1720570 (Migration)

[2019] AATA 2995

1720570 (Migration) [2019] AATA 2995 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1720570

MEMBER:Russell Matheson

DATE:19 March 2019

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 19 March 2019 at 8:24am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care can be obtained through services in Australia – family members in Australia – applicant has little ability to provide care – no English language and driving skills – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 116.211, 116.221, rr 1.15AA(1)(f), 1.15AA, 1.03

CASES

Anveel v MIBP [2013] FCCA 2181

Jajo v 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 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).

2. [The] first named visa applicant (the visa applicant) is a national of Vietnam, born in July 1967. He applied for the visa on 17 September 2013. The application includes his partner and child. The application is based on [the visa applicant] being the carer for his Australian citizen father [who] is the sponsor and review applicant.

3. The delegate refused to grant the visas on the basis that cl.116.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the delegate was not satisfied the visa applicant met 1.15AA(1)(f) of the Regulations made under the Act.

4. 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 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.

5. The review applicant (sponsor) appeared before the Tribunal on 4 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, [name deleted] (review applicants wife) and [name deleted] (review applicants daughter). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant’s daughter informed the Tribunal that the review applicant has health and hearing issues and requested to give evidence on his behalf because he has trouble comprehending issues and he is very deaf.  The review applicant attended the hearing and remained in the hearing room during the Tribunal hearing.

6. The review applicant’s registered migration agent did attend the hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant is willing and able to provide substantial and continuing assistance of the kind needed in r.1.15AA(1)(f), and also, whether assistance can be reasonably provided to the sponsor by family members who are living in Australia, or reasonably be obtained through welfare, hospital, nursing or community services in Australia.

   Claims and findings

   Has the visa applicant claimed to be a ‘carer’ of the sponsor?

9. Clause 116.211 of Schedule 2 to the Regulations requires that the visa applicant claim to be the carer of an Australian relative. In the present case, the visa applicant applied for the visa based on claiming to be the carer of his father, who is an Australian citizen.

10. Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211.

11. Clause 116.221 requires that at the time of decision, the visa 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.

12. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 of the Regulations i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative identified as the visa applicant’s father.

13. The visa applicant gave evidence at the hearing that his father needs his help because he [has various health] problems. The applicant provided some knowledge of the sponsor’s health issues. The applicant said that the sponsor currently lives with his younger brother and his family and he knows it will be crowded when he comes to Australia to live with them. The applicant gave evidence that his younger brother is currently looking after the sponsor but it is hard work because he has to look after his own family as well. He further stated that his brother’s wife provides care for the sponsor but she is busy looking after her children. The applicant also said that his other siblings in Australia could not look after the sponsor because they are busy and some are sick. He further stated that when he settles down in Australia he would move to another place with the sponsor and his family. The Tribunal queried the applicant as to how he would support his own family in Australia and he stated that his wife could get a job to support him and their daughter. There is insufficient evidence before the Tribunal to demonstrate that the visa applicant’s wife has the skills or education to gain employment in Australia to support their family. The Tribunal places little weight on the evidence provided. The applicant also said that said that he would not work when he comes to Australia, he will look after his father.

14. The Tribunal queried as to what qualifications the visa applicant had in regard to providing aged care to the sponsor and looking after someone with [a particular medical condition]. The visa applicant said that he had no training but he had common sense. He would look after his father, would prepare breakfast, take him out into the sun to sunbath and cook for him. He further stated that he had no previous experience as a carer. The Tribunal asked the visa applicant if he had any knowledge about providing care for someone with [that medical condition]. The visa applicant said that [details deleted]. The Tribunal queried how the visa applicant would provide proper care for the sponsor given the fact he cannot speak English and does not drive. The visa applicant stated that he would ask for his brother’s help or someone else to help because he is not familiar with the roads in Australia, or he would call 000 if needed in the case of an emergency.

15. The Tribunal acknowledges that the visa applicant is willing to provide care for the sponsor but there is little evidence to demonstrate that he has the ability to provide the proper care that the sponsor requires. Based on the evidence provided the visa applicant has limited knowledge of the sponsor’s health issues and needs and has limited skills and ability to provide the substantial and continuing care to the sponsor that is required. The Tribunal accepts he visa applicant may not be able to provide private transport to the sponsor and would require assistance from other family members. The Tribunal accepts that the visa applicant would be able to assist the sponsor to use public or community transport although he may have some translation difficulties.

16. Overall, when considering all the evidence the Tribunal is of the view the visa applicant does not have the adequate abilities to provide substantial and continuing assistance to the sponsor as a carer.

17. The Tribunal is not satisfied the visa applicant meets r.1.15AA(1)(f). Therefore, the visa applicant does not satisfy cl.116.221 of Schedule 2 to the Regulations.

    Are the requirements of r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) satisfied?

18. Regulation 1.15AA provides that the assistance cannot reasonably be:

    (e)(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

    (e)(ii)      obtained from welfare, hospital, nursing or community services in Australia;

19. 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].

20. More than one relative may provide care collectively. 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.

    Can another relative reasonably provide assistance?

21. The sponsor and his wife are living with their [son], his wife and two daughters at Cabramatta. The sponsor’s daughter [gave] evidence that there are seven brothers and sisters that live in close proximity to the review applicant with one sibling living at Lidcombe that no one talks to and one sibling living in Melbourne.  She further stated she is the carer of her mother who is living with the sponsor and she receives a carer payment from government. The sponsor’s daughter said that she could not care for her father because she also has to look after her husband who has cancer. She also stated that over the past five years when she visits her mother she cares for her father’s needs. She further stated that her brother’s wife is a stay at home mother who cooks for the sponsor and his wife and has become depressed and cranky caring for him and does not want to look after him because she has to look after her two children. The sponsor’s wife told the Tribunal that her son whom she is living with works during the day and he becomes cranky because the sponsor calls out during the night, which keeps him awake. The sponsor’s daughter and wife said that there are no other family members or siblings who can care for the sponsor because they are either sick, too busy working or looking after their own families. The sponsor provided various documents to support their claims (TF pages 61 and 62).

22. The sponsor provided a letter from his local doctors stating the sponsor is suffering from multiple medical conditions (TF pages 44 and 60). The sponsor’s wife stated that the sponsor needs assistance bathing and going to the toilet. The Tribunal queried with the sponsor’s daughter and wife if they had applied for any type of assistance from welfare, hospital, and nursing or community services in Australia. The sponsor’s daughter said that she had contacted a nursing home and there were no vacancies. The sponsor’s wife said that she had never applied for any assistance for the sponsor because she does not know how to get it and he is very troublesome. She further stated that when you apply for assistance they explain to you that the care does not last and you only get one or two hours of care.

23. The Tribunal accepts that the sponsor suffers from the conditions as claimed in his doctor’s reports. It also accepts that his sons and daughters are busy working and looking after their own families or are ill. The Tribunal understands that the sponsor and his wife have been living with his [son], daughter-in-law, their children, and they have cared for him along with the sponsor’s daughter [who] visits the home as a carer for her mother and cares for his needs as well.

24. After considering the evidence individually and as a whole, the Tribunal is not satisfied that assistance for the sponsor cannot reasonably be provided collectively by his family or by a combination of assistance from his family and with the assistance of welfare, hospital, nursing or community services in Australia. This is discussed further below in this decision. 

25. The Tribunal considered the evidence individually and as a whole and on the evidence, the Tribunal is not satisfied that assistance with hygiene, toileting, dressing, preparing food, with mobility and transport cannot reasonably be provided to the sponsor collectively by his family in Australia. Therefore, the visa applicant does not satisfy r.1.15AA(1)(e)(i).

    Can the assistance be reasonably obtained from welfare, hospital, and nursing or community services in Australia?

26. There is no evidence before the Tribunal that indicates that an Aged Care Assessment Team (ACAT) has assessed the sponsor.

27. The sponsor’s daughter said that she had contacted a nursing home and there were no vacancies and the sponsor’s wife stated that she does not know how to apply for assistance. The Tribunal accepts that the sponsor’s wife may not know how to apply for aged care assistance. The Tribunal is of the view she could receive assistance from her daughter who is her carer to apply for assistance for the sponsor. The sponsor’s daughter provided no substantive information to support her claim that there are no vacancies in nursing homes for the sponsor.

28. There is no evidence before the Tribunal that the sponsor has been assessed by an ACAT. Therefore, it has not been determined whether assistance for the sponsor may be reasonably obtained from services in Australia. An ACAT assessment may not be a requirement under the Regulations or in policy, however an ACAT assessment would determine the sponsor’s eligibility to obtain government subsidised aged care services including residential care, residential respite care and home care, including one of four levels of home care packages and determine the services reasonably obtainable to provide assistance for the sponsor. Information before the Tribunal is that home care packages provide a large range of home services to the person needing the care and includes, but is not limited to.

    ·Personal services: assistance with personal activities such as bathing, showering, toileting, dressing and undressing, mobility and communication.

    ·Nutrition, hydration, meal preparation and diet: assistance with preparing meals, including special diets for health, religious, cultural or other reasons; assistance with using eating utensils and assistance with feeding.

    ·Continence management: assistance in using continence aids and appliances such as disposable pads and absorbent aids, commode chairs, bedpans and urinals, catheter and urinary drainage appliances, and enemas.

    ·Mobility and dexterity: providing crutches, quadruped walkers, walking frames, walking sticks, mechanical devices for lifting, bed rails, slide sheets, sheepskins, tri-pillows, pressure-relieving mattresses and assistance with the use of these aids.

    ·Nursing, allied health and other clinical services: speech therapy, podiatry, occupational or physiotherapy services, hearing and vision services. Home care level 1 and 2 packages are not intended to provide comprehensive clinical or health services. Home care level 3 and 4 packages have a greater emphasis on delivering complex care in the home, including more clinical care where needed.

    ·Transport and personal assistance: assistance with shopping, visiting health practitioners and attending social activities.

    ·Management of skin integrity: assistance with bandages, dressings and skin emollients.

29. Other information is that there are services for older persons from different cultural and linguistic backgrounds and aged care services can be obtained, including a Translating and Interpreting Service (TIS), 24 hours a day seven days a week for the cost of a local call. My Aged Care is the main entry point to the aged care system. It provides information about aged care for consumers, family members and carers, and service providers through the My Aged Care Website and My Aged Care contact centre (1800 200 422). Aged care service providers and assessors can be located through the online service finder, pricing on home care packages and residential care through a fee estimator.

30. The Tribunal is not satisfied that assistance for the sponsor cannot be reasonably obtained   from welfare, hospital, nursing or community services in Australia, or by a combination of these services and collective assistance from his family in Australia. The Tribunal has been provided a statement that services are not available for the sponsor; however, it has not been provided any substantive information to support those claims. Neither has the sponsor been assessed by ACAT to determine what services may be reasonably obtained from welfare, hospital, nursing or community services in Australia.

31. Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the sponsor cannot reasonably obtain assistance from community services in Australia; therefore r.1.15AA(1)(e)(ii) is not satisfied.

32. As the Tribunal determined that the criterion for the grant of the visa has not been satisfied the Tribunal has not considered the remaining criteria.

33. As the Tribunal is not satisfied that assistance cannot reasonably be provided to the sponsor by his family members in Australia or that the sponsor cannot reasonably obtain assistance from community services in Australia, so r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) are not met. As a result, the visa applicant does not satisfy cl.116.221 of Schedule 2 to the Regulations.

34. 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.

35. It follows that as the primary visa applicant does not meet the requirements for the grant of the visa, the second and third named visa applicants do not meet the requirements for the grant of visas.

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

37. 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).

    DECISION

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

    Russell Matheson
    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.