1831981 (Migration)

[2022] AATA 1268

1831981 (Migration) [2022] AATA 1268 (11 April 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831981

MEMBER:Jennifer Cripps Watts

DATE OF DECISION:  11 April 2022

DATE CORRIGENDUM

SIGNED:28 April 2022

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The paragraphs numbered 49. and 50. contained no text at the time the decision was signed, and are an unintentionally included formatting error.

28 April 2022

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1831981

MEMBER:Jennifer Cripps Watts

DATE:11 April 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 11 April 2022 at 5:30pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer) – review applicant has not explored any options – applicant is not a carer of the Australian relative –no evidence to show assistance cannot be provided by or obtained from welfare, hospital, nursing or community services in Australia – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.221

CASES
Biyiksiz v MIMIA [2004] FCA 814

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 2018 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants (the applicants) applied for the visa on 29 May 2014. At that time, 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 (Cth) (the Regulations). In the present case, the primary applicant (the applicant) is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221, which requires the applicant to be a ‘carer’ of the Australian relative, in this case his Australian citizen mother, meeting the definition of ‘carer’ in reg.1.155AA of the Regulations.

3. The delegate refused to grant the visas on the basis that cl 116.221 was not met at the time the decision was made.  On 31 October 2018 the applicant applied for merits review and provided the Tribunal with a copy of the primary decision record.

4. The applicant’s matter was constituted in June 2021.  Hearings were scheduled on five occasions; the first four were postponed and the fifth, on 7 April 2022, went ahead.  The review applicant and sponsor ([Ms A]) informed the Tribunal that she would only be willing to attend a hearing in person.  The hearings that were scheduled were postponed, variously, due to COVID-19 restrictions and lockdowns in the Sydney registry in 2021 which prevented in person hearings going ahead, and the unplanned unavailability of the representative on one occasion in 2022.

5. [Ms A] appeared before me on 7 April 2022 to give evidence and present arguments. I also received oral evidence from her son, [Mr B], who is an Australian permanent resident.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  I confirmed with the sponsor that she could understand and hear the interpreter and told her that she could have questions repeated or explained during the hearing.  From time to time the sponsor requested that questions be repeated or explained, and occasionally I sought clarification or for an answer to be repeated, which is not unusual in migration hearings. 

6. The sponsor’s appointed representative, [name deleted], attended the Tribunal hearing.  He provided a written submission prior to the hearing and oral submissions before the hearing concluded.  It was confirmed with [the representative], at the hearing, that I would not be required to take evidence from the primary visa applicant.

7. For the following reasons, the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is the same substantive issue on which the visa was refused.  Criteria to be satisfied at the time of decision is specified in cl.116.221 of Schedule 2 to the Regulations; it is required that the applicant is a ‘carer’ of the ‘Australian relative’ mentioned in cl.116.211.  The term ‘carer’ is defined in reg 1.15AA of the Regulations.  The reg 1.15AA matters, as they are set out in reg 1.15AA(1)-(3), must all be met for the applicant to meet the primary criteria that requires they are a ‘carer’.  The elements of reg 1.15AA are cumulative.  If one element is not met, it is not necessary to go on to consider any of the elements that follow.  At the time the delegate made a decision to refuse the visa, the applicant did not meet reg 1.15AA(e)(ii) of the Regulations which requires, in summary, that the direct assistance needed by [Ms A] attending to the practical aspects of her daily life cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

9. In reaching a decision, I have considered documents and information relevant to the material issue on review, including the oral evidence of the sponsor, [Ms A], and her eldest son, [Mr B].

   Background

10. [Ms A] is an Australian citizen, born in China in [year].  This is her second application to sponsor a carer from China.  She has one son who still lives in China with his wife and [child] (the applicants) and another son, [Mr B], who migrated to Australia in August 2011 when he was granted a carer visa to care for his mother; he is an Australian permanent resident. 

11. Currently, [Mr B] lives in the same home as [Ms A] and assists with her care, including cooking, cleaning, dressing and other personal assistance.  [Mr B] has been diagnosed as suffering from anxiety, depression and alcohol dependence, and both he and his mother have been seeing a psychologist for many years relating to both of them having diagnosed depression.  The relationship has broken down to the point where, although they live in the same household and [Mr B] provides direct assistance to his mother for her daily needs, they do not speak to each other.  Both the sponsor and [Mr B], who is [age] years of age, have given evidence, consistently with each other, that [Mr B]’s carer duties over the last 11 years have prevented him from being able to have a job, make friends, or get married and have a family and that this is what has caused his health problems and the breakdown of the relationship between them.  There is medical and other evidence that has been provided relating to these matters.  It is accepted that both the sponsor’s and [Mr B]’s health, and the fractured relationship between them, are as they are claimed to be. 

    Primary decision record

12. The material issue on review is whether the direct assistance required by [Ms A] cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia:  reg 1.15AA(1)(e)(ii).

13. Relating to this issue, the delegate included in the primary decision record that:

    a.[Ms A] ‘...does not want to have to rely on strangers and people she does not know as that would remind her of her time in detention’.  She would prefer Mandarin speaking carers.  Although [Ms A] would prefer her two sons to share in her care, there appear to be other options available’. 

    b.It is noted that ‘there is no evidence that shows assistance from services in Australia was sought by the sponsor or her son in Australia’, and no ‘evidence that shows [Ms A] is recommended for home care by her doctor or psychologist.  It is only the sponsor and her family who prefer home care’.  And, there is no evidence or information provided that demonstrates ‘that there are not available services for the sponsor in Australia’.

14. A copy of the primary decision record was provided to the Tribunal and the above information is consistent with evidence on the Department file.  These matters were discussed with both [Ms A] and [Mr B] at the Tribunal hearing.

    The Tribunal hearing

15. Prior to the hearing, the sponsor did not provide any additional documentary information that indicates there had been any consideration or investigation into community care options by, her or her family, as they are described in reg 1.15AA(1)(e)(ii).  [Ms A]’s holds the same views as she did at the time of application and has still made little if any attempt to look into or consider out of home care arrangements.  Essentially, she will not entertain the idea of considering or living in residential care.  Nor will she allow access to anyone who is not a member of her family into her home for the purpose of providing care.

16. Two reports, from [Mr C] and Dr [D], were provided and are discussed in more detail later.  They both refer to their opinion that it would be beneficial for [Ms A] to receive care from her other son, the applicant, in her own home.

17. At the Tribunal hearing, both the sponsor and [Mr B] gave oral evidence independently and were consistent when describing the types of assistance [Mr B] provides to his mother.  It is accepted, as claimed, that [Mr B] is available to [Ms A] 24 hours a day, 7 days a week and that [Mr B] does all the cooking and housework, serves meals and attends to the sponsor’s personal needs, including dressing her because she has severely limited movement of her arms, which she demonstrated at the Tribunal hearing.  There is independently verifiable evidence that has been provided as to most of these matters and which I accept.

18. It is mentioned in the primary decision record that [Mr B] has travelled offshore on numerous occasions.  [Mr B] arrived in Australia holding a subclass 116 visa, granted for the purpose of caring for his mother, in 2011.  He travelled offshore for two months over the 2012/2013 New Year period, for five weeks in March 2013, two weeks in October 2013, three weeks in July 2014, three weeks in August 2015 and his last trip offshore was for two weeks over the 2018/2019 New Year period.  It is acknowledged that from March 2020 to December 2021 travelling outside Australia was limited other than in exceptional circumstances, due to the COVID-19 pandemic.  However, it is still the case that for more than three years [Mr B] has not travelled offshore.  Both he and his mother gave evidence that he lives with her and provides direct assistance to his mother, as it is required, 24 hours a day. 

19. [Ms A] has significant mobility issues, she is frail and uses a wheelchair.  It appears, which is unsurprising, that her health and mobility have declined over the years.  Her son, [Mr B], has been living with her as her carer for 11 years now.  It was only in the early years of his residence in Australia with his mother that the [Mr B] took the longer trips overseas.  More recently he took a three week trip in August 2015, which is six and a half years ago and the only other trip was in early 2019, for two weeks.  It is accepted, with regard to oral and written evidence, that the direct assistance he gives to his mother has been on a full time basis, with no apparent respite care or in home assistance from any government agencies or other people, at all times since September 2015, except for a two week period in early 2019.  I consider it likely or at least possible, prior to 2015, that [Ms A] was able to manage for relatively short periods of time on her own while [Mr B] was overseas.  She has a Christian Community group who she says call her once a day during the week to check if she is alright, but otherwise appears to have no outside contact other than with primary health providers. 

20. [Ms A] was asked at the hearing whether she had ever received respite care and said that she had applied for and was offered (what sounded like) respite care at some point in time.  However, she said that that she did not accept it, because she will not have strangers in her house and will not agree to go into any residential or assisted living facility, even on a casual or short term basis.

21. These matters are important, and relevant, because it seems to confirm that [Ms A] and her family will not consider any residential or community care arrangements inside or outside the home, for the purpose of providing respite care or as a more permanent arrangement for [Ms A], or even to supplement the care currently provided by [Mr B]. 

22. [Ms A] said she considers nursing homes to be like detention centres.  She spent a significant amount of time in [a] Detention Centre in Australia when she first arrived and applied for a protection visa, and says that she will not have people in her house that she doesn’t know, ‘monitoring’ her because she has bad memories about the guards in the detention centre following and monitoring her. 

23. It was discussed with [Ms A] at the Tribunal hearing whether she or her son had considered and explored residential care options for her.  She asked if I meant ‘nursing homes’ and I said, ‘yes’.  The applicant then gave evidence that nursing homes are like the detention centre [and] said that she would be monitored and followed, that it’s ‘not a home’.

24. At the time of this decision, no evidence has been provided that [Ms A] or any members of her family have investigated other care options in Australia, such as welfare, hospital, nursing or community services.  Nor do they claim to have investigated these options.  [Ms A] was asked whether she had considered residential care for herself and said ‘there is no such care’ and that she ‘did a search but it’s not available’.  No evidence has been provided that confirms that a search was done. 

25. [Mr B] was asked about whether he and his mother had talked about nursing homes and he said, ‘no’.  He was asked if he himself had looked into other options for his mother and said, ‘I don’t think it’s suitable for my mum, not good, you can’t communicate with others, she’s getting old and if she’s in a nursing home she will pass away earlier’.  [Mr B] was asked if he had spoken to anyone in any nursing homes and said he hadn’t.  He said he knew that there were nursing homes run by Chinese but that they are expensive.  His insights into the issues he raised about the unsuitability of a nursing home for his mother, and the costs, are without any apparent foundation because no documentary evidence in support of his opinion has been provided.

26. [Ms A] and [Mr B] both gave evidence that [Mr B] used to do some casual work, but since the COVID-19 pandemic there has been no work available for him.  They each are supported financially by their Centrelink payments.  Both he and his mother gave oral evidence that they are concerned about his inability, since her arrived in Australia as a carer holding a carer visa in 2011, to have an independent life himself because he has the responsibility, and provides, full time care for his mother, seven days a week. 

    Whether the visa applicant is a ‘carer’

27. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative, within the meaning give in reg 1.03. 

28. The Tribunal is satisfied that the applicant is the son of the resident ‘relative’ within the meaning of reg 1.03.  For this reason, reg 1.15AA(1)(a) is met.

    Certification – reg 1.15AA(1)(b)

29. 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.

30. 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.  The certificate, from BUPA Medical Services dated 9 June 2015 is on the Department file.  The sponsor was found by the medical examiner to have a medical condition that is causing physical, intellectual or sensory impairment of the ability for her to attend to the practical aspects of daily life; and that she has a need for direct assistance in attending to the practical aspects of her daily life because of the condition; and that the need will continue for at least 2 years. 

31. I observed the sponsor, at the Tribunal hearing, to be very frail.  The delegate was satisfied, as am I, that an updated Carer Visa Assessment Certificate (the certificate) was not required, given the sponsor’s age and medical conditions that have been specified in a recent letter from her general practitioner and her psychological condition described in a recent letter from her treating psychologist. 

32. For these reasons, the requirements of reg 1.15AA(1)(b) are met.

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

33. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

34. Evidence has been provided that satisfies me that the person with the medical condition is an Australian citizen.  Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

35. 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 specifies a minimum impairment rating of 30. 

36. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (not the subject of certificate) – reg 1.15AA(1)(d)

37. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

38. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)(i) and (ii)

39. 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 (1.15AA(1)(e)(i)); or obtained from welfare, hospital, nursing or community services in Australia (1.15AA(1)(e)(ii)).

40. Earlier in this decision it has been discussed that the sponsor claims her son, [Mr B], who is currently her carer cannot continue to assist her, mainly due to his own medical and psychological conditions.  Evidence has been provided from [Mr C], Clinical Psychologist, for both [Ms A] and [Mr B].  He has been seeing them since 2014.  The report is dated 7 September 2021 and includes:

    a.[Ms A] needs [Mr B] to look after her daily routine and personal care

    b.The conflicts between [Ms A] and her son have increased and [Mr B] ‘shows no interest in interacting with his mother’

    c.[Ms A] told the psychologist that there has been no change to his anger and feeling of hopelessness and that he blames her at times

    d.[Mr B] explained that he cannot have a relationship because ‘women walk away in seeing his mother and he had to look after his mother’

    e.[Mr B] uses a lot of alcohol to ‘treat’ himself causing more mental and physical health problems

    f.Both [Ms A] and [Mr B] are suffering from major depression and feel trapped

    g.[Ms A] needs a carer for her daily routine and personal care

    h.That it would be beneficial for [Ms A] to have her other son (the applicant) come to Australia to care for her

1. The applicant’s son in Australia is providing assistance and care to his mother.  However, they don’t speak and, on the medical and psychological evidence provided, the relationship continues to be in decline.  The manner in which [Mr B] provides the care seems to be adequate for [Ms A]’s physical needs, if not somewhat perfunctory.  But the strained relationship between them increases the effects of [Ms A]’s depression.  This is a situation which, in the opinion of the psychologist and general practitioner, cannot continue without additional assistance from [Ms A]’s other son, the applicant.

2. A medical report for [Ms A] has been provided, from Dr [D], her general practitioner.  [Dr D] describes [Ms A]’s background and includes that in 2016, [named hospital] Aged Care ‘has input her needs and classified her as high priority and high level care in place for her activities of daily living’.  [Dr D] reports that [Ms A] ‘has repeatedly expressed fear of living in care environments such as aged care or disability care centres that might resemble detention facilities.  This has been the crucial reason she insisted on receiving care at home’.  [Dr D]’s opinion has been considered, in particular that ‘home care for her is most preferred arrangement for her and she has my recommendation on this issue’.   [Dr D] recommends that [Ms A]’s son in China (the applicant) be granted a visa to provide support for his mother.

3. Having considered the medical evidence and oral evidence of [Ms A] and [Mr B].  [Ms A] has only one relative in Australia, her son [Mr B].  I am satisfied that the assistance cannot reasonably be provided by a (relevant) relative, who in this case is an Australian permanent resident. 

4. Therefore reg 1.15AA(1)(e)(i) is met.

5. I have considered and discussed in detail the circumstances relating to [Ms A]’s reluctance, and refusal, to consider any care other than in her own home.  The opinions of [Mr C] and [Dr D] have been considered.  They both express their opinion that [Ms A] would benefit from having the applicant live with her to provide her with care and assistance.  [Dr D] describes such an arrangement as the ‘most preferred arrangement’.

6. [Ms A] and her son [both] gave evidence at the hearing that they have not investigated welfare, hospital, nursing or community services.  I am satisfied that [Ms A] is aware that this is the issue on which the visa was refused, that is, the applicant did not meet reg 1.15AA(1)(e)(ii).  They consider any other type of care, other than care provided in [Ms A]’s home by a family member, to be unsuitable.  It is acknowledged that [Ms A] said she receives a call from the Christian Community Aid Centre each day to ask her if she is okay, and that she applied for respite care once, but declined the care when it was offered and has not applied again. 

7. It is acknowledge that [Dr D] is aware of the applicant’s detention centre experience in around 2007 and that she has expressed her fear of being in a similar environment, such as a nursing home. 

8. A written submission from [Ms A]’s representative includes that regard for [Ms A]’s ‘senses of dignity and privacy’ should be had, relating to her cultural background and her fear of living in an environment that, according to her, might resemble a detention centre.  [Ms A] submits that her wishes to receive care in her home are reasonable, from her point of view, and cannot be obtained from local services in Australia.

9. [The representative] referred to the case of Biyiksiz v MIMIA [2004] FCA 814 and submitted that the personal circumstances of the applicant must be considered. This is accepted, however the applicant still needs to demonstrate that they have sought external support so that it may be considered if or why such support is not suitable where an applicant has a stated preference to be cared for in their home.

10. However, it is irrational and illogical for [Ms A] to claim that external support or care that has not been investigated, or even identified specifically, can reasonably be considered by her to be unsuitable and/or contrary to the wishes she has relating to her privacy, dignity, cultural background, availability of Chinese food and fear of living in an environment like a detention centre.

11. It is accepted that [Ms A] and her family would prefer that she is cared for in her home and that [Dr D] has also expressed his opinion in favour of this being the ‘most preferred arrangement’.   However, there is little, if any, probative evidence that has been provided that satisfies me that the assistance required by [Ms A] cannot be provided by or obtained from welfare, hospital, nursing or community services in Australia.

12. Therefore reg 1.15AA(1)(e)(ii) is not met.

13. Given these findings, the Tribunal concludes that at the time of decision the applicant is not a carer of the Australian relative, being the review applicant [Ms A], and therefore does not meet cl 116.221.

14. 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 prescribed criteria for the visa sought.

    Secondary applicant

15. At the time of decision, it is a requirement to meet the secondary criteria, that a secondary applicant be a member of the family unit of a person who is the holder of a subclass 116 visa.  The Tribunal has affirmed the decision to refuse the visa of [the applicant] and therefore the decision to refuse the visa of the secondary applicant [is] also affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Jennifer Cripps Watts
    Member

    
    

    ATTACHMENT – Extract Migration Regulations 1994

    Reg 1.15AA     Carer 

    (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 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.