2004871 (Migration)

[2022] AATA 3442

2004871 (Migration) [2022] AATA 3442 (5 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2004871

MEMBER:Justine Clarke

DATE:5 October 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 criteria for a Subclass 116 (Carer) visa are met:

·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 05 October 2022 at 4:29pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance cannot reasonably be provided by any other specified relative or obtained from service providers – other relatives’ estrangement, family, study, work, health or travel time – review applicant’s age, cultural and dietary preferences, and fear of strangers – cost of nursing home or at-home care – documentary and credible oral evidence – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15AA(1)(e)(i), (ii), Schedule 1, item 1123A, Schedule 2, cls 116.211, 116.221, 116.321

CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 10 January 2020 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 [Age 1] years and will soon turn [Age 2].

   [1] This claim and evidence are discussed further below.

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

4. On 13 May 2016, the visa applicants applied for the visa. The visa applicants are both nationals of India. At the time of this decision, the primary visa applicant is [Age 3] years of age, and the second-listed visa applicant is [Age 4] 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. The delegate was satisfied, from the evidence before her, that the secondary visa applicant is the child of the 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 10 January 2020.

12. 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)(i) and (ii), within the definition of ‘carer’, were not met.

13. Regulation 1.15AA(1)(e)(i) requires that assistance cannot reasonably be provided by any other relative of the review applicant. The delegate was not satisfied that:

    ·the review applicant’s daughter [Ms A], with whom she was living and who appeared to be receiving maximum Carer Payment, was unable to meet the full extent of the review applicant’s care on an individual basis; and

    ·the review applicant’s seven relatives in Australia (including [Ms A]) would not reasonably be able to provide the care she requires on a collective basis.

14. 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:

    I acknowledge the applicant’s claim that the sponsor may not wish to enter a nursing home as she believes they do not accommodate her cultural or dietary needs. However, all options for care including residential and in-home care must be investigated for the purposes of a Carer visa application to determine if assistance is reasonably available from service providers in Australia.

    There is no evidence of any person making any approaches to any residential care facilities to enquire about services that may be able to offer the resident or the cost of their services. Therefore, I do not find that it has been satisfactorily demonstrated that a residential facility would not be able to meet [the sponsor]’s cultural or dietary needs or that the cost of residing in such accommodation would be prohibitively expensive for the family.

    The applicant has made no claims that in-home carers would not be suitable for her mother, and I also note that she has not provided any evidence of any enquiries with in-home service providers or community/welfare agencies in Australia as to what they may be able to offer the resident to meet her care needs.

    Having assessed all of the information available to me, I am not satisfied that it has been demonstrated that a full investigation of the availability of residential care for the resident or in-home welfare/community facilities or nursing services has been made. I further find that there is no evidence that a combination of family support and in-home assistance would not be sufficient to service the care needs of the resident.    

15. 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 Carer subclass 116 visa, the dependent applicant is unable to satisfy Clause 116.321 in Schedule 2 of the Migration Regulations.

16. On 11 March 2020, the review applicant applied to the Tribunal for review of the refusal decision. The review applicant was represented in relation to the review.

17. On 4 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 review applicant’s daughter [Ms A]; from her daughter [Ms B] (who was also acting as representative) and from [Ms B]’s husband [Mr C]. The Tribunal also received oral evidence, by telephone, from the visa applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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.

    Whether the visa applicant is a ‘carer’

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

20. The Department’s file contains a certified copy of the bio-pages of the review applicant’s Australian passport (now expired) and a certified copy of her certificate of Australian citizenship. Based on this evidence, the Tribunal finds that the review applicant is an Australian citizen.

21. With respect to whether she is usually resident in Australia, as has been noted, the review applicant is aged [Age 1] years and will soon turn [Age 2]. She attended the hearing in a wheelchair. There is no evidence to suggest that the review applicant lives anywhere other than Australia.

22. Based on the evidence before it, the Tribunal is satisfied that the review applicant is an Australian citizen usually resident in Australia.  

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

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

24. 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. 

25. In the primary decision, the delegate stated that ‘the Department has not made a formal assessment of the claimed daughter/mother relationship at this time’.

26. There is no evidence to suggest that the visa applicant is not the child of the review applicant. Rather, the evidence suggests that she is.

27. In the review applicant’s signed statement of 11 March 2020, she stated that her daughter— the visa applicant—does not have a birth/baptism certificate but that her passport evidences her date of birth and relationship to her (the review applicant) and that the matter should be assessed on this evidence.

28. The Tribunal notes that the parties submitted a certified copy of the bio-pages of the visa applicant’s current, valid Indian passport. The bio-pages state that the review applicant is the mother of the visa applicant. Based on this evidence, the Tribunal finds 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))

29. 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.

30. 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.

31. 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 26 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).

32. 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.

33. 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 medical condition (here, the review applicant) meet the residency requirement? (reg 1.15AA(1)(ba))

34. 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.

35. 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))

36. 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.

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

38. In the present case, the impairment rating specified in the certificate is 40 points. This rating exceeds the impairment rating of 30 points 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?

39. 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))

40. 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.

41. 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.

42. 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.

43. 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].

44. The delegate determined that the review applicant had seven relatives in Australia:

    ·her son [Mr D];

    ·her daughter [Ms B];

    ·her daughter [Ms A];

    ·her grandson [Mr E];

    ·her grandson [Mr F];

    ·her granddaughter [Ms G]; and

    ·her granddaughter [Ms H].

45. With respect to son [Mr D], in the primary decision, the delegate stated:

    The applicant claimed that ‘the sponsor is estranged from her son, [Mr D], who not only does not wish to provide a statutory declaration as to his inability to care for his mother, but is also not in a position to provide any assistance as he has a large family consisting of a wife and 4 children, he being the only working member of his family’.

    No evidence of any attempts by the applicant or the sponsor contacting [Mr D] has been provided. In the absence of supporting evidence that the sponsor is genuinely estranged from her son or his work and family commitments, I am not satisfied that it has been demonstrated that it would be unreasonable for [Mr D] to contribute to his mother’s care.

46. With respect to daughter [Ms B], the delegate stated:

    She declared that the resident requires full-time, high level care, which she is unable to provide as she has home duties caring for her two children and husband who is still working. She also claims that she lives an hour away from the sponsor. No evidence of her residential address or the ages of her children were provided. In the absence of supporting evidence, I do not find that it has been demonstrated that it would be unreasonable for her to contribute in any way to the care required by the resident.

47. With respect to daughter [Ms A], the delegate stated:

    She states that her mother requires full-time, high level care which she is unable to provide when she is working at her job. [Ms A] claims she is no longer able or willing to provide the level of care the sponsor needs as she needs to work full-time to make ends meet. She also claims that she is currently working part-time (2 days a week) in [name omitted] [Workplace] and cares for the resident when she is at home, and, as such, receives a part Carer Payment from Centrelink. No supporting evidence of [Ms A’s] employment was provided. I also note that the Centrelink income statement dated 15 November 2019 states that she is receiving ‘maximum rate Carer Payment’. In the absence of detailed evidence of [Ms A’s] work commitments and in combination with the fact she resides with the resident and is receiving the maximum rate Carer Payment in relation to caring for her mother, I do not find it has been demonstrated that it would be unreasonable for her to continue caring for her mother.

48. With respect to grandchildren [Mr E], [Mr F] and [Ms G], the delegate noted each of their declarations that they were unable to provide the full-time, high level care that their grandmother, the review applicant, requires because of their work and study commitments. The delegate placed no weight on these claims because supporting evidence of the claimed work and study commitments was not provided. In each case, the delegate concluded that it had not been demonstrated that it would be unreasonable for each of these grandchildren to make any contribution to the care the sponsor requires.

49. With respect to granddaughter [Ms H], the delegate stated:

    She declares that the resident requires full-time, high level care, which she is unable to provide as she has to take care of her baby. She lives at home with her husband and [Age 5] months old child and also claims that she works part-time for 2 days per week and cares for her child on other days. However, no evidence of her work commitments or birth certificate of her child were provided. Consequently, I place limited weight on her claim that it would be unreasonable for her to care for the resident. I do not find that it has been demonstrated that [Ms H] is unable to contribute to the care the resident requires.

50. The Tribunal notes that, when the review applicant sought merits review, she filed a number of documents in response to the delegate’s criticisms.

51. For example, in her signed statement of 11 March 2020, the review applicant provides further details about each of her Australian relatives and why they are unable to provide her with the assistance that she requires.

52. With respect to son [Mr D], the review applicant reiterated her claim that he is estranged from her. She continued:

    He has a wife and 4 minor children. Neither [Mr D] nor his wife are willing (or able) to provide any assistance to me. I have been unable to obtain a declaration from [Mr D], as he does not wish to have any contact with me.

1. She provided [Mr D]’s mobile phone number and residential address to the Tribunal in the event that the Tribunal wished to contact him to verify her claims.

2. At the hearing, [Mr C] gave very credible oral evidence that [Mr D] was ‘in and out of jobs’ and has four children. He said that [Mr D] had a hard time looking after his own family and did not have the time, money or energy for the effort involved in aiding the review applicant. The Tribunal gives great weight to this evidence.

3. In view of the review applicant’s consistent claim that [Mr D] is estranged from her and [Mr C’s] very credible oral evidence that [Mr D] does not have the capacity to assist in any event, the Tribunal did not consider it necessary to telephone [Mr D].

4. There is no clear evidence before the Tribunal that, at the time of this decision, there has been any change to the estrangement of [Mr D] from his mother, the review applicant.

5. From the evidence before the Tribunal, the Tribunal finds that [Mr D] is not willing or able to provide the assistance required. Accordingly, the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her son [Mr D].

6. With respect to daughter [Ms B], the review applicant made the following statement in her signed statement of 11 March 2020.

   [Ms B] … lives in [a named northern suburb of Melbourne], which is at least an hour’s drive from my home in [a named south-eastern suburb of Melbourne]. [Ms B] has had two major operations for removal of pituitary tumours, which interferes with her concentration. For this reason she is also not able to drive for long periods. She has two children, who although over 18 years of age, are still living at home. Her husband is employed, and although she does not work anymore, she is busy with her housekeeping duties, and is not able to provide any meaningful assistance to me. I also believe that it is unreasonable to expect that she provide any assistance to me, as her primary duty is towards her family and household.

7. At the hearing, the Tribunal asked [Ms B] for an update on her circumstances.

8. [Ms B] gave very credible oral evidence that she cares for her grandchild three times a week when the child’s mother is at work.

9. Her husband, [Mr C], told the Tribunal that [Ms B] had her ‘hands full’ and that she cannot devote much time to the care of her mother. He told the Tribunal that they lived in the north of Melbourne and that the review applicant lived in a [south-eastern suburb] and that the traffic was a real ‘nightmare’ in the morning. He said that they have one child still living at home, whom is [Age] years of age.

10. Having had the opportunity to hear oral evidence in person from both [Ms B] and [Mr C], the Tribunal found them both to be very credible and the Tribunal considered it unnecessary to request documentary evidence to corroborate their various claims. Rather, based on the very credible oral evidence, the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her daughter [Ms B].

11. With respect to daughter [Ms A], the review applicant made the following statement in her signed statement of 11 March 2020.

    My daughter [Ms A] is currently my carer and she has been caring for me for a few years. [Ms A] works part time (2 days per week) at the [name omitted] [Workplace] and also receives a carer payment (letter of employment is attached). I believe she is no longer able to continue as my carer, as it is getting difficult for her. She needs to work full-time as she is in financial difficulty and her carer payment together with her part-time wages is not sufficient to pay her mortgage, living expenses and other financial commitments.

    [Ms A] has been good enough to care for me up till now, as my other relatives because of their circumstances, are not able to provide any assistance. [Ms A] has provided a declaration that she is no longer able to continue looking after me. However, the delegate has stated that in the absence of evidence of [Ms A]’s work commitments and combined with the fact that she lives with me and receives a carer payment, she finds that it is not unreasonable for [Ms A] to continue caring for me. Apart from the financial side of things, [Ms A] is sometimes quite physically exhausted especially when I wake her at nights for my toileting, and she is unable to get back to sleep. This is a problem for her when she has work the following day.

    I believe that every person should have a choice as to what they wish to do. Even though [Ms A] has been kind enough to look after me all these years, she has a right to look after her own interests. She has been acting quite selflessly all these years, and I do not think she should be placed in a position where she is compelled to act against her own interests, and even where she is reaching the limits of her physical endurance. …

    [Ms A]’s financial condition and her desire to work full-time, as well as her physical exhaustion are factors in her decision to not continue caring for me. …

12. At the hearing, the Tribunal asked [Ms A] for an update on her circumstances.

13. [Ms A] gave very credible oral evidence that she had been caring for her mother since 2010—which the Tribunal notes is, at the time of this decision, 12 years ago—and that she wants and needs a break from it now. She said that she and her mother live at the same property, in a named suburb in the south-eastern part of Melbourne.

14. She said that she attends to all of her mother’s needs from ‘morning until night’, explaining that she cooks for her, sometimes feeds her, gives her medication, takes her to the toilet, cleans her and changes her clothing. She said that she was the only person doing all of these things.

15. She said that she received Carer payment, but she said that it was not enough money, so she also worked two days a week as [an Occupation] for a named [employer]. She said that she wanted to work more often to assist her financial situation and noted the increasing cost of living expenses: ‘the days have become more difficult now’. She said that she has a mortgage and is the only person responsible for paying it off and she said that she was finding it difficult and that she needed to work more hours.

16. She said that she felt scared to leave her mother when she needed to go to work and that sometimes she had to take sick leave so that she could stay at home and attend to her mother’s needs.

17. When he was giving his oral evidence, [Mr C] told the Tribunal that [Ms A] was ‘having a very hard time’ and was suffering physically from providing the care. He said that [Ms A] had told them that she must get up in the night to attend to the review applicant and that this means that she cannot perform properly at her work the next day.

18. The Tribunal asked [Ms A] how she was suffering physically from providing the care. She said that, at times, she needed to lift her mother and that this has caused her to have a sore back. The Tribunal also noted that [Ms A]’s employment is quite a physical job, for which she agreed. The Tribunal asked [Ms A] whether she had seen a doctor or a physiotherapist about her back pain or whether this was something that she manages herself. She said that she had seen someone for it but she said that sometimes she just manages it herself.

19. The Tribunal found [Ms A] to be very credible and accordingly, accepts and gives great weight to her oral evidence. As has already been noted, the Tribunal also found [Mr C] to be very credible and accepts and gives great weight to all of his oral evidence.

20. The Tribunal notes that, in this review, evidence was filed confirming [Ms A’s] employment. While the signed ‘to whom it may concern’ letter from [Ms A’s] employer is dated 16 January 2020 and was submitted when the application for review was lodged, the Tribunal is in no doubt that, if so requested, [Ms A] would be able to provide an updated letter from her employer verifying her employment.  

21. In view of the evidence before the Tribunal, the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her daughter [Ms A].

22. With respect to grandson [Mr E], [Ms A] gave very credible oral evidence that he was her son; that he was still working and studying and that he had a baby earlier in 2022. The Tribunal notes that when the application for review was lodged, the family submitted evidence of [Mr E’s] employment and his university timetable. The Tribunal is in no doubt that, if so requested, the family would be able to provide an updated letter from [Mr E’s] employer verifying his employment; details of his continuing studies and a registered birth certificate for his child who is a few months in age. However, having found [Ms A] to be very credible, the Tribunal considered it unnecessary to request documentary evidence to corroborate these various claims.

23. In view of the evidence before the Tribunal, the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her grandson [Mr E].

24. The evidence before the Tribunal is that the review applicant’s grandchildren [Mr F], [Ms G] and [Ms H] are the children of [Ms B] and [Mr C].

25. [Ms B] and [Mr C] told the Tribunal that [Mr F] was living in a named northern suburb of Melbourne, that he has a partner and that his work for a named [multinational] corporation required him to travel interstate frequently but on an irregular basis. The Tribunal notes that when the application for review was lodged, the family submitted evidence of [Mr F’s] employment at the [corporation]. The Tribunal is in no doubt that, if so requested, the family would be able to provide an updated letter from [Mr F’s] employer verifying his employment, as well as details of his residential address and living situation. However, having found [Ms B] and [Mr C] to be very credible, the Tribunal considered it unnecessary to request documentary evidence to corroborate these various claims.

26. In view of the evidence before the Tribunal, the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her grandson [Mr F].

27. With respect to granddaughter [Ms G], [Ms B] and [Mr C] told the Tribunal that she was [Age] years of age and living at home with them and still studying and working. The Tribunal notes that when the application for review was lodged, the family submitted evidence of [Ms G’s] employment, her university student card and her university timetable. The Tribunal is in no doubt that, if so requested, the family would be able to provide an updated letter from [Ms G’s] employer verifying her employment and details of her continuing studies. However, having found [Ms B] and [Mr C] to be very credible, the Tribunal considered it unnecessary to request documentary evidence to corroborate these various claims.

28. In view of the evidence before the Tribunal, the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her granddaughter [Ms G].

29. With respect to granddaughter [Ms H], [Ms B] and [Mr C] told the Tribunal that she lived further north of Melbourne than they did, that she cares for her child who is [Age] years of age and works part time. The Tribunal notes that when the application for review was lodged, the family submitted evidence of the registered birth certificate for this child and a signed ‘to whom it may concern’ letter from [Ms H]’s employer confirming that she works two days per week. The Tribunal is in no doubt that, if so requested, the family would be able to provide an updated letter from [Ms H]’s employer verifying her employment.

30. In view of the evidence before the Tribunal, the Tribunal finds that the assistance that the review applicant requires cannot reasonably be provided by her granddaughter [Mr H].

31. For these reasons, the Tribunal is satisfied that none of these family members is singularly reasonably able to provide the review applicant with the assistance that she requires. Further, the Tribunal finds that none of them are reasonably able to provide the assistance on a collective basis. The Tribunal makes this latter finding because it accepts the review applicant’s written submission, in her signed statement of 11 March 2020, that ‘[f]or my relatives who live far away, it would be a very difficult exercise to co-ordinate the assistance, also taking into account that some of them work odd hours’.   

32. To conclude, the Tribunal finds that, at the time of this decision, the assistance the review applicant requires cannot reasonably be provided by her son [Mr D]; her daughters [Ms B] and [Ms A]; or her grandchildren [Mr E], [Mr F], [Ms G] and [Mr H]—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.

33. With respect to reg 1.15AA(1)(e)(ii), the Tribunal notes and gives weight to the statements made in the review applicant’s signed statement of 11 March 2020. The review applicant outlined her various needs for assistance. She also stated, ‘[Ms A] is away at work 2 days a week, and when she is away I am practically confined to my bedroom’.

34. She also stated, ‘I do not wish to spend the remainder of my days in an aged care or nursing facility as they will not be able to accommodate my cultural or dietary needs’. She continued:

    Before my daughter, [Ms A], officially became my carer, she had made enquiries about care at a nursing home and had also contacted some welfare or community organisations. On coming to know about this, I was very upset and suffered depression for some time. I am also afraid of strangers coming into my house, even if providing me care. I am extremely uncomfortable with strangers handling my person, especially when my daughter is not around. My daughters tried to convince me, but I am not at ease with the proposition, and feel that I may suffer panic attacks and trauma if this was forced upon me. For these reasons my daughters have ceased to contact external care providers.

    … Even if I were able to use live-in care from welfare agencies, this would not be affordable for me.

    For all intents and purposes care at aged care homes or welfare agencies is not really an option for me, as I cannot reasonably avail of these services, although it may appear reasonable to others, including the delegate. The services that are able to be provided by welfare agencies would also not be sufficient for me, even if I were able to overcome my fear and accept them. These services are quite limited and will not be available whenever I need them. I have attached the list of services that can be provided by a nursing home. Apart from these being expensive, these services are not able to satisfy my needs.

35. The Tribunal notes that further documentary evidence has been submitted in this review than what was before the delegate. For example, the family submitted:

    ·a printout of the fee schedule for home care package service from [Provider 1] for 2019/20;

    ·a printout of the fee schedule for home care package service from [Provider 2] as at 1 July 2019;

    ·a printout of information about home care package costs and fees from ‘myagedcare’ as at 1 February 2020;

    ·a letter from [Provider 3] to the review applicant, dated 24 January 2020, regarding their [service] which aims to ‘keep an eye on our patients at home’; and

    ·a document titled ‘team care arrangements’.

36. The family also submitted various medical documents such as correspondence from a named medical centre, including a signed and stamped letter from the review applicant’s general practitioner dated 3 October 2022 (the day before the hearing) which stated, amongst other things, that professional’s opinion that ‘[s]he would benefit from having her daughter here to help her with her activities of daily living’.

37. At the hearing, [Ms A] gave very credible oral evidence that her mother was resistant to care in the home or in a residential care facility. She explained that her mother was scared of people from outside and that, when she spoke, she had difficulty being understood by others, outside the family.

38. [Ms B] told the Tribunal that, in the past, she had phoned different service providers but that her mother had not been happy about it.

39. [Mr C] stated that it was not that the family had not made efforts to investigate the availability of in-home community welfare/community facilities or nursing services or residential care, but rather that undertaking such inquiries had caused trouble for them. He said that, for this reason, they stopped making the inquiries.

40. He gave very credible oral evidence that, in earlier times, when it became clear that the review applicant needed assistance, the family had discussed what the best course of action would be. He said that he had looked up various agencies and price lists. He said that they learned that the care was quite expensive and that it would be very difficult for the family to meet those costs given that the review applicant receives a pension only. He said that his family could not contribute financially to the review applicant’s care on an on-going basis. He also said that no one else in the family was in the financial position to be able to do that either.

41. He said that, besides the financial aspect, the review applicant really does not like anyone else to handle her person. (At this point, [Ms A] interjected and explained that it was because the review applicant is scared). [Mr C] explained that, in the past, [Ms A] had arranged for cleaners and others to assist and that the review applicant had ‘lost it’ and become very emotional and depressed. He said that the review applicant had stopped eating. He said that this response could go on for days and that he sympathised with [Ms A]’s worry about that. He said that the review applicant understands what is happening and that it makes her sad.

42. The Tribunal asked the family members—[Ms A], [Ms B] and [Mr C]—what was meant by the review applicant’s ‘cultural or dietary needs’. [Mr C] was the person who provided the main response. He explained that the review applicant comes from an Anglo-Indian background and likes the food and traditions of a certain era. [Ms A] explained that the review applicant chooses not to eat meat on Tuesdays and Fridays. She also said that the review applicant liked her food prepared in a certain way, ‘mushy’.

43. [Mr C] continued by stating that the review applicant had been ‘sequestered’ from mainstream society. He explained that, when she had been married, the review applicant and her husband had not socialised very often. He said that she was from an era when it was atypical to socialise with men. He noted that a lot of carers are men. He said that the review applicant liked being around people who were like her, and he described this as a ‘cultural thing’. He said that these were his observations of a person from an Anglo-Indian background who was an adult in the 1950s and 1960s.

44. He described the review applicant’s fear of strangers as ‘bordering on a phobia’. He said that she had said that she fears that she will die if she is placed in a nursing home.

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

46. 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.

47. Accordingly, the Tribunal finds that, at the time of this decision, reg 1.15AA(1)(e)(ii) is met.

100.   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))

101.   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.

102.   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.

103.   At the hearing, the visa applicant told the Tribunal, ‘I just want to take care of my mother’. She gave oral evidence that she was willing to care for her mother, the review applicant, ‘all her needs and problems’. The Tribunal asked her whether she was aware of the type of care required and she said that she did understand and listed a number of matters that her mother needed assistance with such as bathing, toileting and administering medication.

104.   The Tribunal found the visa applicant to be credible. 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

105.   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.

1. 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. The Tribunal notes here that the expression ‘member of the family unit’ is defined in reg 1.12. As the combined application for the visas was lodged on 13 May 2016, the former version of reg 1.12 applies. This definition is more expansive—and thus more helpful to the secondary visa applicant—than the current definition. The Tribunal draws the family to this information and apologises for suggesting that the more limited definition may apply and that the secondary visa applicant may face difficulty in meeting the criteria.

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

108.    Given the circumstances in which the review applicant is turning [Age 2] years of age and her daughter [Ms A] is experiencing physical and financial difficulty in caring for her, any efforts the Department of Home Affairs may make in expediting this case would be appreciated. 

DECISION

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

·cl 116.221 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.