1829051 (Migration)

[2022] AATA 666

1829051 (Migration) [2022] AATA 666 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829051

MEMBER:Helena Claringbold

DATE:18 February 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) Carer visa.

Statement made on 18 February 2022 at 11:35am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – relative of an Australian relative – care reasonably provided by Australian relatives – welfare, hospital, nursing or community services in Australia – continual supervision and assistance required – limited enquiries into NDIS and other services – language issues – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 116.211, 116.221; rr 1.03, 1.15
Social Security Act 1991

CASES

Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hasran v MIAC [2010] FCAFC 40
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554

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 8 November 2015, [name], the visa applicant (the applicant), applied for an Other Family (Migrant) (Class BO) Carer visa. The application was made on the basis of him providing care to his brother, [named], the sponsor and review applicant.

2. On 13 August 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the assistance for the sponsor cannot reasonably be provided by his relatives in Australia either individually or collectively. The delegate was not satisfied that the care the sponsor required cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant did not meet cl.116.221 of Schedule 2 of the Migration Regulations 1994 (the Regulations). On 4 October 2018, the sponsor provided the Tribunal with a copy of the delegate’s decision record. The applicant was represented in relation to the review. This is a review of the delegate’s decision.

3. At the time the visa application was made, Class BO contained three subclasses: 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 applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.

4. On the 9 October 2018, the Tribunal wrote to the sponsor and advised him that if he wished to provide material or written arguments for consideration he should do so as soon as possible.  He was also told that he could provide any information he believed supported the review application including a written statement explaining why he disagreed with the Department’s decision.

5. On 8 June 2021, the Tribunal invited the sponsor to provide in writing information that is up to date relating to the requirements for a carer visa, namely that the person requiring care:

   a)Has an impairment rating of 30 or more points based on the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (effective from 1 January 2012).

   b)Has a medical condition that is causing physical, intellectual, or sensory impairment of the ability of that person to attend to the practical aspects of daily life.

   c)Has a need for direct assistance in attending to the practical aspects of daily life because of the medical condition; and

   d)Has a need, because of the medical condition, for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

   He was advised that an example of how this information could be given would be by providing a current Carer Visa Assessment Certificate (CVAC) from Bupa Medical Visa Services for the sponsor.

   He was advised that the information should be received by 22 June 2021. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator.

   He was told that if he could not provide the information by 22 June 2021, he may for an extension of time in which to provide the information.  If he made such a request, it must be received by the Tribunal by 22 June 2021 and he must state the reason why the extension of time is required.

   He was advised that the Tribunal will carefully consider any request for an extension of time and will advise whether the extension has been granted.

   He was also told that if the Tribunal did not receive the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information.  He would also lose any entitlement he might otherwise have had under the Migration Act 1958 to appear before the Tribunal to give evidence and present arguments.

6. On 25 June 2021, the Tribunal wrote to the sponsor and advised of the following:

   On 8 June 2021 the Tribunal sent a letter inviting the sponsor under section 359(2) of the Act to provide information. The information was due by 22 June 2021. He was advised in the letter that if the Tribunal did not receive the information within the period allowed or as extended, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

   He did not provide the information by 22 June 2021. As a result, he lost entitlement to appear before the Tribunal to give evidence and present arguments.

7. On 28 June 2021, the Tribunal received an email from the representative giving reasons why the sponsor had not responded to the Tribunal’s letter of 8 June 2021; these included lack of supervision of a junior solicitor; reduction of capacity in their office since 18 June 2021 and information relating to a court case for an unrelated matter. He stated that the 14 days afforded to supply the documents is insufficient. They normally expect four weeks to lodge a reply. He requested and was granted an extra seven days to lodge information.

8. On 6 July 2021, the representative wrote to the Tribunal and stated the following: he is writing to request an extension of time to provide the requested documents. His client is [age] years old, frail and blind and has with difficulty moving around. He has some difficulty arranging his medical assessment with Bupa because he does not have transportation to collect the medical reports to book the appointment with Bupa. Today the representative’s office assisted him in contacting Bupa and they expect an appointment to be scheduled the following day. He requested a further 14 days to provide the information.

9. The sponsor did not provide the information within the prescribed period and no extension was requested within the prescribed period or had been granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act the sponsor is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a sponsor review 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.

10. In December 2021, the representative provided the Tribunal with a CVAC dated [in] November 2021.  At the time of this decision the sponsor has not provided any further information in support of the review.

11. The Tribunal will exercise its discretion and will proceed to decision without requesting further information. The Tribunal notes that a basis for the delegate’s decision was due to a lack of evidence to confirm that that the assistance for the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal is satisfied that the applicant was on notice that this is one of the issues for the refusal of the visa and relevant to the review.

12. The Tribunal also notes that the application for review was lodged with the Tribunal on 8 October 2018 and the applicant was represented throughout the review process. On 9 October 2018, the Tribunal invited the applicant, if he had not already done so, to provide any other material which he believed supported the application for review, including a statement why he disagreed with the Department’s decision and to do so as soon as possible. Since the delegate’s decision the applicant has provided information to the Tribunal in support of the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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. 

    ISSUES

15. The issues in the present case are whether the assistance for the sponsor cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen for the sponsor; or whether the assistance for the sponsor 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 his needs.

    BACKGROUND ON THE EVIDENCE

16. The applicant was born in [year] in Kabul, Afghanistan. His parents are deceased. He has [specified family members] living in Afghanistan and [siblings] living in [specified countries]. He also has a sister and a brother living in Australia. On 13 August 2018, the applicant was refused an Other Family (Migrant) (Class BO) Carer visa.

17. The sponsor was born in [year] in Afghanistan. [In] July 1997, the sponsor first entered Australia. [In] March 2000, he was granted Australian citizenship.

    Whether the visa applicant has claimed to be a ‘carer’

18. Clause 116.211 of Schedule 2 to the Regulations requires that, at the time of application, the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of the sponsor, who is the visa applicant’s brother.

19. 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 reg 1.03 of the Regulations.

    Are the requirements of r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) satisfied?

20. Regulation1.15AA provides that the assistance cannot reasonably be:

    (e)(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

    (e)(ii)      obtained from welfare, hospital, nursing or community services in Australia.

21. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

22. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

    Whether the assistance can reasonably be provided by any other relative?

23. On the visa application form dated June 2015, the applicant declared the following: he is the brother of the sponsor. The medical condition causing the sponsor to need assistance is poor vision. He is clinically blind, depressed and anxious. He will provide assistance to the sponsor for bathing and showering, toileting, dressing and undressing, grooming, eating, mobility, transport and will also assist with preparing or supervising.

24. On the sponsorship form he sponsor declared his residential address as [Address 1 in] NSW. He declared having three sons living in Australia, [Son A], [Son B] and [Son C] and [Sister A], his sister, also living in Australia.

25. On 17 March 2015, [Doctor A] stated that the sponsor is clinically blind. He suffers from major depression, anxiety and advanced osteoarthritis.  He cannot take care of himself. He needs help with daily chores such as cooking, shopping, cleaning and washing. He has no one in Australia except his married sister who suffers from chronic [medical condition 1] and her husband also suffers from multiple medical problems. His brother who lives in Afghanistan wants to come to Australia to help and support the sponsor.

26. A Carer Visa Assessment Certificate (CVAC) dated [in] April 2015, provided the following information: the sponsor was accompanied by [Sister A], his sister. The family migrated to Australia in 1997 and in 1998 the sponsor was granted a disability pension.  He separated from his wife in October 2014 and since then has lived with [Sister A] and her husband and their [age]-year-old child. He has [number] children aged [specified ages] years old. He reported not being able to see any of his children since separating from his wife. His medical conditions are visual impairment secondary to retinal detachment, osteoarthritis and depression. The sponsor reported becoming blind three years ago. He has suicidal ideation and had thought of going in front of a truck but has never acted on it. He is currently on anti-depression medication. The sponsor reported complete dependence for activities of daily living.  His brother-in-law assists as required with toilet hygiene and gives some assistance with showering and bathing and most activities of daily living including dressing and undressing and feeding.  He cannot use kitchen utensils but can comfortably eat with his hands. Prior to his disability he worked as [an occupation 1] in Afghanistan but has not worked since 1998. The sponsor believes he has a brain tumour which he was informed about three years ago.  He believes that this has affected his visual impairment. His ophthalmologist confirmed the diagnosis of retinal detachment and his visual activity would make him completely dependent with activities of daily living. Based on assessment direct assistance is required with hygiene, toileting, dressing/undressing, eating/feeding, mobility, medication and with transport. His medical condition results in the need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision or monitoring as he may be a danger to himself or others.  He is rated 30 on the Social Security Act 1991 rating of permanent conditions.

27. A Carer Visa Assessment Certificate (CVAC) dated [in] November 2021 provided the following information: The sponsor was accompanied by his [Sister A]. He has the following medical conditions Myopic maculopathy: this has made him blind. He has some light perception in his left eye but no light perception in his right eye.  There has been no improvement in his vision for many years.  He is under treatment for eye pressure and his specialist is happy with that control.  He is qualified to be called blind according to his specialist. He had surgery but no improvement was observed.  This condition is stable. Major depression: he was diagnosed with this condition about seven to eight years ago. In addition to his major depression, he has anxiety and PTSD.  He continues on anti-depressant medication and has very fluctuating mood but is stable currently. He is separated from his wife and children who have abandoned him. This is a main contributing factor in addition to his blindness and dependency on his sister’s family for his poor mental health. He lives in a rented three bedroom and two-bathroom house with his sister, brother-in-law and their son. His sister and her son have their own medical issues.  His brother-in-law has to attend to most of his family as well as his care. He requires assistance with mobility; bathing/showering; toileting; dressing/grooming; supervision with medication; supervision for personal safety and transportation. He is overall fully dependent for his activities of daily living. He mobilises independently but due to blindness needs constant guidance from his sister.  He is very alert and oriented and very rational with a good memory.  He was crying during the assessment. Range of movement of upper limbs, lower limbs and spine is within normal range. He is rated 40 on the Social Security Act 1991 rating of permanent conditions.

28. On 9 March 2017, the Department wrote to the sponsor and requested that he provide a family tree and written statements from his relatives detailing why they are unable to provide the care required.

29. In a statutory declaration dated 4 May 2017, the sponsor declared that he has [number] children.  They live alone and do not provide him with any assistance. He provided a document noted as ‘Family Details’ which recorded 10 names only. The visa applicant completed the Form 80 and declared his siblings; it appears the names and dates of birth given on the Form 80 for the visa applicant’s siblings are similar to those provided by the sponsor on the document ‘Family Details’.  

30. On 10 December 2017, [Mr A] stated the following: the sponsor was born on [date]. He has major depression, anxiety, severe asthma, chronic dermatitis and blindness of both eyes. He needs his brother to be with him and care for him. 

31. On 6 October 2017 and 11 December 2017, [Doctor A] stated the following: the sponsor is under his care. He is divorced and lives with his sister, who suffers from chronic disability due to [medical condition 1]. She also has weakness of the right arm and restriction of movement. The sponsor suffers from major depression and anxiety, severe asthma, chronic dermatitis and blindness of both eyes. He had unsuccessful retina surgery. He has difficulty in many daily tasks, specifically showering which his sister cannot help him with and he has a history of falls. Due to his multiple medical conditions, he needs 24-hour help and support, specifically at night.

32. On 27 July 2018, a Federal Member of Parliament stated the following:  he is writing on behalf of the sponsor who resides at [Address 2].  The sponsor is diagnosed with a brain tumour which is deteriorating. He is blind and requires continual assistance and care. He has provided documents about his worsening ailments.  The sponsor advised of his mobility significantly decreasing and he is experiencing a great deal of pain.

33. The applicant provided bank transaction lists dated 2018. These record direct credit pension payments and various debit transactions. Also provided is a New South Wales DSP card starting [in] 2005 and expiring [in] 2019. This recorded the applicant’s address as [Address 2] and a mobility parking scheme card valid until May 2020.

34. On 1 May 2019, [Doctor A] stated the following: the sponsor suffers from major depression, anxiety, PTSD and blindness.  He is unable to take care of himself independently and requires assistance. He has a history of falls and needs assistance to support his activities of daily living including showering; dressing; meal preparation; transport; self-hygiene and laundry. He has been separated from his wife for four years.  Of his [grownup] children [number] are employed full time. One has a mental disability; one is a full-time carer for [their] children.  Therefore, he is unable to receive care and sufficient support from his immediate family. He lives with his married sister [Sister A] who also suffers from anxiety and depression. She has [specified medical conditions] and she is unable to provide appropriate care for her brother. He has a younger brother in Afghanistan who would be able to come to Australia and act as carer for the sponsor. On 11 September 2020, [Doctor A] stated that the sponsor had been under his care since 2003 and he suffers from major depression and anxiety, severe asthma, chronic dermatitis and blindness of both eyes. He had unsuccessful retina surgery. He lives with his sister who suffers [from medical condition 1]. She has weakness in the right arm and restricted movement and is unable to support her brother. Due to his multiple medical conditions, he needs help and support in personal care and transport for medical appointments. Various other documents provide the same information from [Doctor A] as already detailed in his decision record.

1. In a letter dated 17 October 2019, [an Agency 1] counsellor stated the following: the sponsor approached the organisation for assessment and support for his immigration matters. He is blind and was accompanied by his sister. The sponsor arrived in Australia in 1997 with his family of [number] children from Pakistan, where they had lived for two years after escaping from Afghanistan. He described his complaints of depressive mood and frustrated with his condition and the pressure for his sister’s family to support him. He reported that his wife and children left him after his last operation to remove a tumour on his brain. He mentioned that he has sponsored his younger brother from Afghanistan to be with him and care for him. He feels close to his younger brother and could rely on him for support. He reported that the application was refused and he was currently lodging an appeal.

2. Information about [Sister A] includes the following: a letter dated 19 October 2019 from [Doctor B]. The letter is addressed to Centrelink and provided information about [Sister A] as follows: she has suffered from chronic [medical condition 1] for three years; bilateral knee pain for the last two years which causes difficulty in walking; chronic right shoulder pain for two years; severe anxiety, depression and PTSD for 20 years and she is currently under the care of a psychiatrist and psychologist and is pre-diabetes.  In his opinion her conditions especially her anxiety and depression are now stabilised, fully diagnosed and treated. Further treatment is unlikely to improve her conditions within the next two years.  He recommended that she should be considered for a DSP card. [Doctor C]   evaluated [Sister A] on 14 September 2019 and 28 September 2019.  He provided information about her conditions including the following: she advised of suffering of multiple physical pains in her shoulder joints, lower back, both knee joints as well as anxiety and depression. Upon evaluation her score is indicative of severe anxiety and depression. There are also symptoms of PTSD in regard to her immigration status, which has caused her intense emotional pain and suffering.  Her symptoms of anxiety depression and PTSD have been diagnosed for at least five years. Her symptoms have affected her independent living, social and recreational interaction, concentration and task completion, planning and decision making as well as her work and training capacity significantly. Due to her conditions, he recommended that she is considered favourable for a DSP pension.  [A] general psychologist diagnosed [Sister A’s] barriers in returning to work as depression, anxiety; she cannot lift weights; has poor concentration and low self-esteem and suffers from lack of sleep, low motivation and pain. She has generalised anxiety disorder due to her general medical condition and pain disorder. While progress has been made in therapy, further treatment is recommended for further gain. In a letter dated 29 July 2019, [an Agency 1] counsellor stated the following: [Sister A] was referred on 10 May 2019 and had been attending weekly appointments since 17 June 2019. She displays symptoms of PTSD and suffers from multiple physical health problems.

3. On 28 June 2021, the representative wrote to the Tribunal and stated the following: the bulk of their efforts have been in tracking family members to explain why they cannot provide care. The family has a history of family violence and as a result the visa applicant does not have the support of family. Most of his own children haven't spoken with him in years. Their mother gave them an ultimatum that they either support her or she will disown them.

4. In a letter dated June 2019, [Mr B] of [Agency 2] provided information including the following: the sponsor has multiple disabilities including blindness, depression, high cholesterol and cancer. He is living with his sister and her husband and their [age]-year-old son. It was agreed that the sponsor live with them for six months due to aggressive cancer.  However, he has lived with them for four years. This resulted in conflict between the sponsor and his brother-in-law. As a result, the sponsor suffers from depression and has suicidal thoughts because of abuse from his brother-in-law and lack of care. He is in the constant care of his sister and needs 24-hour care to walk, use the toilet, manage incontinence and self-care. He requires assistance in completing all domestic tasks including social and community participation and capacity building therapies. His disabilities are high-end complexity and he the disability support pension. The sponsor requires 24-hour care which is not being provided by his family due to his complex disabilities. The care he is receiving is not enough for his high level of needs including assistance in walking. He is assisted by his sister who has a disability. He is dependent on his sister however due to the complex living arrangements and cannot remain supported by her for much longer. The sponsor has other family in Australia and they have had disputes with the sponsor and refuse to assist in any way. They have all provided letters and evidence to the Department. The sponsor does not speak English and cannot communicate his needs and requirements to the Department. He is concerned that he is a burden on his current family and wants the visa applicant to care for him. The sponsor expects his disabilities to worsen and he may encounter problems.  In their view the assistance the sponsor needs can only be provided by a family member. It is in the best interest of the sponsor’s health and wellbeing that his brother comes to Australia to care for him.

5. In May 2019, [the] sponsor’s daughter who lives in [Suburb 1] stated the following: her parents separated four years ago. Since that time the sponsor has been living with his sister who has been taking care of him since the separation. Neither she nor her siblings can offer physical care or other support to the sponsor due to family and work reasons.  The sponsor’s needs require full attention and physical care and moral support.  She is married and a full-time mother of [number] children aged [ages]. She provided information about her siblings as follows:

6. [Son A], the sponsor’s son, lives in [Suburb 2], NSW.  He is married and works as [an occupation 2] from 6:00am to 7:00pm. His wife also works full-time.

7. [Son B], the sponsor’s son, lives in [Suburb 3], NSW.  He is [an occupation 2] working from early morning till evening. His wife is [an occupation 3].  They work full-time and are unable to keep the sponsor with them.

8. [Son C], the sponsor’s son, lives in [Suburb 4], NSW. He is married and [an occupation 4] and works different hours at different locations. He works two days in [City 1], two days in [Suburb 5] and two days in [Suburb 6].  He lives with their mother and younger brother who is autistic and it is not possible for him to care for the sponsor.

9. [The sponsor’s second] daughter: her address is not declared. She is married and after her marriage due to some family problems she couldn’t meet family members and they don’t know her address.

10. [Son D], the sponsor’s son, lives in [Suburb 4], NSW. He is autistic and needs support. He requires daily care and assistance from his mother. [Doctor D] in a letter dated April 2019, declared that he is diagnosed with severe autism, depression and severe speech impediment and dependent on his mother.

11. In a letter dated April 2019, [a] friend of the sponsor’s sister stated the following: she has seen a dramatic change in the sponsor’s sister since the sponsor came to live with her and has witnessed her crying. The sponsor is also abandoned by his children because they are engaged in their lives and can’t give proper care to the sponsor. The sponsor’s health is deteriorating. He suffers from blindness, depression and loneliness.  He needs help with his daily chores. He needs a carer and friend who can understand his language, feelings and culture. She is concerned for her friend as the extra responsibility is not only affecting her physically but also psychologically. The sponsor’s brother would provide support for him and stabilise her friend’s family life.

12. In a letter dated 7 June 2021, [Doctor E] wrote to [Doctor A] regarding the applicant. He stated the following: his vision was light perception in the left eye and no light perception in the right eye. Both lens implants appear stable. He has myopic maculopathy in each eye. His left eye remains reactive to light however his vision remains poor. He introduced Diamox in order to get his intraocular pressure as low as possible to reassess whether he does have improved vision. He is attempting to apply for the NDIS and will qualify as this will be based on him being blind. His son will obtain further documentation which will be required.

13. The representative provided an email dated 26 November 2021 from [Son A] to the representative. He stated that he has spoken with her father and his sister.  They have been in contact with their family doctor and asked that he write a referral to a psychologist and a psychiatrist. The doctor advised that he can refer them to a psychologist next week.  ‘As per our discussions can you please provide guidance as to what they need to cover in their sessions and whatever else you require us to do’.

14. On 7 February 2022, the representative provided a report dated 13 December 2021, from [Psychologist B], a clinical psychologist who gave information including the following: the sponsor was referred to him under a mental health plan on 26 November 2021 and is currently under his care. He lost his vision seven years ago and since then has been living under the care of his sister and her family. He reported that soon after his loss of vision his wife ‘sent him out’ and asked that he be looked after by his family and relatives.  He reported depression, anxiety, a pervasive sense of negativity accompanied by a lack of energy and motivation, feeling hopeless and helpless and constant irritability and agitation. He revealed that the depression and anxiety is persistent and he is fully dependent on his sister on a 24-hour basis and he is concerned about this. His sister has her own medical complications. He feels guilty about his sister as she is under constant pressure from for the service, she is providing the sponsor despite her own health conditions. He is most anxious when the day is finishing and at night; he is more helpless and has no one to help him for his personal needs during the night. His conditions are affecting his ability to look after himself and his depression and anxiety are the biggest barriers to his physical and mental functionality. Given the sponsor’s chronic phase of mental and medical health problems. [Psychologist B] believes it would be highly beneficial to have his brother as a carer in Australia to help him cope more efficiently with his living demands.

15. The Tribunal considered the information provided about the sponsor’s family members being unable to care for him however has made no finding on these claims. The Tribunal will base its decision on whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor.

    Whether the assistance can be reasonably obtained from welfare, hospital, nursing or community services in Australia

16. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

17. On the visa application form dated June 2015, in answer to question 71 which asks, ‘Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?’, the ‘no’ box is ticked.  The visa applicant is then asked, ‘Why not, please give details in additional information’. At question 73, additional information, the visa applicant declared ‘Due to the nature and time of the assistance required it is not provided by any doctor or health professional, hospital, nursing home or other community service.  Some of the services are part and high cost.’

18. On 9 March 2017, the Department requested that the visa applicant provide evidence to demonstrate that the required assistance could not be reasonably obtained from welfare, hospital, nursing or community services in Australia.

19. On 4 May 2017, in a statutory declaration the sponsor stated that they have approached [Agency 3] who advised that they cannot provide ‘domestic carer health’.

20. In a letter dated June 2019, [Mr B] of [Agency 2] provided information including the following: the sponsor does not have NDIS because it is unknown to him and his community and this shows isolation and a lack of informal support. There is no service that would provide the sponsor with the level of care and social assistance he needs.

21. The Tribunal accepts that the sponsor suffers from the conditions as described.  It is evident that the sponsor would rather that the applicant came to Australia and provide him with care and assistance and that the sponsor may be reluctant to engage other services.

22. The applicant declared that because of the nature and time required to provide the assistance to the sponsor, doctors or health professionals, hospitals, nursing homes or other community services could not provide the assistance and some of the services are high cost. However, no independent information has been provided to support this claim.

23. The Tribunal has been provided little independent information about investigations into services that may be obtained for the sponsor, other than the information provided by [Doctor E] in her advice to [Doctor A] on 7 June 2021, where it is stated that the sponsor was attempting to apply for NDIS and that he would qualify based on him being blind and she noted that his son will obtain further documentation which will be required and the comment made by [Mr B] of [Agency 2] who stated There is no service that would provide the sponsor with the level of care and social assistance he needs and the sponsor’s statement that he had approached [Agency 3].

24. Other than this, the Tribunal has not been provided any evidence that the sponsor or his family have sought assistance from services in Australia. There are claims that the sponsor requires 24-hour care, is a burden to his family and cannot speak English. However, there is no evidence to suggest that the assistance for the sponsor cannot be reasonably obtained from services in Australia and if it was, whether this would relieve the assistance he needs and the burden on family. There is no information to suggest that assistance for the sponsor could not be reasonably obtained by a bi-lingual person/s. There, is a lack of information about whether the assistance for the sponsor cannot reasonably be obtained from the NDIS and/or other service providers and if the assistance could be reasonably obtained, how that would affect his activities of daily living and this remains untested.

25. The Tribunal acknowledges that the Australian resident sponsor may have a preference to receive care from his brother.  The Tribunal does not accept on the evidence before it that the assistance the sponsor requires cannot be reasonably obtained from welfare, hospital, nursing and community services, given the scarcity of any genuine attempts to acquire such services.    

26. On the evidence before it, due to the lack of genuine enquiries into what services are available, the Tribunal is unable to be satisfied that the services required cannot be reasonably obtained.  There is no evidence from agencies or service providers confirming that they cannot provide suitable assistance, or that the availability of care they provide does not cover the care required by the Australian resident sponsor. 

27. This has resulted in the Tribunal not being satisfied that the assistance for the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

28. Therefore, the applicant does not meet r.1.15AA(e)(ii) of the Regulations.

    Other considerations

29. A case note on the Department’s file relates to concerns held about the age of the visa applicant and the relationship between the visa applicant and the sponsor. As these issues do not relate to the considerations of the Tribunal it has not put this information to the sponsor and the Tribunal places no weight on the information.

30. Therefore cl 116.221 of Schedule 2 to the Regulations is not met.

31. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) Carer visa.

    Helena Claringbold
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

    (a)the applicant is a relative of the resident; and

    (b)according to a certificate that meets the requirements of subregulation (2):

    (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

    (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

    (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

    (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

    (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

    (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

    (e)the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia; and

    (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

    (2)A certificate meets the requirements of this subregulation if:

    (a)it is a certificate:

    (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

    (ii)signed by the medical adviser who carried it out; or

    (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

    (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.