1719569 (Migration) - [2018] AATA 3552

1719569 (Migration) [2018] AATA 3552 (9 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1719569
MEMBER:Moira Brophy
DATE:9 August 2018
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 09 August 2018 at 12:50pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Whether care could be reasonably provided through alternative arrangements – Where the review applicant is significantly impaired - Where the review applicant has a number of relatives currently present in Australia – Where community services are available for support – Care can be adequately provided by currently present relatives and community services – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cls 116.221, 116.321
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajov MIBP [2013] FCCA 1554
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

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 August 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 23 August 2016. 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 cl.116.221.
The delegate refused to grant the visas on 2 August 2017 on the basis that cl.116.221 was not met because he was not satisfied that the assistance required by the review applicant could not reasonably be provided by her relatives in Australia or obtained from welfare, hospital or community services in Australia.
The review applicant, [Ms A] appeared before the Tribunal on 2 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the review applicant [Ms B] and from the visa applicant [Ms C]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
The review applicant was represented in relation to the review by her registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
TRIBUNAL HEARING
Review applicant’s evidence
The review applicant told the Tribunal that she did not know what her address was but she knew it was [in a particular suburb]. She said she lives in a four-bedroom house that she and her husband rent. She was not able to tell the Tribunal how much rent they paid. She said her daughter [Ms B] takes care of that. She did not know what Centrelink payment she was in receipt of and she said her daughter [Ms B] takes care of that also. The review applicant said that she lives with her husband. He is not in paid employment as he injured his leg. He has diabetes, which prevents him from working. His diabetes makes him tired and dizzy. There was a shortage of work for people in his condition. He gets a payment from Centrelink but she did not know which payment. She said her youngest daughter no longer lives with them as she now lives with her eldest daughter [Ms B]. She lives with [Ms B] as she needs to focus on her studies. She could not recall when her daughter moved to live with [Ms B] and she did not know which high school her daughter attended.
When asked how she came to Australia the review applicant said that she had come to visit her daughter and while she did not want to stay, her condition was not good. It deteriorated all of a sudden and so she had to stay. The Tribunal put to the review applicant that evidence was contrary to information in her file as to how she came to Australia and that as a result of her giving evidence not based on fact the Tribunal may make adverse findings as to her credibility.
The Tribunal asked the review applicant to describe her daily routine. The review applicant answered that she had dialysis three times a week and that she feels like she lives in the hospital. She said she sees a doctor every day. She showed the Tribunal her arm to demonstrate the bruises she has from her frequent dialysis. She said after dialysis she goes home exhausted and just wants to sleep. She said her whole arm and hand hurt and she cannot hold anything. The Tribunal asked her how she gets to her dialysis sessions and she said that she used to go by bus and then her husband used to drive her but he had a couple of accidents so now she is back to going on the bus. She said her husband sometimes goes with her to dialysis and sometimes she goes alone as he is not always well.
Again, the Tribunal asked her to describe her daily routine and how she gets her breakfast. The review applicant said that when she wakes up she makes herself breakfast and sometimes it takes a little while if she is tired and dizzy. She said that sometimes her husband makes her breakfast. When asked if she was able to dress herself she said yes but sometimes her husband helps her. When asked if she could shower herself she said that it was hard as her body is sore all over. She said that she does it but she feels that she is struggling because of the ‘vapour from the hot water.’ When asked who does the house work the review applicant said that she was not able to stand for long so she does it a little bit at a time. When asked if she could make the bed she said that she makes the bed in a minimal fashion.
The Tribunal asked the review applicant how often she goes to the doctor and the review applicant said that she sees her kidney specialist every two to three months and that she sees her GP whenever she feels she is not well. The Tribunal then asked her how she travelled to her doctor’s appointments and she said that sometimes she goes by bus and other times her husband takes her but that is dependent on whether he needs to see the doctor as well. The Tribunal asked the review applicant about her medication and she said that she takes many tablets every day. The Tribunal then asked her whether they were in blister packs prepared by the pharmacy to avoid confusion as to which tablets she has to take and she said that she goes to a doctor who speaks Arabic and he explains the medication to her.
The Tribunal asked the review applicant where the visa applicant would live if the application were successful. The review applicant said her daughter would live with her and her husband as they had a four-bedroom place. It was put to her that her daughter would be kept very busy because her children were very young. The review applicant said her daughter was very good at time management and her partner provides her with assistance.
The Tribunal asked the review applicant how often she sees her two daughters who are living in Sydney. She said she sees [Ms B] at church or on weekends. [Ms B] is working and she drops her children at day-care in the morning and picks them up and takes them to their sporting commitments after work in the evening. She said her 16-year-old son is busy with his own activities. Her other son is in year five and she picks him up from school each day. She said [Ms B] is a single parent so all her time is dedicated to her children and to her home. The Tribunal asked her when she saw her other daughter and she said that she only saw her on weekends as she has tutoring after school.
The Tribunal asked the review applicant about her grocery shopping and she said that [Ms B] does it for her on the weekend when she is doing her own shopping.
Evidence of Ms [Ms B]
The Tribunal asked when her younger sister had gone to live with her and she said that she had moved to live with her December 2017, as her mother could no longer care for her, as she was sick all the time. She said that because her sister was the same age as her oldest son it was considered the best place for her sister to be. She said that she started full-time work 12 months ago and she now works from 8 or 830 to 5 or 530 in the afternoons. She sees her mother on weekends.
She said she had come to Australia 17 years ago on a prospective marriage visa. She said her mother had come to visit her on a tourist visa and they had applied for a protection visa, which was granted. Her father then came to join her mother on a partner visa and her younger sister was included as a dependent on her father’s application.
She said that her mother needed somebody to provide for her primary care needs. She said she needed somebody to dress her and to shower her. She said that her mother was not able to have a kidney transplant because the doctors had told her that she needed to lose weight before the surgery could be carried out. She said that her mother had been referred to a dietician on two occasions but she had failed to follow the diet. She said she needed a carer to ensure that she was eating the right food and that she did follow the diet. When the Tribunal put to her that it would be possible to have meals delivered to her that were healthy and complied with her dietary requirements she said that would not work for her mother, as she was very fussy and would not eat the food that was delivered. She said her mother was used to particular foods and would not eat just anything.
She said that her mother’s health was complicated because she was carrying extra weight. She said that if the renal transplant surgery was carried out that doctors were concerned that she would gain more weight when she had to take the antirejection drugs and that she would be at high risk of developing diabetes 2.
She said that her mother was on a disability support pension from Centrelink and her father was on new start allowance. The Tribunal put to her that her father was not recognised by Centrelink as being unable to work despite their contention that was the case and that he was unable to care for her mother because of his ill health. She said that he had been assessed as being able to work despite all the medical information they had provided to Centrelink. She said her father does go to the hospital with her mother but he has prostate problems and he needs to frequently urinate so it is difficult for him. She said her father has unstable diabetes, which affects his functionality. She said he has had two recent falls, which have affected his walking, and he has to have cortisone injections each month for his shoulder. He was also seeing a psychologist every 2 to 3 weeks for his depression and anxiety.
It was put to her that there were services in the community, which could be accessed to assist her parents. She said that these were not sufficient as her mother needed care 24/7. She said she needs someone with her at night as she has sleep apnoea.
She said it was very difficult for her mother to articulate what her needs were. She said she had not been educated and she is not able to read Arabic. She said her sister had been her carer when they lived in Egypt and she was able to notice things that her mother needed without her mother saying. She said her sister is very organised and she has a plan as to how she will deal with things if the visa was granted.
Evidence of the visa applicant
The visa applicant said that she last saw her mother six years ago. After she married, she did not live in the same place as her mother as she moved to another area. She said she was about one hour’s drive away from where her mother lived. She said she would go to her mother when she was not well or her mother would stay with them. When asked how often that was, she said that would be twice a month. She then said that she sometimes was required more because her mother suffered from the kidney related pain and she would see her at least three times a month for three or four days each time.
The visa applicant said that if she came to Australia she would live with her parents at [a particular suburb] as they have four bedrooms. She said her husband and two daughters who are aged seven and five would come with her. She said her husband works in [various occupations]. She said he would be able to work as [a particular occupation]. The visa applicant said she was not in paid employment but she was [a particular occupation] by training. Since she married, she has devoted her time to the church and to her family.
It was put to the visa applicant that with two young daughters she would find it difficult to accommodate her role in caring for her mother on a full-time basis as well as looking after them. She said that she would attend to her mother’s needs while the children were at school. She understood that in Australia children went to school between nine and three and she would use that time to care for her mother. She understood that her mother had dialysis on Tuesdays, Thursdays and Saturdays and that it finished each day at midday. She said that would give her enough time to be home, for when her daughters came home from school. It would also give her enough time to prepare meals for all the family. She said on the weekends her husband would care for their daughters so that she could be with her mother.
The visa applicant said it was very important that the Tribunal to understand that her mother would need her at night because she wakes with cramps. She said it was also more serious than that in that she gets breathless at night and needs somebody on hand. The visa applicant said that her mother was exhausted after the dialysis and that she sometimes vomits and feels dizzy. She said her father was not able to help, as he was not well either. She said her mother often forgets her medication. She said sometimes she does not recover until the next day. She said the mental effects of her treatment were debilitating for her.
The visa applicant said that her mother had been having dialysis for four years now and that had led to a deterioration of her organs. She said her heart muscles had weakened and she now had to see a cardiologist. She said she was also seeing a urologist because she would frequently contract URTI. She said she also had stomach problems from the dialysis and all of these problems reduce her immunity to other illnesses.
The visa applicant said that her mother needed to lose at least 10 kg. She had been to two dietitians but that did not work, as she could not follow the diet. She was not able to organise what she eats. She needs somebody to care for her. She also needs somebody to ensure she gets exercise.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time of application, 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 visa 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 cl.116.221.
An applicant must meet a number of requirements, as set out in r. 1.15AA, to meet the definition of carer.
The issue for the Tribunal is whether the required assistance cannot be reasonably provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
Whether the visa applicant has claimed to be a ‘carer’
Clause 116.211 of the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is the carer of the review applicant, who is the visa applicant’s mother.
For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.
The Tribunal is satisfied that; the Australian relative is the visa applicant’s mother and thus the visa applicant is a relative of the “Australian relative” resident within the meaning of r.1.03; that there is a certificate issued by BUPA on 18 May 2016 stating that the resident (or member of the family unit) has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life and will continue to have for at least two years a need for direct assistance in attending to the practical aspects of daily life; the impairment rating of 60 meets the impairment rating in IMMI 07/13 (30) and that the person with the medical condition is an Australian citizen or permanent resident.
Therefore, at the time of application the visa applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.116.211.
Assistance cannot be reasonably obtained / provided – r.1.15AA(1)(e)
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.
Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].
Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.
The medical evidence before the Tribunal indicates [Ms A] has polycystic kidney disease (initial diagnosis 2007), end stage kidney disease, depression, anxiety, and renal bone disease. [Ms A] has dialysis at [a particular hospital] three times a week that impacts on her functionality in the aftermath in that she is tired, short of breath and dizzy. Her depression and anxiety is treated with medication but the impact of this condition is that she rarely leaves the house. She is teary and has low mood. Her renal bone disease is treated with Panadol.
The Tribunal accepts that [Ms A] has significant care needs given her medical diagnoses. [Ms A] and her daughter stated at the hearing that they require the visa applicant to provide care to [Ms A]. However, the evidence before the Tribunal indicates that assistance to [Ms A] can be reasonably provided by a combination of care provided by her partner, her two adult daughters in Australia in addition to services provided by community organisations.
[Ms A] attends dialysis three times a week. Her evidence at hearing was that her daughter [Ms B] takes her to the hospital on Saturdays and on Tuesdays and Thursdays, she generally catches the bus. Sometimes her husband goes with her. He used to drive her but he had a car accident so she thinks it safer to catch the bus. She has to catch two buses to get there from her home. [Ms A] said she is able to tend to her self-care such as washing and dressing with some help from her husband. She is able to prepare basic meals for herself and her husband.

The Tribunal accepts [Ms A]’s husband has diabetes and he suffers from depression. The Tribunal further accepts he is not in paid employment and receives newstart allowance. There was no evidence he was medically unfit to work. Consequently, the Tribunal is satisfied that he is able to provide some assistance to [Ms A].
The review applicant said that her two daughters cannot assist with her care as they have their own lives and commitments. However she said her daughter who is the visa applicant and has two young daughters would be able to undertake the care and supervision they are prevented from undertaking because of their personal responsibilities. The Tribunal appreciates that each of the review applicant's daughters have other commitments, however, when a family member requires care, it is often necessary for other family members to make adjustments to current and planned arrangements so that they can support the person requiring assistance. The review applicant gave evidence that her younger daughter has moved to live with her sister to enable her to focus on her studies. While the Tribunal appreciates the importance of her education she is not required to attend classes seven days a week.
The Tribunal considers that the review applicant's youngest daughter could provide some care to the review applicant for periods on weekends and during school holidays. While acknowledging that individually the review applicant's family members are unable to provide all the assistance required by the review applicant, the Tribunal finds that it would be reasonable for the review applicant's family members to provide a level of assistance in relation to the review applicant in combination.
The review applicant told the Tribunal she sees her other daughter [Ms B] at Church or on weekends. She said she was very busy as she is in full time employment and she is a single parent with two sons aged [age deleted]. She said all her time outside her work was dedicated to her children and her home. The Tribunal noted her evidence that [Ms B] takes her to dialysis on Saturday mornings and does her grocery shopping for her on weekends. [Ms B] told the Tribunal her concerns were for her mother’s care needs at night. She has sleep apnoea. [Ms B] also spoke of her mother’s need to have someone to manage her diet as she has twice been referred to a dietician for weight loss but she has not been able to follow their advice. She has been advised her mother will not be considered for a renal transplant until she has lost some weight. While the Tribunal appreciates her concern and frustration as a daughter and the difficulty for the review applicant to motivate herself and be proactive about weight loss when she is depressed the Tribunal was concerned the level of assistance required to overcome these problems could best be obtained from addressing issues in a holistic way with a combination of services which may include family members, a professional in the mental health field, a dietician and an exercise physiologist. The Tribunal appreciates the time demands of combining work and family. Notwithstanding their work or family commitments the Tribunal was concerned there had not been more enquiries into provision of services such as ready prepared meals, home care and blister packs of medication prepared by the pharmacist to assist the review applicant.
The Tribunal notes that the visa applicant also has dependent children, and that her responsibility for her children is not seen as inconsistent with her ability to care for the review applicant.
The Tribunal is not satisfied that the review applicant's husband and her two daughters who are resident in Australia cannot reasonably provide the assistance required.
The Tribunal has also considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The Federal Court has held that 'reasonably obtained' in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant's mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].
According to the submission provided prior to hearing [Ms D] a social worker at [a particular healthcare centre] canvassed the possibility of finding community services to provide care. While there was evidence an application had been made for the NDIS, there was no evidence as to whether there had been any follow up and whether a determination had been made. The Tribunal appreciates [Ms A] does not qualify for an ACAT assessment and any services that may flow from that assessment because she does not meet the age criteria. There is no evidence to suggest that the review applicant has explored other options such as a combination of care providers to meet her needs.
The evidence before the Tribunal considered as a whole indicates that the review applicant is motivated by her strong personal preference to bring her daughter and her family to Australia to assist her, and does not wish to obtain the assistance she requires from any potential alternative source.
The Tribunal is not satisfied that limited assistance cannot reasonably be obtained for the review applicant from community services. The Tribunal considers that such services would complement the assistance that can be reasonably provided collectively by the review applicant's husband and her two daughters in Australia.
Accordingly, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant Australian relative or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.
As the Tribunal is not satisfied that the criteria for the definition of a carer in reg.1.15AA(e)(i) are not met, it is not necessary to consider the other criteria in that regulation.
Conclusion
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.
Secondary applicants
As the primary visa applicant does not meet satisfy cl.116.221, the secondary applicants do not satisfy the requirements of cl.116.321.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Moira Brophy
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.