1607581 (Migration)

[2018] AATA 2694

1607581 (Migration) [2018] AATA 2694 (14 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1607581

MEMBER:Hugh Sanderson

DATE:14 June 2018

PLACE OF DECISION:  Sydney

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

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 14 June 2018 at 3:44pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Definition of carer – Carer for Australian relative – Carer’s for sponsor’s daughters – Carer Visa Assessment Certificate – Change of person requiring care – Sponsor’s psychological condition – Psychologist report – Breakdown of sponsor’s marriage – Lack of care – Impairment rating – Willing and able to provide assistance – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2 cl 836.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 17 May 2016 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 August 2015. 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 (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.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied that the applicant met the definition of a carer in r.1.15AA of the Regulations. Specifically, the delegate was not satisfied the applicant had provided the necessary certification as to the need for a carer.

   Background

4. The applicant is a citizen of Vietnam and is currently [age] years old. She is married with two children, however, her husband and children are not included as secondary applicants in the visa application. She is sponsored for the application by her sister, [Ms A].

5. The sponsor was stated in the application to be married with two children. She is an Australian citizen. She does not work and is in receipt of a carer’s pension. Her eldest child, [Ms B], is currently [age] years old. Her youngest child, [Ms C], was [younger] than [Ms B].

6. [Ms B] has been diagnosed as suffering from [a] disorder. She currently attends [a] School, a special-needs learning school.

7. [Ms C] was diagnosed with [a medical condition] in June 2014. The applicant travelled to Australia in August 2014 on a visitor visa to assist the sponsor in the care of both her children. This visa was extended to allow the applicant to continue to assist the sponsor in the care of her children.

8. The current application was filed on 12 August 2015. The basis of the application was to allow the applicant to provide care for her niece, [Ms C]. With the application, the applicant provided a letter dated [in] July 2015 from the Bupa Medical Visa Services confirming that an appointment had been made for an assessment of [Ms C] to provide the necessary certification. The applicant did not provide this report.

9. The Department wrote to the applicant to request the Carer Visa Assessment Certificate on 8 April 2016. The applicant did not respond to this request.

10. The delegate who considered the application noted that the required Carer Visa Assessment Certificate had not been provided. Accordingly, the delegate found that the requirements in r.1.15AA(1)(b) and (c) were not met. As such, the applicant did not meet the criterion in cl.836.221 and the application was refused.

    Further documents to the Tribunal

11. The applicant provided further documents to the Tribunal including the following:

    ·Care Visa Assessment Certificate for [Ms C] dated [in] August 2015 finding she did not satisfy the requirements for a carer;

    ·Death Certificate for [Ms C] stating she died [in] August 2017;

    ·Carer Visa Assessment Certificate for [Ms B] dated [in] May 2018 finding she satisfies the requirements for a carer with an impairment rating of 50;

    ·School reports and assessments for [Ms B];

    ·Letter from [a] psychologist, dated [in] September 2017.

12. The applicant appeared before the Tribunal on 6 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and two friends of the family. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

13. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

14. At the start of the hearing the applicant’s agent stated that the person the visa applicant was claiming at the time of the application to care for, [Ms C], had died. The person she was now claiming to care for was the eldest child of the sponsor, [Ms B].

15. The applicant provided information as to the care that she provides for [Ms B] and her sister. She provided details of the sponsor’s condition which causes her to be unable to care for herself, quite apart from providing adequate care and supervision for her daughter. She provided details of the breakdown of the marriage between the sponsor and her husband.

16. The sponsor gave evidence which was consistent to that provided by the applicant. She said that she was seeing a psychologist every two or three weeks. She indicated that she became very nervous when looking after [Ms B] and she felt that, as she could not save [Ms C], she would not be able to care for [Ms B].

17. The two friends of the sponsor who gave evidence provided details of how the sponsor was not able to care for [Ms B] and needed help herself. They provided details of the breakdown of the relationship between the sponsor and her husband, including details of the lack of care that [Ms B’s] father provides to her. This was both due to his work obligations and the difficulty he has had in coping with the illness suffered by [Ms C] and the fact that [Ms B] suffers from [a disorder].

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. In the carer visa application, the applicant claimed to be the carer of her sister, [Ms A]. The reason for the need for care was because her sister’s daughter, [Ms C], suffered from a medical condition and was a member of the family unit of the sponsor. The applicant is now claiming to be the carer of her sister to provide support for her sister’s daughter, [Ms B], who suffers from a medical condition.

20. Clause 836.212 requires that at the time of the application the applicant claims to be the carer of an Australian relative. Clause 836.221 requires that at the time of the decision the applicant is the carer of a person referred to in clause 836.212.

21. The person who the applicant claims to be the carer for must be an Australian relative and the applicant must be sponsored by the Australian relative (cl.836.213(a)). The person who the applicant claims to be the carer of to meet the criteria in cl.836.212 is the sponsor, [Ms A], on the basis that a member of her family unit is suffering from a medical condition.

22. Although the criterion in cl.836.221 requires the applicant to be ‘a carer of a person referred to in clause 836.212’ this only requires that the Australian relative must be the same. It does not require that the person with the medical condition be the same person. As long as the applicant meets the requirements of the definition of a carer of the Australian relative in r.1.15AA, there is nothing in the provisions which requires that the member of the family unit of the Australian relative with the medical condition must remain the same between the time of the application and the time of the decision.

23. The Tribunal must then consider whether, at the time of this decision, the applicant is the carer of the sponsor on the basis that a member of her family unit has a medical condition.

    Whether the applicant is a carer

24. Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision.

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

25. Regulation 1.15AA(1)(a) requires the applicant to be 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). In the present case, the Australian relative is identified as the applicant’s sister.

26. The applicant provided documents to the Department from Vietnam providing details of her family. The documents identify the applicant and the sponsor as sisters. Medical reports and other documents have also identified the applicant and the sponsor as sisters.

27. The Tribunal finds that the applicant and the sponsor are sisters. As the applicant is the sister of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

28. Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

29. 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 (see Legislative Instrument IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

30. The applicant has provided a copy of the Carer Visa Assessment Certificate in respect of the sponsor’s daughter, [Ms B]. The certificate concludes that [Ms B] meets the requirements for a carer with a finding that she has a total impairment rating of 50. The examining doctor [made] the necessary findings that [Ms B] has a medical condition causing impairments to her ability to attend to the practical aspects of daily life, and that because of that medical condition she has and will continue to have for at least two years the need for direct assistance in attending to the practical aspects of daily life.

31. 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.

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

32. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

33. In the present case, the person with the medical condition is the sponsor’s daughter. She is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

34. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 07/012.

35. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

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

36. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, 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 two years as a result of the medical condition.

37. In the present case the Australian relative (resident) is not the subject of the certificate.

38. The person to whom the certificate relates is the sponsor’s daughter and a member of her family unit. The sponsor’s younger daughter, [Ms C], died at the age of [age] years old in August 2017 from complications arising from [a medical condition]. This, and the fact that the sponsor was also caring for a child with [a disorder], caused significant emotional strain both on the sponsor herself and her marriage. Although the sponsor’s husband remains living in the home with the sponsor and their daughter, the Tribunal accepts that the marriage relationship between the sponsor and her husband has ended and that the sponsor’s husband does not make any significant contribution to the care of [Ms B].

39. The applicant provided a GP Mental Health Treatment Plan dated [in] August 2015. This noted that the sponsor, at that time, was having difficulty coping with her two daughters and the medication she was on at the time. In the risk assessment, it was noted that the sponsor had suicidal ideation, although no suicidal intent or risk to others was identified.

40. The sponsor has had ongoing psychological treatment from [the psychologist] since August 2015. A report from [the psychologist] dated [in] September 2017 was provided by the applicant to the Tribunal. This was prepared shortly after the death of [Ms C]. In that report, she was found to have been suffering from a major depressive disorder with melancholic features sufficient to warrant antidepressant medication and ongoing supportive psychotherapy. The degree of functional impairment was assessed at the moderate to severe range. It was noted that the applicant had been a strong emotional and physical support for her and that without the presence of the applicant the sponsor’s daily life would be severely affected by her psychological condition. This would obviously have a significant and adverse impact on her daughter, [Ms B]. The long-term prognosis was poor and guarded and was reported as being unstable. She was stated to be at risk due to her suicidal ideation. An updated report dated [in] June 2018 did not find any improvement in the condition of the sponsor.

41. The presentation of the sponsor at the hearing before the Tribunal supported the findings of [the psychologist]. The sponsor was dull in her presentation and was unable to concentrate. She did not appear to be aware of her actions and aspects of the care required by [Ms B]. Her presentation indicated that she would be unable to provide adequate care for herself, let alone a child suffering from [a disorder].

42. For the above reasons, the Tribunal finds that the sponsor, being the Australian relative, is suffering from a continuing major depressive disorder which significantly inhibits her capacity to be able to care for her daughter, [Ms B]. She is dependent upon her sister, the visa applicant, to provide the care required for her daughter as well as providing assistance for her own care.

43. As the Australian relative does require assistance in providing the direct assistance referred to in r.1.15AA(1)(b)(iv) the requirements of r.1.15AA(1)(d) are met.

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

44. 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.

45. The sponsor does not have any other relatives who reside in Australia. Although the sponsor remains married to her husband who continues to live in the same house as the sponsor, the Tribunal accepts that this relationship has broken down and they are no longer in a spousal relationship. The report from [the psychologist] notes the ongoing marital tension and that [Ms B’s] parents have slept in separate rooms for many years. The Tribunal accepts the evidence that the sponsor’s husband is working full-time and for that reason would not be able to provide any assistance in the care of [Ms B] during the day.

46. The Tribunal finds that the assistance required cannot reasonably be provided by another Australian relative of the sponsor.

47. [Ms B] is a full-time student at [a] School. This school caters for students with a [disability]. Apart from her time at school, there are few other occasions when the care she requires is provided by or available from any welfare, hospital or nursing or community services. The structure that is required for [Ms B] is provided by her living with her mother and the applicant. The applicant provides all appropriate supervision for [Ms B] including taking her to the bus stop to go to school and collecting her at the end of the school day. The Tribunal is satisfied that the care required for [Ms B] outside of school hours cannot be obtained from any welfare or community services.

48. The Tribunal is 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 r.1.15AA(1)(e) are met.

    Willing and able – r.1.15AA(1)(f)

49. 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.

50. 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.

51. The applicant has been assisting in the care of her sister and her two children since she arrived in Australia in 2014. The obligations on her have increased as the depressive disorder of the sponsor has increased reducing her capacity to care for her children. The applicant provided details of all the care that she provides to [Ms B] which includes bathing her, helping her with her periods, taking her to the toilet, preparing all meals and proper supervision. The applicant has shown herself to be able to provide the necessary care for [Ms B]. The applicant divorced her husband in Vietnam and her two sons are independent, the eldest working with the police and the youngest studying at university.

1. The applicant has shown herself to be both willing and able to provide the assistance required by [Ms B] since she has been in Australia. She has shown herself to be willing to continue to provide that assistance in the future. Accordingly, the Tribunal finds 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).

   Conclusion on ‘Carer’ criterion

2. 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.

3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

   DECISION

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

   ·cl.836.221 of Schedule 2 to the Regulations.

   Hugh Sanderson
   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.