1803815 (Migration)

[2021] AATA 1055

1803815 (Migration) [2021] AATA 1055 (27 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1803815

MEMBER:F. Simmons

DATE:27 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 27 January 2021 at 7:54pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s need for assistance in daily life – sponsor’s and husband’s health conditions and levels of impairment – applicant unable to pay for carer visa assessment certificate from health insurer – insurer’s delays and suspension of assessments during COVID-19 pandemic – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 1, Item 1123B; Schedule 2, cl 836.221
Social Security Act 1991 (Cth), s 23

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 Home Affairs on 25 January 2018 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 19 April 2017. 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. Relevantly to this matter, the primary criteria to be met include cl.836.221 which requires the visa applicant is the carer of the Australian relative.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the applicant did not meet the requirements of r.1.15AA(1)(b) and therefore did not meet the definition of ‘carer’ in r.1.15AA at the time of decision.

4. The applicant appeared before the Tribunal on 9 and 18 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister.  The applicant was represented in relation to the review by her registered migration agent. Before the hearing, the applicant submitted various documents, including a Carer Visa Assessment certificate (CVAC) which assigned the applicant’s mother an impairment rating of 20. At the hearing the applicant provided evidence that her mother and father suffered from various medical conditions, and that they both required her care. It was agreed that after the hearing the applicant would provide a CVAC in relation to her father, being a member of the family unit of the resident.  

5. In February 2020 the applicant’s representative provided evidence that the CVAC had not been provided in the required time because of delays in the processing by [Medical Services Provider 1]. In March 2020, a further extension of time was granted because, as a result of the COVID-19 pandemic, [Medical Services Provider 1] had stopped processing CVAC assessments.  After the Tribunal was informed [Medical Services Provider 1] had recommenced CVAC assessments, the Tribunal wrote to the applicant requesting an update with respect to appointment times. On 18 January 2021, the review applicant submitted she could not afford to pay for a further CVAC assessment.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the definition of carer in r.1.15AA at the time of decision.

   Background

   Application to the Department

8. The applicant was born in Durban, the Republic of South Africa, on [Date 1]. She is divorced and her parents and sister reside in Australia. She has one brother currently residing in South Africa.

9. The sponsor is an Australian citizen who was born on [Date 2]. She is the mother of the visa applicant and suffers from temporal lobe epilepsy. She arrived in Australia in 1989 and obtained Australian citizenship in 1991. It is submitted the sponsor and her husband rely on the care of her daughter, the applicant.

10. The sponsor’s husband, [Mr A], is an Australian citizen. He has been diagnosed with bipolar affective disorder, and other illness including severe depression, prostate cancer, diabetes, renal stone, bradycardia and sleep apnoea (f.49). The sponsor’s other daughter, [Ms B], stated in a statutory declaration that she is unable to provide sufficient care for her parents due to her employment commitments (f.56).

11. On 21 April 2017, a CVAC from [Medical Services Provider 1] assessed that the sponsor has an impairment rating of 10. The examining doctor recorded that she had temporal lobe epilepsy affecting brain function before proceeding to note that she did not have the following:  

    • A medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life.
    • A need for direct assistance in attending to the practical aspects of daily life because of the medical condition.
    • A need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years, because of the medical condition.

12. As a consequence of the CVAC, the delegate found that that the sponsor did not have a medical condition causing physical, intellectual or sensory impairment of their ability to attend to daily aspects of daily life and therefore regulation 1.15AA(1)(b)(ii) was not met. The delegate also noted that as the sponsor was only assigned an impairment rating of 10, r. 1.15AA(1)(b)(ii) was not met.  Further, as the CVAC recorded the sponsor does not have and will not continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life due to her medical condition, r. 1.15AA(1)(b)(iv) was not met. Therefore, the applicant did not satisfy r.1.15AA(1)(b) and did not meet the definition of ‘carer’ in r.1.15AA.

    Application to the Tribunal

13. On 16 October 2019, the Tribunal offered the applicant the opportunity to obtain a new Carer Visa Assessment Certificate.

14. Before the hearing, the representative provided submissions as well as a CVAC assessment dated 18 December 2018 which indicated that the applicant’s mother had been assigned a rating of 20. The examining doctor recorded that she had temporal lobe epilepsy, asthma and generalised osteoarthritis. The CVAC also noted that she did not have the following: 

    • A medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life.
    • A need for direct assistance in attending to the practical aspects of daily life because of the medical condition.
    • A need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years, because of the medical condition.

15. On 29 January 2020, the applicant provided a letter indicating that a CVAC assessment was being sought for her father and attaching various supporting documents including: the biodata page of the passport of [Mr A]; Statement of Assistance – [Medical Services Provider 1], dated 26 January 2020;  letter of support from [Dr C], dated 25 January 2020;  letter of support from [Dr D], dated 15 January 2020;  letter from [Dr E], dated 4 September 2019;  letter from [Dr F], dated 4 June 2019);  letter from [Medical Services Provider 2], dated 30 May 2019;  Overnight Sleep Study Report ([sleep clinic], [Hospital 1]), dated 13 August 2019;  Split Night Report ([sleep laboratory], [Hospital 1]), dated 14 August 2019;  International Restless Legs Syndrome Study Group Rating Scale questionnaire, dated 4 September 2019; and an email correspondence to [Medical Services Provider 1] attaching supporting medical evidence, dated 29 January 2020.

16. On 24 February 2020, the applicant sought an extension of time to provide a CVAC. The request was supported by copies of  email  correspondence from [Medical Services Provider 1] to the applicant confirming receipt of documentation for a CVAC for the applicant’s father and advising that an appointment was unable to be scheduled at the present time due to high demand for carer visa medical assessments. The Tribunal granted the request for the extension of time.

17. On 24 March 2020, the applicant sought and was granted a further  extension of time on the basis that [Medical Services Provider 1] had stopped processing carer visa assessments due to the COVID-19 pandemic.  On 18 May 2020, [Medical Services Provider 1] informed the Tribunal that it was not currently undertaking carer visa assessments as a result of the COVID-19 pandemic and had no timeline for when assessments would recommence. On 7 October 2020, the applicant advised that [Medical Services Provider 1] was still not currently undertaking career visa assessments.

18. On 4 November 2020, [Medical Services Provider 1] informed the Tribunal that it had recommenced processing carer visa assessments and was working through the backlog of applications.

19. On 30 November 2020, the Tribunal wrote to the applicant and requested a further update, noting that [Medical Services Provider 1] had recommenced carer visa assessments. On 14 December 2020, the Tribunal received a letter which stated the applicant had tried to follow up with [Medical Services Provider 1] but had not yet been able to schedule an appointment.

20. On 4 January 2021, the Tribunal used the procedure in s.359(2) to request information about when appointments for carer visa assessments had been made or why such appointments had not been made. The Tribunal noted the earlier explanation provided on 14 December 2020 was unsatisfactory given [Medical Services Provider 1] was undertaking carer visa assessments again. 

21. On 18 January 2021, the representative submitted that he was instructed that the applicant could not afford to pay for the carer visa assessment for her mother or father at the present time and invited the Tribunal to contact the applicant on her mobile phone so that she might explain the situation. The representative wrote that the applicant reserved the right to have a hearing to present evidence on this matter and that she wished to seek ministerial intervention.

22. On 20 January 2021, the Tribunal wrote to the applicant noting that a hearing had been held in this matter. The Tribunal noted that if the review applicant had any information that they wanted the Tribunal to have regard to in making its decision, then this information should be provided to the Tribunal in writing by 27 January 2021 and that after this date the Tribunal may make a decision at any time.

23. On 27 January 2021, the applicant providing a written statement in which she reiterated she could not afford to pay for a carer visa assessment and described, in detail, the effects of her parents’ medical conditions on their daily lives. She submitted she believed she should be allowed to stay in Australia so that she could continue to care for her parents. The applicant also submitted various support letters, including letters from her parents, her brother, her sister. [Ms B], her father’s general practitioner, and members of her church congregation.

    Whether the applicant is a carer

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

25. In accordance with reg 1.15AA(1)(b), to meet the definition of ‘carer’ the resident (or a member of the resident’s family unit) must have a certificate from a health service provider specified in the relevant instrument (currently [Medical Services Provider 1]) which specifies that:

    ·     the resident or family unit member of the resident has a medical condition;

    ·     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;

    · the impairment has the rating specified in the certificate (under the Impairment Tables within the meaning of s 23(1) of the Social Security Act).

    ·     The impairment rating must be equal to or exceed that specified in the relevant Instrument (the relevant rating in the present case is 30); and

    ·     because of the medical condition that person will continue for at least two years to have a need for direct assistance in attending to the practical aspects of daily life.

26. As the existence of the medical condition, the related impairment and the need for assistance must be certified by [Medical Services Provider 1] by way of carer visa assessment certificate, it is not open for the Tribunal to make a determination on these matters.

27. 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 07/102, and the required impairment rating specified in the certificate is 30.

    Discussion

28. At the hearing the Tribunal put to the applicant that as the CVAC dated 18 December 2018 assigned a rating of 20 to her mother, it did not meet the relevant requirements in r.1.15AA(1)(b) and r.1.15AA(1)(c). The applicant told the Tribunal that her father would obtain the requisite impairment rating because he suffered from dementia and bipolar disorder. She told the Tribunal her mother could not care for her father on her own and that she was caring for both her parents. She told the Tribunal her parents need her support as the circumstance of her case were unjust as the care her father required was not considered. She told the Tribunal her mother was not able to care for her father alone, as her mother also needed care and her medical condition was deteriorating as evidenced by the increased impairment rating. 

29. The Tribunal has considered the applicant’s oral evidence, as well as the supporting documentation provided to the Tribunal. However, the Tribunal cannot substitute this evidence for a Carer Visa Assessment Certificate, which meets the statutory requirements.  

30. The Tribunal has considered the evidence presented about the applicant’s father.

31. Regulation 1.15AA requires the visa applicant to be a carer of an Australian resident (‘the resident’). The applicant must be a relative of the resident. There must be a certificate that confirms a person has a medical condition, being either the resident themselves, or a member of their family unit. The certificate must also confirm that the person has, and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life. If the person with the medical condition is not the resident (i.e. is a member of the resident’s family unit), then the resident has a permanent or long-term need for assistance in providing the direct assistance the person with the medical condition needs. That is, a person can be a carer of a person with a medical condition, or a carer of a person who has a permanent or long-term need for assistance in providing assistance to another person with a medical condition.

32. At all times the applicant has claimed to be a carer of her mother. Before the Department, the applicant claimed that the mother is the person with the medical condition, despite not being able to obtain the required number of points for her. Before the Tribunal the applicant presented medical evidence in relation to her mother (the resident) and her father (a member of the resident’s family unit). Having regard the applicant’s evidence at the hearing, the Tribunal considered the argument that the person with the medical condition is her father, but that the visa applicant is still a carer of her mother who has a permanent or long-term term need for assistance in providing direct assistance to her father. In this scenario, the applicant’s mother is the Australian relative resident and sponsor and the applicant would be the carer of her mother. It is only the person who has the medical condition to which the certificate relates that changes.

33. Following the hearing on 18 December 2019, the applicant was granted additional time after the hearing to provide a CVAC with respect to her father. Extensions of time were sought and granted on the basis that, in the first instance, there were delays with [Medical Services Provider 1] undertaking carer visa assessments and, in the second instance, [Medical Services Provider 1] ceased undertaking carer visa assessments during the COVID-19 pandemic.

34. However, as the Tribunal noted in letters to the applicant dated 30 November 2020 and 4 January 2021, [Medical Services Provider 1] has now resumed carer visa assessments. In response to a request for information sent under s.359(2), the applicant did not dispute that [Medical Services Provider 1] had resumed carer visa assessments but stated that she could not afford to pay for a further carer visa assessment at this time. The applicant did not seek additional time to provide a CVAC but provided further submissions and supporting documentation on 27 January 2021.

35. The Tribunal has considered all the evidence the applicant has provided, however it cannot substitute this evidence for a Carer Visa Assessment Certificate that meets the statutory requirements of r.1.15AA.  As discussed with the applicant at the hearing, it is a requirement of the definition of ‘carer’ that the resident (or a member of the family unit of the resident) has a Carer Visa Assessment Certificate with the required impairment rating. As such, in accordance with r. 1.5AA(1)(b) and 1.15AA(1)(c), to meet the definition of ‘carer’ the resident (or a member of the resident’s family unit) must have a CVAC with an impairment rating of 30.

36. The Tribunal considers the applicant has been provided with reasonable opportunities to obtain a further CVAC. The applicant has not provided any evidence that indicates she had made any arrangements for a CVAC assessment since the CVAC dated 12 December 2018, which assigned her mother a rating of 20. Nor has the applicant made arrangements to obtain a CVAC with respect to her father despite having been given time to do so. The applicant has not requested additional time to acquire the funds to obtain a further CVAC. Having considered all the circumstances  of this case, the Tribunal is of the view that there is no utility in providing further time to applicant to obtain a new CVAC.

37. In the Tribunal’s opinion the applicant has been given reasonable opportunities to provide evidence that she meets the criteria of r.1.15AA(1)(b) and (c). In the absence of a CVAC with the required impairment rating of 30 for the resident (the applicant’s mother) or family unit member of the resident, the Tribunal must determine this matter based on the evidence currently before it and the CVAC dated 18 December 2018.

38. In the present case, the impairment rating specified in the certificate dated 18 December 2018 with respect to the applicant’s mother is 20. This rating is below the impairment rating specified by the relevant instrument and therefore does not meet the requirements of r.1.15AA(1)(b)(iii) or r.15AA(1)(c). The certificate dated 18 December 2018 also indicates that the applicant’s mother does not have a a medical condition causing physical, intellectual or sensory impairment of their ability to attend to daily aspects of daily life and therefore the requirement of r.1.15AA(1)(b)(ii) is not met. Further, as the CVAC records the sponsor does not have and will not continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life due to her medical condition, the requirement of r. 1.15AA(1)(b)(iv) is also not met.

1. On the evidence before it, the Tribunal finds that the visa applicant does not meet the requirements of r.1.15AA(1)(b) and 1.15AA(1)(c). As such, visa applicant does not meet the definition of a ‘carer’ in r.1.15AA.  Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

2. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought. She does not meet the requirements for the grant of a Remaining Relative visa or an Aged Dependent visa.

3. The Tribunal has considered the supporting documentation provided to the Tribunal, including letters from various doctors responsible for treating the applicant’s parents, as well the statements from the applicant herself about her desire to be able to care for her parents as their health deteriorates.  The Tribunal acknowledges the evidence that the applicant has provided but, as the Tribunal explained at the hearing, the Tribunal has no discretion to waive the statutory criteria. Having found that the applicant does not meet the requirements for visa grant, the Tribunal must affirm the decision under review.

   Ministerial intervention

4. As the applicant does not meet the criterion for the visa, the Tribunal has no choice but to affirm the decision under review. The applicant has argued that there are compelling and compassionate reasons that she should be able to continue to provide care for her parents. Only the Minister has the discretion to intervene and take these circumstances into account.

5. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. The power under s.351(1) may only be exercised by the Minister personally. The Minister does not have a duty to consider whether to exercise the power under subsection 351 (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person (including the Tribunal), or in any other circumstances.

6. The Tribunal may refer a case to the Department if the member believes the issues involved are ‘unique or exceptional circumstances’ as described in the Minister’s Guidelines on ministerial powers (sections 345, 351, 417, 454 and 501J) available in Department’s Procedures Advice Manual (PAM3) (the Minister’s Guidelines) or on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before a referral to the Minister. The Department will then assess the circumstances of the case and may refer the case to the Minister where it meets the guidelines for referral.

7. The Tribunal has considered the oral and written evidence the applicant has provided the impact of her parents’ medical conditions on their daily lives and the hardship they would suffer if she were unable to provide them with care and support, and the opinion of various medical professionals (see for example, Tribunal file f.76, 78, 116, 118) that her parents’ health is such that they require the help and care currently provided by the applicant, as well the support letters submitted by the applicant’s family members and members of the Australian community.

8. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the evidence provided by the applicant, the Administrative Appeals Tribunal’s President’s Direction: Conducting Migration and Refugee Reviews; especially at paragraphs 16.1–16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines. The Minister’s guidelines describe the types of unique or exceptional circumstances in which a case might be referred for the Minister’s consideration as well as certain cases that would not meet the Guidelines.

9. The President’s Direction states that the Tribunal may refer a case to the Department on the basis that the member considers that there are facts or circumstances warranting further investigation by the Department before referral to the Minister. Having considered the evidence before the Tribunal, the Tribunal has decided to refer the case to the Department for further investigation on the basis that it may raise strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or permanent resident.

10. Having regard to the circumstances of the applicant as outlined above, the Tribunal refers this case to the Department so that the Department may investigate whether the facts and circumstances of this case are such that, in accordance with the Minister’s Guidelines, the matter should be brought to Minister’s attention.

    DECISION

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

    F. Simmons
    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.