2010052 (Migration)

[2022] AATA 5268

2010052 (Migration) [2022] AATA 5268 (30 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Rodney D Sahay (MARN: 9363880)

CASE NUMBER:  2010052

MEMBER:David Crawshay

DATE:30 August 2022

PLACE OF DECISION:  Melbourne

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

·cl.116.221 of Schedule 2 to the Regulations.

Statement made on 30 August 2022 at 5:10pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of the Australian relative – Autistic Spectrum Disorder – ADHD – assistance cannot reasonably be provided/obtained – other relatives – relevant services – NDIS – private nannying services – cost prohibitive – respite care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

CASES
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 by a delegate of the Minister for Home Affairs on 20 May 2020 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 visa applicants applied for the visa on 19 October 2017. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the first-named visa applicant (hereafter referred to as the visa applicant) is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied that the visa applicant was the carer of the resident, who is also the sponsor and review applicant. Specifically, the delegate found that r.1.15AA(1)(e)(ii) was not met. A copy of the decision record was provided to the Tribunal by the resident as review applicant.

4. The resident, as review applicant in this matter, appeared before the Tribunal on 23 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicants and from [Mr A], who is the resident’s husband.

5. The resident was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Whether the visa applicant is a carer

8. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or “resident”). The term “carer” is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision.

   Applicant is a relative of the resident – r.1.15AA(1)(a)

9. Regulation 1.15AA(1)(a) requires the visa applicant to be a “relative” of the resident who is the Australian relative (within the meaning of r.1.03, i.e. a “close relative” or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s sister.

10. Based on evidence including the official birth certificates of the visa applicant and the resident showing them to have the same parents, the Tribunal is satisfied that the visa applicant is the sister of the resident. The visa applicant is therefore a “relative” of the resident within the meaning of r.1.03 and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

11. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), states that: the resident or a member of the family unit of the resident has a medical condition; the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; the impairment has a rating (under the impairment tables) that is specified in the certificate; and 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.

12. For a certificate to meet r.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.

13. The Tribunal has been provided with a Carer Visa Assessment Certificate (CVAC or certificate) dated 21 January 2022 in respect of [Miss B], who is the resident’s daughter as evidenced by a birth certificate. The Tribunal notes that it is in relation to a medical assessment carried out on behalf of Bupa Medical Visa Services and is signed by the medical adviser who carried out the assessment. The Tribunal further notes that the CVAC states that [Miss B] has medical conditions that are causing impairments of her ability to attend to the practical aspects of daily life, that these impairments are assigned ratings for the purposes of the impairment table, and that because of the medical condition the resident 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.

14. The Tribunal is satisfied as to the genuineness of the CVAC and finds that it meets the requirements of r.1.15AA(2). Further, the CVAC addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). In relation specifically to r.1.15AA(1)(b)(i), the Tribunal accepts that the person with the medical condition, [Miss B], is the daughter of the resident and is therefore a member of the family unit of the resident under r.1.12(2)(b)(i).

15. Accordingly, the requirements of r.1.15AA(1)(b) are met.

    Residency status of person with medical condition – r.1.15AA(1)(ba)

16. 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.

17. In the present case, there is no evidence other than that the person with the medical condition is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

18. 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. The relevant instrument for these purposes is IMMI 17/126.

19. In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)

20. Where the person to whom the certificate relates is not the resident, but a member of their family unit, r.1.15AA(1)(d) requires the resident to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least two years as a result of the medical condition. In the present case, the subject of the certificate is the resident’s daughter, [Miss B], and not the resident herself.

21. On the available evidence, the Tribunal finds that the resident requires assistance in providing direct assistance to [Miss B]. As the resident requires assistance in providing the direct assistance referred to in r.1.15AA(1)(b)(iv) the requirements of r.1.15AA(1)(d) are met.

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

22. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be: provided by any other relative of the resident who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

23. Before assessing whether the assistance cannot be reasonably provided by an eligible relative or obtained from the relevant services, it is necessary to ascertain the extent of this assistance.

24. According to the CVAC dated 21 January 2022, [Miss B] has been diagnosed with:

    ·Autistic Spectrum Disorder with speech difficulties affecting communication function – assessed as having a moderate functional impact on communication in her main language; and

    ·Autistic Spectrum Disorder with extremely low adaptive behaviour score of 58 (ABAS-3) affecting intellectual function – assessed as having a severe impact on intellectual function.

25. In the summary comments, the examining doctor relevantly stated as follows in relation to [Miss B]:

    [Miss B] suffers from Autistic Spectrum Disorder – level 2 and ADHD. From review of her psychologist reports provided including ABAS – 3 scores and interview with her mother, it is evident that [Miss B] requires a lot of support in several areas including both academic and social domains. It is noted that she requires assistance with self-care and ADLs. [Miss B]’s mother stated that she has anxiety symptoms and often her Aunty helps. As per psychologist report, [Miss B] requires substantial supervision support particularly for safety reasons and keeping her wellbeing including taking care of her medications on daily basis.

26. The examining doctor assessed [Miss B] to require direct assistance in the areas of bathing and showering, toileting, dressing and grooming, eating and feeding, supervising medication, supervision for personal safety, and transportation. She was assessed as being fully dependent vis-à-vis the activities of daily living.

27. In the CVAC, the examining doctor helpfully included comments about the assistance currently given. In relation to bathing and showering, the comment is that “Mother helps”. In terms of dressing and grooming, the comment is that “Mother helps prior to school travel daily”. Regarding supervising medication, the comment is that “Mother monitors and gives medications daily”. Lastly, turning to transportation, the comment is that “Aunty assists”.

28. At hearing, the Tribunal put to the visa applicant that the caring tasks are mostly performed by the resident according to the CVAC. She disagreed, stating that she did more than the resident. She said that she prepared [Miss B] every morning to go to school and to pick her up again, as well as settling her down after school, helping her with homework, showers, dinnertime and her medications. She said that she settled [Miss B] down at night.

29. When asked what “settling down at night” meant, the visa applicant told it that [Miss B]’s medications disrupt her sleep, that it takes about one-to-two hours to settle her and the that she is scared. The visa applicant said that [Miss B] wakes about two or three times-a-night and that this is often in the middle of the night. When asked about whether any assistance has been obtained for this, the visa applicant told it that while the NDIS provides appointments, they do not provide caring and the family would need to pay for outside carers.

30. The resident’s testimony was broadly consistent in relation to the tasks performed by her and the visa applicant, including in relation to those performed at night. Both parties’ testimony was consistent with evidence they had previously provided. Based on this consistency, the Tribunal accepts this evidence.

31. The Tribunal has considered the medical information and other evidence including the testimony of the visa applicant and resident at hearing. It finds that the resident requires assistance to perform some tasks such as showering and bathing [Miss B], dressing and grooming her, and supervising her medications, although it finds that the resident is the main provider in these areas. It finds that the visa applicant is the main carer for [Miss B] overnight. It finds that this is a problematic area and one that seems to allude the resident, who suffers from a number of psychological conditions such as anxiety and depression.

32. The Tribunal now turns to the question of whether the assistance cannot reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident or an eligible NZ citizen.

33. The evidence in front of the Tribunal is that the resident has a husband, [Mr A], a daughter aged 18 years or older, [Ms C], a sister, [Ms D], and two nieces, [Ms E] and [Ms F].

34. The Tribunal has sighted statutory declarations from [Ms D], [Ms E] and [Ms F] from April 2020 stating that the family all lives in South Australia. It accepts this information and accepts that they are not able to provide assistance.

35. The Tribunal has also sighted evidence purporting to show that [Ms C] is unable to provide care owing to her circumstances as a mother of a young child and a person living with mental illness. A letter from [Ms C]’s treating doctor dated 20 June 2022 stated that she has a history of anxiety and depression “with cluster C personality disorder. It said that she had had several presentations to the emergency department and to the acute care team where she had shown an exacerbation of symptoms with suicidal ideation. The letter concluded by stating that [Ms C] was on pharmacological and psychological treatments.

36. The Tribunal has considered the suitability of [Ms C] for performing the required assistance. However, given the nature of this assistance, and specifically the need to assist overnight, it accepts that the assistance cannot reasonably be provided by [Ms C].

37. The Tribunal has considered whether the assistance cannot reasonably be provided by [Mr A]. In this regard, it has considered a [document] which shows that he is a [occupation] and works on a shift basis with most of his shifts beginning in the very early morning. It accepts based on his work that it is not reasonable for him to provide assistance to the resident to care for [Miss B] overnight, even in conjunction with other relatives or with services (of which more is below).

38. Turning to the question of whether the assistance cannot reasonably be obtained from the relevant services, the Tribunal has considered information showing that the resident and visa applicant have made enquiries of the NDIS about what services, if any, exist for [Miss B]. In this regard, it has considered an email from an employee of the NDIS of 2 April 2020 which stated that the service does not provide carers for autistic children and suggested the resident explore nannying options through private providers.

39. At hearing, the Tribunal discussed the option of respite care for [Miss B] with the resident, but the resident responded that [Miss B] does not like staying in other places overnight. She gave the example of when the family would visit [Miss B]’s grandparents who used to live on the Sunshine Coast and how [Miss B] would want to go home even though they had been there plenty of times before. The visa applicant and [Mr A] spoke to the same details.

40. The Tribunal has considered the information in front of it. It accepts that regular overnight services would need to be engaged to care for [Miss B]. However, it finds that there is no specific service under the NDIS that can assist in this way, and that any assistance of this type would need to be sourced by other means, including privately. Although the types of services referred to in r.1.15AA(1)(e)(ii) are not restricted to public sector services and there should be no assumption made that the services will be free or unpaid, in this instance the types of services suggested by the NDIS employee (namely, private nannying services) are cost prohibitive if engaged regularly when compared to the budget of the resident’s family. Lastly, and for completeness, the Tribunal finds that even if the resident were able to secure respite care (and there is little to suggest that she can), this is not appropriate for [Miss B] given her behavioural conditions.

41. Having considered the above information and findings, 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 r.1.15AA(1)(e) are met.

    Willing and able – r.1.15AA(1)(f)

42. Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the resident 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.

43. The evidence in front of the Tribunal, including evidence on the Department and Tribunal files and testimony given at hearing, demonstrates that the visa applicant has already been providing assistance to the resident in respect of [Miss B] since the latter has been 18 months.

44. Based on this evidence, the visa applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

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

46. 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, including in respect of the secondary visa applicant.

    DECISION

47. 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;

    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.