1702464 (Migration)

[2020] AATA 3303

1702464 (Migration) [2020] AATA 3303 (17 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1702464

MEMBER:Brendan Darcy

DATE:17 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 June 2020 at 11:47am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian citizen – providing substantial and continuing care to the sponsor – efforts to access nursing, hospital or community services – family commitments preclude care from Australian relatives – sponsor refused assistance from community agencies – family did not pursue nursing home facilities – decision under review affirmed     

LEGISLATION

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

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 234
Lin v MIMIA [2004] FCA 606

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 and Border Protection on 8 February 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 10 December 2013. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. 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 clause 116.221 and regulation 1.15AA for the Migration Regulations.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met.

4. For the purposes of this review, the first named visa applicant, [name], will be referred to as the first applicant or the applicant; the second named applicant, [name], will be referred to as the second applicant; and the visa applicants’ sponsor, [name], as the sponsor or the review applicant.

5. The review applicant appeared before the Tribunal on 3 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [name], the sponsor’s wife; the sponsor’s granddaughter, [Granddaughter A], and the first applicant via a teleconference facility.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by her registered migration agent, [name], but was not present at the scheduled hearing.

7. For the following reasons, the Tribunal has concluded that the it should affirm the delegate’s decision not to grant the visas to the applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is where clause 116.221 of the Schedule 2 of the Regulations and regulation 1.15AA is met at the time of decision.

   Background

9. The sponsor was born [date] in the Peoples Republic of China. [He] is an Australian citizen and it is claimed it is he who requires care in this visa application under review. The sponsor became a permanent resident in 2009. He is Mandarin speaking with little or no English language capacity.

10. The first applicant was born on [date] in the Peoples Republic of China. He is the son of the sponsor. The second applicant the married partner of the first applicant. She was born in the Peoples Republic of China [date],

11. Both visa applicants are citizens of the Peoples Republic of China.

12. This Class BO Subclass 116 visa was lodged with the Department on 10 December 2013. Attached to this application was a Carer Visa Assessment undertaken on 28 October 2013.

13. On 30 May 2016, a delegate on behalf of the Minister wrote to the sponsor requiring more information and to provide a response by email within 28 days. On 27 June 2016, additional documents were provided. It included the near relatives living in Australia:

    ·The sponsor’s spouse: [name]

    ·The sponsor’s daughter, [name]

    ·The sponsor’s son in law, [name]

    ·Two of the sponsor’s grandsons: [names]; and

    ·The sponsor’s granddaughter: [Granddaughter A].

14. The above listed persons are all unable to provide care due to their own health conditions, work, study, and family commitments. The sponsor’s daughter, son-in-law, elder grandson, and granddaughter have full time work commitments, and the younger grandson has full time study commitments in university.

15. On behalf of the Minister, the delegate refused to grant the visa applicants a visa on 8 February 2017.

16. In the decision record, the delegate placed particular emphasis on the statutory declaration from a care worker, [named], who was previously hired by the family was provided in support of the application. It indicates that the sponsor refused the care worker’s help and insisted to receive help only from his family members. While the care worker cooked Chinese meals for sponsor in his house, he refused to have it, and when his family fed him with the same meal, he accepted the help. Further, Aged Care Assessment report indicates that the family have previously arranged assistance from [Council 1] services, but the sponsor declined to engage. The report states “It is hoped that the sponsor’s family will relocate from China to provide care for their father due to his increasing needs and declining health of his primary carer, [his wife]. Should this not occur, the family recognise that [the review applicant] will access permanent residential care due to the inability to continue with current care arrangement.”

17. The review applicant applied to have the refusal decision reviewed by the Tribunal on 13 February 2017. The decision record was attached.

18. Based on the information before the delegate, he or she concluded that the sponsor has access to adequate level of community-based services in Australia, however he has chosen not to accept the services. The delegate took into account that the sponsor was offered services by [name] who is a Mandarin speaking care worker and have Chinese cultural background, and also was offered services from [Council 1] yet the sponsor has refused to receive the services. The findings also considered cultural factor and found that there were no circumstances that are evidenced that the reason for not taking the services were due to cultural factors.

19. Accordingly, the delegate notified the sponsor of the decision not to grant the visa on 8 February 2017.

20. On 21 February 201mail7, the sponsor validly applied to the Tribunal to have the delegate’s refusal decision reviewed. Attached to the review application was a copy of the delegate’s decision record.

21. On 29 November 2019, the sponsor’s representative submitted the following documents: 

    ·Letter from the employer of [the sponsor’s son-in-law] that he was a full-time employee with [business name];

    ·Letter from the employer of [the review applicant’s grandson] that he was a full-time employee with [business name];

    ·Letter from the employer of [the sponsor’s daughter] that she was a full-time employer with [business name];

    ·Letter from the employer of [Granddaughter A] that she was a full-time employee with [business name];

    ·Email correspondence between the sponsor’s granddaughter and [Agency 1] dated 15 September 2015;

    ·Email correspondence between the sponsor’s granddaughter and [Agency 2] in [suburb] dated 5 October 2016;

    ·Email correspondence between the sponsor’s granddaughter and the [Agency 3] in [suburb] dated 15 September 2015;

    ·Email correspondence between the sponsor’s granddaughter and [Agency 4] dated 13 April 2018;

    ·Email correspondence between the sponsor’s granddaughter and [Agency 5] dated 14 September 2017;

    • Email correspondence between the sponsor’s granddaughter and [Agency 6] dated 19 June 2018;

    ·Email correspondence between the sponsor’s granddaughter and [Agency 7] dated 14 and 13 November 2018;

    ·Email correspondence between the sponsor’s granddaughter and [Agency 8] dated 16 October 2019;

    ·The sponsor’s 2019 income statement indicating his source of income was reliant on the Age Pension and a number of social security supplements;

    ·The wife of the sponsor’s 2019 income statement indicating his source of income was reliant on the Age Pension and a number of social security supplements.

    ·Patient health summary of the sponsor dated 22 November 2019 indicating co-morbidities including [health conditions], a range of medical treatments and a history of surgery consultations. 2017;

    ·Patient health summary of the wife of the sponsor dated 22 November 2019 indicating [health conditions] and various medications and surgeries since 2011;

    ·A [specialist] report from 2018 pertaining to the sponsor;

    ·Two (2) medical letters from medial health professionals pertaining to the wife of the sponsor;

    ·Outpatient report pertaining to the sponsor’s wife dated 4 October 2019;

    ·Residential tenancy agreement between the sponsor’s granddaughter and a landlord of [specified address].

    ·A fee estimation generated by the myagecare website indicating the sponsor and his wife’s basic daily fee would be 51.63 dollars;

22. Also submitted was a legal submission outlining the unavailability of the various family members to assist the sponsor as carers.

23. On 16 December 2019, the Tribunal request the review applicant to provide an updated medical assessment for the purposes of a Carer visa application. This was based on the extensive passage of time since the last Carer Visa Assessment was in 2013.

24. On 10 January a Carer Visa Assessment Certificate and a Medical Adviser’s Report dated 3 January 2020 was received by the Tribunal. It stated that the review applicant, a resident of [Suburb 1], was aged [age] years of aged and that he was living with his spouse of [age] years of age and his [Granddaughter A]. The review applicant was assigned by the examining doctor with an impairment rating of 50 points (30 points for [specific condition]; and 20 points for [another condition]). The report also states the review applicant needs direct assistance in attending the practical aspects of daily life that will continue for at least two year. It further indicates that his wife and granddaughter and that his wife continues to provide for the sponsors’ care needs while his granddaughter works full time.

25. At the scheduled hearing, the sponsor of the visa applicants was present, but it was not required that provided oral evidence.  Relatives in Australia not in attendance included the sponsor’s daughter, [name], and son-in-law, [name], was claimed that they were both working. It was claimed that they did not want to be carers. Neither in attendance was the sponsor’s grandson due to work commitments.

26. On 17 March 2020, the representative provided a post hearing response with attachments (discussed below).

    Findings

27. During the hearing, it was argued that the oral evidence was provided principally by the sponsor’s wife and his granddaughter. They outlined to the Tribunal that the sponsor moved from [a suburb] in [Council 1] to [Suburb 1] in [Council 2]. They also outlined the complexity of his morbidities (including [specified conditions]), the long time it took for the sponsor to eat meals and the requirement of 24-hour care for the sponsor.

28. The Tribunal notes that there is sufficient written, oral and documentary evidence that the various adult members of the sponsors family all held full-time permanent jobs and/or study full time. Although it was disappointing to learn a number of available relatives in Australia did not want to be carers of the sponsor and/or could not provide oral evidence to the Tribunal, it accepts that the sponsor’s wife is too aged and frail is not capable of being carer even on short term basis and that the other relatives in Australia were not available as full time carers for the purposes of reg.1.15AA(1)(e)(i).

29. It has been consistently claimed by the parties and on their behalves that no aged care facility will not accept the sponsor as the reason for this application for a Subclass 116 visa satisfying reg.1.15AA(1)(e)(ii).

30. The Tribunal discussed the decision record’s finding that there were services available from the [Council 1], but the services were not taken up. The Tribunal enquired whether the sponsor and his family members have undertaken an aged care assessment since moving to [their current] part of Melbourne. They responded that they have lodged for an assessment. The Tribunal pointed out that there was submitted a myagedcare assessment by the Department of Health recommending the sponsor to be referred to an accessible flexible service and case management support visa a home care package and that he will benefit from Mandarin speaking workers.[1] The Tribunal enquired into whether they followed up those referrals.

    [1] Tribunal file folio 47-48.

31. The relatives in Australia that were present at the hearing argued they accepted packages but the aged care facilities did not follow up and that this was illustrated in the submitted email and the calls they made. Submitted emails with various dates over a long period of time to [Agency 1] (2015),[Agency 3] (2015), [Agency 4] (2015), [Agency 2] (2016), [Agency 5](2017), [Agency 6] (2018), [Agency 7] (2018) and [Agency 8] (2019), it was discussed, indicate the granddaughter of the sponsor made enquiries into the immediate availability. No more recent enquires since the more recent assessment have been made. There is no indication in the submitted correspondence that the family members of the sponsor followed up the emails with enquiries about placing the sponsor on a waitlist. T

32. In the case of the correspondence with [Agency 8], the age care provider said Mandarin speaking carers and Asian cuisine were available. The [Agency 1] (in [location]) correspondence indicates that the availability of a single room in September 2015 and there was no further follow up at all.

33. The Tribunal enquired whether the sponsor was accessing in home support from [Council 2] or whether family members has sought respite care for the sponsor. The granddaughter admitted such services had not been accessed, inviting the Tribunal to consider that the sponsor’s relatives in Australia have not attempted to meaningfully accessed any services.

34. The Tribunal finds the sponsor’s relatives in Australia have generally conflated immediate availability of aged care places for the sponsor with being refused places as they came available. Given the urgency of the services required for the sponsor as a frail person with [specific condition] and that this visa application was lodged in 2013, the Tribunal enquired whether these submitted emails were just superficial correspondence to achieve a favourable outcome on merits review. After all this may be understandable given the sponsor refused culturally appropriate services in the past and had earlier expressed his preference that members of his family to be his and his wife’s carer as they become frailer, as outlined in the delegate’s decision.

35. The granddaughter of the sponsor provided a number of unconvincing explanations in this regard. She stated that no one came to the sponsor’s own residence to discuss matters and that there was a language barrier. The Tribunal does not accept these explanations. The relatives in Australia have sufficient English language capacity between them. It was also open to access community services from the Chinese community to assist them. Had the care of the sponsor and his wife been of the highest priority for the Australian relatives, it would have been reasonable for them to make sustained and diligent enquiries about waiting lists, pricing, cultural suitability and not to have waited until aged care workers or managers came to the residence of the sponsor.

36. The post hearing submission stated that the sponsor has not applied for a waiting list for any aged facility believing that he was refused to join those services. It was claimed the facilities did not mention waiting lists and understood the information to have refused the applicant. She recounted the evidence of [Granddaughter A] who was told by the [Agency 3] that the waiting list is long, because the residents normally do not move out unless passed away. An attached email from 2015 from the facility to the sponsor’s granddaughter was attached. On examining the email, the Tribunal is not satisfied that it indicates or even hints at a refusal of a residential place. The email, instead, address the specific question put to it regarding the provider’s inability to estimate the amount of time for anyone placed on a waiting list. The Tribunal does not find this evidence supportive of the argument the sponsor was not able to reasonably obtain the assistance the sponsor requires from welfare, hospital, nursing or community services in Australia.

37. The post hearing submission further argued that aged care centres are not-for profit organisation and prefer residents with less requirements on their services in order to minimise their labour consumption. The Tribunal does not accept this. Subsidies for aged care residents are for approved provides of home care, residential aged care and flexible care to both for profit and not-for-profit providers. The Australian Government pays subsidies on behalf of each person receiving government-subsided aged care. The Government also pays supplements to help with the cost of meeting specific care needs.  subsidised by the Australian Government and residents of such facilities with higher needs attract more subsidies. The assertion by the representative is not supported by the publicly available information easily obtainable from health.gov.au.  

38. The representative also raised the impact of the Coronavirus-19 (Covid19) pandemic on the sponsor in obtaining welfare, hospital, nourishing or community services in Australia. It was claimed that older persons are immune-compromised and that nursing homes have announced temporary closures. While it is true older Australian citizens and permanent residents are at greater risk of the health complications posed by the current pandemic, it is not accurate to state that aged care facilities are temporarily closed. Easily obtainable information in the public domain states that aged care homes are required to follow safe practices, including physical distancing measures. Age care facilities, as essential services, are not closed and new residents are admitted subjected to screening and other restrictive practices. While the Tribunal appreciates the family of the sponsor is understandably concerned about the pandemic on the sponsor, the Tribunal places very little weight on these arguments that the required assistance for the sponsor cannot reasonably obtain services from welfare, hospital, nursing or community services in Australian for the purposes of reg.1.15AA(e)(ii).

39. (The legal submission’s characterisation of the aged care sector was so lacking in accurate detail that the Tribunal is compelled to note that it ordinarily expects a great deal more understanding and research from a registered migration agent or lawyer about the age care sector and how it operates with Subclass 116 visas than had been presented in this post hearing submission.)

40. The submission was also argued that the family of the sponsor did not access the Continence Aids Payment Scheme due the sponsor’s incontinence, on the basis the subsidy was not enough and decided to bear the cost themselves. In providing this response, the family members acknowledge that there was subsidised assistance in the community, yet the family did not access. It also does not accept that the subsidy is not generous. An annual 609-dollar subsidy paid into the sponsor’s account on top of the modest Age Pension payment (24,500 dollars per annum) which is financially worthwhile.  More pertinent to this decision is that this scheme is available to the sponsor and his family members chose to bear the full commercial cost of this otherwise subsidised aid further indicates that the family’s unwillingness and lack of diligence to access available assistance when it is reasonably obtainable from welfare arrangements provided by the Australian Government. 

1. In Hon Anh Voong v MIAC the Court confirmed the authority in Biyiksiz v MIMIA and Lin v MIMIA  that cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable.  The Tribunal has taken into account cultural factors in assessing whether the assistance the review applicant requires cannot reasonably be obtained from welfare, hospital, nursing or community groups.  The Tribunal accepts that the review applicant prefers to have the services he requires supplied by Chinese workers and access to Chinese cuisines The Tribunal considers that this preference was reasonably obtainable in eastern Melbourne at the time of decision. Indeed, one email offered such a culturally appropriate service. The Tribunal is of the firm view that assistance can be reasonably provided to the review applicant that takes into account any language or wider cultural preferences he may have, either at the time of application or at the time of decision.

2. During the hearing, it was also advanced that the sponsor did not have enough money and that his wife also required care as she ages. The Tribunal outlined to the sponsor and the witnesses that that 85 per cent would be deducted Age Pension to cover the cost of care and that specialist services and subsidies exist for residents with [specific condition] and complex needs. It further explained that this was the case for all Australian citizens and permanent residents receiving the Age Pension.  The Tribunal also said that it was open to the wife to visit the sponsor in a facility and that she can access in-home care. In his regard, the Tribunal does not accept the sponsor was unable to reasonably obtain welfare and services as required by reg.1.15AA(1)(e)(ii).

3. Taking the evidence as a whole, the Tribunal finds there is no credible or convincing evidence that the sponsor has been refused services based on the reasonable desire to have access to Mandarin speaking carers or workers and Chinese cuisine while a resident in aged care centre. The Tribunal accepts that the review applicant would prefer – as most individuals would - to receive care from a family member but is not satisfied on the evidence before it that he cannot reasonably obtain such services through Australia’s welfare system, nursing, hospital or community services. There is no credible evidence that the Australian relatives of the sponsor have made any meaningful, diligent and sustained efforts to access services from subsidised aged care homes with specialised services for the sponsor. It does not accept the email evidence and the oral evidence about making phone calls to aged care providers as credible evidence of the sponsor being refused required assistance. Given the review applicant’s [health condition] and other serious health problems and the adverse impact on the sponsor’s wife, this behaviour which can reasonably characterised as negligent. This negligence, the Tribunal finds, was undertaken in order to garner a favourable migration outcome for visa applicants and not because the visa applicants for this Carer visa under review genuinely satisfied reg.1.15AA(1)(e)(ii).

4. Accordingly, the Tribunal is not satisfied that the required assistance for the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and that Regulation 1.15AA(1)(e)(ii) is not met.

5. Therefore, the Tribunal cannot be satisfied that you meet the legal requirements in clause 116.221.

   Conclusion

6. Given that the review applicant and his family on his behalf have not meaningfully engaged with, let alone accepted, the required assistance available to him in Australia, the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met.

7. As the Tribunal finds review applicant, [name], does not meet the requirements of cl.1.15AA(1)(e)(ii) the first named applicants, [name], does not meet the definition of carer in r.1.15AA.

8. As the Tribunal has determined that cl.116.221 is not met it has not gone on to consider the other requirements for the grant of the visas.

9. Given these findings 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.

10. It follows that as the visa applicant does not meet the requirements for the grant of the visa, the second named visa applicant does not meet the requirements for the grant of visas.

11. For the reasons above, the visa applicants do not meet the criteria for a Subclass 116 visa.

12. There are no claims or evidence before the Tribunal that the visa applicants satisfy the requirements of the other visa subclasses within Other Family (Migrant)(Class BO).

13. For the reasons above, the 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 the applicant meets prescribed criteria for the visa sought.

    DECISION

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

    Brendan Darcy
    Member