1907968 (Migration)

[2019] AATA 6444

1907968 (Migration) [2019] AATA 6444 (21 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1907968

MEMBER:Margie Bourke

DATE:21 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 November 2019 at 1:23pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – Federal Circuit remittal – carer of Australian relative – claim relatives cannot provide care – family feud – has not obtained assistance from welfare/community services – lack of evidence – no assessment of eligibility – not satisfied assistance could not be provide by relative/welfare – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5CA, 65, 360
Migration Regulations 1994 (Cth), Schedule 2 cls 836.111, 836.212, rr 1.03, 1.15AA

CASES

Anveel v MIBP [2013] FCCA 2181
Nguyen v MIBP [2017] FCCA 339
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 March 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 April 2013. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.212 that the review applicant (who is also the visa applicant) claims to be the carer at the time of application, and cl.836.221 that the review applicant meets the criteria for carer in r.1.15AA at the time of decision.

3. The delegate refused to grant the visa on the basis that cl.836.212 was not met at the time of application, and cl.836.221 was not met at the time of decision.  The delegate found the applicant did not meet both subclauses because the applicant did not meet the criteria in r.1.15AA.

4. The applicant appeared before the tribunal on 28 October 2019 to give evidence and present arguments. The tribunal also received oral evidence from the applicant’s stepmother, who is the person requiring care.  The applicant’s father attended the hearing in a supportive role and did not give evidence.  The tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the tribunal hearing.

6. This matter had previously been the subject of a decision by the Department that found the applicant did not meet the sponsorship provisions.  That decision was affirmed by the tribunal (differently constituted), but remitted back to the tribunal by consent order of the Federal Circuit Court. The matter then came before me, and I made a decision that the applicant met the sponsorship criteria, and remitted the matter back to the Department in a decision made on the papers pursuant to s.360(2) of the Act dated 7 January 2019.  The applicant and her representative indicated at the commencement of this hearing that they were aware of my previous involvement with the matter, and consented to me conducting this review.

7. For the following reasons, the tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The tribunal is satisfied based on the evidence before it, that the applicant meets the requirements of cl.836.212, that she claimed to be a carer at the time of application.  I will briefly set out my reasons for this finding in this decision record, because it formed part of the delegate’s decision.  I assume the delegate applied the requirements for the definition of carer in r.1.15AA for cl.836.212, which has the lesser requirement that the applicant claims to be the carer of an Australian relative, rather than as is required in cl.836.221 is the carer of the Australian relative referred to in cl.836.212. The main issue in the present case is whether the applicant meets the criteria in r.1.15AA which is the definition of carer in the regulations, for the purpose of meeting the requirements of cl.836.221.

   APPLICANT CLAIMS TO BE CARER

   Whether the applicant has claimed to be the ‘carer’

9. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s stepmother.

10. I refer to my decision dated 7 January 2019, in which I consider the relationship between the applicant and the person needing care, who is the sponsor, for the purpose of an assessment as to whether the visa applicant met the requirements of sponsorship. I noted that r.1.03 did not define ‘step-parent’. I considered that the sponsor, (and person requiring care) was recorded in the application and sponsorship forms as the step parent or step mother of the applicant. I conducted an analysis of the definitions of parent and child in s.5(1) and s.5CA of the Migration Act, which included referrals to the meanings in the Family Law Act, and specifically did not limit who could be considered the child of a person. I found the applicant is the step child of the sponsor, and the sponsor is the step mother of the applicant.

11. I am satisfied based on the certificate of Australian citizenship, that the sponsor, the person requiring care, [Ms A] was granted Australian citizenship in 2006, under her pre married or maiden name of [Ms A].

12. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

13. I have considered the application forms and supporting documents and I am satisfied that at the time of application the applicant claimed to be the carer of another person. I am satisfied that the other person is an Australian citizen at the time of application, and a relative, namely the stepmother of the applicant at the time of application. I am satisfied the applicant claimed to be the carer of an Australian relative at the time of application.  

14. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.

    APPLICANT IS A CARER

    Whether the applicant is a carer

15. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision.

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

16. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, as stated above, I am satisfied that the Australian relative is identified as the applicant’s step mother, and is a close relative within the meaning of r.1.03.  I am satisfied that the relative is an Australian citizen. Based on the medical records and Centrelink records provided to the tribunal, and the fact citizenship was granted to the Australian relative in 2006, and the evidence that the Australian relative has usually resided in [an Australian state], I am satisfied that [Ms A] is an Australian citizen who is usually resident in Australia.

17. Therefore, as the applicant is the stepchild of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and the applicant meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

18. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

19. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/041, which records the correct health at the time of the instrument relevant to the time of application), or issued by a specified health provider in relation to a review of such an opinion.  I have considered the certificate dated 4 April 2013.  I am cognisant of the fact the certificate was prepared over six years ago, however there was no evidence before me to indicate the Australian relative and person requiring care, [Ms A’s] medical condition had improved, and I accept the certificate as still applicable.

20. I have considered the certificate and I am satisfied that the certificate meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the applicant meets the requirements of r.1.15AA(1)(b).

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

21. 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.

22. In the present case, based on the certificate of Australian citizenship granted in 2006 awarded to [Ms A], I am satisfied that the person with the medical condition is an Australian citizen. . Accordingly, the applicant meets the requirements of r.1.15AA(1)(ba).

    Impairment rating – r.1.15AA(1)(c)

23. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.

24. In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore the applicant meets the requirements of r.1.15AA(1)(c).

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

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

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

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

27. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia. The Department’s decision record dated 15 March 2019 found the applicant did not meet this criterion of the definition of carer.

28. The applicant states her father is the spouse of [Ms A], but he is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen.  The applicant’s father has an appeal pending in the Federal Court in relation to an application for a protection visa.  I accept the applicant’s father and spouse of [Ms A] does not meet the definition of Australian relative in r.1.15AA(1)(e)(i). When assessing the assistance required by [Ms A] I have considered as relevant her evidence that her spouse resides with her, and provides some of the supervision care she requires.

29. In the Department decision record the delegate refers to a sister of [Ms A], [Ms B], who was claimed to be an Australian citizen but not residing in Australia. There is no evidence before the tribunal that this relative of [Ms A] resides in Australia.  The consistent evidence before the tribunal is that this sister does not reside in Australia, and I accept that this is the case.  I am satisfied that the sister [Ms B] cannot provide the care that [Ms A] requires because she does not reside in Australia.

30. The applicant advised the tribunal that [Ms A] had four Australian citizen relatives residing in Australia; her sister [Ms C], and her three adult children who are the nephew [Mr D], and two nieces, [Ms E] and [Ms F], of [Ms A].  The applicant and [Ms A] claim that [Ms C] and her adult children cannot reasonably provide the care to [Ms A] because they had a feud in 2010 and have not spoken since.  The applicant provided limited current information as to the reasons why the Australian relatives cannot reasonably provide the assistance required by [Ms A].

31. I accept that in 2010, [Ms A] was hospitalised and treated for tuberculosis.  One sister came from [Country 1] to care from her. [Ms A] gave evidence that she had previously been the carer for her sister [Ms C] and her three children, and left [Ms C’s] home acrimoniously when [Ms C] was coping well.  I accept [Ms A] did not feel the care she had provided was appreciated at the time she left her sister’s home. When [Ms A] was discharged from hospital in 2010, she found her sister [Ms C] and her three children had come to her home in [City 1], and she told them to leave. [Ms A] understood they were going to stay in her home and find work. [Ms A] did not want them there, and a physical fight erupted between the two sisters. The applicant was present, and recalls comments being made about the fact she was welcome in the house. The applicant asked the adult children to call the police, but they did not do so.

32. The police were called, and [Ms C] and her three children were requested to leave [Ms A’s] home. The police file was not able to be obtained by the applicant for this review due to the passage of time, but I accept the incident happened as claimed, and the police attended.  I accept there has been no attempt at reconciliation between the sisters since 2010. [Ms A] hears news of her sister [Ms C] and the children, via her sister in [Country 1].

33. The applicant stated that the niece [Ms E] is married with two children.  The two nieces are aged [age] years, and the nephew [Mr D] is aged [age] years and is not married.  The applicant lives with [Ms A] and her spouse in [City 2], where they moved two and a half years ago to be closer to specialists. [Ms C] and her children also live in [City 2].

34. The tribunal discussed with the applicant and [Ms A] whether they had made any enquiries as to whether [Ms A’s] sister or nephew or nieces would provide any assistance. The evidence before me is that there has not been any enquiry from the Australian relatives of the person requiring care, as to whether they would provide assistance. The difficulty for the tribunal is that there is no evidence as to whether the assistance could reasonably be provided by the Australian relatives.  I accept there was a significant argument nine years ago, but there has been no attempt at reconciliation.  There is no evidence before the tribunal of the lifestyles or commitments of the four Australian relatives.  I do not consider it is sufficient to state that the person requiring care has not had contact with her relatives for nine years. I consider the regulation criteria requires more engagement and more evidence for the tribunal to consider.  I am not satisfied that a blanket refusal to provide evidence of why the Australian relatives cannot reasonably provide the assistance required is sufficient to meet the criteria.

35. The applicant and [Ms A] stated that the Australian relatives have a problem, or a sickness.  [Ms A] stated they cannot live separately, they cannot make decisions, and have brain problems.  I discussed that their evidence is that one of the nieces is married with children, and that they came to [City 1] in 2003 to work. [Ms A] stated that the nephew and nieces were diagnosed with [a medical condition] when they were in school and had special tutors to assist them.  She stated that they cannot speak properly, and cannot do things for themselves. There is no medical evidence before the tribunal to support the oral evidence of the applicant and [Ms A] of the medical difficulties or problems of the Australian relatives.

36. The representative submitted that [Ms A] was granted a carer visa to look after her sister and the three children based on a decision of the tribunal in 2003 that was reported in The decision was not available at the hearing, but the representative submitted it recorded the disabilities or problems experienced by the Australian relatives.  He submitted the decision would disclose those conditions were longstanding and be relevant today at the time of this review. The representative submitted it would be sufficient as evidence that the Australian relatives could not reasonably provide the assistance that [Ms A] requires.

37. I granted the applicant a period of two weeks after the hearing to provide a copy of this decision from 2003, and any other submissions, information or evidence that she wished to provide. After the hearing the applicant’s representative provided the tribunal with copies of [Ms C] current centrelink pension card recorded as CAR (carer pension).  In the submission listing the Australian relatives of the sponsor dated 12 September 2019, the sponsor’s sister was identified as [Ms C] (previous name [deleted]) and I accept this is the sponsor’s sister’s carer pension card. The applicant’s representative also provided a copy of a current disability pension card for [Ms F] of the same address as [Ms C].

38. The applicant’s representative provided the tribunal with a copy of the Migration Review Tribunal decision dated 17 November 2003 in which [Ms A] is the review applicant, and is found to meet the criteria for a carer visa in which her sister [Ms C] is the nominator. The decision refers to medical reports which record that [Ms C] suffers from asthma, mild depression, backache, neck pain, and recently had had her gall bladder removed.  The decision records that [Ms C] saw a psychologist informally as she was her friend, and finds the major cause of her depression was related to her marriage. The decision records that the main factors influencing [Ms C’s] health conditions were marital problems, financial problems and difficulties caring for her children. To alleviate these conditions, her sister [Ms A] was assisting her with her responsibilities.  There is no evidence before me that the medical conditions identified in the decision of 2003 which impacted her psychological and physical health at that time were permanent conditions, (excluding asthma). The assistance of [Ms A] was recorded as offering respite and relief to her sister from her depression and physical conditions by assisting her with her daily tasks in the household, including taking the children to school and sport activities and doing the housework and gardening.

1. The decision dated 17 November 2003 records that [Ms C] had a teenage son and twin girls. The son is recorded as not taking a very active role in the house. The twin girls are recorded as requiring additional assistance at school to learn English and there were strategies in place to provide assistance as required, recorded in a letter from their school, and school reports provided.  It is not clear whether the difficulty with English is because English is not the twin girls’ first language. I accept the report records the twin girls had extra tutoring, and an active after school program.  There is no definitive record of a document that confirms the oral evidence given to the tribunal (MRT) that the twin girls have a learning difficulty.  There is no evidence in the decision dated 17 November 2003 that I can rely upon to conclude that in 2019 I can be satisfied the twin girls and son of [Ms C] are not capable as adults to provide care or assistance to their aunt.

2. I have considered the evidence provided in the form of submissions from the representative, the oral evidence at the hearing and the documents provided to the tribunal. I accept one niece is married with children but no further information is provided. No information as to whether the other niece and nephew are employed or their marital status is provided. No information as to who [Ms C] is the current carer for is provided. 

3. The four Australian relatives are all adults, and live in the same city as [Ms A].  The assistance required by [Ms A] includes household tasks and personal assistance with daily needs including transport, shopping and cleaning and cooking. I am not satisfied based on the evidence before me that the Australian relatives are not able to provide assistance to do these tasks for medical or capacity reasons. I am not satisfied based on the evidence before me that any of the four Australian relatives could provide some of the assistance provided, even a few hours per week.

4. I have considered whether the assistance cannot reasonably be provided by Australian relatives with whom the sponsor has not spoken for many years. I accept this would be difficult.  In Anveel v MIBP [2013] FCCA 2181, the court espoused that the decision maker must focus on the reasons the relatives cannot provide the care. I have assessed the reasons, and the detailed explanation of the dispute that led to the estrangement between [Ms A] and her four Australian relatives in 2011. I accept that families have disputes, and sometimes longstanding disputes. I have considered [Ms A’s] evidence that she felt her previous assistance to her sister was undervalued, and she did not want her sister subsequently arriving uninvited to stay in her house when she was in hospital. I accept the dispute became physical on the occasion in January 2011, but many years have passed, and the cause of the dispute is not of such a nature that it is unreasonable to anticipate one day the sisters may reconcile. I do not accept that this dispute is not incapable of reconciliation. In these circumstances when I analyse the reasons the Australian relatives cannot provide the care, I have to consider the evidence that [Ms A] has chosen not to communicate with her sister or her sister’s children since 2011, and has not asked her Australian relatives to provide the care.

5. In these circumstances [Ms A] has not asked her sister, or her nephew or her two nieces whether they could reasonably provide her with assistance, or some of the assistance that she requires.  The reasons the relatives cannot provide the care for [Ms A] is that she declines to ask them, and I am not satisfied in the circumstances that this is reasonable for the purposes of r.1.15AA(1)(e)(i). I am not satisfied based on the evidence before me that the assistance required cannot reasonably be provided by the Australian relatives of the sponsor.   I have considered in making this finding that the assistance could be provided by a combination of Australian relatives, or a combination of Australian relatives with other services. 

6. The evidence before the tribunal is that the applicant has sought assistance from the [Council 1] in [City 1], and they could provide a person who would clean in the house for three hours each week but were unable to provide someone who could speak Turkish, so it was not accepted. The evidence from the applicant is that the applicant and [Ms A] have not applied to a council for any form of assistance since moving to [City 2] over  2.5 years ago to provide [Ms A] care in the home.

7. [Ms A] stated they have applied for assistance on the form of food vouchers, and saw a financial counsellor.  The applicant stated they receive assistance from Human Services with money of food.

8. [Ms A] stated the applicant knew the details of her applications for placement in a nursing home. She stated she needs 24 hour care each day.  [Ms A] stated either the applicant or her spouse remains with her while the other goes out to do the shopping or other errands. She stated someone is with her all the time.  The applicant stated she has made enquiries of aged care services for assistance. The applicant stated that the young age of [Ms A] is a barrier to her being accepted by the services. The applicant stated she visited a nursing home in [City 1], where they stated that patients needed to be aged over 50 years. At that time [Ms A] was not aged 50 years or over.

9. The applicant stated she has made three telephone enquiries of nursing home placements in [City 2].  She rang MyAged Care, and they advised [Ms A] was too young to qualify for assistance through this government supported program.  The applicant stated she rang two nursing homes.  The first advised that [Ms A] needed to be over 65 years so she did not qualify.  The second advised that [Ms A] needed to be bedridden, and then she would be placed on a waiting list. The applicant has not proceeded to seek admission for [Ms A] as she does not consider that she meets the criteria for admission.

10. The applicant provided submissions in relation to the difficulty for members of the Turkish community, which identified the lack of Turkish language skills in the health and community sector.  The article provided also listed Turkish community organisations, including seven womens associations, eight foundations, ten cultural centres and twelve cultural associations, seven aged associations, plus religious, educational, welfare, miscellaneous and other associations and groups in [City 2], and two regional associations. The applicant has not provided any evidence of contacting any of these centres or associations for advice or assistance in obtaining the assistance that [Ms A] requires.

11. After the hearing the applicant provided a screen shot of the MyAgedCare website that records to be eligible for the Commonwealth home support program you must be 65 years or older, or 50 years or older and on a low income, homeless or at risk of being homeless. I am satisfied based on her date of birth that the sponsor [Ms A] was born in [1968], and therefore turned fifty in [2018], and is over 50 years of age at the time of this decision. I am satisfied that the sponsor receives a government pension, and has applied for food voucher assistance at times.  I accept that the sponsor is on a low income, and struggles financially. I assume that the sponsor would be eligible for an assessment to see if she meets the criteria for any of the home assistance packages.

12. The applicant advised their local council is [Council 2].  I looked at [Council 2] website that states there is no minimum age requirements for its home care packages. The council lists the services it can provide as including domestic (cleaning), personal (showering, dressing etc), respite, transport, home maintenance, nutritional and meal preparation, clinical care (nursing and allied services),  and planned activity groups.  The council does record that to apply you are referred to MyAgedCare to be assessed for eligibility for the four levels of home care packages. This may indicate that there is a minimum age requirement for some of the home care services, as MyAgedCare sets minimum age requirements for eligibility.

13. At the time of this decision, and since [2018], [Ms A] would meet the minimum age requirement for a MyAgedCare eligibility for the Commonwealth home support program.  At the time of this decision [Ms A] meets the eligibility requirements for [Council 2] home care packages, even if the referral is through MyAgedCare which has the minimum age requirement of 50 years.

14. The evidence before the tribunal is that at the time of decision, the applicant has not obtained any assistance from welfare or community or nursing services.  I accept that [Ms A] has had operations or hospital admissions in recent times, and attends specialists, and therefore accept she obtains services from hospital services in Australia.

15. The issue is whether the assistance [Ms A] requires can reasonably be obtained from Australian services. Based on the carer certificate report, I accept that [Ms A] requires assistance daily, with hygiene, dressing, cooking, mobility, special exercising/therapy, supervising medication, supervision, transport and requires personal care and attention on a daily basis, and constant supervision and monitoring. The assessment is somewhat abstract as [Ms A] is married to a person who cannot be considered as an Australian relative, but who resides with her.

16. I am satisfied that [Ms A] has not obtained services from welfare and community services.  I accept that the applicant contacted the [Council 1] to enquire about assistance before she and the sponsor moved from [City 1] over two years ago. I accept the applicant has made the three telephone enquiries since moving to [City 2], one to MyAgedCare, and two to residential nursing homes. I accept that [Ms A] requires personal care and attention on a daily basis, and constant monitoring and supervision. I accept the applicant made enquiries of MyAgedCare and three nursing homes, and as [Ms A] is not bedridden, a placement in a nursing home is unlikely to be available in the immediate future.

17. However, I find [Ms A] could apply to access council services for some of the assistance that she requires.  I find that as she is now aged over 50 years at the time of this decision, the sponsor is eligible for home care packages that could assist her with some domestic, personal, home maintenance, nutrition and food preparation, transport and other assistance. I accept that the sponsor receives some assistance from her spouse who resides with her but does not meet the definition of Australian relative. I accept the sponsor requires assistance with daily tasks including personal hygiene, home cleaning, shopping and transport services.

18. As there is no assessment requested or undertaken, at the time of this decision, when [Ms A] meets the age eligibility criteria for MyAgedCare home assistance packages, I am unable to assess if the assistance she requires can reasonably be obtained from Australian services. I have considered the applicant provided the tribunal with a list of diverse Turkish centres and associations, and there is no evidence that [Ms A] has applied to access welfare and community services through any of these organisations. I am unable to assess whether the assistance [Ms A] requires could be obtained through these Turkish centres and associations.   

19. I have considered, as I am required to do based on the decision of Nguyen v MIBP [2017] FCCA 339, that I am required to give proper consideration to the subjective preferences of the person needing care.   In other circumstances, a decision maker would have the opportunity to assess the services obtained, and consider whether they were sufficient to provide the care required.  In other circumstances if a person requiring care declined services offered, a decision-maker would consider whether the refusal by person needing care of services was reasonable, taking into account their cultural, linguistic and other personal factors. In this matter I am unable to assess whether the assistance required cannot reasonably be obtained from Australian services, as the evidence before me is that (although I accept the applicant made three telephone calls of enquiry in the last 2.5 years since moving to [City 2]) there is no assessment of eligibility of assistance for [Ms A].   

20. I conclude that [Ms A] is eligible and could apply to her local council and through MyAgedCare for home care assistance packages to obtain the assistance or some of the assistance that she requires, and that which she currently depends on the applicant to provide.  I conclude that [Ms A] could apply to the diverse list of Turkish centres and organisations to obtain the assistance or some of the assistance that she requires, and that which she currently depends on the applicant to provide. It is the responsibility of the applicant to provide the evidence that she meets the criteria for the visa. I note the applicant provided the tribunal with the list of Turkish centres and organisations, and the website screenshots for MyAgedCare. The tribunal has considered the potential services suggested by the applicant as the relevant Australian services from whom [Ms A] could potentially obtain the assistance she requires.

21. In this review I am unable to assess whether the assistance cannot reasonably be obtained from the Australian services that [Ms A] requires. It is not sufficient to provide little evidence of assistance from Australian services, when assistance is potentially available.  It is not sufficient to rely on oral evidence of telephone enquiries on unspecified dates, which resulted in a negative response. Based on the evidence, or lack of evidence, before me, I am not satisfied that the assistance [Ms A] requires cannot reasonably be obtained from Australian welfare, hospital, nursing and community services.

22. For all the above reasons I am not satisfied the assistance the sponsor requires cannot reasonably be provided by Australian relatives, or obtained from Australian services.  For the above reasons, I have concluded that the applicant cannot rely on providing insufficient evidence to meet the requirements of this subclause of the regulations.

23. Therefore for the above reasons, the tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.

    Willing and able – r.1.15AA(1)(f)

24. I will proceed to consider the next subclause of the regulations, despite my finding above.

25. 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.

26. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

27. The applicant gave evidence that she does all the household duties around the home, including cleaning, cooking, laundry, shopping, attending to the personal and hygiene matters of [Ms A] which includes showering her and taking her to the toilet and dressing her, organising her medications, massaging [Ms A] if she is stiff, taking her for walks, taking her to appointments, and driving her to [City 1] to continue to see one of [Ms A’s] preferred doctors there.  I accept that the applicant has provided this care since 2010, and states she will continue to do it as long as her stepmother needs her.  I am satisfied the applicant is able and willing to provide the care her stepmother requires. I accept the applicant provides the care for her stepmother almost 24 hours a day, and at devotes most of her life to the care of her stepmother.

28. The applicant stated she does not have a partner or boyfriend.  She stated she does not have time to do anything socially as she is looking after her stepmother.  She stated she does hope to marry, and would continue to look after her stepmother when she marries. The applicant stated that if she cannot continue to care for her stepmother in the future because she is married and has children of her own, her father will have to do it.  I am satisfied the applicant has demonstrated for nine years that she is able and willing to provide the care her stepmother needs, and she intends to continue to provide this substantial care to her stepmother. I am satisfied the applicant is able and willing to provide substantial and continuing assistance of the kind needed.

29. Therefore, I am satisfied that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and the applicant meets the requirements of r.1.15AA(1)(f).

30. As I find the applicant does not meet the requirements of cl.1.15AA(1)(e) the applicant does not meet the definition of carer  in r.1.15AA. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

31. For the reasons above, the applicant does not meet the criteria for a Subclass 836 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.

    DECISION

32. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Margie Bourke
    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.