1822388 (Migration)

[2022] AATA 4346

1822388 (Migration) [2022] AATA 4346 (15 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Charlie Bulos (MARN: 9501091)

CASE NUMBER:  1822388

MEMBER:Deputy President J.L Redfern PSM

DATE:15 December 2022

PLACE OF DECISION:  Sydney

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:

·cls. 836.212 and 836.213 of Schedule 2 to the Regulations and;

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 15 December 2022 at 9:36am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian ‘relative’ – carer to assist sponsor in the care of her daughter – aunt of sponsor –18q deletion syndrome – circumstances where the carer visa assessment certificate is two or more years old – whether assistance cannot be reasonably be provided by another Australian relative or obtained from welfare, hospital, nursing or community services – whether the applicant is willing and able to provide the substantial and continuing care of the kind needed – applicant found to be the carer of the Australian relative sponsor – decision under review remitted with direction.

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr. 1.03, 1.15AA, 1.20, Sch 2 cls. 836.212, 836.213, cl.836.221

CASES

Biyiksizv Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814
Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606

SECONDARY MATERIALS

Department of Home Affairs, Procedures Advice Manual 3, Div1.2/reg 1.15AA – Carer
IMMI14/085
IMMI17/126

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 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 visa applicant, [applicant], applied for the visa on 13 February 2017 to assist her niece, [sponsor], with the care of her daughter, [child]. [Child] is the visa applicant’s grandniece, although [applicant] refers to her as her granddaughter because she says this is how it is generally referred to in Philippines. [Child] has a chromosome disorder known as ‘18q deletion syndrome’, which results in developmental delay and physical impairment. [Sponsor] has sponsored the visa applicant.

3. 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. The central criterion for the visa is that the applicant must be a ‘carer’ within the meaning set out in r 1.15AA(1) of the Regulations.

4. The delegate refused to grant the visa on the basis that he was not satisfied the visa applicant was a ‘carer’ within the meaning of the Regulations.

5. The delegate accepted that the sponsor, [sponsor], requires assistance in caring for her daughter. The delegate also accepted that [child], who is clearly a member of the family unit of the sponsor, has a medical condition causing physical, intellectual or sensory impairment of her ability to attend the practical aspects of daily life. The delegate accepted that the severity of the impairment met the relevant requirements as prescribed by legislative instrument and accepted that [child] has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of life. However, the delegate was not satisfied that the visa applicant was a relative of the sponsor because the evidence provided was said to be illegible. While the delegate was satisfied that the assistance required by the sponsor could not reasonably be provided by another relative, he was not satisfied that this assistance could not be obtained from welfare, hospital, nursing or community services in Australia. Both matters are essential elements of the legislative definition for a ‘carer’ as set out in reg 1.15AA.

6. The visa applicant appeared before the Tribunal on 6 December 2022 to give evidence and present arguments. She appeared by Microsoft Teams video from the Philippines where she was residing. The Tribunal also received oral evidence from the sponsor’s husband, and father of the child, [sponsor’s husband], and [grandparent 1] and [grandparent 2], the parents of [sponsor], the grandparents of [child] and the brother and sister-in-law of the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The visa applicant was represented in relation to the review.

7. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   RELEVANT LAW AND QUESTIONS FOR DETERMINATION

8. The purpose of the carer visa is to allow an Australian citizen, permanent resident or eligible New Zealand citizen with a medical condition causing a significant level of impairment to sponsor an overseas relative to Australia to provide the assistance needed. The visa also covers the member of the family unit of an Australian resident who has a medical condition that requires direct assistance in attending to the practical aspects of daily life. The carer visa is available to both offshore and onshore applicants. The visa applicant applied for the carer visa when she was onshore and, as such, the relevant visa subclass is the subclass 836 (Carer) visa. The primary criteria to be met by an applicant for this visa are contained in cl 836.2 of Schedule 2 to the Regulations. The criteria in cl 836.21 must be satisfied at the time of application and the criteria in cl 836.22 must be satisfied at the time of the decision.

9. Clause 836.212 of Schedule 2 to the Regulations requires that the visa applicant claims to be the 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 836.111. The term relative is defined in reg 1.03 to include an aunt.

10. In her application for the carer visa, the visa applicant claims that she assisted [sponsor] in the care of [child]. She also claims that she is a relative of [sponsor], being her aunt. Relevantly, [sponsor] is the daughter of the visa applicant’s brother, [grandparent 1]. The delegate was not satisfied that the visa applicant was a relative of the sponsor.

11. The visa applicant provided evidence to the Department in support of the claims for the carer visa, including identity documents, various medical reports detailing [child’s] medical conditions, statutory declarations from [sponsor], [sponsor’s husband], [grandparent 1] and [grandparent 2] together with two statutory declarations from the visa applicant about the role she had undertaken to assist [sponsor] and [sponsor’s husband] in the care of [child], her qualifications to undertake this care, her willingness and intention to assist in providing that care. She also provided updated evidence to the Tribunal, including evidence from relatives detailing why they were not available to assist in caring for [child], copies of [child’s] National Disability Insurance Agency (NDIS) plans for 2019, 2020 and 2021 and better copies of birth certificates for the visa applicant, the sponsor and the sponsor’s father, [grandparent 1].

12. Having reviewed the copies of the birth certificates provided by the visa applicant prior to the hearing, I am satisfied that the visa applicant, [applicant], is the sister of [grandparent 1], that [sponsor] is his daughter and, accordingly, that the visa applicant, is [sponsor’s] aunt. I am therefore satisfied that [sponsor] is the visa applicant’s relative. There is no dispute that [sponsor] is an Australian citizen. As such, I am satisfied that the requirements of cl 836.212 are met.

13. Clause 836.213 requires that the applicant is sponsored by an Australian relative, who has turned 18, is a settled Australian permanent resident and is usually resident in Australia. Regulation 1.20 provides that a ‘sponsor’ of an applicant for a visa is a person who undertakes the obligations stated in sub-regulation (2). The visa applicant is sponsored by [sponsor]. She signed the Form 40 document headed ‘Sponsorship for migration to Australia’, which includes the obligations in sub-regulation (2).[1] [Sponsor] is an Australian citizen, and she usually resides in Australia. This is not in dispute. I am satisfied that the requirements of cl 836.213 are met.

    [1] Part M of the ‘Sponsorship for migration to Australia’, Form 40 dated 6 February 2017.

14. Clause 836.221 requires that the applicant must be a carer of the Australian relative at the time of decision.

15. The term ‘carer’ is defined in reg 1.15AA of the Regulations as follows:

    (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.

16. For a certificate to meet reg 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 or issued by a specified health provider in relation to a review of such an opinion). In this case, IMMI14/085 applies.

17. Regulation 1.15AA(3) provides that the Minister, in this case the Tribunal, is to take the opinion in a certificate that meets the requirement of sub-regulation (2) on a matter set out in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies the criteria that the applicant is a ‘carer’.

18. In this case, based on the decision of the delegate and my findings about the birth certificates provided, it appears the critical issue that requires determination is whether I am satisfied that the assistance [sponsor] needs cannot reasonably be provided by another relative (who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen) or that this assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Notwithstanding this, and for completeness, my findings in relation to all of the relevant requirements in reg 1.15AA(1) of the Regulations are set out below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. I am satisfied that the visa applicant meets the requirements of sub-regs 1.15AA(1)(a) and (ba) because she is the aunt of [sponsor] who is an Australian permanent resident.

20. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 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 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

21. The visa applicant provided a Carer Visa Assessment certificate (the certificate) and medical adviser’s report from Bupa Medical Visa Services dated 7 September 2016. According to the assessment by the examining doctor that, at the time of the assessment, [child] had an impairment rating of 30 or more points, that she had a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life and that she had a need for direct assistance in attending to those practical aspects because of that medical condition. It was also reported that because of the medical condition, she had a need for direct assistance in attending to the practical aspects of daily life that would continue for at least two years. The medical diagnosis recorded is ‘18q deletion syndrome’ which results in the medical conditions of global developmental delay, including impaired intellectual function, speech and language delay, poor motor coordination and low muscle tone, delayed self-help activities of daily living skills including toileting, bilateral moderate mixed hearing loss, astigmatism and thalassaemia minor (anaemia).

22. Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services is a health provider specified by the Minister under IMMI14/085 at the relevant time. The certificate provided by the visa applicant includes the details prescribed in reg 1.15AA(1)(b) and was signed and issued by a medical practitioner on behalf of Bupa Medical Visa Services. On its face, the certificate provided meets the requirements of regs 1.15AA(2) and 1.15AA(1)(b) of the Regulations. However, the certificate is now more than six years old. This can be attributed to the delay in the decision-making and review process, including a delay in the primary decision-making process with a further delay before this Tribunal, exacerbated by hearing delays arising out of the COVID-19 pandemic.

23. According to Department policy,[2] where the Bupa certificate is two or more years old, it is open to the decision-maker to ask the person with a medical condition to undertake a fresh examination. However, it is noted that this is not prescribed in the Regulations and that decision-makers must be flexible, bearing in mind that any new examination will incur a fee. An alternative option suggested is for an updated report to be provided by the general practitioner who is treating the person with a medical condition.

    [2] Department of Home Affairs, PAM3: Div1.2/reg 1.15AA – Carer.

24. In this case, NDIS Plan dated 6 August 2021 has been provided setting out the support that have been accepted as necessary to assist [child] in all her daily needs and to improve her personal care skills, independence, and communication and social skills. [Sponsor’s husband] advised that it had been difficult to arrange an appointment for a further assessment by Bupa and stated that while the support provided to [child] had assisted, she still had significant physical and intellectual impairments which had not and could not improve because of the nature of her diagnosis. I accept this evidence and, given the delay, I do not consider it necessary to further delay consideration of the application for review while awaiting a further Bupa assessment.

25. I am therefore satisfied that the certificate can be relied upon for the purposes of sub-regs 1.15AA(2) and 1.15AA(3) and is consistent with the current NDIS Plan which acknowledges [child’s] impairment and support needs.

26. As such, I find that the certificate provided meets the requirements of reg 1.15AA(2), it addresses each of the matters set out in reg 1.15AA(1)(b)(i)-(iv) and I am therefore satisfied that the requirements of reg 1.15AA(1)(b) are met.

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 IMMI17/126.

28. In the present case, the impairment rating specified in the certificate is 30 points. This is equivalent to the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

29. Regulation 1.15AA(1)(d) provides that if the person to whom the certificate relates is not the resident, I must be satisfied that the resident, in this case [sponsor], has a permanent or long-term need for assistance in providing the direct assistance in attending to the practical aspects of daily life of the person to whom the certificate relates. [Sponsor] is the mother and principal carer for [child]. There is evidence before me that [child] has a lifelong condition that will require the need for direct assistance on a permanent basis. I am therefore satisfied the requirements of reg 1.15AA(1)(d) are met.

30. 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.

31. Even though the delegate was satisfied that assistance could not reasonably provided by another relative I decided to test this issue at the hearing and questioned [child’s] grandparents, [grandparent 1] and [grandparent 2], about their current role in assisting with the care [child], their availability and their current circumstances. [Grandparent 1] advised he was retired and he and his wife are not always available because they travelled frequently. He also stated that he had health issues and has had a number of hospitalisations because of his diverticulitis. [Grandparent 2] stated that she helped where possible and assisted her daughter on a regular basis but this was not always possible. Evidence provided in relation to other relatives demonstrated that none of these relatives were adequately skilled to be able to assist in the care [child]. All of them have full-time jobs and careers and some of them work interstate.

32. The visa applicant gave evidence about her background, experience and the role she had undertaken at the time she lodged her application, together with evidence about her role after the application was lodged and what she intended to do if the carer visa was granted. [Applicant] has worked as a preschool teacher for over nine years. She has travelled to Australia on numerous occasions to visit relatives and lived in Australia between November 2016 and February 2019. During this time, she assisted in the care of [child] and, after discussing the matter with [child’s] parents, decided that she would lodge a carer visa to provide a more permanent care arrangement. She lodged the application on 13 February 2017, before she returned to her home on 23 February 2019. She returned to Australia on 7 May 2019 but left on 5 March 2020 to visit her sister in Manila who was recovering from breast cancer. She was scheduled to return on 28 April 2020 but was unable to do so because the Australian borders were closed to temporary visa holders due to COVID-19 restrictions.

1. Prior to leaving Australia, she spent almost every day assisting her niece in the care of [child], including bathing her, getting her ready for school, assisting her with schooling and looking after [child] and the other children after school. According to the visa applicant, she is committed to assisting in the care of [child]. She believes that she has the skills and considers that, as an early childhood teacher, she can assist [child] in improving many of her skills of daily living. Her niece and [sponsor’s husband] both work full-time and she believes that [child] needs the assistance she can provide. She has completed two courses in Early Childhood and in Education Support (Certificate III). She and her husband do not have children and they are prepared to relocate and dedicate their time to assisting in the care of [child].

2. [Sponsor’s husband] attended the hearing to give evidence. He said that [child] has high care needs. This made it very difficult for himself and his wife to work full-time, care for [child] and to provide care for their other two children. The visa applicant had been of considerable assistance when she was living in Australia prior to leaving for the Philippines in March 2020. [Child] knew that visa applicant well and they spoke together on a regular basis on FaceTime. She was known as ‘Ate baby’. According to [sponsor’s husband], [child] likes structure and needs a lot of assistance. She finds it difficult in dealing with strangers and can be demanding. In his view, it would be very helpful for the visa applicant to be able to return to Australia to assist in the care of [child] because this would assist [child] to ‘thrive’. She has many appointments to attend, and it was sometimes difficult for him and for his wife to take [child] to those appointments given the competing needs work and looking after the other children. His father-in-law and mother-in-law were very helpful however they were in retirement mode and they were not always available to assist.

3. I accept the evidence provided by the visa applicant and [sponsor’s husband] and the statutory declaration provided by [sponsor] about the assistance she believes could be provided by the visa applicant.

4. The question is whether the direct assistance needed can be obtained from welfare, hospital, nursing or community services in Australia.

5. It was submitted that the assistance required cannot reasonably be obtained from community services in Australia because [child] needs specialised one-on-one services to assist with her daily needs, as supplemented by the support services provided in her NDIS Plan. It is further submitted that it would not be reasonable to force [child] to accept community services from strangers when the visa applicant was available to take care of her complex needs and had done so previously. I accept these submissions.

6. According to Justice Branson in Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606 at [39], the former Tribunal was in error by treating as irrelevant considerations raised by the evidence before it, namely the preference of an ill and elderly Chinese person to eat Chinese food. Notably, her Honour stated that the word “reasonably” should be given its ordinary English meaning, which Justice Branson noted is a “word of broad meaning” and relevantly included “sufficiently, suitably, fairly”.[3]

   [3] Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606 at [35] referring to the definition in the Oxford English Dictionary 2nd Edition.

7. This reasoning was followed by Justice Gray in Biyiksizv Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814 where his Honour found that the former Tribunal was in error in expressly rejecting the preferable method of care as a question for consideration of whether assistance was reasonably obtainable from community services.

8. As observed in Department policy, the matters to be taken into account when assessing whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia are broad and will include matters relating to the nature of the service provided to an Australian citizen or an Australian permanent resident. Ultimately, the question will be whether the preferences about how direct assistance is provided materially impact the nature of care or assistance being provided to the Australian citizen or permanent resident, or in this case, a member of the family unit of the Australian citizen who is the carer.

9. In the present case, I am satisfied that the assistance [child] requires for her activities of daily living (and therefore the assistance required by [sponsor] in relation to her care) cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. I accept the evidence of the visa applicant, [sponsor’s husband] and the evidence of [sponsor] in her written statements to the effect that the assistance that can be provided by the visa applicant will be both important and beneficial and cannot reasonably be provided by alternative community services.

10. I am therefore satisfied that the requirement of reg 1.15AA(1)(e)(ii) is also met and that the visa applicant meets the requirement to be a ‘carer’ under reg 1.15AA(1)(e).

11. 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. I am satisfied that this requirement is met. There is credible detailed evidence about the assistance provided by the visa applicant when she was living in Australia. I am satisfied, based on this evidence, that [applicant] has provided substantial and continuing assistance whenever she was in Australia since about 2016. The visa applicant gave evidence that she has been prepared to move to Australia to assist her niece in looking after [child], and that she and her husband are prepared to relocate. This is also supported by the visa applicant’s husband.

12. Given these findings, I am satisfied that at the time of my decision the visa applicant is a ‘carer’ and therefore satisfies cl 836.221 of Schedule 2 to the Regulations.

    DECISION

13. 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:

    · cls. 836.212 and 836.213 of Schedule 2 to the Regulations and;

    · cl.836.221 of Schedule 2 to the Regulations.

    J.L Redfern PSM
    Deputy President

    
    

    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.