1930072 (Migration)

[2022] AATA 4681

1930072 (Migration) [2022] AATA 4681 (11 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sean Dong (MARN: 1066448)

CASE NUMBER:  1930072

MEMBER:Justine Clarke

DATE:11 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criterion for a Subclass 116 (Carer) visa is met:

·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 11 November 2022 at 11:22am

CATCHWORDS  
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – assistance from other relatives – assistance from certain services – 24-hour care – communication in Vietnamese and Chinese language – decision under review remitted

LEGISLATION 
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15AA; Schedule 2, cl 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

1. This is an application for review of a decision made on 21 August 2019 by a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The review applicant and [sponsor] is an Australian citizen with a medical condition.[1] At the time of this decision, the review applicant is aged 79 years of age.

   [1] She has Alzheimer’s Dementia and Osteoarthritis.

3. It is claimed that the first-listed visa applicant, that is, the primary visa applicant, is the review applicant’s daughter and that the second-listed visa applicant is the primary visa applicant’s son.

4. On 16 February 2015, the visa applicants applied for the visa. The visa applicants are both nationals of Vietnam. At the time of this decision, the primary visa applicant is [age] years of age, and the second-listed visa applicant is [age] years of age. Hereafter, the primary visa applicant is referred to as the visa applicant and the second-listed visa applicant is referred to as the secondary visa applicant.

5. At the time of application, 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).

6. In this case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) 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 and the secondary criteria include cl 116.321.

7. Clause 116.221 is a time of decision criterion which provides: ‘[t]he applicant is a carer of the Australian relative mentioned in clause 116.211’.

8. Clause 116.211 is a time of application criterion which provides:

   (1)  The applicant claims to be a carer of an Australian relative of the applicant.

   (2)  In this clause, Australian relative, in relation to an applicant, means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

9. The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.

10. Clause 116.321 is a time of decision criterion which provides: ‘[t]he applicant continues to be a member of the family unit of a person who is the holder of a Subclass 116 visa’.

11. The review applicant provided the Tribunal with a copy of the delegate’s refusal decision of 21 August 2019. The delegate refused to grant the visa to the visa applicant on the basis that cl 116.221 was not met. This was because the delegate found that reg 1.15AA(1)(e)(ii), within the definition of ‘carer’, was not met.

12. Regulation 1.15AA(1)(e)(ii) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The delegate was not satisfied that this requirement had been met, stating:

    On Form 47OF it was not declared that assistance had been sought from any Australian welfare organisations, doctors or health professional[s], hospitals, nursing homes or other community services.

    No insight was provided as to why such assistance had not been sought.

    On 19 January 2017, the Department requested evidence in regards to this matter, along with other supporting evidence.

    On 17 February 2017, the applicant requested an extension to provide all the information. The request was accepted and a new deadline of 25 March 2017 was set by the case officer.

    Various documents were sent by the applicant addressing aspects of the request letter; including an ACAS Assessment Outcome Report dated 24 March 2014 – folio 75. In this report, no approvals were given to the sponsor, however the sponsor was recommended for referral to:

    -    [named] City Council for Vietnamese

    -    Carers Victoria Respite Connections for short-term case management

    -    Australian Vietnamese Womens associations for Vietnamese

    -    HARP pharmacist

    The report noted that a grab rail in the toilet was declined by the Sponsor’s sister [Ms A] and that there were no services in place at the time of the assessment in 2014. No further evidence was provided to demonstrate care available from nursing homes, welfare, hospitals and community services.

    On 17 June 2019, a further request for information was sent to the applicant. Specifically, the applicant was requested to provide evidence of what assistance was available via welfare organisations, community services, nursing homes in Australia and nursing agencies. The Department’s request also clarified that all options for care must be sought in order to determine if care could reasonably be obtained from the above.

    On 14 July 2019, the applicant submitted an ACAT application form as evidence of an application for an ACAT assessment and requested a further 28 days to provide further information.

    On 18 July 2019, the applicant informed the Department that the Guardian (sponsor’s sister [Ms A]) has contacted the relevant services for Aged Care and requires an extension to provide a response when she receives more information.

    The Department acknowledged this request and the applicant was asked to submit the relevant information when she receives it.

    On 13 August 2019, the applicant submitted an ACAT [A]ssessment Summary dated 12 August 2019 for the [sponsor].

    This document outlines that a face-to-face assessment was conducted at the Guardian’s home (Sponsor’s sister [Ms A]) on 26 July 2019. The document states that [Ms A] is fatigued caring for her autistic [age] yr old son as well as her sister, [the sponsor] and needs respite; however, the letter states that [the sponsor] declined to have respite care or personal care because she prefers to go out with her sister. She also declined home care because ‘her nephew gets domestic assistance from NDIS every week’. She has indicated that she would like to attend a social support group to reduce her isolation.

    While it is appreciated that [the sponsor] has a preference for receiving care from her sister, this does not negate the need for the full range of possible residential and in-home care arrangements for her to be thoroughly investigated for the purposes of this application. I note that the initial request to provide this information was sent to the applicant in January 2017 and again on 17 June 2019. Extensions were given to submit the relevant documentation. As such, I find that the applicant had ample time to gather the requested information. No further evidence addressing this requirement has been submitted.

    In the absence of such evidence, I do not find that it is been demonstrated that the care [the sponsor] requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. I find that subregulation 1.15AA(1)(e)(ii) is not met.

13. The delegate also refused to grant the visa to the secondary visa applicant on the basis that he did not satisfy cl 116.321. As the delegate explained:

    As the primary applicant did not satisfy the criteria for the grant of a subclass 116 visa, the secondary applicant is unable [to] satisfy clause 116.321 in schedule 2 of the Regulations.

    No claims have been made and there is no evidence that the secondary applicant is able to meet the primary criteria for the grant of a Carer (Migrant (BO 116) visa.

14. On 23 October 2019, the review applicant applied to the Tribunal for review of the delegate’s refusal decision. The review applicant was represented in relation to the review.

15. On 24 October 2022, the review applicant appeared, in person, before the Tribunal to give evidence and present arguments. The Tribunal notes that she did not give oral evidence. Rather, the Tribunal received oral evidence, in person, from the visa applicant, [Ms B] (the review applicant’s niece) and [Mr C] (a family friend). The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The representative attended the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue for determination in the present case is whether cl 116.221 is met. That is, whether, at the time of this decision, the visa applicant is the review applicant’s carer.

18. 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 review applicant’s representative submitted a number of documents, including: written submissions; statutory declarations from a number of the review applicant’s family members; and correspondence from the review applicant’s general practitioner dated 6 September 2022 and 21 October 2022. A number of photographs were also submitted. The photographs depict the review applicant in a number of settings, including on outings with the visa applicant.

    Whether the visa applicant is a ‘carer’

    Is the review applicant an Australian citizen usually resident in Australia?

19. In the primary decision, the delegate was satisfied that the review applicant is an Australian citizen who is usually resident in Australia. Accordingly, this requirement is not in issue.

20. Notwithstanding, the Tribunal records here that it is satisfied, from the evidence before it, that the review applicant is an Australian citizen who is usually resident in Australia.

    Is the visa applicant a relative of the review applicant? (reg 1.15AA(1)(a))

21. As has already been stated, in this matter, it is claimed that the visa applicant is the child of the review applicant.

22. 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. The term ‘close relative’ includes the child of a person. 

23. In the primary decision, the delegate was satisfied that the review applicant is the mother of the visa applicant. Accordingly, this requirement is not in issue.

24. Notwithstanding, the Tribunal records here that, based on this evidence before it, the Tribunal is satisfied that: the visa applicant is the child of the Australian relative (that is, the review applicant); 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).

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

25. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the Australian relative (that is, ‘the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

26. 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.

27. 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 19 February 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).

28. The certificate specifies that:

    ·     the review applicant has a medical condition causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life;

    ·     because of the review applicant’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 the review applicant’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.

29. 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, the review applicant) meet the residency requirement? (reg 1.15AA(1)(ba))

30. 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.

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

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

33. 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.

34. The relevant instrument for these purposes is IMMI 07/012.

35. In the present case, the impairment rating specified in the certificate is 30 points. This rating is equal to 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?

36. 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))

37. 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.

38. 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.

39. 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.

40. 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].

41. The ‘Carer Visa Assessment Certificate’ dated 19 February 2022 details the nature of the care required by the review applicant. The Tribunal notes that the representative addressed this issue in the written submissions of 18 October 2022, submitting:

    The most recent Carer Visa Assessment Certificate by BUPA, [states that] the applicant requires assistance with:

    ·Bathing/showering

    ·Toileting

    ·Dressing/grooming

    ·Supervising medication

    ·Supervision for personal safety

    ·Transportation

    The assessor further commented:

    ‘Due to her dementia, she has extreme functional impairment. She needs constant prompting and reminders for normal routines. She displayed minimal attention, comprehension or planning abilities.

    … She is fully dependent on her niece for her activities of daily living. Her niece reported concerns about her wandering off and increasing difficulty with leaving her home by herself.’

42. 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.

43. In this review, the review applicant and her guardian submitted a document titled ‘Declaration’ and dated 6 September 2022 which stated that the review applicant had the following Australian citizen or Australian permanent resident family members:

    ·     a brother—[Mr D];

    ·     a sister—[Ms A];

    ·     four nephews—[Mr E]; [Mr F]; [Mr G] and [Mr H]; and

    ·     a niece—[Ms B] (who, it will be recalled, attended the hearing and gave oral evidence).

44. It was submitted that ‘there are reasonable cultural factors that preclude the review applicant’s male relatives from providing her with much of the practical assistance with activities of daily living’. The submissions also noted the statutory declarations which had been submitted which further explain the reason why the required service could not be required by the various declarants.

45. In this review, the following statutory declarations were submitted.

    ·Statutory declaration of [Mr D] (the review applicant’s brother) made on 21 September 2022 (with identity document);

    ·statutory declaration of [Ms A] (the review applicant’s sister and legal guardian) made on 12 September [2022] (with identity document);

    ·statutory declaration of [Mr E] (the review applicant’s nephew) on 7 September [2022] (with identity document);

    ·statutory declaration of [Mr F] (the review applicant’s nephew) made on 19 September 2022 (with identity document); and

    ·statutory declaration of [Mr G] (the review applicant’s nephew) made on 21 September 2022 (with identity document).

46. Each person declared that they were unable reasonably to provide the assistance that the review applicant needs.

47. The review applicant’s brother, [Mr D], declared that he was a monk who must spend the rest of his life living in the temple. The Tribunal also notes that evidence was submitted that he lives in New South Wales. In his own words, ‘[d]ue to the rules and culture Monk can not living at home with their family members’. The Tribunal accepts this declaratory evidence and finds that the assistance that the review applicant requires cannot reasonably be provided by her brother.

1. The review applicant’s sister, [Ms A], declared ‘I have an adult son with autism (Name [Mr H]) that occupies me full time to take care of him. I am not in a position to provide any assistance as I must prioritise my family before taking any other commitments’. The Tribunal accepts this declaratory evidence. The Tribunal also notes the evidence that had been submitted to the Department, including from the review applicant’s treating consultant psychiatrist and psychogeriatrician in a ‘to whom it may concern’ letter dated 21 March 20217. The doctor noted that [Ms A] has a son with special needs, stating ‘he has severe autism, is doubly incontinent and requires full time care himself’. He continued, stating:

   Her sister [Ms A] has been doing a remarkable job but she herself has developed health problems and in addition, she has to take care of her son who has rather severe autism (doubly incontinent) with some behavioural disturbances and I fear that we are on the brink of having carer burnout.

2. At the hearing, [Ms B] gave oral evidence that [Ms A] is the review applicant’s sister and legal guardian. [Ms B] told the Tribunal that [Ms A] was unable to continue to provide care to the review applicant because she also provides care for her son with autism and that son does not like the review applicant. She said that the review applicant had been living in a garage at [Ms A]’s house but that she, [Ms B], had been worried about her living there because she gets cold and sick. For this reason, during one of Melbourne’s lockdowns, [Ms B] brought the review applicant to live in her own home. The Tribunal accepts [Ms B]’s credible oral evidence about these matters.

3. Based on the evidence before it (including evidence on the Department’s files), the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her sister, [Ms A].

4. In their statutory declarations, the review applicant’s nephews [Mr E], [Mr F] and [Mr G] declared, respectively, that they could not provide the care to the review applicant because of their full-time work. The Tribunal accepts this declaratory evidence. In addition, the Tribunal is mindful of the nature of care required by the review applicant, which includes bathing/showering and toileting and accepts the written submission that there are reasonable cultural factors that preclude the review applicant’s male relatives from providing her with the care she requires. The Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by these three nephews.

5. The review applicant did not submit a statutory declaration from her nephew [Mr H]. The written submissions of 18 October 2022 explained that [Mr H] did not make a statutory declaration ‘for obvious reasons’ because he has autism and requires care from [Ms A]. From the evidence before it, the Tribunal accepts that [Mr H] has autism and, accordingly, finds that the assistance that the review applicant requires cannot reasonably be provided by her nephew [Mr H].

6. At the hearing, [Ms B] gave oral evidence that the review applicant was her aunt. She told the Tribunal that the review applicant continues to live in [Ms B]’s home and that while she is concerned for her aunt, she can no longer continue to provide the care. The Tribunal asked her why she could not continue to provide care. [Ms B] was in tears when she replied. She said that, in the post-COVID 19 environment, her life had returned to normal. She said that she needed to go to work as a full-time kitchen hand so that she could repay her mortgage. She said that she also needed to care for her own children, who are aged [age] and [age] years. She also noted that her husband was displeased when she cared for the review applicant. The Tribunal found [Ms B] to be credible and accepts her oral evidence. The Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her niece [Ms B].

7. The Tribunal also notes that the visa applicant was tearful when she told the Tribunal that she wished she could remain in Australia with her mother, saying, ‘she only has me’. The Tribunal accepts this oral evidence.

8. While the review applicant was not sworn in, she interjected at a point in the hearing and stated that she was old and wanted to be close to her children, saying that she only has one daughter (who is divorced) and one grandson. She said that she had been really missing her daughter so had asked her to visit from Vietnam. She also said that she misses her grandson. 

9. Based on all the evidence, the Tribunal finds that, at the time of this decision, the assistance the review applicant requires cannot reasonably be provided by her brother [Mr D]; her sister [Ms A]; her nephews [Mr E], [Mr F],  [Mr G] and [Mr H]; or her niece [Ms B]—either singularly or collectively—for the reasons given above. Accordingly, the Tribunal finds that, at the time of this decision, reg 1.15AA(1)(e)(i) is met.

10. With respect to reg 1.15AA(1)(e)(ii), it was submitted:

    The nature and extent of care required by the sponsor is 24/7 care with Vietnamese speaking ability. It is extremely difficult, if not impossible, to find a welfare service/hospital/nursing home/aged care in Australia that can provide adequate services to her need.

    [Mr C] is a family friend of the sponsor. He has been actively involved in helping the sponsor to find a suitable aged-care facility that can provide the assistance required by the sponsor. He will appear as a witness at the hearing.

11. At the hearing, [Ms B] gave credible oral evidence that she was not proficient with the English language and that her neighbour, [Mr C], who had greater ability with English had tried to help the family find information about various options for care for the review applicant but that he had not had success. When asked, she said that [Mr C] had been involved with all inquiries which had been made about the matter. The Tribunal accepts this oral evidence.

12. The visa applicant gave credible oral evidence that her mother’s memory was ‘not good’ and that she required 24-hour care. She said that her mother was ‘a hard person for eating’, which she clarified as meaning that the review applicant is particular about what food she will eat. The visa applicant also told the Tribunal that the review applicant ‘feels ghosts’, and for this reason, she needs someone to sleep with her. She also told the Tribunal that, due to the COVID-19 pandemic and associated border closures, she had been unable to visit Australia to see the review applicant and that this had caused the review applicant to feel ‘a bit down’. She told the Tribunal that the review applicant speaks both Vietnamese and Chinese and requires assistance with communication, noting that her cousin [Ms B] was not as proficient in Chinese as the visa applicant and her mother. She stated that she knew that there were various care options in Australia but that she did not understand the law, and for this reason she had asked [Mr C] to help her investigate options for the review applicant. However, she said that [Mr C] had been sick so had not been able to assist the visa applicant. The Tribunal accepts this oral evidence.

13. [Mr C] gave credible oral evidence about how he first met and became friends with the review applicant and his assistance with the progression of the visa applications. He said that, on behalf of the family, he had contacted [a named] Vietnamese Aged Care facilities in [Suburb 1] and [Suburb 2]. He told the Tribunal that these nursing homes had carers who spoke Vietnamese but that there were no places available in either home. He also gave oral evidence about other efforts he had made to assist the family with respect to this aspect of the case.

14. The Tribunal notes that in a ‘to whom it may concern’ letter from the review applicant’s treating consultant psychiatrist and psychogeriatrician, dated 21 March 20217 which is on one of the Department’s file, the doctor described [the above-named Aged Care facility] as a ‘very culturally sensitive nursing home’. He stated that he was familiar with the facility and that there were ‘very precious and few beds’. 

15. The Tribunal notes that, in the part of the hearing when reg 1.15AA(1)(e)(ii) was being discussed, the review applicant interjected again to state that children are much better at caring for a person than ‘people from off the street’. She said that her child would be able to be with her 24 hours a day. This suggests to the Tribunal that the review applicant has a preference to receive care from the visa applicant rather than from welfare, hospital, nursing or community services in Australia. However, as noted by the delegate, the review applicant’s preference for a family member to care for her ‘does not negate the need for the full range of possible residential and in-home care arrangements for her to be thoroughly investigated’.

16. As has been explained, the Tribunal found [Ms B], the visa applicant and [Mr C] to be credible. The Tribunal accepts their oral evidence.

17. Having reviewed and considered all the evidence that has been submitted, the Tribunal is satisfied that the assistance that the review applicant requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. In particular, the Tribunal notes the evidence that the review applicant requires 24-hour care and that she speaks a mixture of Vietnamese and Chinese—not English—and the difficulty of finding a service to accommodate her particular needs.

18. To conclude, 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))

19. 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.

20. 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.

21. It was submitted that ‘[t]he visa applicant is currently in Australia on a bridging visa to look after the sponsor’.

22. At the hearing, the visa applicant gave credible oral evidence that, while she has been in Australia (she gave evidence of the dates), she has been providing care for the review applicant and that she wanted to continue to provide care to her. She told the Tribunal that she had been preparing her mother’s meals, administering her medication, monitoring her in the shower, taking her out for exercise and assisting her with oral communication. The Tribunal accepts and gives weight to this evidence.

23. The Tribunal has no reason to doubt that the visa applicant is both willing and able to provide substantial and continuing assistance of the kind that the review applicant requires. Indeed, the evidence is that the applicant has been providing care to the review applicant since the visa applicant arrived in Australia. The Tribunal accepts the visa applicant’s oral evidence.

24. In addition, [Ms B] told the Tribunal that, while the visa applicant has been in Australia, the visa applicant had been providing care to the review applicant. The Tribunal asked [Ms B] to outline what type of care the review applicant needs. She said that the review applicant requires her food to be prepared for her; to be given her medication; to be monitored whilst showering and to be taken to medical appointments and to be taken out for outings such as to the market or shops. The Tribunal accepts [Ms B]’s oral evidence.

25. The Tribunal has no reason to doubt that the visa applicant is both willing and able to provide substantial and continuing assistance of the kind that the review applicant needs. Therefore, the Tribunal is satisfied that 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

26. Given these findings, the Tribunal is satisfied that the visa applicant meets the definition of ‘carer’ in reg 1.15AA. Accordingly, the Tribunal finds that, at the time of this decision, the visa applicant is a ‘carer’ of the review applicant (being the Australian relative and sponsor), and therefore satisfies cl 116.221.

27. As the Tribunal has found that the visa applicant meets the criterion in cl 116.221, the ability of the second-named visa applicant to satisfy the secondary criterion in cl 116.321 should also be reconsidered.

28. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 116 visa.

    DECISION

29. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criterion for a Subclass 116 (Carer) visa is met:

    ·cl 116.221 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.