1823165 (Migration)

[2022] AATA 937

1823165 (Migration) [2022] AATA 937 (9 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1823165

HOME AFFAIRS REFERENCE(S):          CLF2017/27432

MEMBER:Helena Claringbold

DATE:9 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:

·r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(f) as they relate to cl. 836.221 of Schedule 2 to the Regulations.

·The Tribunal also directs that the applications of the second, third and fourth named visa applicants be considered against the relevant criteria for the grant of the visas.

Statement made on 09 February 2022 at 4:00pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance cannot reasonably be provided by specified relative or obtained from service providers – child’s multiple significant and complex conditions and care needs – mother’s stress and depression and father’s medical condition – financial circumstances – applicant has provided care for at least 4 years – no other family members living in Australia – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 359(2), 359C, 363A
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e)(i), (ii), (f), Schedule 2, cls 836.212, 836.221, 836.321

CASES
Hasran v MIAC [2010] FCAFC 40
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. On 6 April 2017, [the applicant] applied for an Other Family (Residence) (Class BU) Carer visa. The application was made on the basis of providing assistance to [her sister,  the sponsor], in providing care for her daughter, [Ms A]. [The applicant’s husband] is the second named visa applicant and [their two children] are the third and the fourth named visa applicants.  

2. On 2 August 2018, a delegate of the Minister for Home Affairs refused to grant the visas. The delegate was not satisfied that the applicant met cl. 836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result, the second, third and fourth named visa applicants did not meet cl. 836.321 of Schedule 2 to the Regulations. On 10 August 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. At that time the applicant applied for the visa, 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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.

4. On 27 April 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information that is up to date relating to the requirements for a carer visa (the first invitation). The invitation was sent to the last address provided in connection with the review. The Tribunal advised that, if the information was not provided in writing by 11 May 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information. She was told that she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. She was also advised that if she could not provide the information by 11 May 2021, she could seek an extension of time to provide the information.  On 10 May 2021, the applicant sought and was granted an extension of time to provide the information by 5pm on 29 June 2021. On 2 June 2021, the Tribunal received a Carer Visa Assessment Certificate (CVAC) dated 18 May 2021 in response to the invitation to provide information dated 27 April 2021.  

5. On 30 April 2021, the Tribunal wrote to the applicant and invited her to a hearing set down for 13 July 2021.

6. On 30 April 2021, the Tribunal also wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information that is up to date relating to the requirements for a carer visa (the second invitation). The invitation was sent to the last address provided in connection with the review. The Tribunal advised that, if the information was not provided in writing by 14 May 2021, the Tribunal may make a decision on the review without taking further steps to obtain the information. She was told that she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. She was also advised that if she could not provide the information by 14 May 2021, she could seek an extension of time to provide the information.

7. On 25 June 2021, the Tribunal wrote to the applicant and advised her that as she had not provided the information relating to the second invitation, within the relevant time period. She had lost the entitlement to appear before the Tribunal to give evidence and present arguments. Therefore, the hearing schedule for 13 July 2021 was cancelled and the Tribunal would proceed to make a decision.

8. On 25 June 2021, the representative wrote to the Tribunal and stated the following: they had emailed the Tribunal advising that the current NDIS as requested is not due to be done until September 2021 and that it would be provided once available. He requested that the Tribunal reinstate the Tribunal hearing of 13 July 2021.

9. On 26 June 2021, the representative wrote to the Tribunal.  He stated as previously advised by way of email, that the current NDIS would not be available until September 2021. It was assumed by his office that the Tribunal would accept receipt of it in September 2021 when it became available.

10. The Tribunal undertook a thorough investigation of emails sent from the representative.  However, those identified on the dates referenced by the representative did not relate to the invitation to provide information dated 30 April 2021.

11. On 28 June 2021, the Tribunal wrote to the applicant and advised of the following: on 25 June 2021, the Tribunal wrote to the applicants and advised that they had lost their entitlement to appear before the Tribunal and give evidence. On 25 June 2021, the representative emailed the Tribunal and stated that an email had been sent to the Tribunal advising that ‘the current NDIS as requested is not due to be done until September 2021 and that it would be provided once available.’ The Tribunal’s records do not show any receipt or record of this email. The Tribunal requested that it be forwarded a copy of the email sent to the Tribunal advising that ‘the current NDIS as requested is not due to be done until September 2021 and that it would be provided once available.’ The Tribunal advised that on receipt of the email, it would investigate this matter and advise the applicants further.

12. On 29 June 2021, the representative wrote to the Tribunal and stated the following: due to technical system issues, they could not retrieve the soft copy of the email sent regarding the NDIS issue. He stated, ‘please accept our apology and see a screen shot showing a reply was sent to the AAT's letter dated 30 April 2021’. He provided a screen shot showing various emails from the Tribunal to the representative and two dated from the representative acknowledging receipt of an email. The screenshot does not provide any content of the receipted emails to the Tribunal.

13. The applicant did not provide the information within the prescribed period and no extension was requested or has been granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file. 

    ISSUE

16. The issues in the present case are: whether the assistance cannot reasonably be provided to the Australian relative sponsor by any other relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen for the sponsor; or whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor and whether the applicant is willing and able to provide to the sponsor substantial and continuing assistance to fulfill the sponsor’s needs.

    BACKGROUND ON THE EVIDENCE

17. The applicant was born in [Year 1] in Hai Duong, Vietnam. Her parents and a sibling live in Vietnam. She has a sibling living in [Country]and her sister, the sponsor, living in Australia.  On [Date], she married the second named visa applicant. They have two children together who are the third and fourth named visa applicants.

18. The second named visa applicant was born in [Year 2] in Hai Duong, Vietnam. His parents and siblings live in Vietnam.

19. The sponsor was born in [Year 3] in Hai Duang, Vietnam. [In] August 1997, the sponsor entered Australia.  On 5 April 2004, the sponsor was granted an 801 Partner visa. On 2 May 2007, the sponsor was granted Australian citizenship. She is married to [Mr B], with whom she has two children, [Ms A] and [Master C].

20. The person requiring care is the sponsor’s daughter, [Ms A], who was born in [Year 4] in Australia.

    Does the applicant claim to be the carer of an Australian relative?

21. Clause 836.212 of Schedule 2 to the Regulations requires that at the time of application, the applicant claims to be the carer of an Australian relative. In this case, at the time of application, the applicant claimed to be the carer of the sponsor’s daughter, who is an Australian citizen and the applicant’s niece. Therefore, at the time of application the applicant meets cl. 836.212 of Schedule 2 to the Regulations.

    Whether the assistance cannot reasonably be provided or obtained

22. Regulation 1.03 states that carer has the meaning as given in r.1.15AA which requires that that the assistance cannot reasonably be:

    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;        r.1.15AA(1)(e)(i) or

    obtained from welfare, hospital, nursing or community services in Australia as required by r.1.15AA(e)(ii).

    Whether the assistance cannot reasonably be provided by any other relative of the relative being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen

23. The Carer Visa Assessment Certificate (CVAC) dated 4 November 2016 recorded an assignment total rating of 50 points. Noted on the CVAC is the following: [Ms A]’s identified medical conditions are pyruvate dehydrogenase deficiency; global developmental delay and microcephaly; dystonic quadriplegic cerebral palsy and left hip dislocation and right hip subluxation. She was living with her mother, father and elder brother in a two-bedroom unit and awaiting on the housing commission to provide a larger house. She attended specialised pre-school three days a week for two and a half hours.  Services were noted as informal/family support. She required assistance with mobility; bathing/showering; toileting; dressing/grooming; eating/feeding; supervision of medication/ supervision for personal safety and transportation and was fully dependent on others for activities of daily living.

24. The CVAC dated 18 May 2021, recorded an assignment total rating of 80 points. Noted on the DVAC is the following: [Ms A] is a [Age at the time]-year-old girl with multiple conditions which have always made her dependent on her carers.  Her conditions are permanent and she satisfies the criteria for a carer visa. Her identified medical conditions are pyruvate dehydrogenase complex deficiency; global developmental delay and microcephaly; asymmetrical dystonic ataxic quadriplegia cerebral palsy (GMFCS IV); bi lateral hip dysplasia and sleep disturbance. She was living with family and had informal family support and was looked after by her parents and auntie. She had NDIS funding for physiotherapy (weekly) and fortnightly speech and occupational therapy. She requires assistance with mobility; bathing/showering; toileting; dressing/grooming; eating/feeding; supervision of medication; supervision for personal safety and transportation and is fully dependent in relation to activities of daily living. [Ms A]’s address is recorded as [Address] NSW.  She was supported for the exam by her father, [Mr B] and [aunt] and her mother by telephone.

25. In a statutory declaration dated March 2018, the sponsor declared the following: her daughter, [Ms A], requires 24/7 continual care. The sponsor suffers from major depressive illness which needs treatment. It is difficult for her to care for her son [Master C] and provide fulltime care for [Ms A]. The applicant has helped her look after [Ms A] and has been her main carer since her arrival in Australia.

26. In a statutory declaration dated March 2018, the applicant declared the following: the sponsor is her sister and she is [Ms A]’s aunt. The sponsor is in a difficult position and struggles to care for her son [Master C] and attend to the fulltime needs of [Ms A]. [Ms A] requires lifetime care and she is willing to provide the level of care she needs. On the form 80 the applicant declared her address from March 2017 as [Address], NSW.

27. In a letter dated 23 February 2018, [Dr D] stated that the sponsor suffers from major depressive disorder and stress.  She is unable to care her [Age at the time]-year-old son and her [Age at the time]-year-old mentally retarded daughter by herself. Her daughter needs day and night attention and has behavioural problems with frequent tantrums causing significant stress.  The sponsor’s sister, who came from Vietnam has been helping the sponsor care for her daughter on a fulltime basis. The sponsor needs the continued support of the applicant.

28. In a statutory declaration dated July 2021, the sponsor stated the following: she has been caring for [Ms A] with the assistance of the applicant. The sponsor suffers from major depression and significant stress and [Ms A]’s father has been diagnosed with [Medical condition].  She needs treatment and to be able to care for her husband and her [Age at the time]-year-old son who is dependent on his parents and is studying fulltime at TAFE. [Ms A]’s care needs are 24 hours a day and are increasing.  She needs the applicant to continue to assist her with [Ms A] as she herself is unwell. The sponsor’s family are struggling financially and receiving Centrelink assistance and cannot afford to pay for more help for [Ms A]. The sponsor and her husband do not have any family members in Australia. She wants [Ms A] to be cared for by someone who loves her, such as the applicant.

29. In a statutory declaration dated July 2021, the applicant stated the following: since her arrival in Australia in March 2017 she has helped the sponsor look after [Ms A]. [Ms A]’s mother and father are unwell and need medical treatment. The sponsor does not have any relatives in Australia and needs support. The applicant cares for [Ms A] day and night and as she is growing, she will need more people to care for her.

30. In a letter dated June 2021, [Dr D] stated the following: the sponsor is a regular patient who suffers from major depression and significant stress. She is receiving ongoing medical treatment.  Her husband is also unwell with [Medical condition]. She has a daughter who suffers from global mental retardation and quadriplegic cerebral palsy. The applicant is currently caring for [Ms A] who requires a lot of attention. A medical report for the sponsor’s husband recorded him on 28 May 2021 as a [Medical condition].

31. Photographic evidence has been provided without any explanation.  They appear to depict [Ms A] being assisted in walking, exercising, eating, with hygiene and being put to bed by the applicant and/or her mother.

32. The Tribunal considered individually and completely the evidence about the 24-hour assistance that [Ms A] needs and whether it cannot reasonably be provided by any other relative of the sponsor. It thought about whether the sponsor and [Ms A]’s father and brother could provide the assistance to [Ms A].  However, when pondering the complexity of [Ms A]’s medical conditions and the extensive assistance she requires, the Tribunal is satisfied that the assistance cannot be reasonably provided by any other relative of the sponsor either individually or collectively.  Therefore, the applicant meets r.1.15AA(1)(e)(i).

    Whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

33. In the sponsor’s statutory declaration dated 3 April 2017, the sponsor states that her daughter has been diagnosed with pyruvate dehydrogenase deficiency, Global development delay with microcephaly, Dystonic quadriplegic cerebral palsy and Left hip dislocation and Right hip subluxation since birth. She also declared that her husband is currently in custody.

34. A National Disability Insurance Scheme plan for [Ms A] is dated as starting on 26 July 2017 and ending on 21 July 2018 with a scheduled review date of 23 July 2018. This provided the following information: [Ms A] lives at home with her parents and aunt.  Her aunt provides limited support and care for [Ms A]. [Ms A] has an older brother aged [Age at the time] years who attends school.  [Ms A] is familiar and comfortable with her family members.  However, if she is alone or with stranger’s she becomes quite scared and upset. She requires around the clock care for all her daily activities.  She is bathed, fed and dressed ready to attend [school] every weekday.  Most weekends [Ms A] stays at home with family and will sometimes accompany them on shopping trips. Her calculated budget for daily activity is $25,274.72 with consumables of $1,918.09 – totalling $27,192.81.

35. A medical report by [Dr E] dated 26 February 2018 states that [Ms A] requires substantial care and supervision at all times and confirms [Ms A]’s diagnoses and states that, [Ms A] requires constant support for her mobility and all daily needs.  She needs a wheelchair all of the time.  She can sit without support but cannot take any steps or walk without support. Her mother bottle or spoon feeds her all of the time. [Ms A]’s overall development is the equivalent to a six- to nine-month-old child. Without adequate supervision and care, [Ms A]’s condition will certainly deteriorate and require long term hospital admission.

36. In the representative’s submission dated June 2021, he declared the following: [Ms A] has been receiving further assistance from the NDIS.  It is understood that in the year 2020 [Ms A] received funding of $64,000. The funds are used to provide nappy wipes, equipment and technology, health professionals or therapists, repairs and maintenance and rental of disability equipment such as powered beds, rail wheelchair etc. The funds are not enough to obtain any further help at home. A new NDIS plan will be available in September 2021.

37. The representative continued and stated the following: [Ms A]’s parents are unemployed and receive Centrelink assistance and cannot afford to hire help for [Ms A]. The applicant initially provided some assistance for [Ms A].  However, she is now the main carer for [Ms A] and has been her carer since 2017. Assistance such as residential facilities and in home assistance cannot reasonably be obtained and is not suitable for [Ms A] because she needs 24-hour care and supervision.

1. A letter dated 7 September 2020 is addressed to the sponsor and informs her that [Ms A]’s NDIS plan starting on 4 September 2020 had been approved.  An associated document provided the name of [Ms A]’s NDIS contact at [Organisation]. It recorded that the plan started on 4 September 2020 with a review date of 4 September 2021. [Ms A]’s profile in the ‘About Me’ section provided the following information.  [Ms A] lived in an apartment with her mother and father and older brother. The apartment is family owned. Her primary carer is her mother.  Her primary decision makers are her mother and father. The support she receives are for all her everyday living needs.  She wakes up at 7:15am, her mother helps her with her personal care.  She has breakfast and then goes to school in a special school bus. She is supported to take her medication by her mother. All her meals are prepared by her mother and household duties are done by her mother. She engages in community activities on weekdays and weekends. Transport to and from daily activities and for mainstream activities are by school bus or her mother. She enjoys spending time on her iPad, she enjoys hearing the sound of paper being ripped.  On the weekend she spends most of her time with her family. Her family and friends are her mother, her father and brother.

2. Services and community involvement are special school year [Number]; medical services; general practitioner as necessary; paediatrician as necessary; rehabilitation specialist at [Hospital] as necessary. [Ms A]’s short-term goals are expressed through the sponsor. Under the section ‘How I will achieve these goals’, information is given that [Ms A] will attend OT appointments and practise at home with family and be supported by her OT therapist, her family and her local area contact (LAC); she will attend speech therapy and be supported by her speech therapist her family and her LAC. Under the section for [Ms A]’s medium- or long-term goals information is given that [Ms A] will keep attending physio and be supported by her physio therapist, her family and her LAC. Her OT will do assessments and quotes which her mother will give to the NDIS and she will be supported by her OT and her family.  Total funding support is $64,796.34

3. In what appears to be an exchange of text messages the sponsor asks for assistance making amendments to the NDIS plan of September 2020 as she notes it is not correct. She stated that the first sentence should read ‘I currently live in an apartment with my mum, dad, older brother, aunt and her family.’ The second sentence should state that ‘the primary carer is my aunt and my mum helps but she is not well.’ The thirteenth sentence should state ‘mum, dad, brother and aunty and her family.’ In another message, it is stated that the September 2021 plan should note that [Ms A] is being cared for by her aunt and mother. [Ms A]’s family should consist of her mother, father, brother, aunt and her family. She requests that the amended pages be sent to her because she needs to provide the plan to the Tribunal.

4. A document titled NDIS participant – View My Plans provided information of an NDIS plan for [Ms A] starting on 6 September 2021 and ending on 6 September 2022. Under Par 1 ‘About Me’ [Ms A]’s living arrangements, relationship and support are detail as follows: she currently lives in an apartment with her mother, her father, her older brother and her aunt. Her primary carers are her mother and aunt. The support she receives is for all her everyday living needs. ‘Daily Life’ states that she wakes up at 7:15am and her mother helps her with her personal care.  She has breakfast and goes to school in a special bus.  She gets support with her medication from her mother. All her meals are cooked by her mother.  The household duties are done by her aunt when her mother is unwell. She engages in community activities on weekdays and weekends. Transport to and from daily activities, mainstream activities are by school bus or her mother. She enjoys spending time on her iPad, she enjoys hearing the sound of paper being ripped.  On the weekend she spends most of her time with her family.  [Ms A]’s goals are detailed.  In part 3: Informal, community and mainstream support, it is stated that ‘[my aunty] supports me when my mum is not well’. It also states that ‘I have a number of allied health professionals I engage with, as per my medical needs’. Total funding support is $29,467.34.  The Tribunal considered the changes in the wording in the most recent NDIS plan to reflect the assistance the applicant gives [Ms A] and that those changes were self- reported by the sponsor. However, when thought was given to the other evidence, the Tribunal determined that the self-reported changes were not adverse to the review.

5. In a report from the Children’s Hospital, Rehabilitation and Orthopaedic Combined Services a pre-surgery assessment report dated 9 September 2021 provided baseline information prior to [Ms A]’s orthopaedic surgery re-scheduled for 11 May 2022. It stated that [Ms A] lives at home with her parents, auntie and brother, who is [Age at the time] years old. The report is extensive and details the pre-and post-surgery requirements including that after surgery [Ms A] will need the assistance of two people to help care for her at home. The aunt is currently assisting in her care.

6. The Tribunal considered the evidence provided in the CVAC’s and medical letters and reports detailing the complex medical history for [Ms A]. It considered the services provided to [Ms A] through the NDIS. The Tribunal, on the evidence, is satisfied that the at-home services that are offered to [Ms A] would not be for 24 hours daily, which she needs. The Tribunal is satisfied that the sponsor needs assistance in providing care for [Ms A] and that the care [Ms A]’s mum and aunt give her cannot be reasonably obtained from services in Australia.  Having considered the evidence individually and completely the Tribunal is satisfied that the assistance given to the sponsor in providing assistance to [Ms A] cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant meets r.1.15AA(1)(e)(ii).

   Is the applicant willing and able to provide the assistance?

7. 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.

8. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicia l 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.

9. The Tribunal has been provided detailed information about the assistance the applicant has provided the sponsor in assisting [Ms A] since 2017. The Tribunal is satisfied that the applicant is willing and able to provide the sponsor substantial and continuing assistance of the kind needed. There is no evidence before the Tribunal that the applicant is physically or psychologically unable to provide the assistance. On the evidence, she appears to understand the assistance the sponsor needs and has the ability to provide the necessary assistance and therefore meets the requirements of r.1.15AA(1)(f).

10. The Tribunal is satisfied that the applicant meets r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(f) as they relate to cl.836.221 of Schedule 2 to the Regulations.

11. Given the above findings, the Tribunal directs that the second, third and fourth named visa applicants be considered against the relevant criteria for the grant of the visas.

12. 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 836 visa.

    DECISION

13. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:

    ·r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(f) as they relate to cl. 836.221 of Schedule 2 to the Regulations.

    ·The Tribunal also directs that the applications of the second, third and fourth named visa applicants be considered against the relevant criteria for the grant of the visas

    Helena Claringbold
    Member