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Kamaz (Migration) [2023] AATA  1764  (14 April 2023)

Last Updated: 22 June 2023

Kamaz (Migration)  [2023] AATA 1764  (14 April 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mrs Maya Kamaz

CASE NUMBER: 1918826

HOME AFFAIRS REFERENCE(S): CLF2018/1477

MEMBER: Deputy President Justin Owen

DATE: 14 April 2023

PLACE OF DECISION: Sydney

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

Statement made on 14 April 2023 at 3:22pm


CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – other relatives – no corroborative evidence – welfare, hospital, nursing or community services – no evidence of attempts to obtain assistance – mere preference – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221

CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263

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 29 May 2019 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 is a female 29-year-old Lebanese national. The applicant applied for the grant of the visa on the basis of providing care to her Australian relative and sponsor, Ms Sanaa Hussein who is her aunt. The applicant applied for the visa on 8 January 2018. 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 836.221 was not met. The delegate was not satisfied that it had been demonstrated that it would be unreasonable for the applicant’s relatives to provide the care the sponsor requires. The delegate was not satisfied the care the sponsor requires could not be reasonably obtained from welfare, hospital, nursing and community services. The delegate was not satisfied the applicant had demonstrated at the time of decision that she was willing and able to provide the assistance required by the sponsor.
4. The applicant appeared before the Tribunal on 28 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Sanaa Hussein, who is the applicant's sponsor and aunt. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Whether the applicant is a carer

6. 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 reg 1.15AA of the Regulations which is set out in the attachment to this Decision.
7. Regulation 1.15AA(1)(a) requires that 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 applicant’s aunt. The Tribunal is satisfied on the evidence before it that the applicant is the niece and therefore a ‘relative’ of the Australian relative who is an Australian citizen usually resident in Australia.
8. Therefore, as the applicant is the niece 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).
9. Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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.
10. 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 14/085) or issued by a specified health provider in relation to a review of such an opinion.
11. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate was issued on 14 December 2021. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 30) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.
12. The Tribunal finds that the certificate provided does meet 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.
13. 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.
14. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 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. The relevant instrument for these purposes is IMMI 17/126.
16. In the present case, the impairment rating specified in the certificate is 30. This rating meets the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
17. 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 as a result of the medical condition.
18. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
19. 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.
20. At the Tribunal’s hearing, the applicant stated that she resided with her husband and two children aged three and one in Lurnea. She stated that she also spent around four nights per week living with her aunt, the sponsor, providing the care she required. The applicant stated the sponsor lived in Birrong, about 25 minutes away. The applicant claimed her mother-in-law, who also lived with her husband and children, helped look after the household in her absence whilst tending to the needs of the sponsor.
21. The Tribunal enquired as to whether the assistance the applicant’s aunt, her sponsor, required could not be reasonably provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen.
22. The applicant stated that the sponsor had no children. The applicant stated the sponsor had one older sister in Australia, but the relationship between the parties was not good. The applicant explained that the sponsor’s other siblings were in Lebanon. The applicant volunteered that the sponsor’s sister had some 15 children resident in Australia, all aged between approximately 30 and 50 years of age. The Tribunal enquired as to why they could not provide any assistance to their aunt, the sponsor. The applicant submitted that these 15 children were all too busy and occupied with their own lives, with many married and in demanding employment that individually and collectively precluded them from providing assistance. The applicant claimed that the sponsor’s 15 nephews and nieces barely visited their aunt, the sponsor.
23. The applicant stated that she herself was the one providing the assistance the sponsor needed.
24. The Tribunal appreciates that individuals have their own lives and priorities. Providing care for an elderly aunt may not be one of those. The Tribunal also appreciates that the age period between 30 and 50 years of age is generally one of the busier and more demanding periods for individuals that are seeking to have families, raise families and hold down gainful employment. The Tribunal notes however that there is no corroborative evidence before it to support the applicant’s claim that the sponsor’s entire family in Australia is unable and unwilling to provide the sponsor with the care and support she requires. The Tribunal notes that the delegate previously requested the applicant provide statutory declarations from all of the sponsor’s adult relatives in Australia who are Australian citizens, Australian permanent residents, or eligible New Zealand citizens as evidence as to why they cannot reasonably provide assistance to the sponsor. None was received by the delegate and none have been submitted to the Tribunal. No witnesses were called by the applicant beyond her aunt, the sponsor, to provide testimony as to their inability to provide any sort of assistance to the sponsor.
25. The Tribunal notes the applicant claimed at its hearing that she had previously faced challenges with being aware of the delegate’s requests for information after she provided the Department with a new email address. The Tribunal is unable to confirm this is the case. The Tribunal does note however that the applicant provided the delegate’s decision record to the Tribunal. The Tribunal considers the applicant was on notice (through her decision record) as to why any other relatives in Australia could not reasonably provide assistance to her aunt, the sponsor, and that this was an issue relevant to the grant of the visa. The Tribunal discussed the delegate’s refusal of her application for this reason (amongst others) at the Tribunal hearing. The Tribunal ultimately notes that there is no corroborative evidence to satisfy it that the assistance the sponsor requires cannot be provided, either individually, collectively or in conjunction with available external services, by any other Australian relatives of the sponsor who are Australian citizens, Australian permanent residents, or eligible New Zealand citizens. The Tribunal is not prepared to simply accept this assistance is entirely unavailable based on the testimony and written submissions of the applicant and her sponsor alone.
26. The Tribunal is not satisfied that the assistance the sponsor requires cannot reasonably be provided by a relevant relative, either individually, collectively with the family, or in conjunction with welfare, hospital, nursing or community services obtained in Australia. The applicant does not meet the requirements of reg 1.15A(1)(e)(i).
27. The Tribunal notes that for the applicant to meet reg 1.15AA(1)(e)(ii), the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital or nursing or community services.
28. At the hearing, the Tribunal pointed out that no evidence had been provided of any attempts to obtain the assistance the sponsor requires from any welfare, community, hospital or nursing services. The Tribunal pointed out that this was a further reason the applicant’s visa was refused by the delegate.
29. The Tribunal asked the applicant as to what actions had been undertaken to obtain any welfare, hospital, nursing or community services that the sponsor requires. The applicant stated nothing had been done.
30. The applicant stated at the hearing that the sponsor was like her mother, and she gets very shy and embarrassed amongst strangers. She stated that the sponsor was too embarrassed to shower and bathe with external service providers. The applicant stated that the sponsor is not obtaining any assistance she requires from welfare, hospital, nursing or community services. The applicant confirmed that no Aged Care Assessment Team Assessment had ever been undertaken.
31. The sponsor in her own oral testimony at the hearing confirmed that she received no assistance from any external services. She confirmed that no actions had been undertaken to obtain such services.
32. The Tribunal acknowledges that the sponsor as the Australian resident may have held a preference to receive care from her niece in her own home. The Tribunal notes that reg 1.15AA(1)(e)(ii) requires that care must be sought in order to determine that there is no assistance that is able to be reasonably obtained from welfare, hospital, nursing and community services in Australia.
33. The Tribunal discussed the sponsor’s needs for assistance in some detail with the applicant and the sponsor at the Tribunal’s hearing. The Tribunal asked why these services could not be obtained from external welfare, hospital or nursing or community services. The argument by both parties appears to be the sponsor has a strong preference for her niece to provide this assistance, and she is embarrassed to obtain services to assist her with providing the care she needs, particularly in relation to personal services such as bathing and toileting.
34. The Tribunal notes that the evidence before it strongly suggests that no attempts have been made to obtain any of the services the sponsor, as the Australian resident, requires at any time between the time of application and the time of decision. The Tribunal notes that to meet the criteria for the grant of this visa, the applicant is required to illustrate that this assistance cannot be reasonably obtained through welfare, hospital, or nursing or community services. Given virtually no attempts have been made over five years to enquire into and obtain such services, the Tribunal is not satisfied that these services are not available.
35. The Tribunal accepts the claim that the applicant is providing these services and this care to her aunt, the Australian resident, and has done so since 2018. The question for the Tribunal however remains, is this assistance reasonably obtainable through welfare, hospital or nursing or community services? In the absence of any attempt to obtain such services over the last five years, the Tribunal is not satisfied that they are not obtainable.
36. The Tribunal is not satisfied from the very limited evidence before it that the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital or nursing or community services. On the evidence before it, due to the lack of any genuine enquiries into what services are available, the Tribunal is unable to come to a level of satisfaction that the services required cannot be reasonably obtained. The Tribunal considers the attempts to obtain any welfare, nursing or community services have been essentially non-existent. There is no evidence from agencies or service providers confirming that they cannot provide suitable assistance, or that the availability of care they provide does not cover the care required by the Australian resident. There is no evidence of any requests ever being made. Quite simply, the Tribunal is not satisfied that any attempt at all have been made to obtain the services the Australian resident, the sponsor, requires.
37. The Tribunal accepts the Australian resident has a strong preference for the services she requires to be obtained from her niece, the applicant, rather than from external services. The Tribunal notes however that a mere preference for a particular service is to be distinguished from a cultural reason. In Hon Anh Vuong v MIAC [2013] FCCA 274, the Court found that the applicant’s mere preference to be cared for by his children rather than by strangers was not a barrier to his obtaining welfare assistance and therefore was not a matter that the Tribunal was required to consider further in its determination of reg 1.15AA. In Lam v MIBP [2013] FCCA 1263, the Court confirmed it is for the applicant to satisfy the Tribunal that the relevant services are not reasonably obtainable. In the current review, the Tribunal considers the Australian resident has a preference to be cared for by her niece, the applicant, rather than via obtaining external welfare, hospital, nursing or community services. The Tribunal accepts the Australian resident may have a preference to obtain the services she requires from her niece. There is no evidence before the Tribunal however that this preference is a barrier to the sponsor reasonably obtaining welfare, hospital, or nursing or community services assistance. Given there is no evidence of any effort that has been undertaken to obtain such services, the Tribunal is not satisfied that the services she requires are not reasonably obtainable. The Tribunal is not satisfied that the Australian resident’s preference for her niece to provide her care services is a barrier to her reasonably obtaining those services via welfare, hospital, nursing or community services.
38. Given the lack of evidence of any attempt to acquire welfare, hospital, nursing or community services, the Tribunal is not prepared to accept that the assistance the Australian resident requires, such as medication, transport and personal hygiene, cannot be reasonably obtained through welfare, hospital, nursing or community services.
39. The Tribunal therefore 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. Therefore, the applicant does not meet reg 1.15AA(1)(e)(ii).
40. 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.
41. As the applicant does not meet the requirements of reg 1.15AA(1)(e), there is no need for the Tribunal to consider the further requirements for the grant of the visa.
42. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.
43. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses, there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
44. The evidence before the Tribunal is that the applicant was born on 18 February 1994. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.
45. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa. The test in reg 1.15(2) is about whether the applicant is the remaining relative of the Australian citizen, in this case her aunt, the sponsor. In her Application for migration to Australia by other family members form dated 4 January 2018, the applicant declares her father Mr Fadie Kalal, her stepmother Ms Jamal Berjawi and her two sisters Ms Mona Kamaz and Ms Rabiha Berjawi are all living and current residents of Lebanon. As the applicant has parents and sisters who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens who are usually resident in Australia, it appears she has a near relative as per reg 1.15(2)(a) and is therefore not a remaining relative as per reg 1.15(1). As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.

DECISION

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

Justin Owen
Deputy President

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.