1819672 (Migration)

[2022] AATA 2605

1819672 (Migration) [2022] AATA 2605 (2 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Lauraine Ann Roze (MARN: 0801441)

CASE NUMBER:  1819672

MEMBER:David Crawshay

DATE:2 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 02 May 2022 at 4:05pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – coronary artery disease – diabetes – chronic kidney disease – bilateral knee osteoarthritis – whether assistance can reasonably be obtained from relevant services – ACAT assessment – wait times between six and 15 months – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cl 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 4 July 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 December 2016. 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 (Cth) (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 of Schedule 2 to the Regulations.

3.     The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied that the applicant was the carer of the resident. Specifically, the delegate was not satisfied that the assistance mentioned in r.1.15AA(1)(b)(iv) could not reasonably be provided by any other relative of the resident or obtained from welfare, hospital, nursing or community services in Australia: r.1.15AA(1)(e).

4.     The applicant appeared before the Tribunal on 2 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant’s mother, the sponsor and the person who requires assistance, and from [Ms B], who is a granddaughter of the sponsor.

5.     The applicant was represented in relation to the review.

6.     For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.     The issue in the present case is the carer of the resident at the time of this decision.

Whether the applicant is a carer

8.     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 Attachment A.

Applicant is a relative of the resident – r.1.15AA(1)(a)

9.     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 – i.e. a “close relative” or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother.

10.      Therefore, the applicant is a “relative” of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

Certification – r.1.15AA(1)(b)

11.      Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that 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.

12.      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 (see Legislative Instrument IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

13.      The Tribunal has been provided with a Carer Visa Assessment Certificate (CVAC or certificate) dated 24 December 2021 in respect of the resident. The Tribunal notes that it is in relation to a medical assessment carried out on behalf of Bupa Medical Visa Services and is signed by the medical adviser who carried out the assessment. The Tribunal further notes that the CVAC states that the resident has medical conditions that are causing impairments of her ability to attend to the practical aspects of daily life, that these impairments are assigned ratings for the purposes of the impairment table, and that because of the medical condition the resident 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.

14.      The Tribunal is satisfied as to the genuineness of the CVAC and finds that it meets the requirements of r.1.15AA(2). Further, the CVAC 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.

Residency status of person with medical condition – r.1.15AA(1)(ba)

15.      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. In the present case, the person with the medical condition (the resident) is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

Impairment rating – r.1.15AA(1)(c)

16.      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 IMMI 07/012.

17.      In the present case, the impairment rating specified in the CVAC is 40. This rating exceeds the impairment rating specified by the relevant instrument. The applicant therefore meets the requirements of r.1.15AA(1)(c).

Resident’s need for assistance (where s/he is not the subject of CVAC) – r.1.15AA(1)(d)

18.      Where the person to whom the CVAC relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the CVAC attending to the practical aspects of daily life for at least two years as a result of the medical condition.

19.      As the person to whom the CVAC relates is the Australian relative, r.1.15AA(1)(d) does not apply.

Assistance cannot be reasonably provided or obtained – r.1.15AA(1)(e)

20.      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 cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

21.      Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal now turns to the task of assessing the level and particulars of this assistance.

22.      According to the CVAC dated 24 December 2021, the resident has been diagnosed with:

·coronary artery disease, diabetes, CKD [chronic kidney disease], affecting physical exertion and stamina – assessed as having a severe functional impact on activities requiring physical exertion or stamina on the Social Security Impairment Table; and

·bilateral knee osteoarthritis – assessed as having a severe functional impact on activities using lower limbs on the Social Security Impairment Table.

23.      In the summary comments, the examining doctor relevantly stated as follows in relation to the resident:

She is a known case of Coronary·artery disease, Chronic kidney disease, Diabetes and Bilateral knee osteoarthritis. She is on multiple medication for these conditions. She has supporting documents from her regular GP [Dr C] dated on 9/8/2021. She also has a my aged care -assessment report done in 2016 attached to her documents,

She requires assistance for all her daily activities.

She requires assistance with mobility. She is a known case of coronary artery disease and bilateral knee osteoarthritis. At home she mainly uses her walker and sits on it and [the applicant] assists in transport. Whenever she wants to go outside of her house she usually mobilizes using a wheelchair and needs help from [the applicant] for mobility with a wheelchair. She cannot get up from her wheelchair by herself and needs assistance from [the applicant]. She cannot climb stairs.

She requires assistance and help for transferring to the toilet. She requires assistance to sit oh and get up from the toilet. She has had frequent urination ·at night and needs to go to the toilet at least 6 times every night. [the applicant] needs to help her from transporting to the toilet and cleaning herself.

24.      The examining doctor assessed the resident to require direct assistance in the areas of mobility, bathing and showering, toileting, dressing and grooming, eating and feeding, supervising medication, supervision for personal safety, and transportation. She was assessed as being fully dependent vis-à-vis the activities of daily living.

25.      The Tribunal has considered the medical information and other evidence including the testimony of the applicant at hearing. Based on this evidence, it finds that the resident requires assistance with the full range of functions, that her independent living skills are in the low range and that she is highly dependent on others to care for and support herself.

26.      These may be said to be the practical aspects of daily life for which the resident has a need for direct assistance now and for the next two years under subr.1.15AA(1)(b)(iv).

27.      The Tribunal now turns to the question of whether the assistance cannot reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident or an eligible NZ citizen.

28.      Based on the evidence, the Tribunal finds that the resident has six sons (including the applicant) and two daughters, as well as 14 grandchildren who are aged 18 years or more. It finds that these people are the relatives of the resident for the purposes of r.1.15AA(1)(e)(i).

29.      A table of the claims made by these relatives and the Tribunal’s treatment of these claims is annexed to this decision as Attachment B. It suffices to say at this point that almost everyone in the resident’s family is gainfully employed, with most in full-time work. Furthermore, some relatives have caring commitments towards children or other family members. Others still are living interstate or overseas. The Tribunal has been provided with documentary evidence that substantiates most of the claims made in the declarations. Where such documentary evidence has not been provided, it has relied on information previously provided to the delegate or on the testimony of [Ms B], a granddaughter of the resident, whom it found to be a witness of credit.

30.      The Tribunal has assessed based on the evidence in front of it that very little assistance could be rendered by relatives of the resident even in spite of the fact that there are many to choose from. It is satisfied that the assistance cannot reasonably be provided by the relevant relatives either by themselves or in combination with each other.

31.      The Tribunal now considers if the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

32.      When approaching the question of whether the assistance cannot reasonably be obtained from the relevant services, the Tribunal notes that it needs to consider this from the point of view of the Australian relative and not from the point of view of the availability of assistance from those services: Biyiksiz v MIMIA [2004] FCA 814, [23]. In this instance, this would necessarily involve considering matters such as the preference of the resident and the appropriateness of the assistance.

33.      At hearing, the Tribunal discussed with the applicant that it could only assess whether the assistance could not reasonably be obtained from the relevant services if enquiries had first been made regarding those services. It put to him that the previous MyAgedCare report in June 2016 was not a genuine attempt to assess whether the assistance could not reasonably be obtained from the relevant services because it proceeded along the lines that the resident already received such assistance from within her family.

34.      The Tribunal gave the applicant the opportunity to undertake another assessment, this time an ACAT assessment conducted by an Aged Care Assessment Service (ACAS), and gave him a reasonable time to be able to organise it. However, on 23 March 2022, his representative stated as follows in an email:

I understand that [Mr D] ([Ms A]’s eldest son, whom she lives with) has already rung ACAS [Aged Care Assessment Service] & requested that a re-assessment be done for his mother & was told that this would take approximately 4 to 5 months

35.      Given the need to substantiate what was essentially second-hand and potentially self-serving information, on 2 May 2022 an officer of the Tribunal spoke to a representative of the relevant ACAS who informed her that the wait time for an assessment was around five-to-six months for “non-priority” circumstances. The ACAS representative also stated that the wait time for a place for Level 2 residential care (likely the minimum package given the resident’s assistance requirements) was between six and nine months, depending on circumstances. Based on this information, the Tribunal accepts the veracity of the claim contained in the email of the applicant’s representative.

36.      Based on the wait times for an ACAT assessment as claimed by the applicant’s representative and as substantiated by the Tribunal, as well as the likely wait times for residential aged care, the resident will most likely waiting for between six and 15 months in order to access the assistance. As above, very little of the assistance she requires in the meantime would be able to be provided by her relatives, even if this assistance were provided in conjunction with interim packages such as for home care. In these circumstances, the Tribunal finds that it would not be appropriate to obtain this assistance.

37.      In light of the above findings, the Tribunal is satisfied that the assistance cannot reasonably be obtained by the relevant services and r.1.15AA(1)(e)(ii) is met.

38.      Therefore, the requirements of r.1.15AA(1)(e) are met.

Willing and able – r.1.15AA(1)(f)

39.      Regulation 1.15AA(1)(f) requires that the 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 applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

40.      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.

41.      The evidence in front of the Tribunal, including evidence on the Department and Tribunal files and testimony given at hearing, demonstrates that the applicant has already been caring for the resident since a point before the visa was applied for in April 2016.

42.      Therefore, the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

43.      Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

DECISION

44.      The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl.836.221 of Schedule 2 to the Regulations.

David Crawshay
Member

ATTACHMENT A

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.

ATTACHMENT B – Table of relatives and their claims in relation to not being able to provide assistance

Name	Relationship	Claims in statutory declarations	Substantiating evidence	Comment
[name]	Son	Living and working in Western Australia	Payslips	Satisfied based on substantiating evidence
[name]	Daughter	Working full-time as [occupation] with rotating shifts	-Payslips -Letter from [employer]	Satisfied based on substantiating evidence
[name]	Grandson	Working full-time with extra hours	-Payslips; -Letter from employer	Satisfied based on substantiating evidence
[name]	Grandson	Working full-time [occupation] job with shifts	Contract from employer	Satisfied based on substantiating evidence
[name]	Granddaughter	Working full-time [occupation] job	Payslips	Satisfied based on substantiating evidence
[name]	Son	Living with back, spine, knee and bladder issues, and hiatus hernia	Verification of medical conditions certificate	Satisfied based on substantiating evidence
[name]	Granddaughter	Working full-time	Payslips	Satisfied based on substantiating evidence
[name]	Grandson	Studying full time and working part-time	-Enrolment confirmation; -Payslips	Satisfied based on substantiating evidence
[name]	Son	Living and working in Sydney	Payslip	Satisfied based on substantiating evidence
[name]	Grandson	Living in Newcastle and estranged from family	Statutory declaration from [sponsor’s son]	Satisfied based on substantiating evidence
[name]	Grandson	Living in Sydney	Payslips	Satisfied based on substantiating evidence
[name]	Grandson	Living in New Zealand	None	Satisfied based on statutory declaration being signed and witnessed in New Zealand
[name]	Son	-Living with chronic rheumatoid arthritis, Parkinson’s disease; -Wife living with migraines	None	Satisfied based on evidence given by [Ms B]
[name]	Grandson	-Working full-time as [occupation] and studying master’s degree; -Living in [location]	Payslips	Satisfied based on substantiating evidence
[name]	Granddaughter	-Working full-time as [occupation]; -Living in [location]	Payslips	Satisfied based on substantiating evidence
[name]	Granddaughter	-Working full-time as [occupation] -Looking after father-in-law	Letter from employer	Satisfied based on substantiating evidence
[Mr D]	Son	Working full-time; -Assisting family including daughter who is about to have a child	Letter from employer	Satisfied based on substantiating evidence
[name]	Granddaughter	-Working full-time at [employer]; -Assisting family member who is living with cancer	None	Satisfied based on evidence previously provided to delegate
[name]	Granddaughter	-Living in [location]; -Caring for three children including one new-born	None	Satisfied based on evidence previously provided to delegate
[name]	Grandson	-Working in [occupation] in Queensland	Letter from [employer]	Satisfied based on substantiating evidence
[name]	Daughter	-Currently staying in Singapore; -Will be assisting daughter ([Ms B]) and granddaughter when she returns	Various travel documents including itinerary	Satisfied based on substantiating evidence
[Ms B]	Granddaughter	-Working part-time; -Caring for young child	-Letter from employer; -Birth certificate	Satisfied based on substantiating evidence