1911291 (Migration)

[2023] AATA 4869

1911291 (Migration) [2023] AATA 4869 (8 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Merlin Nicholas

CASE NUMBER:  1911291

MEMBER:Justine Clarke

DATE:8 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.221 of Schedule 2 to the Regulations

Statement made on 08 August 2023 at 11:01am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of the Australian relative – grandchild – assistance cannot reasonably be obtained/provided – other relatives – welfare, hospital, nursing or community services – language requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.221

CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
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 on 17 April 2019 by a delegate of the Minister for Home Affairs to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 11 May 2018, the applicant, who is a national of Lithuania, applied for the visa. At that time, he was [age] years of age. At the time of this decision, he is [age] years of age.

3. At the time that the applicant applied for the visa, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In this case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa.

4. 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 836.221. Clause 836.221 is a time of decision criterion which provides: ‘[t]he applicant is a carer of the Australian relative mentioned in clause 836.212’.

5. The term ‘carer’ is defined in reg 1.15AA of the Regulations, which is set out in the attachment to these reasons. ‘Relative’ is defined in reg 1.03 of the Regulations. In this case, the Australian relative is [Ms A]. At the time the applicant applied for the visa, [Ms A] was [age] years of age. At the date of this decision, she is [age] years of age.

6. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa to the applicant on the basis that cl 836.221 was not met. This was because the delegate found that reg 1.15AA(1)(e)(ii) and reg 1.15AA(1)(f), within the definition of ‘carer’, were not met.

7. Regulation 1.15AA(1)(e)(ii) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

8. The delegate relevantly stated:

   On 28 February 2019 [the applicant] was asked to provide evidence that the sponsor had sought care from service providers in Australia.

   On 4 April 2019 a statutory declaration was received from the applicable migration agent declaring that the sponsor ‘does not want to move into aged care facilities’ and that ‘she would like to stay home’. He also stated that ‘it is difficult to get full-time at home services at reasonable price’.

   No evidence was provided to demonstrate the concerns raised.

   The migration agent also mentioned that ‘[Ms A] speaks little English which is a great barrier for her and service provider in order to provide a quality care’. No evidence was provided to demonstrate that the contact with service providers who may or may not have been able to accommodate the sponsor’s requests in having services with the language of her origin, in this case, Lithuanian.

   I note the concerns raised in regards to the perceived disadvantage which the resident may face due to cultural and language barriers. However, the fact that the sponsor’s family may have a preference for the applicant to be the resident’s full time carer, which may be a more convenient arrangement for them, does not negate the requirement for the family to thoroughly investigate the availability of other potential care arrangements.

   On 5 April 2019 copies of email correspondences the applicant had sent to various service providers were received. These emails stated they could not provide the services required, but suggested other agencies who may have been able to assist. No evidence has been provided to demonstrate that the applicant had made any further attempts to obtain such services.

   For example:

   ·     Silver Chain care Team ‘you should call My Aged Care 1800 200 422 they will be able to assist and advise you’.

   ·     CatholicCare ‘direct your enquiry to Villa Maria Catholic Homes they will have the support you are looking for your mother’.

   There was no evidence to demonstrate that the applicant had sought other assistance which may be provided by Care home placements, welfare, hospital, nursing or community services in Australia.

   I acknowledge that the medical evidence available in the Carer Visa Assessment Certificate (CVAC) indicates that [Ms A] requires assistance with mobility, transportation and needs supervision from another person at times due to her being a high falls risk. [Ms A] also requires assistance for personal hygiene and care, as her limitations lead to high risk of falling.

   It also states that the sponsor receives fortnightly home care (cleaning) through the council and that Occupational Therapists have installed rails in the house and a toilet raiser in the toilet.

   Having assessed all of the information available to me, I am not satisfied that the family have fully investigated the availability of care facilities, in-home care from service providers (either welfare based or private care agencies) or a combination of family support and in-home assistance.

9. The delegate concluded that it had not been demonstrated that the care [Ms A] requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Accordingly, the delegate found that, at the time of making the primary decision, reg 1.15AA(1)(e)(ii) within the definition of ‘carer’ was not met.

10. Regulation 1.15AA(1)(f) requires that ‘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’.

11. The delegate relevantly stated:

    The Carer Visa Assessment Certificate (CVAC) notes that [the applicant] ‘looks after the domestic activities of daily living such as cooking, shopping and assists with bathing and dressing’. However, it also states that the sponsor ‘can manage her bathing and toileting by herself’.

    The applicant is a single, [age] year old man who declared in his statutory declaration that he is willing to take care of his grandmother and also declared ‘I do all the shopping, sometimes we do shopping together’.

    However, in Form 47OF – Application for migration to Australia by other family members, [the applicant] also indicated his reasons to remain in Australia is ‘to care for grandmother, live, study and work’.

    I have considered the applicant’s declarations and the migration agent’s statement in his email dated 04 April 2019 noting that the sponsor requires ‘constant care’.

    I give weight to the Carer Visa Assessment Certificate (CVAC) which refers to the sponsor’s requirement of ‘supervision from another person as she is still unsteady and is a high falls risk’.

    In view of the applicant’s declared intentions to ‘study and work’, and a lack of clarity regarding how he will balance the care needs of the sponsor and the time commitment involved with ‘study and work’, I cannot be satisfied that the applicant will be able to provide the constant care required by the sponsor, in the long term.

    Consequently, I find that subregulation 1.15AA(1)(f) within the definition of ‘carer’ is not met.

12. On 6 May 2019, the applicant applied to the Tribunal for review of the refusal decision. The applicant was represented in relation to the review.

13. After the presiding Member reviewed the written submissions and evidence, the Tribunal considered that a hearing was no longer required. On 7 August 2023, the Tribunal cancelled the in-person hearing that was scheduled for 9 August 2023. Pursuant to s 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The key issue for determination in this case is whether, at the time of this decision, the applicant is [Ms A]’s carer and thus cl 836.221 is met.

16. The Tribunal notes that it has a greater amount of evidence in respect to this issue than what had been before the delegate. In this review, the applicant’s representative submitted a number of documents, including: detailed written submissions dated 27 April 2023; a number of documents evidencing the identity of the applicant and [Ms A]; a number of documents in relation to [Ms A]’s health; a number of statutory declarations from Australian relatives; documents in relation to health and welfare services in Australia and documents in relation the applicant’s ability and willingness to provide care to [Ms A].

    Whether the applicant is a ‘carer’

17. The applicant claims that he is the carer of [Ms A], who is an Australian citizen usually resident in Australia (‘the resident’).

18. In the primary decision, the delegate was satisfied that [Ms A] is an Australian citizen who is usually resident in Australia. The Tribunal records here that it is satisfied, from the evidence before it—including a certificate of [Ms A]’s Australian citizenship, that [Ms A] is an Australian citizen who is usually resident in Australia.

    Is the applicant a relative of [Ms A]? (reg 1.15AA(1)(a))

19. The term ‘relative’ is defined in reg 1.03 as a ‘close relative’ (also a defined term in reg 1.03) or other specified relation. One of the relations specified as being a ‘relative’, is a grandchild.

20. As has already been stated, in this matter, it is claimed that the applicant is [Ms A]’s grandson.

21. In the primary decision, the delegate appeared to be satisfied that the applicant is [Ms A]’s grandson, stating, ‘[t]he claimed relationship between [Ms A] and the applicant is grandson to the sponsor. Birth certificates have been provided to demonstrate the relationship’.

22. The Tribunal notes that there is no evidence to suggest that the applicant is not [Ms A]’s grandchild. Rather, the evidence suggests that he is.

23. Based on the evidence before it, the Tribunal is satisfied that the applicant is the grandson of [Ms A] and that the requirement in reg 1.15AA(1)(a) is met. 

    Does the certificate meet the requirements? (reg 1.15AA(1)(b) and reg 1.15AA(2))

24. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), state 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.

25. For a certificate to meet reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

26. In this case, the most recent certificate issued pursuant to reg 1.15AA(1)(b) and reg 1.15AA(2) is the certificate titled ‘Carer Visa Assessment Certificate’ dated 17 and 18 July 2022. The certificate provides the name and signature of the examining doctor. It is on the letterhead of Bupa Medical Visa Services. Legislative Instrument IMMI 14/085 specifies Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

27. The certificate specifies that:

    ·     [Ms A] has a medical condition causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life;

    ·     because of [Ms A]’s medical condition, she has a need for direct assistance in attending to the practical aspects of daily life;

    ·     the impairment has an impairment table rating specified in the certificate; and

    ·     because of [Ms A]’s medical condition, she has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

28. The Tribunal is satisfied that the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)–(iv) and that the requirements of reg 1.15AA(1)(b) are met.

    Does the person with the medical condition (here, [Ms A]) meet the residency requirement? (reg 1.15AA(1)(ba))

29. 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.

30. As has already been stated, the Tribunal is satisfied from the evidence before it that [Ms A] (the person with the medical condition) is an Australian citizen residing in Australia. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Does the impairment rating meet the requirements? (reg 1.15AA(1)(c))

31. Regulation 1.15AA(1)(c) requires that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument.

32. The relevant instrument for these purposes is IMMI 17/126.

33. In the present case, the impairment rating specified in the certificate is 35. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Does reg 1.15AA(1)(d) need to be satisfied?

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

    Can the assistance be reasonably provided by any other relatives or obtained from certain services? (reg 1.15AA(1)(e))

35. 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.

36. With respect to reg 1.15AA(1)(e)(i), it is helpful to note that the term ‘relative’ is defined in reg 1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. A close relative is a spouse or de facto partner of the person; a child, brother or sister of the person; or a step-child, step-brother or step-sister of the person.

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

38. The Tribunal is mindful that 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]. When making such assessment, consideration should also be given to the nature of care required by the person needing the care: at [61].

39. The ‘Carer Visa Assessment Certificate’ dated 17 and 18 July 2022 details the nature of the care required by [Ms A].

40. The Tribunal notes that, in the primary decision, the delegate was silent about whether or not the requirement in reg 1.15AA(1)(e)(i) was met.

41. In this review, it was submitted, in the written submissions of 27 April 2023 that:

    it is not reasonable for [Ms A] to have assistance provided to her by any other relatives in Australia. She has no close family in Australia other than [the applicant], and her only other relatives in Australia are distant cousins, who are sick or elderly and unable to provide assistance to her in any meaningful way.

42. It was further submitted:

    [Ms A]’s only family members in Australia do not meet the definition of a relative in this context [that is, reg 1.03] as they are relevantly her cousins. We nevertheless enclose documentation as noted below in relation to why each of them would not be able to provide care for her, even if it were appropriate that they be considered in this context, which we note it is not in any event.

    …

    … it remains our submission that [Ms A] has no Australian citizen, permanent resident or eligible New Zealand citizen relatives from whom the required care could reasonably be provided, with [the applicant] representing [Ms A]’s only ‘relative’ in Australia in this context.

43. The Tribunal has reviewed the various statutory declarations that were submitted in this review: 

    ·statutory declaration of [Mr B] made on 14 March 2020;

    ·statutory declaration of [Ms C] made on 17 March 2020;

    ·statutory declaration of [Mr D] made on 6 May 2020;

    ·statutory declaration of [Ms E] made on 12 May 2020;

    ·statutory declaration of [Ms F] made on 16 July 2020; and

    ·statutory declaration of [the applicant] made on 21 February 2023.

44. Based on all the evidence, the Tribunal accepts the veracity of the submissions and finds that, at the time of this decision, reg 1.15AA(1)(e)(i) is met.

45. With respect to reg 1.15AA(1)(e)(ii) (which, it will be recalled, requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia), it was submitted:

    the assistance [Ms A] needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. [Ms A] has received some, extremely limited, assistance from community services in Australia. We are instructed that up until approximately November 2022, [Ms A] has received home help service through the [local] Council, comprising one (1) hour of cleaning assistance every fortnight. However, the Council has stopped providing this service, and [Ms A] now relies solely on [the applicant] for cleaning/household duties. In addition, [Ms A] has been on the waiting list for a level 2 Home Care Package for more than two (2) years, but we are instructed that she has not received any updates nor information about when it will be provided. Thus, as of today’s date [27 April 2023], [Ms A] does not have full-time, professional, in-house care, and relies solely on her grandson to address her daily needs.

    [The applicant] has contacted a number of welfare, nursing, and community services providers in an attempt to find suitable institutions which could potentially provide his grandmother with the appropriate level of care while also maintaining the necessary cultural facilities and communications that are necessary for her comfort and quality of life. [The applicant] has also extensively explored the potential for adequate care of [Ms A] from a number of nursing homes, but his search has not yielded results that are suitable for her care and accommodation. The high threshold of [Ms A]’s needs makes it very difficult, if at all possible, to locate appropriate aged care facilities that cater to her linguistic and cultural needs without an extremely long waiting list or at a very large cost.

    We are also instructed that [the applicant] utilised the Australian Government’s My Aged Care website to ascertain what, if any, appropriate permanent residential care might be available to his grandmother. [The applicant] instructs that this search disclosed no facilities which were listed as supporting the Lithuanian language—[Ms A]’s primary language in which to communicate—but that the other facilities that were potentially suitable were contacted. We enclose email correspondence between [the applicant] and 20 separate aged care facilities/providers for your reference in this regard, none of which catered to [Ms A]’s linguistic and cultural requirements. It is thus submitted that in terms of cultural and social suitability, there are no known facilities within Melbourne that could adequately meet the basic criteria for [Ms A]’s needs, particularly taking into account her comfort, dignity and quality of life.

    We further submit that, given the well-documented shortage of aged-care facilities and the high demand for places in such facilities in an aging population, it is reasonable and preferable that [Ms A] be cared for by her own family members in her own home. Furthermore, [Ms A] has never lived in a nursing home before and would face extreme difficulties if institutionalised including the loss of her culture and sense of security; isolation and impracticability of not being able to communicate effectively with those providing her with care. We are instructed that [the applicant] fears that if this application is unsuccessful and if [Ms A] were forced to live in a nursing home, it would worsen her health conditions which will add extra burden to the Australian health and welfare system.

1. The Tribunal has reviewed the various emails that the applicant has sent in his quest to find appropriate welfare, hospital, nursing or community services in Australia for his grandmother and also the responses received and the screenshots of various searches for an appropriate aged care home in the [specified area] of Melbourne (the area where [Ms A] presently lives). The searches show no matches for Lithuanian language services.

2. Based on all the evidence, the Tribunal accepts the veracity of the submissions and finds that, at the time of this decision, reg 1.15AA(1)(e)(ii) is met.

3. The Tribunal is 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 reg 1.15AA(1)(e) are met.

   Is the applicant willing and able to provide the assistance required? (reg 1.15AA(1)(f))

4. 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.

5. 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.

6. In this review, it was submitted, in the written submissions of 27 April 2023 that:

   [The applicant] has completed his studies in Australia, and he remains willing and able to provide full-time care to [Ms A]. Further, it is [the applicant]’ view that his studies in Australia have better equipped him to provide a high level of care to [Ms A]. Indeed, in his enclosed Statutory Declaration at paragraph 7, he notes:

   ‘I completed a Certificate III in [Subject 1] through [named education provider]. This qualification, which directly relates to the health and maintenance of the human body, assists me in providing a high level of quality care to my grandmother’.

   We are further instructed that [the applicant] is not presently in full-time paid employment owing to his caring obligations toward [Ms A], but that he has minimal living expenses as he resides with his grandmother and thus does not pay rent. [The applicant] instructs us that he occasionally undertakes casual work, but that this is only ever for a few hours at a time and is based around his caring responsibilities towards [Ms A].

7. The Tribunal has reviewed the applicant’s statutory declaration of 21 February 2023 and the copies of his diplomas/certificates from the [named education provider]. 

8. Based on all the evidence, the Tribunal accepts the veracity of the submissions and finds that, at the time of this decision, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

   CONCLUSION

9. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

10. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

11. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.221 of Schedule 2 to the Regulations

    Justine Clarke
    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.