1913470 (Migration)

1913470 (Migration) [2023] AATA 869 (23 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1913470
MEMBER:SM Michael Cooke
DATE:23 March 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl.116.211 of Schedule 2 to the Regulations
·cl.116.221 of Schedule 2 to the Regulations

Statement made on 23 March 2023 at 8:32am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – person requiring care a member of the family unit of the family head sponsor – grandson and grandmother – usually resident in family head’s household and financially dependent – sponsor’s funds to caree’s parents to buy house next door and for food, clothing and mobility assistance – applicant the niece of sponsor – assistance cannot reasonably be provided by other relatives or obtained from service providers – caree’s reduced health and need for immediate and constant care – other relatives’ families or work – attempts to obtain care from providers – limited care provided – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12(1)(e), 1.15AA(1), Schedule 2, cls 116.211(2), 116.221
CASES
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 24 February 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 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.
The delegate refused to grant the visas on the basis that cl 116.221 was not met because the applicant was not ‘a member of the family unit’ of the sponsor - pursuant to reg.1.12.
The applicant’s representative has responded to the various reasons for the delegate’s refusal in his tendered submission thus:
Further to our Submission dated 03 July 2020, we note that the delegate stated that:
“I am not satisfied that the Sponsor is a member of [the caree’s] (the person with medical conditions) family unit as defined in Regulation 1.12. As per the Regulation, [the caree] must be financially dependent on the family head – [the Sponsor]”. (Decision Record, page 4, paragraph 4)
Therefore, the issues are:
· whether [the Sponsor] is the head of [the caree’s] family; and
· whether [the caree] is dependent on the Sponsor, the head of the family. We would respectfully submit the following:
Old Law applied:
The application for a Carer (Subclass 116) visa was lodged on 24 February 2014.
As a result, the old Regulation 1.12 relating to ‘a member of family unit’ applied to this case.
The new Regulation concerning the definition of ‘member of family unit’ only applies from 19 November 2016 to limit secondary visa applicants.
The delegate apparently did not pay attention to the old Regulation 1.12 which should have applied to this case.
The Sponsor – The Family Head:
Under the old Regulation 1.12 (a copy enclosed), [the caree] is member of the family unit of [the Sponsor] because under Reg.1.12(1)(e), [the caree] is a relative of the family head who does not have a spouse: is usually resident in the family head’s household; and is dependent on the family head.
The new Reg. 1.12(2) – General rule – does not have a similar Clause 1.12(1)(e) relating to relative.
The Sponsor is [the caree’s] family head because
·The Sponsor provided funds for [the caree’s] father to buy their house.
We would like to refer the Tribunal to the Statutory Declaration signed by the Sponsor dated 01 July 2020 which was submitted to the Tribunal on 03 July 2020 where the Sponsor stated that back to 2007, ‘I gave [the caree’s] father a cheque issued by [named] bank in the amount of [amount] to purchase the property at [Address 1] where [the caree’s] family has been residing. My cheque was valued at 20% of the purchase price’. Without my financial support in 2007, [the caree’s] family might not have had their current shelter”.
The Sponsor provided food and clothing for [the caree] himself and his family.
We would like to refer the Tribunal to the Statutory Declaration signed by the Sponsor dated 01 July 2020 which was submitted to the Tribunal on 03 July 2020 where the Sponsor stated that:
In relation to food and clothing, I would draw the Tribunal’s attention to the following:
[The caree’s] family has only one source of income from [the caree’s] father who has to pay regular mortgage.
I pay for all food and household stuff expenses for [the caree’s] family. I go shopping and refill their refrigerator with all kinds of food every week.
I am enclosing herewith seventy (70) pages of my Bank Statements for the period from November 2015 to November 2019, showing the transactions at Costco, Woolworths, Coles and Aldi where I regularly go shopping. I did not include the transactions at [Suburb] Commercial Centre where cash is preferably used.
If I went shopping only for my own family including myself and my husband, I would not spend so much money.
I am enclosing herewith a Summary of my spending on Groceries and Household stuff from 2016 to October 2019.
I also buy clothes and shoes for [the caree] and his two brothers whenever I go shopping”.
The Sponsor provided funds for [the caree’s] other needs.
We would like to refer the Tribunal to the Statutory Declaration signed by the Sponsor dated 01 July 2020 which was submitted to the Tribunal on 03 July 2020 where the Sponsor stated that:
Other Needs: In order to sustain [the caree’s] needs of physical movement, I spent my money on making a pram for [the caree’s] wheelchair, installing air-conditioners, renovating the bathroom for wheelchair, etc.
On 25 November 2016, I gave [the caree’s] father $10,000.00 as my partial contribution to purchase a sloper Webcab vehicle from Japan for the convenience of taking [the caree] to school or appointments with doctors (Please see my Bank Statement from August 2016 to February 2017 enclosed).
It has been I who paid for [the caree’s] wheelchairs, standing frame and physiotherapy equipment.
The two houses of the Sponsor and her son are next door to each other at [Address 2] and [Address 1].
IN REALITY, THERE IS ONLY ONE HOUSEHOLD. THEY DO ALL ACTIVITIES TOGETHER AS ONE FAMILY.
[The caree] is a Relative of the Sponsor:
The delegate confirmed that [the caree] is a grandson of the Sponsor.
Accordingly, [the caree] is a ‘member of family unit’ of [the Sponsor].
We would submit that the Visa Applicants meet these requirements because
·They are relatives of the Sponsor resident; and
·[The caree], who is a ‘member of the family unit’ of the Sponsor, has medical conditions.
The review applicant appeared before the Tribunal on 25 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the caree’s mother]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the requirements for a ‘carer’.
APPLICANT CLAIMS TO BE CARER
Whether the visa applicant has claimed to be a ‘carer’
Clause 116.211 of the Regulations requires that the visa applicant claims to be a ‘carer’ of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a ‘carer’ of the review applicant, who is the visa applicant’s aunt.
For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
The Tribunal finds that the applicant claimed to be a ‘carer’ of another person (‘caree’) at the time of application; and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen.
Therefore, at the time of application the visa applicant claimed to be a ‘carer’ of an Australian relative and satisfies the requirements of cl 116.211.
APPLICANT IS A CARER
Whether the visa applicant is a ‘carer’
Clause 116.221 requires that at the time of decision, the visa applicant is a ‘carer’ of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s aunt.
The Tribunal finds that the applicant is a relative of the Australian relative, having regard to the definitions of ‘relative’ and ‘close relative’ in reg 1.03 and the relative is an Australian citizen and ‘usually resident’ in Australia.
Therefore, as the visa applicant is the niece of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
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.
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 or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal finds that there is a certificate, and the certificate meets the requirements of reg 1.15AA(2) and according to the certificate:
·the resident or a member of the family unit has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life
·the impairment has an impairment table rating specified in the certificate
·because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life.
The Tribunal finds that the Certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
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.
In the present case, 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)
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.
In the present case, the impairment rating specified in the certificate is 40. 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 (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
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.
As the person to whom the certificate relates is a member of their family unit, reg 1.15AA(1)(d) does apply.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
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 applicant has evidenced (in a comprehensive submission to the Tribunal) the complete matrix of Australian relatives who (in theory) could ‘reasonably provide’ the assistance [the caree] requires. However, the representative has outlined (to the Tribunal’s satisfaction) that none of them are ‘reasonably’ able to provide the assistance. This is primarily because the ‘caree’ requires 24-hour care and they all have families or careers of their own which makes any potential assistance which could be provided - not ‘reasonable’.
The representative has also outlined attempts by the family to obtain assistance from ‘welfare, hospital or nursing or community services’. Having outlined various contacts with ‘welfare, hospital or nursing or community services’ made by the parties, he summarised the situation as follows:
In the event when [the caree] were provided with care and assistance by Australian Government Agencies, he would be unable to obtain 24-hour care a day due to limited care provided by these Services while he needs to be cared for 24 hours a day and 7 days a week.
A further submission outlines the contemporary situation:
My name is [the caree’s mother]. Our application for an Other Family (Migrant) (class BO) carer (subclass 166) visa has been rejected. However, we have apply for merits review of the decision with AAT and waiting for a review.
I understand the decision of refusal made by the Department of Home Affairs. However, I would like to ask for consideration into our circumstances with compassion and help us to grant carer visa for our relative, so that my son can have the best quality of life surrounding his loved ones in his comfort home.
Our circumstances have changed dramatically since we lodged an appeal application with AAT for a review.
My 2 sons, [Mr A] [Age] year old and [Mr B] [Age] year old has moved out of our home and have their own family. I started a [business] back in 2017, I only work part time, I also enrolled in [Subject] course, the time I worked and study mostly when [the caree] at school or if he is unwell and staying home from school then I set up my work time at night when my husband is home.
Unfortunately, due to [the caree’s] medical condition and recent [major operation] has substantially reduce his function and his health. I have struggling to provide care in the absence of support. Also I am struggling to meet deadline for my work and study commitment.
I currently received home care support as part of [the caree’s] NDIS funding in 12 months plan. As my proposal with NDIS to provide funding to help support me for 2 hour in the morning and 2 hours in the afternoon. Unfortunately, funding provided only can assist me for 3 months out of 12 months plan. All other days I received supports from my mother in-law [the sponsor].
My mother in-law ([the sponsor]) she help me every morning before she have to rush off to go to work, the same as in the afternoon she come over help me before my husband got home from work to take over. When [the caree] is unwell she comes and take turn with me to care for [the caree] at night or when [the caree] have to admitted to hospital due to his illness and she come in to swap over to give me a little a break. We’re living at 2 different addresses but actually we are just next door and my mother in-law stays overnight mostly on weekends. We (go) shopping together and we have dinner together as 1 family unit.
My mother in-law ([the sponsor]) she’s the main support and assist me and my husband in caring for our son [the caree] to give him the best care.
An inevitable life hit us to the core at times, my husband was hospitalised for 2 weeks and diagnosed with [condition] and still waiting for his health to recover well for surgery [to] prevent future infection. During the 2 weeks that my husband in hospital I was devastated, I can’t be with him when he is chronically ill and the doctor can’t determine what exactly happening to my husband’s condition. I have noticed my husband’s emotion is hitting the wall, he feels hopeless that he can’t be at home, he feels limitation, the struggling of everyday life for normalization. We have to push through to the understanding of “in sickness and in health”, the rolls of responsibilities, physical needs, emotional needs and our future plan for [the caree].
Due to our limited support funding from NDIS it can only cover for home care support a total of 3 to 4 months out of the 12 months plan, the remaining days my mother in-law ([the sponsor]) helped me with [the caree].
My mother in-law working full time as [an Occupation], she loves her job and it’s her passion, her dedication that she set herself to a very high [standard]. I know she have considered early retirement so that she can help me care for [the caree]. It’s so sad to think about it, it means I will takeaway such treasure like her, she could have continue working for another 15 years as her initial planned and her commitment of duty.
The Tribunal, from its long experience with ‘carer’ cases, finds that such information is not implausible when the health situation of minors or under pension age applicants is concerned. In particular, ‘carees’ with a 24/7 need, find it impossible to obtain such care ‘reasonably’. This is simply because their needs are usually very immediate and constant due to their omnipresent poor health.
The above Tribunal observation and conclusion was graphically outlined by the parties in oral evidence as follows:
The Tribunal asked the parties to describe “a day in the life of [the caree’s] carers”. What followed could only be described as a truly extraordinary commitment to help a very disabled child just to “give him some quality of life” as the applicant explained. With Mother Teresa-like devotion to his welfare, his aunt (assisted by his mother) set about the task of achieving the heretofore mentioned objective.
From sunup to sundown the two individuals bathed, fed and cleaned up the ‘caree’. Even the achievement of sending him to school (to engage in life outside a wheelchair for a few hours) would often be disturbed by an emergency call to come and get him. The applicant sponsor explained that she had to work herself but only due to the benevolence of her employer who allowed her constant time off to attend to the ‘caree’. The ‘caree’ from evidence presented has had multiple operations to give him greater mobility.
She explained that if she were not involved, she feared her daughter and son in law would separate from the stress. She had finally decided that the burden was so onerous that they both were going to crack, and a 24/7 availability carer was need for [the caree]. This was why she sponsored the visa applicant.

The Tribunal is satisfied, from the available evidence, 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.
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
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.
The Tribunal finds that the visa applicant is both willing and able to provide substantial and continuing assistance required.
Therefore, the visa 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 on ‘Carer’ criterion
Given these findings the Tribunal concludes that at the time of decision the visa applicant is a ‘carer’ of the Australian relative, being the review applicant and, therefore, satisfies cl 116.221.
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 116 visa.
DECISION
The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.211 of Schedule 2 to the Regulations
· cl 116.221 of Schedule 2 to the Regulations
Michael Cooke
Senior 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.

[2023] AATA 869

23 March 2023

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Immigration

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