1934985 (Migration)

[2022] AATA 3215

1934985 (Migration) [2022] AATA 3215 (17 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Godson Nwankwo (MARN: 9904865)

CASE NUMBER:  1934985

MEMBER:David Crawshay

DATE:17 August 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 17 August 2022 at 9:48am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of the resident – assistance reasonably provided by welfare, hospital, nursing or community services in Australia – impairment assessment – no available family members – appropriate enquiries into available assistance – limited investigation of service providers – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15AA; Schedule 2, cls 835.212, 836.221, 838.212
Social Security Act 1991

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 November 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 19 February 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied that the applicant was the carer of the resident. Specifically, the delegate was not satisfied that the assistance mentioned in r.1.15AA(1)(b)(iv) was not reasonably available from welfare, hospital, nursing or community services in Australia: r.1.15AA(1)(e)(ii). A copy of the decision record was provided to the Tribunal by the applicant.

4. The applicant appeared before the Tribunal on 10 August 2022 to give evidence and present arguments. At the time of the hearing, she was in the Philippines and so appeared by MS Teams via telephone. The Tribunal also heard from [sponsor’s name], the Australian relative and resident, who appeared in person. The hearing was conducted with the assistance of an interpreter in the Tagalog and English languages. The applicant was represented in relation to the review by her authorised representative who attended the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is the carer of the resident at the time of this decision.

   Whether the applicant is a carer

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

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

8. 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.

9. Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal now turns to the task of assessing the level and particulars of this assistance required by the resident in order to then assess whether this assistance cannot reasonably be provided by the appropriate relatives or obtained by from the relevant services.

10. In a Carer Visa Assessment Certificate (CVAC) dated [in] July 2022, the resident was said to have the following medical conditions that may impact her capacity to self-care: congestive cardiac failure, severe asthma, rheumatoid arthritis, osteoporosis and osteoarthritis, and a brain tumour (posterior fossa meningioma).

11. In relation to the functional assessment, the assessing doctor made the following findings. The doctor found that conditions limiting exertion and stamina had a moderate functional impact on the resident. She was assessed as being easily fatigued and experiencing shortness of breath when attending to general day-to-day activities. She was said to need frequent rests when walking outside. The doctor found that conditions impacting upper limb function had a moderate functional impact on the resident due to rheumatoid arthritis, with the resident having difficulty opening jars, picking up milk cartons and doing up buttons. The doctor found that conditions impacting lower limbs had a moderate functional impact due to leg length discrepancy and osteoarthritis. She was found to be unable to walk outside and unable to use stairs without assistance, and relied on being driven by taxis or public transport. Lastly, the doctor found that her brain function was experiencing mild functional impairment due to posterior fossa meningioma, whereby she would suffer from dizziness and would have increasing difficulty with memory and planning.

12. The resident was found by the assessing doctor in the CVAC to be partially dependent vis-à-vis the activities of daily living, requiring assistance with bathing/showering, toileting, supervision of medication, supervision for personal safety and transportation.

13. The assessing doctor stated as follows in summary comments:

    [The sponsor] is [age] years old with multiple medicinal problems. She currently lives alone after her daughter, who is her carer, had to leave the country in early 2020 for the Philippines. Her daughter has since not been able to return to Australia due to the pandemic and her visa having lapsed. She has been struggling on her own relying on neighbours and friends.

    She has been finding it increasingly difficulty to manage on her own due to her multiple comorbidities. In addition to her pre-existing medical conditions, she was also diagnosed with a brain tumour in January 2020, for which she will require further treatment and surgery. For this to happen she will need a carer at home to look after her during her treatment and recovery phase. Having a carer at home will help optimise her health and keep her living as independently as possible at home without the need to access higher level care.

14. The assessing doctor stated that they had considered a report from the resident’s consultant rheumatologist from April 2022, a report from the resident’s GP dated March 2022 and a discharge summary from [a named] Hospital from January 2020. These documents were not provided by the applicant.

15. The Tribunal has considered the evidence in front of it, and specifically the CVAC. Based on this evidence, it finds that the resident is partially dependent on others for assistance, requiring assistance with bathing/showering, toileting, supervision of medication, supervision for personal safety and transportation. It finds that she requires assistance mobilising in unfamiliar environments.

16. These may be said to be the practical aspects of daily life for which the resident has a need for direct assistance now and for the next two years under r.1.15AA(1)(b)(iv).

17. The Tribunal now turns to the question of whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

18. In this regard, the Tribunal notes that the applicant had provided very little information before hearing about whether the assistance cannot reasonably be obtained through the requisite services. The resident made the following claim made by her in a statutory declaration dated 16 August 2019 (and as reproduced in the delegate’s decision):

    … I have enquired from the relevant authorities and have provided a letter from [Council 1], advising that they can only provide assistance for 45 minutes per week to assist with general home care tasks.

19. An accompanying letter from [Council 1] dated 26 July 2019 substantiated this claim, stating that the home care tasks include vacuuming and mopping of floors.

20. Earlier, in her Form 47OF dated 8 February 2018, the applicant claimed that the resident was receiving assistance from [Council 1] for gardening or cleaning once-a-week, and that long-term assistance could not be obtained from [Council 1].

21. At the time of the hearing, no other information or submissions had been received in relation to this issue.

22. At hearing, the Tribunal asked the applicant what, if any enquiries had been made into services. She replied that the only time was to ask for cleaners. The Tribunal clarified if this was the service that was offered through [Council 1] and she replied that it was, and they came once-a-week. It asked if she had made any enquiries other than to [Council 1] and she replied that she had not.

23. The Tribunal asked the applicant who had been looking after the resident since the applicant had been overseas (in March 2020). She replied that there was a Filipino nurse in the neighbourhood. She said that this nurse had been helping the resident for a long time but was not helping her anymore. She said that she did not know where the nurse lived now, and there was no one to assist the resident. She said that the resident has recently been having asthma attacks.

24. When questioned, the resident said that she was not receiving care from anyone at the moment. She said that the last time she received care was from the applicant when the applicant was here. The Tribunal asked the resident when the Filipino nurse (who had been mentioned by the applicant) ceased assisting her. She said that it was several years ago. The Tribunal asked the resident if she currently received any care or support and she replied that she received some support before and she said that different people came to clean her house.

25. The resident was asked whether she had made enquiries about receiving assistance from services in Australia. She replied that she was ashamed to approach services because they succeeded in making her feel like a “pauper”. Upon further questioning, it was revealed that she was talking about the cleaners from [Council 1]. She was asked if she had spoken to anyone else about services, and she replied that she did not know.

26. The Tribunal heard submissions from the applicant’s representative, who told it that the resident was having memory problems which were shown in the doctor’s report. He said that she had used one of the carers to attempt to seek further services, and that they provided her with a gardener who no longer comes. The representative said that the resident has tried to explore what services are available, but these were limited due to her mental capacity and her lack of English. He said that one of these enquiries – to the Red Cross – was made when she was in his office, but that organisation said that they could not provide services to her.

27. When it was put to him that the Tribunal had concerns over the level of enquiries that had been made, the representative sought more time to provide a declaration detailing the enquiries made. The representative sought five days and the Tribunal agreed to set a deadline of 16 August 2022 which represented a period of six days from the hearing.

28. On 16 August 2022, the Tribunal received a statutory declaration from the resident where she sought to explain her caring arrangements since October 2017 when she had hip replacement surgery at [Hospital 1].

    After spending thirty days at [Hospital 1], I was assigned a Filipino nurse, who used to come to my house on daily basis to give me injections and helped me with showers and other domestic chores. In about March 2018, the nurse informed me that the hospital had assigned her to another patient. As I do not speak English language well enough, I sought the assistance of my next door neighbour who contacted [Hospital 1] on my behalf and requested that they allow the nurse to continue to help me, but the hospital told me that they do not provide homecare on permanent basis and advised that I should contact my local council for homecare assistance.

    Thereafter my next door neighbour contacted [Council 1] and they took my details and told me that they would send someone to come to my house for an assessment. After the assessment the Council started sending one homecare worker to me three times a week. The Council charged me $12 per hour which added to my financial stress because after paying the council and my other bills I did not have enough money left to buy food for myself. In addition to the financial stress caused to me by the Council's fees, I was always facing constant humiliation in the hands of the homecare workers sent by the Council. They would make fun of me each time I asked them to assist me with preparing my Filipino foods. They would tell me that this is Australia and that I should eat whatever that was available. They would also tell me to sell my house and move into old people's home. Sometimes they would make mockery of my walking stick and would tell me to get a wheelchair instead. I made several complaints to the council without any positive effect. I was severely stressed which caused more health problems for me. With the assistance of my lawyers, I also contacted the Red Cross and the Salvation [Army] respectively and presented my situation to them, but I was told that they can only provide me with food vultures [sic] but unable to provide me with any form of homecare.

    Whilst these were going on, my daughter arrived in Australia to visit me. When she saw my condition, she decided to stay and look after me. It was for that reason that I sponsored my daughter to lodge an application for a carer visa to enable her to remain in Australia and look after me. The Council has only accepted to provide me with a domestic assistance services for only 45 minutes per week. I do not know, and I have not heard or aware of any other service providers in Australia that would assist me with my condition.

29. While this statutory declaration is useful in clarifying what assistance the resident has received to date, and while it does detail the problems encountered by the resident, it gives little insight into the steps that have been taken to ascertain what assistance can be obtained from the relevant services except that enquiries were made to the Red Cross and the Salvation Army. The Tribunal notes that, as above, the applicant told it at hearing that she had made no enquiries about services other than to [Council 1].

30. The Tribunal has considered the information in front of it, including the applicant’s testimony at hearing. While it accepts that the resident may wish to be cared for by applicant who is her daughter (although the applicant has been overseas since early-2020), the Tribunal must satisfy itself that enquiries have been made about what services, if any, are able to be obtained. Until this occurs, it is not able to consider the resident’s wishes and make findings about the reasonableness of obtaining assistance from the relevant services.

31. In the present case, the Tribunal finds that the applicant and the resident have made minimal enquiries into what assistance may be able to be obtained from welfare, hospital, nursing or community services in Australia. This is significant because the applicant’s lack of enquiries into services (other than those provided by [Council 1]) formed the basis for the delegate’s decision to refuse. In this way, the applicant has clearly been on notice of this being an issue in the review since at least November 2019 when the delegate made her decision.

32. The Tribunal is not satisfied that adequate or appropriate enquiries have been made into what assistance can be obtained by the resident. It is therefore not satisfied that the assistance under r.1.15AA(1)(b)(iv) cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The requirements of r.1.15AA(1)(e)(ii) and ultimately r.1.15AA(1)(e) are not met.

33. As r.1.15AA(1)(e) is not satisfied, the applicant is not a carer of the Australian relative, being the resident and sponsor, and therefore does not satisfy cl.836.221.

34. There is no evidence that the applicant satisfies any other subclass. The evidence before the Tribunal is that the applicant was born in [year]. It finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of “aged dependent relative” in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

35. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as there are near relatives of the applicant, as defined in r.1.15(2), who reside in the same country as the applicant. In this case, the applicant provided information in her Form 47OF application form that she has [number] children who, at the time of application, were not Australian citizens, Australian permanent residents or eligible New Zealand citizens. As such, the applicant is not a “remaining relative” and therefore is unable to meet cl.835.212.

    DECISION

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

    David Crawshay
    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.