1809774 (Migration)
[2020] AATA 1186
•20 February 2020
1809774 (Migration) [2020] AATA 1186 (20 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1809774
MEMBER:David Barker
DATE:20 February 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl.116.211 of Schedule 2 to the Regulations;
·cl.116.221 of Schedule 2 to the Regulations;
·cl.116.311 of Schedule 2 to the Regulations;
·cl.116.321 of Schedule 2 to the Regulations.
Statement made on 20 February 2020 at 12:09pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– Federal Court remittal – jurisdictional error – updated Carer Visa Assessment provided – Community service inappropriate – assistance cannot reasonably be provided by a relevant relative – special cultural, linguistic and psychological needs – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65,376
Migration Regulations 1994, rr 1.03, 1.15, Schedule 1, Schedule 2, cls 116.211, 116.221, 116.311, 116.321
CASES
Anveel v MIBP [2013] FCCA 2181
Perera v MIMIA [2005] FCA 1120
Yee Joy v MIBP [2015] FCCA 2537
Xiang v MIMIA [2004] FCAFC 64Any 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 and Border Protection on 9 June 2014 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 19 April 2014. At that time, Class BO contained three subclasses, being 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 applicants are seeking to satisfy the criteria for the grant of Subclass 116 visas. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.
The delegate refused to grant the visas on the basis that cl.116.221 was not met because they were not satisfied that the primary visa applicant (the visa applicant) is a carer as defined in r.1.15AA.
The review applicant applied for a review of the visa refusal decision. The Tribunal (differently constituted) affirmed the delegate’s decision on 16 September 2015. The Federal Circuit Court dismissed an appeal against the Tribunal’s decision [in] September 2017. [In] March 2018, the Federal Court ordered that the orders of the Federal Circuit Court and the decision of the Tribunal be set aside and that the matter be remitted to the Tribunal for determination in accordance with law.
The review applicant appeared before the Tribunal on 29 January 2020 to give evidence and present arguments. The Tribunal also received oral evidence from her daughters, Ms [A] in Australia and by telephone from Lebanon, the visa applicant, Mrs [B]. The Tribunal also took evidence from the review applicant’s granddaughter, Ms [C] and from Ms [D], the wife of the review applicant’s [grandson]. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The review applicant is a national of Lebanon and is [age] years of age. The review applicant first travelled to Australia in November 1988. She has travelled from and returned to Australia numerous times since. The review applicant became an Australian citizen in October 1991.
The visa applicant is a national of Lebanon and is [age] years of age. The visa applicant includes two secondary applicants, two of the visa applicant’s [offspring]. Both of the secondary applicants were under the age of 18 at the time of visa application and the authorisation for their departure from Lebanon is on the Departmental file.
The visa applicant lodged an application for a Carer visa offshore on 19 April 2013. The visa applicant sought the visa to care for her mother, Mrs [E], the sponsor and review applicant.
The delegate’s decision
The delegate was satisfied that the review applicant required the requisite level of care with reference to the sponsor rating of 30, provided by Medibank Health Solutions[1].
[1] Medibank Health Solutions Carer Visa Assessment dated [date] January 2013.
The delegate was not satisfied that one of the review applicant’s other relatives in Australia could not reasonably provide the assistance required. The delegate was also not satisfied that assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. The delegate was therefore not satisfied that the visa applicant is a carer as defined in r.1.15AA of the Regulations.
The delegate noted that the visa applicant, being the primary applicant, did not meet the requirements for the grant of any subclass within the Class BO visa. The secondary applicants, being members of the family unit of the visa applicant, failed to meet the secondary criteria for the grant of any other visa within this class. The delegate was not satisfied that the prescribed criteria for the visa grant were met and refused the secondary applicants a Class BO visa. A delegate of the Minister refused the visa application in June 2014.
The previous Tribunal’s decision
The review applicant applied for review and the Tribunal (differently constituted) affirmed the delegate’s decision in September 2015. The Tribunal accepted that the evidence provided by the visa applicant satisfied rr.1.15AA(1)(a), 1.15AA(1)(b), 1.15AA(2), 1.15AA(1)(ba) and 1.15AA(1)(c) of the Regulations. The Tribunal accepted that the visa applicant had been providing care to her mother during the review applicant’s residence in Lebanon and that she was both willing and able to continue to provide such care in Australia. However, the Tribunal was not satisfied that relatives in Australia could not reasonably provide the assistance.
In considering whether the review applicant could be provided with assistance by her relatives in Australia, the previous Tribunal noted that the review applicant has two daughters and at least six adult grandchildren in Australia. The Tribunal noted that the review applicant was estranged from one of her daughters, however, was not satisfied that her other daughter and six adult grandchildren could not jointly provide the requisite assistance.
Further, the Tribunal was not satisfied that it would be unreasonable for the review applicant to relocate closer to [Town 1], where her daughter would be able to spend more time with her. The Tribunal accepted that each of the review applicant’s relatives in Australia has various commitments, which preclude them from being full-time carers and accepted that, by themselves, none of the relatives is able to provide the requisite degree of care. However, after considering all of the evidence before it, the Tribunal was not satisfied that the assistance could not be reasonably provided by relevant relatives, or obtained from welfare, hospital, and nursing or community services in Australia. Therefore, the Tribunal found that the requirements for r.1.15AA(1)(e) of the Regulations were not met.
The Federal Circuit Court dismissed an appeal against the Tribunal’s decision [in] September 2017. Subsequent to this, further judicial review was requested, and [in] March 2018, the Federal Court set aside the Tribunal’s decision and remitted the case back to the Tribunal to be determined in accordance with law.
In setting aside the previous Tribunal’s decision, the Federal Court determined there was a jurisdictional error as the Tribunal failed to perform the required statutory task of deciding if the family could reasonably provide the assistance the mother needed in attending to the practical aspects of daily life because of her medical conditions. The lack of any such reference to the mother’s actual needs in that part of its reasons dealing with the reasonableness of the relatives providing her with assistance, in or near [Town 1], indicated that the Tribunal had not assessed reasonableness as required, which is by reference to the needs of the mother. Further to this, the Federal Court indicated there would have been further jurisdictional error because of the Tribunal’s failure to disclose to the appellant the existence of the certificate under s.376 of the Act.
The visa applicant provided information to the Department in support of her claims, including but not limited to the following:
·Documents regarding identities of visa and secondary applicants;
·Letter from social worker, [dated] 14 February 2013;
·Statutory Declaration of [sister] of review applicant, dated 5 February 2013;
·Statutory Declaration of [one brother] of review applicant, dated 6 February 2013;
- Statutory Declaration of [another brother] of review applicant, dated 5 February 2013;
·Reports and letters of Dr [F], general practitioner, dated 23 October 2012, 9 May 2013;
·Medibank Carer Visa Assessment Certificate issued [December] 2012;
·South Western Sydney Local Health District, Admission Summary, diagnosis and treatment and test detail, discharge date: 9 October 2012 – regarding review applicant;
·Letter from [a doctor], dated 7 November 2012;
·Letter and report of [a]consultant, Physical Respiratory Medicine, dated [October] 2012;
·Letter from [a] cardiologist, [dated] October 2012;
·Letter from [a doctor], dated [October] 2012;
·Medical Imaging [Centre], examination date [August] 2012;
·[Name] Health Imaging, [a doctor], Radiology Report, examination date [May] 2007;
·[Name] Diagnostic Services, date collected [May] 2008;
·[Name] Pathology Laboratories, Laboratory Report, report date [August] 2011.
The review applicant has provided information to the Tribunal in support of her claims, including but not limited to the following:
·Letter from [a doctor], dated [March] 2015;
·Letters and translation from [a doctor], dated [February] 2015 and [March] 2015;
·Photographs;
·Reports of Dr [F], general practitioner, dated [April] 2019 and [August] 2019;
·Bupa Medical Visa Services Carer Visa Assessment issued [December] 2019;
·Report of [a] geriatrician, dated [November] 2019;
·Home Support Assessment [NSW] Health regional Assessment Service – [region], dated [August] 2019;
·Unsigned and undated written statement.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is a carer of an Australian citizen (her mother and the review applicant). This requires consideration of whether the direct assistance the review applicant needs in attending to the practical aspects of daily life cannot reasonably be provided by a relative of the review applicant who is an Australian citizen or permanent resident. It is also necessary to consider whether the required assistance could not reasonably be obtained from welfare, hospital or community services, either on their own, or in conjunction with assistance reasonably provided by a relative of the review applicant who is an Australian citizen, or permanent resident.
In relation to the oral evidence provided at hearing, the Tribunal considered the evidence provided by the review applicant to be plausible and did not have concerns as to whether she was oriented to time and place. The Tribunal was also satisfied that the oral evidence of the visa applicant and other witnesses was provided in a straightforward and reasonable manner. In relation to evidence provided at hearing, the Tribunal has not developed a concern that the evidence was unreliable or lacking credibility.
Relevant law
At the time the application was made, Class BO contained three subclasses: Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative); and Subclass 116 (Carer)). 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. Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’).
Whether the visa applicant has claimed to be a ‘carer’
Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. 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.
In the present case, the visa application was made on the basis that the visa applicant claims to be a carer of the review applicant, who is the visa applicant’s mother, a citizen of Australia.
Whether the visa applicant is a ‘carer’
Clause 116.221 requires that at the time of decision, the visa 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.
r.1.15AA(1)(a)
The Tribunal accepts that the visa applicant is the daughter of the sponsor, the review applicant, who is usually resident in Australia and an Australian citizen. The Tribunal accepts the visa applicant is a ‘relative’ of the resident, the review applicant, within the meaning of r.1.03. She meets the requirements of r.1.15AA(1)(a).
r.1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; the impairment has a rating (under the impairment tables) that is specified in the certificate; and because of the condition, the person has and will continue, for at least two years, to have a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet r.1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister or issued by a specified health provider in relation to a review of such an opinion.
[In] January 2013, Medibank Health Solutions issued a Carer Visa Assessment indicating that the review applicant met the requirements for a carer as she had an impairment rating for 30 points on the Impairment Rating Tables, found at Schedule 1B of the Social Security Act 1991. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life. The assessment indicates that the sponsor required direct assistance in the areas of hygiene, toileting, eating/feeding, giving or supervising of medication, transport and supervision/monitoring.
Due to the length of time that has elapsed since the Medibank Health Solutions Carer Visa Assessment and other medical evidence with the visa application, the Tribunal requested an updated Carer Visa Assessment and medical evidence that would be relevant to the review applicant’s current circumstances.
A Carer Visa Assessment issued by Bupa Medical Visa Services [in] December 2019 indicated that the review applicant met the requirements for a carer as she had an impairment rating for 50 points on the Impairment Rating Tables, found at Schedule 1B of the Social Security Act 1991. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life. The assessment indicates that the sponsor required direct assistance in attending to the practical aspects of daily life because of her medical conditions, and would need the direct assistance for at least two years.
The Tribunal is satisfied that the certificate meets the requirements of r.1.15AA(2). The Tribunal is satisfied that, according to the certificate, the review applicant has a medical condition causing impairments of her ability to attend to the practical aspects of daily life and as a result of such condition, which will continue for at least two years, there is a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
r.1.15AA(1)(ba)
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. Included with the visa application was evidence of the review applicant’s Australian citizenship. The Tribunal is satisfied that the review applicant, who is the person with the medical condition, is an Australian citizen. The Tribunal is satisfied that the requirements of r.1.15AA(1)(ba) are met.
r.1.15AA(1)(c)
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. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
r.1.15AA(1)(d)
As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.
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.
The review applicant has a number of relatives in Australia. In order to assess whether assistance can reasonably be provided by another relative, the Tribunal has considered issues as discussed in Department policies (PAM3). The Tribunal is not bound to apply Department policy, but considers it appropriate to do so, unless cogent reasons are apparent why not to do so. PAM3 suggests that there is no requirement the relative, who is an Australian citizen or permanent resident, provide all of the required assistance. Assistance can potentially be provided by relatives, under combined or rotational arrangements and assistance may be able to be provided, in combination with available community, welfare, nursing or hospital services, depending on the nature of assistance required.
PAM3 states that if there are relatives in Australia, there is a need to investigate whether claims that a relative in Australia cannot provide assistance are reasonable by looking at issues such as:
- The number of relatives already in Australia;
- The nature and extent of the assistance required;
- Who is currently providing the required assistance;
- Where the person requiring assistance lives;
- Where any relatives in Australia live;
- Any evidence of ongoing close family relationships;
- The reasons given as to why relatives in Australia claim to be unwilling or unable to provide the assistance.
The number of relatives already in Australia
The review applicant has a number of siblings in Australia. The Tribunal accepts they are elderly and with their own age related health problems and support needs. She has a sister, aged [age] years, who resides with two adult children in [NSW]. One brother, aged [age] years, resides in [Town 1], NSW and is reported to suffer from medical conditions including hypertension, prostate cancer and diabetes. She has another brother reported to be around [age] years of age, residing in [NSW]. This brother is also reported to be in a poor state of health.
The review applicant has one child in Australia, Ms [A]. There are a further seven daughters and two sons, all of whom are reported to live in Lebanon or other parts of the Middle East. Ms [A] is [age] years of age and resides with her husband in [Town 1], NSW.
The review applicant is reported to have seven grandchildren in Australia, the children of Ms [A].
The nature and extent of the assistance required
In order to engage with the nature and extent of the review applicant’s need for direct assistance to attend to the practical aspects of daily life because of her medical conditions, the Tribunal has considered the available evidence that sheds light on this issue.
At hearing, the Tribunal heard evidence from the review applicant that she had a fall recently in which her left hand and arm was hurt. She said that she needs her daughter to stay with her night and day and that she does not want to die when she is alone. She said that she has been advised that because of her medical conditions she should not live alone. The review applicant gave evidence that she needs help with bathing and dressing.
The review applicant’s daughter, Ms [A], gave evidence at hearing that her mother needs assistance with the following activities of daily living because of her restricted physical functioning and cognitive decline: dressing, showering and other personal hygiene, supervising her medication, food preparation, cleaning her home, washing her dishes and washing her clothes. Ms [A] said that her mother also at times requires assistance to transfer from bed to a chair or from bed to an upright standing position. She explained that her mother has a history of broken collarbones and back problems that significantly restrict her physical functioning and cause her a lot of pain. She said that her mother is forgetful and can take the wrong medications if not supervised, and has at times left her front door unlocked and the hotplates going on her stove.
The review applicant’s granddaughter, Ms [C], gave evidence at hearing regarding her grandmother’s need for practical assistance, which was consistent with that given by her mother. [Ms C] also indicated that her grandmother needs assistance to manage incontinence, which involves help changing adult nappies. Ms [D] also gave consistent evidence regarding the care and support needs of the review applicant. In a written statement prepared by Ms [D], she states that the review applicant is always dizzy and has difficulty walking, with the help of a ‘seat walker’, for even short distances. Ms [D] states the review applicant has hearing loss, which along with early stage dementia complicates her communication with other people. Ms [D] states the review applicant can wander at night and requires 24/7 care. She states the review applicant can have panic attacks when taken to medical appointments, which complicates the process of getting her to required specialist appointments.
Reports of Dr [F], general practitioner, indicate he has treated the review applicant for some years and the Tribunal has therefore placed weight on his evidence. A report from Dr [F], dated [August] 2019, indicates that the review applicant is a falls risk because of persistent dizzy spells, is at high risk of bone fracture because of osteoporosis, and that she is depressed and anxious.
A report of [a] geriatrician, dated [November] 2019, provides the following diagnostic information with regards to medical conditions affecting the review applicant:
1) Dementia, Mixed Type
Mrs [E] is reported to have short term memory impairment. She lives by herself. She is not coping with her daily activities. She is not cooking. Her granddaughters bring her food. while her grandson does the cleaning for her. She may leave the water tap on, forgets to switch off gas, and sometimes locks herself out. Today her Mini Mental State Examination score v% as 10/30 (orientation 0/10, serial-7's 0/5, recall 1/3). Her MMSE score was affected by her illiteracy and lack of attention . She still can demonstrate short term memory if she paid. attention. Glabellar and bilateral Palmomental reflexes are negative. Limb reflexes are normal and symmetrical. There is no lateralising neurological deficit.
2) Cerebral Atrophy
CT Brain (11.11.19) reported ventricles and extra-axial CSF spaces are prominent in keeping with the patient's age.
3) Balance and Gait Disorder
Mrs [E] walks with a four-wheel walker. She has a mixed type of gaits including subcortical and antalgic gaits. She has had multiple falls.
4) Hypertension
On Atacand. Mrs [E]'s blood pressure today was 132/82 mmHg, pulse rate 78 per minute regular. Heart sounds were normal. There was no murmur or neck bruit.
5) Renal Impairment
Blood Test (11.11.19): Urea 14.5 1-1, Creatinine 120 H, eGFR 34 L, Urate 0.43 H. For monitoring.Hyperlipidaemia
6) Hyperlipidaemia
Total Cholesterol 6.7, Triglycerides 2.1, HDL Cholesterol 1.5. L.IWI Cholesterol 4.2 (11.11.19). Continue Lipitor.
7) Osteoporosis
DEXA Bone Mineral Densitometry (26.03.19) reported a T-score of -2.6 at the femoral neck, -1.9 at the total proximal femur, -2.1 at the lumbar spine. Mrs [E] has increased risk of fractures on minimal trauma.
8) Vertebral Fractures
Mrs [E] complained of low back pain. X-ray Lumbar Spine (11.11.19) reported chronic vertebral body fracture of LI, L2 and L3 with 40% height loss. Another cause for her complaint of low back pain.
9) Degenerative Disease of Thoracolumbar Spine
Chest X-ray (11.11.19) reported a scoliosis of the thoracic spine convex to the right —moderate. X-ray Lumbar Spine (11.11.19) reported lumbar spine lordosis convex to the left. X-ray Thoracic Spine (11.11.19) reported S-shaped thoracolumbar spine kyphotic changes with thoracic spine convex to the right moderate.
10) OA Knees
Mrs [E] complained of bilateral knee pain. Today both knees are swollen with pain and tenderness. This is affecting her mobility and activities of daily living.
11) Vitamin D Deficiency
Serum 25-OH Vitamin D 22 L (11.11.19). Continue Vitamin D supplementation. Needs to supervise drug compliance.
12) Secondary Hyperparathyroidism
PTH 8.8 1-1 (11.11.19). Probably related to Vitamin D deficienc .
13) Chronic Obstructive Pulmonary Disease (COPD)
Causes exertional dyspnoea.
14) Urinary Incontinence
Mrs [E] is on incontinence pads. Needs a carer.
15) Occasional Bowel Incontinence
Mrs [E] has poor personal hygiene. Needs a carer.
In relation to the impact of the aforementioned medical conditions upon the review applicant, [the geriatrician] provides the following opinion:
1) Mrs [E] is suffering from many cognitive and medical conditions that are causing an impairment of her ability to attend to the practical aspects of her daily life and because of these medical conditions, Mrs. [E] has and will continue for at least two years to have a need for direct assistance in attending to the practical aspects of her daily life.
2) Mrs [E] is of cultural and linguistic diverse background, who is suffering from multiple and permanent cognitive and medical conditions as mentioned above.
3) Mrs [E]'s medical conditions are stable but can deteriorate quiei;l.. it he does not receive appropriate 24 hours care from her family members.
4) Mrs [E]'s permanent medical conditions are causing physical impairment of her to attend to the physical aspects of daily life.
5) Mrs [E] is dependent in activities of daily living, because of her cognitive impairment. and many permanent medical conditions.
6) Mrs [E] requires 24 hours care and close supervision by her family carers at home. She lives by herself. Her grandson's family members are visiting her to provide distant support. She requires a carer to be with her for safety and her wellbeing.
7)Mrs [E]'s children are all living in Lebanon, except [Ms A]who lives in [Town 1], NSW. They cannot provide the much needed care and support for Mrs [E]. Her daughter Ms [B] can and is willing to come from Lebanon to Sydney to care for Mrs [E].
8) Community service/aged care facility are deemed to be inappropriate for Mrs [E] due to her cognitive and medical conditions, as well as special cultural, linguistic and psychological needs.
9) Mrs [E]'s prognosis is guarded unless she receives dedicated care and attention from her family members to enable her to comply to treatment on 24 hours basis.
10) Based on all my assessments on Mrs [E], through the interpretation of an Arabic Interpreter, I consider that Mrs [E] has demonstrated that she has the Mental Capacity to understand the obligations of sponsoring her daughter, [as] her carer. I am satisfied that Mrs [E] understands her obligations and undertaking at the time of this Carer Visa application being lodged.
11) In the health interest for Mrs [E] and as a matter of urgency, I would strongly recommend a. Carer Visa be granted to Mrs [E]'s (laughter, Ms [B] to come from Lebanon to Sydney to care for Mrs [E] and this would help sustain Mrs [E]'s morale and prognosis for two or many more years.
The recent Bupa Medical Visa Services Carer Visa Assessment identifies the following medical conditions that may impact the review applicant’s capacity to self-care:
· Chronic Obstructive Pulmonary Disease — she suffers from exertional dyspnea frequently. She requires the use of Spiriva puffers regularly
· Bilateral Khee Osteoarthritis — She complains of ongoing pain with swelling and tenderness around her bilateral knees. Due to this condition, she has difficulty mobilizing even with a 4WW and assistance. She is a falls risk.
· Low Back Pain — There is degenerative disease of her thoracolumbar spine as well as chronic fractures of the lumbar vertebral body L1/L2/L3. She requires assistance for her transfers.
· Mixed-type Dementia — she is reported to have issues with her short-term memory with MMSE of 10/30.
· Urinary Incontinence and occasional bowel incontinence — she requires the use of incontinence pads with assistance required to change them.
The Bupa Medical Visa Services Carer Visa Assessment details the assistance required by the review applicant for activities of daily living as follows:
· Mobility
She requires a walking frame with standby assistance for indoor mobility. Her mobility is limited to 20 meters with assistance. She requires the use of a wheelchair for outdoor mobility.
· Bathing / showering
She requires assistance to scrub and soap.
She has to shower siting down on a chair due to falls risk· Toileting
She requires assistance to toilet including to sit / stand off the toilet due to urinary and occasional bowel incontinence, she requires assistance with changing her incontinence pads.
· Dressing / grooming
She requires assistance to put on her lower body garments.
· Eating / feeding
She requires assistance to prepare her meals and prompting to ensure she feeds herself
· Supervising medication
She needs her carer to administer her medications
· Supervision for personal safety
Due to dementia, she has been at risk of burning herself with hot water. Currently the hot water system has been turned off and is only switched on when family is around to assist
· Transportation
She requires escort and someone to drive her to her medical appointments — 2-3 times per week.
The Tribunal notes that there is consistency across the available evidence from the review applicant, her relatives and health professionals with respect to the direct assistance the review applicant needs to attend to the practical aspects of daily life because of her medical conditions. She has a need for daily assistance with all activities of daily living listed in the Bupa Carer Visa Assessment, namely: mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervising medication, supervision for personal safety and transportation. This assessment classifies the review applicant as ‘fully dependent’.
Who is currently providing the required assistance
The Tribunal accepts the opinion of the specialist geriatrician, [that] the review applicant requires 24 hour care and close supervision. This opinion regarding the level of assistance required is consistent with the Bupa Carer Visa Assessment and other evidence before the Tribunal.
The evidence available to the Tribunal indicates that the review applicant’s daughter, Ms [A], and some of her children and/or their spouses are providing the review applicant with some of the direct assistance she requires with her activities of daily living. However, it is apparent from a review of the medical evidence and the oral evidence at hearing that the level of assistance provided to the review applicant is not at the level she requires.
Where the person requiring assistance lives
The review applicant resides in [Suburb 1], NSW.
Where any relatives in Australia live
Ms [A] resides in [Town 1], NSW. The distance from there to [Suburb 1], where the review applicant resides, is approximately 355 kilometres, over three and a half hours travel by car[2]. The grandchildren of the review applicant are reported to reside in suburbs within the Greater Sydney [region].
Any evidence of ongoing close family relationships
[2] Google Maps.
The evidence suggests there is an ongoing close family relationship between the review applicant and her daughter, Ms [A]. The evidence suggests that there are familial relationships between the review applicant and her grandchildren and/or their spouses, albeit not as close as that existing between the review applicant and Ms [A], or that reported by the review applicant between her and the visa applicant.
The reasons given as to why relatives in Australia claim to be unwilling or unable to provide the assistance
In Anveel v MIBP[3] the Court confirmed that as r.1.15AA(1)(e)(i) is stated in the negative, the focus of the Tribunal must be on the reasons as to why the relatives cannot provide the care.[4] Further, it is clear that a consideration of r.1.15AA(1)(e) is not restricted only to relatives who reside with the person in need of care.[5] The only qualifications as to which relatives are relevant to the assessment are that they are ‘other’ (i.e. not the visa applicant), and that they are Australian citizens, permanent residents or eligible New Zealand citizens.[6] However, the physical location of the relatives may be relevant for assessing whether they can ‘reasonably’ provide the care.[7]
[3] [2013] FCCA 2181 (Judge Nicholls, 17 December 2013).
[4] Anveel v MIBP [2013] FCCA 2181 (Judge Nicholls, 17 December 2013) at [62].
[5] Yee Joy v MIBP [2015] FCCA 2537 (Judge Smith, 17 September 2015) at [23].
[6] Yee Joy v MIBP [2015] FCCA 2537 (Judge Smith, 17 September 2015) at [23].
[7] Yee Joy v MIBP [2015] FCCA 2537 (Judge Smith, 17 September 2015) at [23].
Relevantly, the Court in Yee Joy v MIBP[8] noted that the length of time that the onshore visa applicant had been providing care was, in the circumstances of that case, irrelevant to assessing whether the care could reasonably be provided by another relative.
[8] Yee Joy v MIBP [2015] FCCA 2537 (Judge Smith, 17 September 2015) at [26].
In terms of assistance that has been provided to the review applicant in the past, the Tribunal understands the review applicant has resided in Sydney for most of the time that she has been onshore since her arrival in Australia in 1988. She has spent considerable periods back in her home country, where she has numerous family members and since her health has declined and her need for assistance has increased, she has whilst in Lebanon, received assistance from her youngest daughter, the visa applicant.
The Tribunal understands that the review applicant was for a period of sometime residing with Ms [A] in [Town 1]. She is reported to have moved back to Sydney and that this choice was influenced by factors including her getting access to a two bedroom apartment through a community housing scheme [(located] in [Suburb 1]). The review applicant is reported to have also found the climate in [Town 1] not suitable for her and a further factor was the medical practitioners, general and specialist, with whom she was linked being located in Sydney. A review of the evidence indicates that Ms [A] lived with the review applicant in Sydney in the period from 12 September 2011 to 25 March 2012 and during that time was in receipt of a carer’s allowance from Centrelink. The evidence indicates this care situation broke down due to difficulty Ms [A] had coping with the review applicant’s care needs, in association with her other responsibilities. The evidence indicates no one has claimed a carer’s allowance or carer payment from Centrelink in relation to care provided to the review applicant since that time.
Ms [A] gave two linked reasons why she is now, or for the foreseeable future, unable to provide the level of direct assistance to her mother that is required to effectively assist her on a practical level with her activities of daily living. She indicated that she lives too far from the review applicant to be able to provide her with the daily assistance and monitoring that she requires. She said that she tries to visit the review applicant every few days and at times stays one or two days with her, but that it is not practical for her to be there every day, or to reside with the review applicant on a full time basis. She said this is because of the linked reason, which is that her husband has significant long-term health problems and that it is her responsibility to also look after him. She reported that he has a spine condition, but also a condition that causes him to not be oriented to time, place or people at times.
The Tribunal accepts that it would not be reasonable to expect Ms [A] to relocate from [Town 1] to [Suburb 1] to provide her mother, the review applicant, with the assistance she requires. The Tribunal is satisfied it is not reasonable for her to drive from [Town 1] to [Suburb 1] in the greater Sydney region on a daily basis. The Tribunal is also satisfied that Ms [A] has care and support responsibilities towards her husband, who is a long-term recipient of disability support pension, since 1999.
The Tribunal notes that the review applicant has accommodation provided to her by a community housing scheme and not NSW Housing. This is relevant if considering the challenges that may face the review applicant if there was a suggestion she move closer to Ms [A] in [Town 1], NSW. It is most unlikely the [Community] Housing Scheme would have available housing stock in a regional NSW town to allocate to the review applicant. This sort of organisation does not have the breadth of housing stock that is potentially available to NSW Housing and allocation of housing in a community housing scheme does not necessarily create current entitlement to the provision of housing, or a housing swap through NSW Housing.
It is also apparent that the review applicant has complex medical conditions and that there is difficulty getting her to medical appointments with her existing range of medical practitioners. The Tribunal considers this would be a further constraint on encouraging her to relocate closer to Ms [A] in [Town 1] and that it would not be in her interests to disengage from her current medical practitioners and seek to engage with a new set of health professionals.
As to whether Ms [A] could provide the required 24 hour assistance that the review applicant requires, in combined or rotational arrangements with her own children and/or their spouses, the oral evidence of Ms [A], Ms [C] and Ms [D] is that is not possible or practical for a number of reasons.
One significant factor put forward by the aforementioned three witnesses and the review applicant is the clear preference of the review applicant to have assistance that she requires for quite personal activities of daily living, such as bathing, showering, dressing and matters of personal hygiene including management of incontinence, attended to by one of her daughters. The review applicant is reported to be uncomfortable and unwilling to accept the assistance of strangers and even that offered by her granddaughters or the spouses of her grandsons. It is claimed that there are a range of factors influencing the review applicant’s position on this issue, including cultural factors, mental health conditions, cognitive impairment associated with the dementia and the general privacy concerns of a woman of her age. The Tribunal acknowledges the validity of these factors. Whilst understanding that many people in need of care and support may be initially uncomfortable with the source of that support, the Tribunal accepts that the cumulative impact of the aforementioned factors is that the level of resistance from the review applicant to assistance from people other than her daughters is substantial and enduring.
The Tribunal accepts that reasonable cultural factors preclude the review applicant’s male grandchildren providing her with much of the practical assistance with activities of daily living. The Tribunal considers it relevant to understand why it would not be reasonable for them to assist, whether in a combined or rotational arrangement, with less personal activities of daily living, such as transport to medical appointments, overnight monitoring and assistance with housework. This is particularly the case given the grandchildren now reside within reasonable proximity of the review applicant.
In terms of their capacity to assist the review applicant, Ms [A] gave evidence at hearing that not all of her children have the same level of sympathy and commitment to their grandmother. She said that it is a struggle to convince them to visit the review applicant to check on her on days that she herself does not travel to Sydney from [Town 1]. She said that most of the time when she arrives at the home of the review applicant her mother is crying and unsettled. She said that she has great difficulty forcing any of her children to help. Ms [A] said that if they do visit their grandmother, it is for perhaps one hour and that this is not the 24-hour assistance and monitoring that her mother requires.
This is consistent with oral evidence provided by one of the granddaughters, Ms [C], who told the Tribunal that she does not have time to assist her grandmother. She said that she and her siblings have ‘absolutely no time for her’. She then conceded that a female family member visits her grandmother every few days if their mother requests it. She said that her grandmother is not receptive to their offers of help and that she gets irritable and tells them to leave, especially if children are present, and as her siblings mostly have young families and it is the women who check on the review applicant, inevitably children are brought along. The Tribunal does not consider unreasonable the contention that it is female members of the review applicant’s extended family who accept responsibility to check on her circumstances when asked to do so by Ms [A]. This may not reflect an equitable or admirable reflection of the roles adopted by the male members of the family system, but it is, in the view of the Tribunal, not sufficiently out of step with gender norms such as to stand out as an unreasonable situation.
Ms [D] gave evidence that her capacity to provide direct assistance to her husband’s grandmother, the review applicant, is significantly less than it has been in times past because her ability to look after her own children, in light of her diagnosis and treatment for a cancer illness, has taken priority over visiting and assisting the review applicant. The Tribunal accepts this contention and would consider it not reasonable to have an expectation that Ms [D] do other than attend to her own health and the needs of her four young children for the foreseeable future.
The Tribunal notes that Ms [D] appears to have assisted the review applicant to the level she could in the past, and that it was she who facilitated an assessment by the NSW Regional Health Assessment Service in August 2019. This was at a time Ms [A] was offshore from Australia.
In considering why any other relative of the review applicant cannot reasonably provide the required direct assistance with activities of daily living, the Tribunal is aware of the need to consider the issue in terms of the facts and material that has been put before it[9]. The Tribunal is also mindful of the perspective of the review applicant in terms of what assistance she would accept. The review applicant has medical conditions that both engender considerable need for direct assistance and influence her behaviour, moods and attitudes in a manner, which compromises the ability of relatives other than her daughter, Ms [A], to be an effective assistance provider. The Tribunal accepts that the review applicant is fully dependent and requires assistance on a 24-hour basis, in a context where this would most appropriately be provided by a live in carer. The Tribunal accepts that there are realistic constraints that prevent Ms [A] from providing the required assistance. The Tribunal acknowledges her grandchildren have young families, or are otherwise working, and through a combination of their own life situations, attitudes and the review applicant’s resistance to their assistance, are not able to provide the level of care required.
Whether assistance can be obtained from services in Australia
[9] [Source deleted].
In forming an opinion as to whether, for practical purposes, assistance can reasonably be obtained from hospital, welfare or community services, the Tribunal notes that the review applicant is currently linked with a range of medical practitioners, who are providing her with treatment and ongoing review. The Tribunal is satisfied this medical care is currently obtained from health professionals in the greater Sydney region and that they contribute to the review applicant’s current independence in the community, tenuous as it is.
The home support assessment carried out in August 2019 recommended an ACAT assessment take place. The evidence shows that the assessor from the NSW Health Regional Assessment [Service], took responsibility to make a referral for an ACAT assessment. There is, however, no evidence before the Tribunal to show that an ACAT assessment occurred, which is a necessary precursor for the approval for funding for aged care support service packages.
The Tribunal notes that information provided by the NSW Health Regional Assessment Service indicates that there is a need for the ACAT referral to be accepted by a service provider. Ms [D] gave evidence that to the best of her knowledge, no ACAT assessment took place, and this was consistent with evidence at hearing from Ms [A] and Ms [C]. The Tribunal is not aware why a referral for the ACAT assessment did not proceed.
The Tribunal notes there is no legislative requirement to consider the recommendations of an ACAT assessment, if they are available, when forming an opinion as to whether assistance can reasonably be obtained from hospital, welfare or community services in Australia. Nor indeed, is there a legislative requirement to consider the consequences if results from an ACAT assessment are not available for a decision maker to consider. This is despite the role that the ACAT assessment now has as a gatekeeper of funding approval for the delivery of packages designed to assist aged people in Australia to maintain their independence in the community, or to access funding for residential aged care.
The evidence of the review applicant on this issue was clear and to the point. She said at a number of times during the hearing that she does not want help from strangers and would not feel comfortable with them trying to assist her. The evidence of her Australian relatives was consistent with that provided by the review applicant in relation to this issue. They also emphasised the cultural and language difficulties the review applicant would face in an aged care residential setting.
The Tribunal acknowledges the views of the review applicant and her Australian relatives and has also placed weight on the opinion of [her geriatrician], who reported that ‘Community service/aged care facility are deemed to be inappropriate for Mrs [E] due to her cognitive and medical conditions, as well as special cultural, linguistic and psychological needs’.
After considering the available evidence, the Tribunal is satisfied that the opinion of the geriatrician [should] be accepted and that accordingly, the required assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are met.
r.1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.
The visa applicant gave evidence at hearing over the telephone from Lebanon. She displayed a clear understanding of the review applicant’s current medical conditions and of the assistance she requires with activities of daily living that flow from the impact of her medical conditions. The visa applicant gave evidence that she has previously looked after the review applicant when her mother has been in Lebanon and that she is able and willing to assume a full time carer role with her mother in Australia.
The visa applicant displayed insight into the review applicant ’s current living arrangements in a two bedroom unit and indicated this would be a viable setting for her and her two daughters to reside an, along with the review applicant. The visa applicant said she would be financially supported by her adult sons and by some of her siblings in Lebanon, who support her offer to care for the review applicant, and will not need to work. The visa applicant explained that one of her daughters who is a secondary applicant on the visa application, is currently training to be a nurse and would also be able to assist with providing assistance to the review applicant.
The Tribunal accepts that the visa applicant has been providing care to her mother during the review applicant’s time in Lebanon in recent years and that she is both willing and able to continue to provide such care in Australia.
Therefore, the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).
Given these findings, the Tribunal concludes that at the time of decision, the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221.
Secondary applicants
There are two secondary applicants included in this application: the visa applicant’s [children]. The Tribunal notes that for the secondary applicants to be granted a Subclass 116 visa they must meet the secondary criteria, which includes cl.116.311 and cl.116.321.
The Tribunal has found that the primary visa applicant meets cl.116.221. The Tribunal therefore finds that the secondary applicants are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivision 116.21. The secondary applicants therefore meet cl.116.311.
The Tribunal finds that the secondary applicants continue to be members of the family unit of a person who is the holder of a Subclass 116 visa. On the evidence before the Tribunal, the visa applicant’s daughters continue to be members of the family unit of their mother, the visa applicant. The secondary applicants meet cl.116.321.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.
DECISION
The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl.116.211 of Schedule 2 to the Regulations;
·cl.116.221 of Schedule 2 to the Regulations;
·cl.116.311 of Schedule 2 to the Regulations;
·cl.116.321 of Schedule 2 to the Regulations.
David Barker
MemberATTACHMENT
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.
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