He said he works from 6 am to 7 or 8pm and only has Sunday off and sometimes visits his parents on that day. He is an electrician and has his own business since one and half years ago. Before that he was a carer for his father and received Carer payment to do that.  But his family was growing and he needed to support them, also he started to have problems with his health and for these reasons he ceased caring for his father and they moved in with Wafa and she is providing care for both of them now.

14. When asked how the visa applicants would be able to care for his mother given the experience he had, he said she has older children and her children don’t need her as much. Ranaa lives far away and cannot help. Regarding why his mother cannot get more assistance from care services, he said it is not 24 hours and she refuses anyone who is not her daughters.

    FINDINGS AND CONSIDERATION

    Whether the visa applicant is a ‘carer’

15. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.

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

16. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 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 mother.

17. On the evidence included in the Department file including identity documents of the primary visa applicant which name her mother (Certificate of Iraqi Citizenship and Identity Card), the Tribunal is satisfied she is the daughter of the Australian relative, and therefore, the visa 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)

18. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 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.

19. The Tribunal has before it a certificate dated 25 August 2017 that relates to a medical assessment of Selma Shaba Yacoub, the resident, carried out on behalf of Bupa Medical visa Services and is signed by a medical advisor who carried it out.  The certificate states that Selma Shaba Yacoub has medical conditions which impacts her capacity for self care, a total impairment rating of 45 under the impairment tables has been assigned, and because of the condition, the person has, and will continue for at least 2 years to have, a need for personal care and attention on a daily basis to carry out routine bodily functions.  The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). The Tribunal finds the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Although the certificate was provided some time ago, the Tribunal is satisfied, given the impairment rating assessed and nature of the medical conditions, that her circumstances are unlikely to have changed significantly and therefore an updated certificate is not necessary. Accordingly, the requirements of reg 1.15AA(1)(b) are met.

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

20. 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.

21. In the present case, the person with the medical condition is an Australian permanent resident. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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

22. 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 which specifies the impairment rating for this purpose as 30.

23. In the present case, the impairment rating specified in the certificate is 45. 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)

24. 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 2 years as a result of the medical condition.

25. 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)

26. 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.

27. As mentioned above, the delegate refused the visa on the basis of not being satisfied on the information and evidence that the care assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, and also found that there was inadequate evidence that a combination of family support and in-home assistance would not be sufficient to service the care needs of the resident.

28. Before the Tribunal the review applicant, through her daughter, Wafa, who is also her current carer, submitted updated evidence from herself, her siblings and evidence of care services available to them in 2021 and again more recently in June 2023. The Tribunal has considered this evidence and the oral evidence received at hearing from the review applicant, Wafa and her Australian resident siblings, as well as the visa applicant. Having regard to all the evidence now before it, the Tribunal makes the following findings.

29. On the evidence of the CVAC of 25 August 2017, recent letters from her treating doctors  and the 2021 ACAT Support plan as well as oral evidence of the review applicant and witnesses, the Tribunal is satisfied that the review applicant requires daily assistance with showering, toileting, dressing, feeding, mobility and supervision for her medication and personal safety. It accepts she needs supervision and assistance with walking and cannot leave the house independently.  The Tribunal accepts that the review applicant has the above-mentioned needs for direct assistance in attending to the practical aspects of daily life.

30. The Tribunal took oral evidence from the review applicant, her daughters Wafa and the other resident relatives about the arrangements in place for her care and the assistance that has been provided. The evidence from each of them was generally consistent and consistent with the documentary evidence.  On the basis of the evidence before it, the Tribunal finds that, the review applicant lives with her daughter Wafa and grandson, Jonathon. It accepts that Wafa presently is the primary carer for the applicant.  She is in receipt of Carer payment from Centrelink for this purpose.  She attends to the applicant from the morning, throughout the day and during the night.  She assists her with toileting, dressing and showering. She prepares her meals and supervises and administers her medication. She accompanies her to medical appointments.  The Tribunal accepts, from Wafa, and other witnesses, that she is overwhelmed by the care responsibilities and would like assistance.

31. The review applicant has been assessed by My Aged Care as eligible for a Level 3 HCP and this package has been allocated to her.  The evidence of the April statement from Alpha Omega Aged Care, which appears to be her home care provider for home care package indicates she receives a monthly government contribution of $2,888.00 and she is only utilising 20%, or some 2 hours of care a week.  As at the end of April, she had an available Home Care Account balance of almost $7,000.   When questioned about why she was not utilising more of the home care package available to her, the applicant and the witnesses gave the response that she does not want to be assisted by strangers.  The Tribunal acknowledges the review applicant’s preference for care from her family members. However, caselaw authority indicates that an applicant’s mere preference to be cared for by their children rather than by strangers is not necessarily a barrier to obtaining welfare assistance.[1] Neither the review applicant nor any of the witnesses provided any further explanation or basis for the review applicant’s preference for family members over ‘strangers’ to provide the required care assistance.

    [1] Hon Anh Vuong v MIAC [2013] FCCA 274 at [34], see also Biyiksiz v The Ministerfor Immigration and Multicultural and Indigenous Affairs [2004] FCA 814 at [21], [23] per Gray J.

32. The evidence indicates that her daughter Wafa is feeling overwhelmed and would like to have some assistance in providing the care to her mother and that her other children are unwilling to assist.  There is no evidence before the Tribunal that the review applicant has suffered any specific adverse experiences arising from the use of home care services. At hearing, the review applicant expressed her dislike of having strangers in the house, but she also accepted that her daughter sometimes asked people to come to help her and was asleep when the person who cleans comes in.  Information before the Tribunal from the Department of Health and Aged Care website indicates that the Home Care Packages program takes a consumer directed care approach specifically to give older people a degree of choice and flexibility over how they want to use their funds to provide the care assistance they need. [2]  This allows the review applicant, if she so wishes, to have family members undertake some aspects of the care assistance, such as personal care, and make use of the funds for other support services, including domestic cleaning, transport or supervision when her daughter is unavailable or needs a break. The review applicant or witnesses have not satisfied the Tribunal that at least some of the care assistance required cannot reasonably be obtained through the home care package she has been allocated.  While the Tribunal accepts, having regard to the applicant’s background and cognition conditions, that she may be apprehensive about having new people in the home, it is not satisfied that this cannot be addressed by a gradual introduction of a support worker, possibly who speaks the same community language and with whom she can develop a degree of familiarity over time.  It notes in this regard that the visa applicant until her recent visit, had not seen the applicant for 18 years, and was not immediately recognised by her. 

    [2] About the Home Care Packages Program | Australian Government Department of Health and Aged Care

33. In the circumstances where the applicant has substantial unused funds in her home care package, and in the absence of evidence of any exploration of using the funds to provide relief to her primary carer, the Tribunal is not satisfied that some care assistance cannot reasonably by obtained through the provision of services under the available home care package.

34. The Tribunal has considered the evidence of the relatives of the applicant and their explanations for not being able to provide assistance.  It has considered the evidence before it regarding the personal and family circumstances of her children Wafa, Hadeel, Ranaa, Duried and Zahir.  As found above, it accepts that Wafa is currently providing the care assistance to the review applicant substantially by herself.  The Tribunal accepts that she also has care responsibilities to her own son who has health issues, and she has health issues of her own.  The Tribunal has considered the evidence of the letter from her GP outlining her own health conditions.  This report, nor any of the other letters from doctors provided previously, does not explain in any detail how or why these conditions affect her ability to provide care assistance to her mother.  The Tribunal accepts that she feels overwhelmed. It is prepared to accept, given her oral evidence about the impact of her health conditions and responsibilities for her own young child, that she cannot reasonably continue to provide all of the care assistance the review applicant requires on her own without assistance.  Her evidence to the Tribunal was that, if the visa applicants come to Australia, they would reside with her and their parents and they would care for them together.

35. The Tribunal has given careful consideration to all of the evidence submitted by the review applicant’s other children in Australia as to why they are unable to provide the care assistance to her.  It accepts, on the evidence provided that it is not reasonable for Zahir Thomas to provide the care assistance given that he is in receipt of a disability pension for reasons of his health conditions, and also has four children, one of whom has autism spectrum disorder.  It accepts that Duried Ibrahim has health issues also and continues to receive treatment for leukemia. However on his own evidence, it finds he is able to work and works significantly long hours some days, and this suggests his health issues at this time are not so serious as to impede his ability to work.  The Tribunal accepts that he provides some assistance in the care of his father, on request from his sister.  Regarding Hadeel Ibrahim, the Tribunal accepts that she is in receipt of Carer payment to care for her husband, she has some health issues of her own and also has two young children and therefore she cannot reasonably provide full time care assistance to the review applicant.

1. Zahir, Duried and Hadeel live together with their families in close proximity to the review applicant and Wafa, in the same suburb.  Although, as found above, the Tribunal accepts each of them are constrained in their ability to provide full time care assistance to the review applicant, given the close proximity of their home from the applicant and Wafa, and the fact that they all reside together and presumably shop, make and take meals together, the Tribunal is not satisfied that some assistance cannot reasonably be provided between them, for example by way of shopping or preparing meals, or providing limited supervision while Wafa is unavailable due to her own responsibilities to her son. 

2. The Tribunal has considered the circumstances of Ranaa, who lives separately from the others, and has 3 out of 4 children who are now adults.  It notes a reference in some of the material to her having care responsibilities for her husband (GP’s letter dated 16 June 2023), however no supporting evidence relating to his health condition or care needs has been provided.  The Tribunal has considered her evidence that she is too busy driving her adult children to work and university, however given the circumstances of their ages and stages in life and that she is not working, the Tribunal is not satisfied that at the very least some assistance cannot reasonably be provided by her. 

3. Having considered the evidence in totality, the Tribunal is not satisfied that the assistance required by the review applicant cannot reasonably be provided by a combination of her relatives (being her five adult children residing in Australia) together with services obtained though the Level 3 home care package that has been allocated to her. 

4. 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 reg 1.15AA(1)(e) are not met.

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

5. 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.

6. Given the finding on r.1.15AA(1)(e) above, it is not necessary for the Tribunal to address this requirement. For the sake of completion, on the evidence before it, the Tribunal makes the following observations regarding this matter. 

7. The Tribunal accepts the visa applicant has a strong desire to reunite with her parents and siblings in Australia, particularly after the long separation from her family as a result of the different pathways they took when they had to leave Iraq many years ago.  It accepts as the applicant’s daughter she is willing to provide her mother care assistance. However, she also has a husband and three children of her own, and the Tribunal observes she did not seek to visit the applicant until this year, despite obtaining her permanent residency in the USA in 2017.  It accepts, as reasonable, her explanation that her children were young and she had commitments to them, but this also reflects the priority she gives to her commitment to her immediate family.  In light of the evidence of her siblings in Australia regarding their willingness to care for the applicant, the Tribunal has concerns that the applicant also may have competing responsibilities to her own family were she to come here with them.  Given the findings above relating to r.1.15(1)(e), it is not strictly necessary and therefore the Tribunal does not make, a determinative finding on 1.15AA(1)(f).

8. Given the findings above, the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl 116.221.

9. For the reasons above, the primary visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that any of the visa applicants meet prescribed criteria for the visa sought. Specifically, none of the applicants are old enough to be eligible to meet the criteria for a Subclass 114 Aged Dependent Relative visa.  There is no evidence before the Tribunal to suggest any of the visa applicants meet the requirements for a Subclass 115 Remaining Relative visa.

10. Notwithstanding the above findings and conclusions relating to the criteria in respect of this application for a permanent Carer visa, the Tribunal acknowledges and accepts the visa applicant’s desire to see her parents and to visit and offer some respite to her siblings. The Tribunal considers that the option of a temporary visitor visa is available and may be more appropriate.  It observes that Departmental policy indicates a temporary visitor visa for purposes of providing care to her mother and respite to her siblings may be sought for periods up to one year.[3]  As US citizens, this option should be available without difficulty for the visa applicants.

    [3] [Sch2Visa600] Subclass 600 (Visitor) visa (immi.gov.au)

    DECISION

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

    Meena Sripathy
    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.