Yosif Toma (Migration)

[2020] AATA 6056

Yosif Toma (Migration) [2020] AATA 6056 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Simon Yosif Toma
Mrs Ingi ISAM MEKHA
Mr Ramon YOSIF TOMA
Mr Thomas YOSIF TOMA
Mr William YOSIF TOMA

CASE NUMBER:  1820887

HOME AFFAIRS REFERENCE(S):          CLF2017/17431

MEMBER:Kira Raif

DATE:10 December 2020

PLACE OF DECISION:  Sydney

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

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 10 December 2020 at 12:26pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – valid Carer Visa Assessment Certificate – results of a DNA test provided – applicant is the child of the sponsor – evidence of medical assessment provided – applicant is willing and able to provide assistance – visa applicant is a carer of the Australian relative – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15; Schedule 2, cl 836.221

CASES

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 16 July 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant (‘the applicant’) is a national of Germany, born in Iraq in May 1982. He applied for the visa on 22 February 2017. The application includes his partner and children. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was a carer of his Australian relative. The applicants seek review of the delegates decision.

3. The applicants appeared before the Tribunal on 27 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

4. The Tribunal exercised its discretion, and conceded to the applicant’s request, 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

6. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.

7. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations.

   Whether the applicant is a carer

8. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation).

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant claimed to be a carer of his mother, Ms Naima Ella Gorgees Kosso. The delegate noted that the applicant was requested to provide evidence of his relationship with the sponsor, including a copy of his family register from Iraq, his national ID card and a birth certificate, but he had not done so. As a result, the delegate was not satisfied the applicant was a relative of the sponsor.

10. On 25 September 2020 the applicant provided to the Tribunal the results of a DNA test confirming his relationship with his mother. Having regard to that evidence, the Tribunal is satisfied the applicant is the child of the sponsor and a relative within the meaning of r.1.03. He meets the requirements of r.1.15AA(1)(a).

11. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

12. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister. The applicant included with the application a Carer Visa Assessment Certificate (CVAC) which specifies that the resident has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The CVAC indicates that because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life. The CVAC provides an impairment rating of 45.

13. The Tribunal finds that the Certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv).Accordingly, the requirements of r.1.15AA(1)(b) are met.

14. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In the present case, the person with the medical condition is the applicant’s mother Ms Kosso. The Tribunal is satisfied she is an Australian citizen or permanent resident. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

15. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. In the present case, the 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 r.1.15AA(1)(c).

16. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

17. 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.

18. The delegate also noted that the applicant indicated on the application form that the sponsor had no relatives in Australia to provide her with assistance, but the CVAC referred to the sponsor receiving assistance from a nephew in relation to transportation. The delegate sought further information from the applicant concerning other assistance available in Australia and it is stated that the applicant had not responded to that request.

19. The applicant provided a number of documents to the Tribunal in August 2019. The applicant included his birth certificate, a copy of his ID card, marriage certificate and census extract. The applicant presented evidence of having contacted private care providers. There is a statement from a social worker who states that she had contacted a number of organisations which stated that they provide limited support with domestic and personal care.

20. There are statutory declarations from the sponsor’s siblings and several nephews and nieces who state that the sponsor needs help with various tasks and they are not able to provide that help due to their own commitment, work and childcare commitments and their own health issues. There are statements from the community organisations which also refers to the absence of assistance from other sources.

21. The applicant presented a NSW police report which refers to an incident involving the sponsor. The applicant states that as a result, his mother requires constant care. The Tribunal accepts that this is so.

22. In oral evidence, the review applicant told the Tribunal that the visa applicant has two brothers in Australia. One brother, Miha – is an elderly person in his sixties, who lives quite far and has his own health conditions. He said that they rarely see the other brother Mazan and do not know much about him. He is a gambling addict and has been asked to leave his household as he has not been able to pay expenses. He is also a carer for another person whom they do not know. The Tribunal is prepared to accept that the sponsor’s two siblings cannot provide the requisite care due to their age and other circumstances.

23. The applicant told the Tribunal that Miha has five children. The Tribunal finds that such children are the sponsor’s nieces and nephews and therefore relatives. The applicant told the Tribunal one is married and has to look after family and children. The others have their own commitments such as work and study. The applicant said they are nieces and nephews and cannot be expected to provide care to the sponsor and it is hard to ask them to provide care. They are not able or willing to assist and it is not practicable to do that. The Tribunal notes that the CVAC refers to a nephew providing transport assistance. The applicant said that he cannot comment on that, as the nephews have not been available to provide any practical assistance to his mother. The Tribunal does not accept the applicant’s oral evidence that there has been no support at all from the nieces and nephews as it is not consistent with the information contained in the CVAC, which the applicant presented with his application. The Tribunal prefers the evidence in the CVAC and has formed the view that some level of assistance has been provided by other relatives. However, the Certificate refers to the assistance with transportation and there is no evidence that any other form of assistance is provided by other relatives. The Tribunal accepts that the relatives in Australia cannot provide the assistance at the required level, noting that according to the CVAC and ACAT assessment, assistance is required at a substantial level.

24. The applicant confirmed his mother has no other children in Australia as his sister lives in Germany.

25. The applicant told the Tribunal that his mother was distressed after his brother was killed and she is not in a good state mentally, as well as physically. He referred to the close relationship she has developed with his children. The sponsor also gave oral evidence to the Tribunal referring to a close relationship she has with her son and grandchildren.

26. The applicant admitted that he provided false information in his earlier visa application and apologised to the Tribunal. The applicant stated that his mother had nobody to care for her in Australia and she was in a bad condition and needed support which was not available to her. Because of his mother’s circumstances, he used the approach that was the easiest to come to Australia and it was a mistake to use that approach to come to Australia to be with his mother.

27. The applicant told the Tribunal that they contacted several service providers but their fees were too high and they could not afford these. The Tribunal invited the applicant to arrange an ACAT assessment for the sponsor. The applicant had done so following the hearing and provided additional evidence to the Tribunal on 8 December 2020. It indicates that an ACAT assessment was conducted in late November but the sponsor had declined the approval of a Home Care package as she has been receiving care from family in Australia. The presented evidence does not indicate that assistance is not available. Rather, it suggests that a Home Care package may have been made available to the sponsor but the sponsor declined to accept it as her needs were being met by the applicant and his family.

28. The Tribunal has formed the view that there is inadequate evidence about the availability of assistance from other sources. In particular, it is of concern to the Tribunal that the sponsor has declined any assistance from the My Aged Care team. However, the Tribunal has had regard to the sponsor’s particular circumstances. The Tribunal acknowledges the evidence that the sponsor suffered from PTSD after witnessing the death of her son and had received psychological treatment. The Tribunal accepts the evidence that she requires extensive care with daily tasks, including personal hygiene, feeding, medication, etc. The nature and extent of the care required are set out in the CVAC and also in the ACAT assessment. The need for care is extensive. The Tribunal accepts that the sponsor may not be able to afford private health care. More importantly, the Tribunal is of the view that given the nature and extent of the care required and the sponsor’s psychological needs, the sponsor’s close family are best placed to provide the requisite care. The Tribunal accepts the applicant’s evidence that he and his children have a close relationship with the sponsor which has been beneficial to her mental health.

29. Overall, the Tribunal is satisfied, on balance, that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are met.

30. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

31. 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.

32. The applicant confirmed in oral evidence that he has four children, born in 2011, 2013, 2016 and 2020. The Tribunal questioned the applicant how he plans to provide care to his mother while also caring for four young children. The applicant told the Tribunal that since his arrival in Australia he has been fully supporting his mother. The applicant described the nature of his mother’s conditions and the nature of his support.

33. The applicant provided to the Tribunal a number of personal documents, including his bank statements which show regular wage deposits. The applicant states that he brought savings with him when he came to Australia. After his savings depleted, his wife found a job and then he found a job in the transport industry at a time when his wife could look after his mother. The applicant states that he does not work daily and only a few hours in the afternoons. The applicant claims that he works 12-14 hours a week, not more than 15 hours a week. Since the Covid-19 restrictions, he stopped working and he is waiting for the situation to improve before he can resume working for the same company, doing the same kind of work. The applicant confirmed that he had not performed any other kind of work since coming to Australia. The Tribunal notes, however, that the applicant presented to the Tribunal his daughter’s birth certificate which refers to the applicant being a truck driver. The applicant explains that part of his job description was to load the stock on the truck and he has the driver license.

34. The applicant said his wife works 3-4 hours a day, up to 15 hours a week and she continues to work at present. The applicant said that she works while the children attend school and they are able to take care of the children and work while taking care of his mother. Overall, the Tribunal is satisfied that the applicant is able to provide the requisite assistance despite his employment. The Tribunal notes the information in the ACAT assessment which refers to the applicant and his family being the sponsor’s carers and providing the assistance that she requires. This is consistent with the applicant’s evidence to the Tribunal that since his arrival in Australia he and his family have been the primary carers for his mother.

35. The Tribunal is satisfied that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

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

    Conclusion

37. 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

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

    ·cl.836.221 of Schedule 2 to the Regulations;

    Kira Raif
    Senior Member