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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yacoub (Migration)

Details

AGLC: Yacoub (Migration) [2023] AATA 2593
Case: [2023] AATA 2593
Decision Date: 20 July 2023

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), by a US citizen and her family to provide care for her mother, an Australian citizen residing in Australia. The applicant's mother suffered from multiple medical conditions, including dementia, and required significant daily assistance. The applicant's sister, an Australian citizen, sponsored the application. The Administrative Appeals Tribunal was required to determine whether the visa applicant met the criteria for a carer visa.

The Tribunal was tasked with assessing whether the applicant qualified as a "carer" under regulation 1.15AA of the Migration Regulations 1994. This involved determining if the applicant was a relative of the Australian resident, if a valid certificate confirmed the resident's medical condition and resulting impairment requiring ongoing assistance, and if this assistance could not reasonably be provided by other Australian relatives or obtained from community services. The Tribunal also needed to consider if the applicant was willing and able to provide substantial and continuing assistance.

In its reasoning, the Tribunal found that the applicant was a relative of her mother and that the provided medical certificate met the regulatory requirements, confirming the mother's significant impairment and ongoing need for care. However, the Tribunal concluded that the applicant had not demonstrated that care could not reasonably be obtained from Australian welfare, hospital, nursing, or community services. Evidence suggested the applicant was under-utilising her current home care package and had made limited efforts to secure additional services, with the applicant's mother expressing a preference for care only from her daughters. The Tribunal also noted that the applicant's siblings residing in Australia were unable to provide the necessary care due to their own circumstances.

Despite finding that the applicant met some of the visa criteria, the Tribunal affirmed the decision not to grant the visa. It acknowledged the applicant's desire to care for her mother and provide respite for her siblings, but considered that a temporary visitor visa might be a more appropriate avenue for such purposes, potentially for periods up to one year, and that this option should be available to the applicants as US citizens.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEBackground 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. 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. 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. 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 contractb.US Social Security cards and evidence of permanent residence cards for all the visa applicants; California identity cards for all the visa applicantsc.Sponsor’s Certificate of Australian citizenship acquired on 19 November 2008 and Australian passport issued 18 May 2009d.US Passports for all the visa applicantse.BUPA letter and CVAC dated 25 August 2017 indicating an impairment rating of 45f.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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Meena SripathyMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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 CONSIDERATIONWhether the visa applicant is a ‘carer’ 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) 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. 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) 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. 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)