1934787 (Migration)

[2024] AATA 151

1934787 (Migration) [2024] AATA 151 (22 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sang Ik Moon

CASE NUMBER:  1934787

MEMBER:Justine Clarke

DATE:22 January 2024

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 the grant of a Subclass 116 (Carer) visa is met:

·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 22 January 2024 at 4:42pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – assistance reasonably available from welfare, hospital, nursing or community services – updated medical information – no other relatives in Australia – cultural and language service barriers – substantial and continuing assistance – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, Schedule 2, cls 116.211, 116.221, 116.321; rr 1.03, 1.15

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 7 October 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, [named], is an Australian citizen with a medical condition. At the time of this decision, he is [age] years of age.

3. It is claimed that the first-listed visa applicant, that is, the primary visa applicant, is the review applicant’s son. It is claimed that the second-listed visa applicant is the primary visa applicant’s wife and that the third-listed, fourth and fifth-listed visa applicants are, respectively, the primary visa applicant’s [children].

4. On 30 June 2015, the visa applicants applied for the visas. They are all nationals of Vietnam. At the time of this decision, the primary visa applicant is [age] years of age; the second-listed visa applicant is [age]; the third-listed visa applicant is [age]; the fourth-listed visa applicant is [age], and the fifth-listed visa applicant is [age].

5. At the time that the visa applicants applied for the visas, 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 the present case, the visa applicants are seeking to satisfy the criteria for the grant of Subclass 116 visas. 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 to be met 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 7 October 2019 (‘the primary decision’). The delegate refused to grant the visa to the primary 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 47F it was not declared that assistance had been sought from any Australian welfare organisations, doctors or health professionals, hospitals, nursing homes or other community services. No insight was provided as to why such assistance had not been sought.

    On 03 August 2017, the Department requested evidence in regards to this matter, along with other supporting evidence.

    On 26 August 2017, the applicant submitted the following documents:

    -    a brochure from [Agency 1] with a price list

    -    letter from Department of Health and Human Services advising the sponsor of an increment in rent

    -    [bank] statement for the sponsor and his wife

    -    GP letter

    -    Statement from the sponsor’s wife [Wife A] stating that thy contacted the [Agency 1] facility however their prices are over the sponsor’s budget.

    In her statement, [Wife A] states that she and the sponsor receive a pension and are unable to afford the costs of staying at the [Agency 1] facility. I acknowledge that this may be the case however, no efforts have been made [to] investigate what services are available to the sponsor from other welfare and community organisations at a subsidised rate.

    I note that the initial request to provide this information was sent to the applicant in August 2017 and again on 27 May 2019.

    On 15 July 2019, the applicant submitted a referral document titled ‘my aged care’. This appears to be a referral from the GP on behalf of the sponsor to the aged care organisation. It gives no indication that the sponsor has been approved for any of the packages/services or that an assessment was conducted by them after the referral. Therefore I cannot determine what services, if any, are being received by the sponsor after this referral.

    As this information was insufficient, a further request was sent to the applicant on 30 July 2019 to address this requirement. The request specified that all options for care must be thoroughly investigated with documentary evidence.

    On 27 August 2019, the applicant re-submitted the same document titled ‘my aged care referral’ along with a statutory declaration from the sponsor’s wife [Wife A]. In her statement, she reiterates that she and the sponsor are unable to afford the nursing home ‘[Agency 2]’ on their combined pension and that only their son (the applicant) can provide the care the sponsor requires.

    …

    I have considered that the applicant has had three separate requests detailing the required information. As such, I find that the applicant had ample time to provide the evidence.

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

13. The delegate also refused to grant the visas to the second, third, fourth and fifth-listed visa applicants (‘the secondary visa applicants’) on the basis that each did not satisfy cl 116.321 nor the primary criteria.

14. On 9 December 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. The Tribunal notes that there has been a change of authorised recipient in this review.

15. On 24 March 2022, the Tribunal wrote to the review applicant’s then authorised recipient requesting within seven days the completion of an online hearing information form so that, in advance of constituting the case to a Member, the Tribunal could determine how to progress the case in the light of the then limitations on scheduling in-person hearings arising from the COVID-19 pandemic.

16. On 27 April 2022, the then authorised recipient requested an in-person hearing in view of the review applicant’s advanced age.

17. On 25 July 2023, the Tribunal wrote to the review applicant, by way of the then authorised recipient, to request his attendance at an in-person hearing on 16 August 2023.

18. On 4 August 2023, the review applicant’s newly appointed representative (the current representative) wrote to the Tribunal with the requisite forms to evidence his appointment. The letter stated that ‘the previous person who helped [the review applicant] with the application to the AAT has disappeared, and our client doesn’t have any documents that were previously submitted to the Department of Immigration and AAT. The representative requested the postponement of the hearing and copies of documents previously submitted.

19. Later in the day on 4 August 2023, the Tribunal wrote to the review applicant, by way of the representative, to advise that it had postponed the hearing that had been scheduled for 16 August 2023.

20. On 16 October 2023, the Tribunal wrote to the review applicant, by way of the representative, to request his attendance at an in-person hearing on 9 November 2023.

21. On 6 November 2023, the representative wrote to the Tribunal to request another postponement of the hearing, explaining that the review applicant was sick and medically unfit to attend and providing a medical certificate in support. The medical certificate, dated 6 November 2023, stated that the review applicant would be unfit to attend for the next four weeks.

22. On 8 November 2023, the Tribunal wrote to the review applicant, by way of the representative, to advise that it had postponed the hearing that had been scheduled for 9 November 2023.

23. On 15 November 2023, the Tribunal wrote to the review applicant, by way of the representative, to request his attendance at an in-person hearing on 7 December 2023.

24. On 4 December 2023, the representative wrote to the Tribunal to request another postponement of the hearing, explaining that the review applicant’s attendance ‘has been rendered infeasible due to his health condition’. A medical certificate, dated 4 December 2023, was submitted in support.

25. Later in the day on 4 December 2023, the Tribunal wrote to the review applicant, by way of the representative, to advise that it had postponed the hearing that had been scheduled for 7 December 2023.

26. On 7 December 2023, the Tribunal wrote to the review applicant, by way of the representative, to request information pursuant to s 359(1). The letter relevantly stated the following.

    As you are aware, the delegate refused to grant a Subclass 116 visa to [the primary visa applicant] on the basis that he did not meet cl 116.221 of Schedule 2 to the Migration
    Regulations 1994 (Cth) and to [Applicant 2], [Applicant 3] and [Applicant 4] and [Applicant 5] on the basis that they each did not meet
    cl 116.321.

    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’. The term ‘carer’ is defined in reg 1.15AA of the Regulations. The delegate was not satisfied that the requirement in reg 1.15AA(1)(e)(ii) had been met. Regulation 1.15AA(1)(e)(ii) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

    The Tribunal notes that, since you lodged your application for review of the delegate’s refusal decision, no substantive evidence has been submitted to the Tribunal in support of the case, including no response to the Tribunal’s invitation as to whether or not you wish to obtain an updated Carer Visa Assessment Certificate.
    The Tribunal also notes that it has scheduled this matter for a hearing on three
    occasions but that all three have been postponed at your request, the last two times
    supported by medical certificates stating that you were unable to attend the in-person
    hearing that had been scheduled.

    In these circumstances, you are invited to provide the following:

    ·     information on whether or not you wish to obtain an updated Carer Visa

    Assessment Certificate (please refer to the Tribunal’s email correspondence of 29 July 2021 and 22 November 2021);

    ·     an update from your treating general practitioner on your physical or other

    condition and specifically, an indication as to whether or not you are physically able to attend an in-person hearing and in the event that you are physically unable to attend, an indication of when you may be well enough to attend;

    ·     in the event that you are physically unable to attend an in-person hearing,

    information about whether you are agreeable to attending a video or telephone
    hearing; and

    ·     information to support your claim that the assistance you require—specifically, the direct assistance in attending to the practical aspects of daily life—cannot

    reasonably be obtained from welfare, hospital, nursing or community services in
    Australia (including any evidence of attempts to access such services).

27. The letter requested that the information be provided in writing by 21 December 2023.

28. On 14 December 2023, the representative wrote to the Tribunal requesting copies of certain documents dating from the time before the representative was acting for the review applicant.

29. On 15 December 2023, the Tribunal wrote to the review applicant, by way of the representative, to request further information pursuant to s 359(1). The letter relevantly stated the following.

    When the delegate was considering the application for the visas, they considered a Carer Visa Assessment Certificate dated 31 March 2015. Considerable time has now passed since that certificate was issued.

    It is the applicant’s choice if they wish to obtain an updated Certificate or not.

30. The letter requested relevant information if the review applicant sought a new Carer Visa Assessment Certificate or, if the review applicant was not seeking a new certificate, ‘a statement to the Tribunal explaining the reasons why and, if relevant, any supporting evidence (such as current medical evidence from a treating doctor)’.

31. The letter requested that the information be provided in writing by 2 January 2024.

32. On 21 December 2023, the representative responded in writing to the Tribunal’s letter of 7 December 2023 stating that, due to the review applicant’s poor health, he was unable to attend Bupa in order to obtain an updated Carer Visa Assessment Certificate and was unable to attend an in-person hearing and that the review applicant’s treating general practitioner was not sure when the review applicant would be able to attend a hearing. The response also stated that the review applicant did not consent to a video or telephone hearing and only wanted an in-person hearing. The response also stated ‘[w]e will provide a statutory declaration of his friend [Friend A] about his seeking help from nursing or community services in Australia but they didn’t get assistance’. The representative submitted two medical certificates, both dated 19 December 2023, and referring, respectively, to the review applicant not being able to ‘attend the court proceeding’ and ‘not know[ing] when he will be well’ and not being able to ‘do the medical check up by BUPA’  because the review applicant was ‘not well’.

33. On 22 December 2023, the Tribunal wrote to the review applicant, by way of the representative, to request further information pursuant to s 359(1). The letter relevantly stated the following.

    The Tribunal refers to its letters of 7 and 15 December 2023 and your substantive
    response of 21 December 2023.

    The Tribunal notes that the Carer Visa Assessment Certificate from 2015 states that
    you, [the sponsor], have medical conditions including ischaemic heart disease, chronic
    kidney disease and type 2 diabetes.

    In the Tribunal’s letter of 7 December 2023, we requested, amongst other things, an
    update from your treating general practitioner on your physical or other condition and
    specifically an indication as to whether or not you are physically able to attend an in-person hearing and in the event that you are physically unable to attend, an indication of when you may be well enough to attend.

    All of the medical certificates provided in response (all dated 19 December 2023)
    simply stated that you are ‘not well’.

    In these circumstances, you are invited to provide the Tribunal with the following
    information.

    ·     Specific detail of what condition(s) and/or illness you have.

    ·     Specific detail of what treatment you are undertaking for that condition(s) and/or

    illness.

    ·     Specific detail about whether you are adhering to your treatment plan.

    ·     Specific detail about your prognosis.

34. The letter requested that the information be provided in writing by 12 January 2024.

35. On 29 December 2023, the representative responded in writing to the Tribunal’s letter of 15 December 2023.

36. On 10 January 2024, the representative responded in writing to the Tribunal’s letter of 22 December 2023 as well as noting that they were now providing the evidence from [Friend A] in respect to having sought, but not obtained, help from nursing or community services in Australia—namely her detailed statutory declaration of 3 January 2024. The response also included a letter from [Health Service 1] dated 17 November 2023; a discharge summary from [Health Service 1] dated 29 December 2023 and copies of text messages dated 27 November 2023.

37. After reviewing this evidence, the presiding Member determined that a hearing was no longer required. Pursuant to s 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour based on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

39. The issue for determination in the present case is whether, at the time of this decision, the primary visa applicant ([name]) meets cl 116.221. That is, whether he is a carer of the Australian relative mentioned in cl 116.211.

    Whether the primary visa applicant is a ‘carer’ of the Australian relative

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

40. 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.

41. 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 primary visa applicant a relative of the resident?

42. As has already been mentioned, in this matter, it is claimed that the resident ([name], the review applicant) is the father of the primary visa applicant ([name]).

43. 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.

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

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

46. 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.

1. 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.

2. In this case, the most recent certificate issued pursuant to reg 1.15AA(1)(b) and reg 1.15AA(2) is the certificate dated 31 March 2015.

3. The Tribunal notes that the Department’s policy—Procedures Advice Manual 3 (PAM3)—suggests that, in circumstances where a certificate is more than two years old at the time of decision (as is the case in this matter), a request be made to ask the person with the medical condition to undertake a fresh assessment. However, this is not prescribed in the Regulations and Departmental officers are directed to be flexible in applying the policy, bearing in mind that a new examination and/or assessment will incur a fee. PAM3 states that an alternate option to requesting a fresh examination is to request an update from the general practitioner/specialist who is treating the person with the medical condition.

4. The Tribunal notes that the most recent medical evidence submitted in this review is a letter from [Health Service 1] dated 17 November 2023 and a discharge summary from [Health Service 1] dated 29 December 2023.

5. The letter from [Health Service 1] is signed by a named nurse and a named nephrologist. They describe the review applicant’s health condition as follows.

   [The sponsor] is an [age]-year-old gentleman who’s suffering from multiple medical conditions, including chronic kidney disease stage 3B – for which he’s under the care of our nephrology outpatient service at [Health Service 1]; type 2 diabetes mellitus; hypertension; ischemic heart disease; gastro-esophageal reflux disease; osteoporosis with 25% anterior wedge compression fracture in T11 and L1 on CT; and chronic lower back pain. He is getting more and more frail with aging and multiple comorbidities, consequently, his care needs are increasing.

6. The discharge summary from [Health Service 1] relevantly stated the following text which was addressed to the review applicant’s treating general practitioner.

   [The sponsor] was admitted under the [named] Acute Aged care team from 26/12/23 to 29/12/23 with acute on chronic back pain. He had a CT lumbosacral spine which showed no acute lumber spinal fractures. He was cleared by our PT/OT teams and discharged home with analgesia.

7. The Tribunal notes that it has also reviewed a ‘to whom it may concern’ letter from [Doctor A], dated 6 November 2023 where [Doctor A] relevantly states ‘[the sponsor] is my patient for 3 years. He is known with many medical problems and suffers from cognitive decline. He needs a carer to look after him 24/7’.

8. Having considered all the evidence before it, the Tribunal considers that, while the medical certificate is more than two years’ old—indeed, it is well over eight and a half years’ old—there is no evidence before the Tribunal to suggest that the nature of the review applicant’s medical condition or impairment has improved such that he would be assessed at a lower rating. If anything, the evidence suggests that the review applicant’s health is deteriorating.

9. 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).

10. The certificate specifies that:

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

    ·     because of the review applicant’s medical condition, he 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, he 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.

11. 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))

12. 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.

13. 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.

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

14. 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.

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

16. In the present case, the impairment rating specified in the certificate is 40 points. 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?

17. 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))

18. 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.

19. 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.

20. In the primary decision, the delegate did not assess reg 1.15AA(1)(e)(i). Rather, they went straight to reg 1.15AA(1)(e)(ii).

21. With respect to the requirement in reg 1.15AA(1)(e)(i), the evidence before the Tribunal is that the assistance the review applicant requires cannot reasonably be provided by any of his relatives who are Australian citizens, permanent residents or an eligible NZ citizens.

22. The Tribunal makes this finding for a few reasons.

23. There is no evidence before the Tribunal that the review applicant has any relatives residing in Australia other than his wife. For example, the Tribunal notes that the completed Form 47OF—Application for migration to Australia by other family members, which is on the Department’s file, lists the primary visa applicant’s family members. This evidences that the review applicant and his wife [Wife A] reside in Australia and that the primary visa applicant’s sister [Daughter A] (daughter of the review applicant) lives in [Country 1]. Based on this evidence, the Tribunal finds that the review applicant has no children living in Australia.

24. The Tribunal notes the various evidence before the Tribunal that the review applicant’s wife [Wife A] has been providing for his care. For example, see the so-described ‘report on examinee’ at folio 25 of the Department’s file.

25. The evidence suggests that [Wife A], who is turning [age] years of age in 2024, is not in a position to provide the assistance that the review applicant requires.

26. For example, the letter from [Health Service 1] dated 17 November 2023, states that the review applicant ‘lives with his wife alone at home, who’s also getting older and frailer. He has no other family members here, and often has to rely on other people’s (friends or neighbours) good will to provide transport for medical appointments’. The Tribunal accepts this evidence from the nurse and the nephrologist at [Health Service 1].

27. Further, in her very detailed statutory declaration of 3 January 2024, [Friend A] relevantly declared:

    My relationship with the couple began serendipitously before the COVID-19 pandemic. While walking one day, I encountered [Wife A], who seemed disoriented and lost. After assisting her in finding her way home, which I discovered was a mere 5–7 minute drive from my own residence, I learned that they were living in public housing. Through further conversation, it became evident that they were isolated, with no immediate family nearby, limited English proficiency, and lacking any form of local support. [Wife A] exhibited symptoms which I recognised as early-stage dementia, reminiscent of those displayed by my own mother. These included frequently leaving the stove on after cooking, misplacing keys, and getting lost.

28. Whilst there is no evidence that [Friend A] has the professional skills to diagnose any medical condition that [Wife A] may have, the Tribunal nonetheless accepts her evidence.

29. Based on the evidence before it, the Tribunal finds that reg 1.15AA(1)(e)(i) is met.

30. With respect to reg 1.15AA(1)(e)(ii), the Tribunal notes that it has greater evidence than what had been before the delegate of unfruitful attempts to obtain services for the review applicant from welfare, hospital, nursing and community services.

31. In her statutory declaration, the review applicant’s friend [Friend A] declares in great detail attempts that she has made to obtain external care services for the review applicant. She outlines the enquiries made to:

    ·    [Agency 3] on 29 August 2023;

    ·    [Agency 4] on 29 August 2023;

    ·    [Agency 2] on 30 August 2023;

    ·    [Agency 5] on 4 September 2023;

    ·    [Agency 6] on 4 September 2023;

    ·    [Agency 7] on 4 September 2023; and

    ·    [Agency 8] on 4 September 2023.

32. [Friend A] concluded her detailed statutory declaration as follows.

    In the context of these visits, a significant procedural hurdle was identified: [the sponsor] required a My Aged Care ID to apply for nursing home admission, which he did not have at the time. Furthermore, he needed to be assessed by My Aged Care. I assisted [the sponsor] in contacting My Aged Care to apply for this ID. I have attached a confirmation message from My Aged Care, which states that [the sponsor] is currently on their waiting list for assessment. We were informed that the assessment process could take approximately 4 to 6 weeks to complete. The series of visits and interactions we had further illustrate the considerable challenges in finding available and suitable aged care services for [the sponsor]. Each facility we approached was either fully occupied, no longer providing the required services, or unable to provide the necessary documentation for our purposes. …

    … This narrative underlines the critical need for the Carer Visa, as it is the most viable means to ensure that [the sponsor] receives the necessary care and support in his advanced age.

33. The Tribunal accepts [Friend A’s] detailed evidence.

34. With respect to any services that may be available from hospitals, the Tribunal notes the evidence contained in the letter from [Health Service 1] dated 17 November 2023. The nurse and the nephrologist acknowledged that the review applicant has ‘unique care needs due to his non-English speaking cultural background (Vietnamese)’. They wrote, ‘due to the limitations in the scope of care a tertiary hospital can provide, there is [a] considerable gap in meeting [the sponsor’s] care needs’. The Tribunal accepts this evidence.

35. With respect to any services available under My Aged Care, the nurse and the nephrologist from [Health Service 1] wrote:

    As far as I’m aware, [the sponsor] is waiting for assessment from my aged care services, unfortunately there is a long waiting period. We have also offered social work service but it is understandably inadequate due to the limitations associated with the mode of care, and cultural/language requirements.

36. The Tribunal accepts this evidence.

37. Having reviewed, considered and accepted all the evidence that has been submitted, the Tribunal finds that, at the time of this decision, reg1.15AA(1)(e)(ii) is met.

38. To conclude, in view of the evidence before it, the Tribunal is satisfied that the assistance that the review applicant requires 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 primary visa applicant willing and able to provide the assistance required? (reg 1.15AA(1)(f))

39. 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.

40. 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.

41. While the delegate did not make a finding about reg 1.15AA(1)(f), it appears from the assessment sheet on the Department’s file that they were satisfied that this criterion was met. The delegate noted the primary visa applicant’s statement at folio 153.

42. The Tribunal has reviewed this statement, dated 14 July 2019.

43. In this review, the Tribunal also accepts and gives weight to this statement.

44. The Tribunal has no reason to doubt that the primary visa applicant is both willing and able to provide substantial and continuing assistance of the kind that the review applicant requires. In the primary applicant’s words, he has the ‘heart of a son towards his father and that is a strong motivation for me to gain accumulated experiences and support him and relieve him in coping with daily pains from his disease’.

45. Therefore, the Tribunal finds 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

46. Given these findings, the Tribunal concludes that, at the time of decision, the primary visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl 116.221.

47. As the Tribunal has found that the primary visa applicant meets the criterion in cl 116.221, the ability of the secondary visa applicants to satisfy the secondary criterion in cl 116.321 should also be reconsidered.

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

    DECISION

49. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criterion for the grant of 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.