2201559 (Migration)

[2022] AATA 3771

2201559 (Migration) [2022] AATA 3771 (14 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sarah Akanda (MARN: 5512541)

CASE NUMBER:  2201559

MEMBER:Jane Marquard

DATE:14 September 2022

PLACE OF DECISION:  Sydney

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

·cl 116.211 and 116.221 of Schedule 2 to the Regulations

Statement made on 14 September 2022 at 8:49am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – visa applicant is the sister of the Australian relative – Suicidal ideation and attempt – ongoing medical and mental health issues – no mainstream organisations that can provide on-going emotional support and motivation outside business hours – certificate provided meets the requirements of r.1.15AA(2) – assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.221

CASES
Biyiksiz v Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814
Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606
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 by a delegate of the Minister for Home Affairs on 22 November 2021 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) (Subclass 116) Carer visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND TO THE REVIEW AND SUMMARY OF FINDINGS

2. The visa applicant, [Ms A], is a national of Peru. She applied for the visa on 12 June 2017, claiming to be the carer of her sister, [Ms B], the review applicant. The review applicant was represented in relation to the review by the Immigration Advice and Rights Centre.

3. The delegate refused to grant the visa on 22 November 2021 on the basis that cl 116.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) was not met because evidence had not been provided that [Ms B] and [Ms A] were sisters. Furthermore, the delegate was not satisfied that documentary evidence had been provided to demonstrate that the assistance required for [Ms B] could not 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.

4. New evidence was submitted to the Tribunal. The Tribunal was able to determine the matter on the basis of the documentary evidence, pursuant to s 360(2)(a)f the Act, and therefore no hearing was held.

5. The Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal is satisfied that the review applicant needs and will continue to need for two years, direct assistance in attending to the practical aspects of daily life. The Tribunal is satisfied that the visa applicant claims to be the carer of the review applicant and is willing and able to provide the assistance the review applicant needs. The Tribunal is satisfied that the assistance cannot reasonably be provided by another relative who is an Australian citizen or permanent resident or obtained from welfare, hospital, nursing or community services in Australia. The reasons for this follow.

   RELEVANT LAW AND QUESTIONS FOR DETERMINATION

6. 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). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) visa.

7. The purpose of the Carer visa is to allow an Australian citizen, permanent resident or eligible New Zealand citizen, with a medical condition causing a significant level of impairment (or who has a family unit member with such an impairment), to sponsor an overseas relative to Australia to provide assistance of the kind required for the Australian relative (or their family unit member).

8. 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 which requires that the visa applicant is a carer of the Australian relative mentioned in cl 116.211 of Schedule 2 to the Regulations.

9. The key issues identified in the Department decision are:

   ·Is the visa applicant a relative of the review applicant; and

   ·Could the assistance required for [Ms B] reasonably be provided by any other Australian relative or obtained from welfare, hospital, nursing or community services in Australia.

10. In making its findings, the Tribunal has considered the evidence and documents provided to the Department as well as this Tribunal.

    FINDINGS

    Background

11. [Ms A], the visa applicant, is a [age]-year-old woman from Peru. In a Statutory Declaration accompanying the application, [Ms B] said that her sister works as a sales representative in [a specified] industry, earns a good salary and loves her job. She has also worked as a [Occupation 1]. In her application [Ms A] provided details of a number of courses completed including in [details deleted]. Her most recent employment was listed as an [occupation].

12. [Ms B], the review applicant, is a [age]-year old woman who is an Australian permanent resident. She has two children [Miss C] aged [age] and [Miss D] aged [age]. In a Statutory Declaration accompanying the application, she said that she was born in Peru and her sister, brother and father live in Peru. Her mother has passed away. She said that she came to Australia on a partner visa in 2007. She separated in 2014 as a result of family violence. He children spend time once a week with their father and grandmother and their father provides some child support payments. She is on a disability support pension from Centrelink. The representative reported in submissions dated 6 September 2022 that [Ms B] and her children had moved to a refuge as a result of family violence. Since then housing has been found for them.

13. The review applicant said in the Statutory Declaration accompanying her protection visa application that she had severe ongoing depression and anxiety and takes a high dosage of medication. She said that she was seeing her general practitioner every two to three weeks and a psychologist once or twice a month. She said that she got drowsy and had fainted a few times, once when walking with her [son]. She said that she felt overwhelmed and could not organise her life or manage time. She said that her house looked like a rubbish depot and she did not know what to do. She said that she had brain fog and had nearly been run over by cars, left the cooking and heater on and lost her keys and telephone. She said that she suffered from chronic fatigue and frequent strong migraines. She said that she was admitted to [Hospital 1] in January 2014, December 2014 and in 2015 for attempting to commit suicide and the children stayed with their father. She noted that the children are very isolated and had behavioural challenges, and she was emotionally drained. She said that she felt overwhelmed and needed assistance.

14. A letter from  [Dr E], general practitioner, dated 28 January 2015, reported that the applicant had suffered from severe depression for several years and this had necessitated several hospital admissions. [Dr E] said that the applicant’s young children had behavioural challenges. She said that the applicant is socially isolated and it would assist her to have her father and sister care for her.

15. In her application in July 2016, [Ms A] said that she travelled to Australia in 2011 as a tourist to support her sister in the last week of her pregnancy with her niece [Miss D]. She said that she stayed in Australia for 8 months and then returned to Peru before her visa expired. She said that she would like to offer her unconditional support as her sister was going through very difficult times. She said that she knows the positive impact that her company and support would have in her life and in her niece and nephew’s lives. She said that her sister was struggling to keep herself alive in the face of mental illness, chronic fatigue and migraines. She said that her support could include cooking, cleaning, washing, shopping, taking care of personal hygiene for her family, organising and managing her schedules, taking her sister and the children to appointments, making sure medications are taken daily, having a crisis plan and emotional support. She said that she was learning to drive to help her sister.

16. In a request for priority processing in this matter dated 4 May 2022, the visa applicant’s representative said that [Ms B] is a single unemployed mother with two children aged [age] and [age]. She claimed that the applicant has been diagnosed with Post Traumatic Stress Disorder (PTSD) as a result of domestic violence perpetrated by her former partner and has also suffered from major depressive disorder for several years. The representative claimed that these conditions have been exacerbated by the uncertainty of the carer visa application.

17. A report from [Mr F], registered psychologist, dated 25 March 2022 stated that [Mr F] supports the carer application as she believes ‘[Ms A] can help her sister in more than one way having a positive impact on [Ms B]’s social and emotional wellbeing and that of [Ms B]’s children’. She said that [Ms B] has suffered from major depressive disorder as per the diagnostic and statistical manual for mental disorders for a number of years. She said that [Ms B] had required multiple hospitalisations since early 2014. She said that she had also diagnosed [Ms B] with PTSD as a consequence of domestic violence.

18. According to a letter from the Immigration and Advice Centre dated 28 January 2022 the applicant is unemployed. Between June 2021 and December 2021, she and her children sought refuge in a women’s refuge. Her primary source of income is the Disability Support Pension, state and Commonwealth rental support and small amounts from NDIS and in child support payments.

19. In a Statutory Declaration dated 15 September 2022 the review applicant said that in addition to depression and PTSD she had recently been diagnosed with Attention Deficit/hyperactivity disorder (ADHD). She said that she was taking medication for depression and anxiety and had had multiple hospital admissions.

    Whether the visa applicant has claimed to be a ‘carer’

20. Clause 116.211 of Schedule 2 to the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant claims to be a carer of the review applicant, who it was claimed is the visa applicant’s sister.

21. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

22. There is a copy of the carer application made by the visa applicant on the Department file. On that application the visa applicant claims to be the carer of her sister, the review applicant. The caree is an Australian citizen/permanent resident, as evidenced by the Return (Residence) Visa (Subclass 155) granted on 26 June 2019.

23. Therefore, at the time of application the visa applicant claimed to be a carer of an Australian relative and she satisfies the requirements of cl 116.211 of Schedule 2 to the Regulations.

    Whether the visa applicant is a ‘carer’

24. 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 reg 1.15AA of the Regulations, which is set out in the attachment to this decision. The relevant criteria in reg 1.15AA are discussed below.

    Whether the visa applicant is a relative of the resident (reg 1.15AA(1)(a))

25. Regulation 1.15AA(1)(a) requires that the visa applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 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.

26. On 9 September 2021 the Department requested that the applicant provide copies of birth certificates, and evidence of household composition. On 19 September 2021 the Department received a Form 54, setting out the family composition. This included [Ms A], born [year], her spouse who lives in [Country 1], their father, [who] lives in NSW, [Ms B] born [year], and brother [born] [year]. A birth certificate for [Ms A] was also provided as well as an untranslated identification card for the applicant, a letter from the applicant about her marriage and separation and an untranslated marriage certificate for the applicant. On this evidence, the delegate of the Department was not satisfied that the visa applicant was the sister of the review applicant.

27. The Tribunal requested that a birth certificate be provided for [Ms B] and copies of certificates for [Ms A] and [Ms B] were provided in September 2022. [Ms B]’s parents were identified on the certificate as the same parents identified on [Ms A]’s birth certificate. The Tribunal is satisfied therefore that [Ms A] and [Ms B] are sisters and therefore that the visa applicant is a relative of the Australian relative, having regard to the definitions of ‘relative’ and ‘close relative’ in reg 1.03.

28. Therefore, as the visa applicant is the sister of the Australian relative, 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).

    Whether a certificate has been provided which meets the requirements of reg 1.15AA (1)(b)

29. Regulation 1.15AA(1)(b) requires that a certificate which meets the requirements of reg 1.15AA(2) states that the Australian relative has a medical condition, that 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, 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.

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. In this case IMMI 14/085 applies. Regulation 1.15AA(3) provides that the Minister, in this case, the Tribunal, is to take the opinion in a certificate that meets the requirement of sub-regulation (2) on a matter set out in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies the criteria that the applicant is a carer.

31. A Carer Visa Report dated 24 December 2015 was provided from Bupa Medical Services. Medical reports of a general practitioner, family support worker, consultant psychiatrist and support facilitator were considered for the assessment. It was stated that the review applicant had chronic severe depression which impacted her capacity to self-care. It was stated that the review applicant gets informal family support and assistance from [Organisation 15] and [Organisation 16] for financial and domestic help. It was certified that she requires assistance with bathing, showering, dressing, grooming, eating and feeding, medication, personal safety and transportation. Suicidal ideation and attempt were mentioned. It was stated that she was ‘fully dependent’. According to the assessment, she was unable to perform activities of daily living satisfactorily due to neglect and hopelessness. She was assessed as having a limited social circle and no recreational activities that she enjoys anymore as well as being a single mother to two young kids which is a big challenge for her due to her mental illness. The report stated that she is getting full support from her local mental health support worker and social services to help and that she had several hospitalisations in the past for acute suicidal ideation and attempts.’ She satisfied the criteria for a full-time carer. The need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision and monitoring was seen as permanent, for at least two years. She had an assessment rating of 30. It was stated that she needs personal care and attention on a daily basis to carry out routine bodily functions and further, that she needs constant supervisions or monitoring because she may be a danger to herself or others. The need was stated as permanent, and for assistance to the practical aspects of daily life for at least two years. The Certificate was signed by the examining doctor, [name deleted].

32. BUPA Medical Visa Services is a health provider specified by the Minister under IMMI 14/085 at the relevant time. The Certificate provided includes the details prescribed in reg 1.15AA(1)(b) and was signed and issued by a medical practitioner on behalf of BUPA. On its face this certificate meets the requirements of regs 1.15AA(2) and 1.15AA(1)(b) of the Regulations. However, it is over six years old. According to Department policy[1] where the BUPA Certificate is more than two years old, it is open to the decision-maker to ask the person with a medical condition to undertake a fresh examination. As this does incur a fee, and given the review applicant’s medical conditions and financial status, an alternative option is for an updated report to be provided by a suitable medical practitioner.

    [1] Department of Home Affairs, ‘PAM3: Div1.2/reg 1.15AA - Carer

33. In this case, an updated report has been provided by the psychologist [Mr F] on 25 March 2022 and psychologist [Ms G] dated 28 March 2022. [Mr F] listed extensive experience as a psychologist, including working for [various organisations]. He reported that [Ms B] has suffered from a major depressive disorder (MDD) as per the diagnostic and statistical manual of mental disorders (fifth edition) for a number of years. She had required multiple hospitalisations since 2014.  He had also diagnosed her with post-traumatic stress disorder. He reported that the review applicant’s levels of attention and concentration are poor. She reportedly forgets appointments and misplaces items. She feels frustrated and emotionally exhausted and forgets what day it is and if her children are at school. She feels exhausted by the simplest activity and feels like she wants to stay in bed and has to be prompted to take care of her own hygiene. Her self-esteem is low and she gets easily distracted. She was receiving trauma counselling from him as well as seeing a psychologist under NDIS. [Mr F] said that he was very concerned about [Ms B]’s safety and integrity.

34. [Ms G], a psychologist and family therapist from [Clinic 1], reported that the review applicant had been an on-going and regular client since 23 June 2020 under NDIS funding. She said that [Ms B] experiences severe chronic depression and symptoms of high anxiety. Her results on the PCL-5 assessment for PTSD indicate that she is suffering significant PTSD due to verbal and emotional abuse in her marriage. She has experienced dissociative states and flashbacks that impact her daily functioning. An assessment completed in 2021 also revealed a formal assessment for ADHD. She said that [Ms B] is extremely socially isolated and only sees her father once a month. She said that psychological sessions had focused on her supporting her children and separating from her husband. [Ms B] and her two children spent the last 7 months in a women’s and family refuge. They have since moved into a residence in February 2022 and she has been provided with crisis management skills. She said that during her management of [Ms B] she had admitted herself to hospital on two occasions due to suicidal thoughts and ideation. Her last admission was March 2021. She said that [Ms B] struggles with daily functioning such as completing chores, personal hygiene and managing a diary.

1. The reports provided by [Mr F] and [Ms G] are detailed and consistent with the Certificate provided in 2015 and evidence ongoing medical and mental health issues as outlined in the Certificate as well as further deterioration in the review applicant’s condition.

2. On the basis of this evidence, the Tribunal is satisfied that the Certificate can be relied on for the purposes of sub-regs 1.15AA(2) and 1.15AA(3) of the Regulations. The Certificate addresses each of the matters set out in reg 1.15AA(1)(b)(i)-(iv) and the Tribunal is therefore satisfied that the requirements of reg 1.15AA(1)(b) are met.

   Whether the impairment rating is equal to or exceeds the specified rating (reg 1.15AA(1)(c))

3. 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 at the time of application was IMMI 07/012

4. In the present case, the impairment rating specified in the Certificate is 30. This rating meets the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

   Whether the resident has a need for assistance (where he/she is not the subject of the certificate) (reg 1.15AA (1)(d))

5. As the person to whom the Certificate relates is the review applicant and she is the Australian relative who is the subject of the application, reg 1.15AA(1)(d) does not apply.

   Whether assistance cannot be reasonably/provided/obtained (reg 1.15AA(1)(e))

6. 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.

7. The type of assistance to be considered is the assistance referred to in the certificate provided by the health service provider, namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition (reg 1.15AA(1)(b)(iv)).[2] The Tribunal is not required to turn its mind to the ‘nature and scope’ of the assistance required, rather it is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider.

   [2] Sefesi v MIBP [2016] FCCA 975 at [21].

8. According to the BUPA certificate, the review applicant requires full-time assistance with bathing, showering, dressing, grooming, eating and feeding, medication, personal safety and transportation. It was stated that she was ‘fully dependent’ and that she is ‘unable to perform activities of daily living satisfactorily due to neglect and hopelessness. She has had several hospitalisations in the past for acute suicidal ideation and attempts.’ It was reported she has a need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision and monitoring was seen as permanent, for at least two years. Further she needs constant supervisions or monitoring because she may be a danger to herself or others. The need was stated as permanent, and for assistance to the practical aspects of daily life for at least two years. This evidence was updated by two medical reports in 2022 as discussed earlier, which confirmed the BUPA assessment.

9. Evidence was provided to the Tribunal in the form of statutory declarations that the review applicant’s [age]-year-old father [is] her only adult relative in Australia. A death certificate was provided for her [mother]. Her father provided a Statutory Declaration to the Tribunal 19 August 2022.  He confirmed that he was [Ms B]’s only relative in Australia. He said that he is unable to assist her with everyday support in personal hygiene, cooking, managing her home, appointments, emotional support and supervision, as he was married to an elderly lady of [age] years old who needs him by her side constantly. He said that he had high blood pressure, high cholesterol and hyperthyroidism. He said that at his home he does most of the house chores including cooking, shopping, cleaning and washing up. He also takes his wife to her medical appointments. His wife has anxiety and digestive issues. He said that he visits [Ms B] once a month and does not have a close relationship with her or the children as he does not spend much time with them. He also works on a casual basis, doing cleaning once a week for 1 to 2 hours. He said he is very stressed about [Ms B]. He provided a marriage certificate in relation to his current marriage and a medical report from his wife’s doctor. His evidence was confirmed by [Ms B], who submitted that her father provides minimal informal support once a month and struggles to provide emotional support as he cares for his [age]-year-old wife. The review applicant in a Statutory Declaration in September 2022 said that her father may visit her once a month and he will help her organise the house. She said that she feels the situation is too much for him. She said that he wants to help her but becomes stressed and cannot cope well. She said that ‘ultimately he leaves her’ to care for his wife. In a report by the psychologist [Mr F] dated 25 March 2022, [Mr F] reported that [Ms B]’s father resides in Australia but is elderly and has been ‘absorbed by caring for his elderly and fragile wife’. The psychologist [Ms G] in a report dated 28 March 2022 stated that [Ms B] only sees her father once a month.

10. Departmental policy states that ‘reasonable’ should be given its ordinary dictionary meaning, and states ‘this may be described as using common sense, being practical or sensible, using logic, being judicious or prudent.’[3] The Tribunal is satisfied on the basis of the evidence provided above that the review applicant’s father is her only relative in Australia. The Tribunal is satisfied, taking a common sense and judicious approach, that, given her father’s age, health issues and commitments to his own wife, as well as his inability to cope with [Ms B]’s multi-faceted and complex issues, assistance cannot reasonably be provided by any other relative in Australia.

    [3] Policy: Div 1.2/reg 1.15AA – Carer Instruction – Assessing whether assistance can be obtained from services in Australia (re-issued 19/11/2016).

11. In a letter to the Tribunal dated 25 March 2022 the psychologist [Mr F] said that [Ms B] does not have much support and it would be hard to find an organisation that can cater for her complex needs. He said that he believes only [Ms A] has the capacity to support her sister and her sister’s children. He said that he had provided trauma counselling to [Ms B], who was also seeing a psychologist under the NDIS scheme as well as her general practitioner. He reported that [Ms B]’s levels of attention and concentration are poor. She reportedly forgets appointments and misplaces items. She feels frustrated and emotionally exhausted and forgets what day it is and if her children are at school. She feels exhausted by the simplest activity and feels like she wants to stay in bed and has to be prompted to take care of her own hygiene. Her self-esteem is low and she gets easily distracted. [Mr F] suggested that [Ms A] will have a positive impact on her sister’s social and emotional wellbeing as well as that of [Ms B]’s children, [Miss C] and [Miss D]. He said that he had met every member of [Ms B]’s family and they are lovely and respectful and [Ms A] would make her sister feel safe and comfortable and provide validation to her. He suggested that she could also help with organisational skills and provide practical help. [Mr F] said that he was very concerned about [Ms B]’s safety and integrity.

12. A letter from [Ms G], Psychologist, dated 28 March 2022, confirmed support for, [Ms A]’s application to be a carer. [Ms G] said that [Ms B] had been an on-going and regular client since 23 June 2020 under NDIS funding. She said that [Ms B] experiences severe chronic depression and symptoms of high anxiety. Her results on the PCL-5 assessment for PTSD indicate that she is suffering significant PTSD due to verbal and emotional abuse in her marriage. She has experienced dissociative states and flashbacks that impact her daily functioning. An assessment completed in 2021 also revealed a formal assessment for ADHD. She said that [Ms B] is extremely socially isolated. She said that psychological sessions had focused on her supporting her children and separating from her husband. [Ms B] and her two children spent the last 7 months in a women’s and family refuge. They have since moved into a residence in February 2022 and she has been provided with crisis management skills. She said that during her management of [Ms B] she had admitted herself to hospital on two occasions due to suicidal thoughts and ideation. Her last admission was March 2021. She said that [Ms B] struggles with daily functioning such as completing chores, personal hygiene and managing a diary. [Ms G] said that [Ms B] benefits from Real Life Assistance under the NDIS. However she still struggles to maintain a basic level of maintaining a house. She said that her capacity to do so seems to be overwhelmed by symptoms of trauma and possible ADHD.

13. [Ms G] stated that it is her opinion that [Ms B]’s treatment would be significantly improved if her sister lived in closer proximity. [Ms A], who lives in Peru, is her primary emotional support and they speak daily and share a loving bond. [Ms A] is high functioning and organised and would support her in her life and as a mother of two children. This support would include daily support managing and maintaining a home, diary and appointments for herself and her children, creating social connections with the support of her children, sharing care of children and helping [Ms B] set boundaries with her children, increasing the opportunity for a more favourable outcome of treatment for PTSD, depression and anxiety and possible ADHD, due to the impact of close proximity of a close and loving attachment figure and decreasing risks of hospitalisation.

14. The Tribunal has considered evidence of various communications in 2016 with numerous facilities about the applicant’s conditions and support the organisations could provide. These communications were not discussed in the delegate’s decision. A family support worker from [Organisation 15] a community-based service providing family support services, on 16 September 2016 said that the service had helped the visa applicant on two occasions. It was suggested that [Ms B]’s ability to cope had declined over the last two years and the service took the view that there was unintentional risk of harm to the children due to emotional abuse by the father, health issues, parenting skills and financial hardship. The family support worker stated that there were no mainstream organisations that could provide the on-going emotional support the visa applicant needs outside of business hours and that the services which had helped her were short tem only. It was suggested that she needed support before and after school and on weekends when her father was not available.

15. The Community Care Pastor from [Church 1] provided a letter dated 27 September 2016 stating that [Ms B] had approached many local services including Community Services but no community service including the church, could provide the level of live-in and ongoing support she and the chlldren needed. She said that while the church could offer fellowship and encouragement and a weekly meal, they could not assist with the complex daily needs of a family with young children.

16. A letter from [a named] Community Organisation dated 29 September 2016 stated that their organisation only offered information and referral services and not financial support or other services.  They said that they understood that [Ms B] was in a fragile state of mind which affected her wellbeing and the safe living environment for her family. They said that many of the organisations they could refer her to were paid services and she also needed to organise her own transport. They were organising a social isolation group, but it was a long distance from her home. They suggested that she needed 24-hour assistance.

17. A letter from a support facilitator at [Organisation 16], undated, stated that the service had been helping [Ms B] for a year with mental health recovery. They had linked her with a psychiatrist. They also linked her with [Organisation 1] which provides short term support in domestic assistance. She had also been linked with [Organisation 2], a long-term service. She has also been referred to [Organisation 3] and gets 3 hours a week assistance. [Organisation 4] was involved for a short period to assist with her children. They said that most support services were short term only and she required long term care.

18. [Church 2] also provided a letter dated 16 September 2016 stating that they could not meet [Ms B]’s practical support needs such as caring for children, domestic activities and medical support. They said that they had witnessed her family breakdown and struggle with mental illness.

19. A team leader from [Organisation 5] said that the service had worked with [Ms B] to assist and support her with challenges after abuse by her husband. They had provided practical assistance with cleaning, making appointments, transport, financial counselling, arranging paediatrician and school principal appointments, attending hospital, exploring homework groups and liaising with other services. However, they could not provide her with assistance in intensive living skills support.

20. St Vincent’s de Paul stated on 11 August 2016 that they were unable to support [Ms B].

21. In an earlier letter from the psychologist [Mr F] dated 22 September 2016, he said ‘ I embarked on a quest to find a community based service or even a combination of services that could help [Ms B] with her complex needs  and it is proven to be near impossible due to limited reesources (in comparison to the current needs), very limited time in allocation of services.’

22. A letter from [named] Consulting Services to [Organisation 4] dated 21 August 2014 stated that they had seen the review applicant on 8 occasions following a referral under a Mental Health Care Plan and that severe depression impacted upon the review applicant’s ability to perform day to day tasks and put her children at serious risk of neglect and emotional abuse. It was reported that the applicant was admitted to hospital in January 2014 after having ‘wrong’ thoughts and suicidal ideation. She was applying for priority child care placement for the children.

23. A report from a Clinical Psychologist [undated] stated that the applicant had been admitted to hospital with suicidal ideation and depressed mood.  The psychologist reported that the applicant would be prepared to get professional support but such support would not provide emotional support that her sister could provide. The psychologist indicated that such support, due to her cultural background and values, could significantly aid her self-esteem and alleviate her depressed mood.

24. A psychiatry registrar at [Hospital 1] also indicated in relation to her hospital visit in January 2014 that due to cultural factors a carer from her family speaking her native language would be beneficial. [A named doctor] said that she had major depression for over a year, and was on duloxetine.

25. The applicant said in a Statutory Declaration in September 2022 that she lacks energy to perform activities of daily living due to feelings of sadness, hopelessness and anxiety. She said that she has no motivation and requires guidance for showering, dressing, meal preparation, eating, grooming and personal safety. She suffers from insomnia and cannot concentrate. She worries about her children and remains hypervigilant and afraid. She said that ‘every day is a gamble for me’. She said that she always feels that there is a threat to her life and that nobody can protect her. She has had suicide attempts and ideation in January 2014, December 2014, December 2015, July 2016 and March 2021. She said that she and her children have been impacted by the experience of family violence from her former husband. She said that her children fight and abuse each other and have both been referred to a psychologist through Head to Health. She said that in June 2021 they sought refuge due to family violence. She said that her children were ‘part of my every day and they are the reason I am still here’. She said that it is hard for her to be positive as she has feelings of worthlessness and guilt.

26. She went on to say that [Miss C] wakes her each morning and she gets out of bed to help the children prepare for school but she is dizzy and fatigued. She makes sure that they have uniforms and lunch. She said when they leave she often goes back to bed. She said that she cannot remember when she last brushed her teeth, and showers every 2 to 3 weeks. She changes her clothes every 4 to 5 days. She does not eat regular meals. She said that she gets out of bed to prepare her children food when they get home but she forgets that pots are on and has burnt many. She said that after her childre get home she goes back to bed until dinner. Her daughter asks her why she is in bed all the time. She said that she finds it hard to focus. She said that on weekends she stays in bed and her children watch television. She said that she does not go outside as she cannot focus on traffic and does not feel safe.

27. In submissions dated 6 September 2022 it was stated that [Ms B] had been the recipient of the National Disability Insurance Scheme (NDIS) since December 2019. It was submitted that NDIS provides care for ‘reasonable and necessary support’ for people with permanent and significant disabilities. She had been allocated $ 135 180 in support for maintaining a home environment, personal care and transport and $37 574 for funding for Capacity Support for allied health and therapy. It was submitted that this covers a fraction of care costs. She receives on average 2 hours of NDIS funded in-home assistance each school day to assist with school drop off and pick up. She uses NDIS funding to attend fortnightly psychology sessions and occupational therapy every 2 to 3 months, as well as cleaning services once a week. She uses the funding on an ad hoc basis to pick up groceries or attend a GP appointment. Her plan is managed by an NDIS Plan Manager and she does not get the person-centred care she requires. It was submitted that she does not get 24-hour care for bathing/showering, meal preparation, dressing, grooming, personal safety and cleaning. She has no care on weekends or evenings and does not get emotional support. She currently accesses the following NDIS funded services:

    • [Organisation 6] – weekday assistance with transportation, small household tasks, school drop off/pick up.

    • [Clinic 1] – Fortnightly Psychologist sessions;

    • [Occupation] Therapy – discusses strategies for improving daily living skills every 2-3 months

    • Homemade cleaning – weekly cleaning service.

28. In her Statutory Declaration in September 2022 she said that her goals on her NDIS plan include being a good parent and having safe housing. She also has long-term goals to be more social and improve her decision-making. She said that an NDIS support worker arrives at 8.15am for one hour. They help her wash dishes and make lunch. If it is a male worker they drive the children to school. The support officers change frequently. She said that sometimes they drive her to the supermarket. At 2.15 pm another support worker provides 1.5 hours of assistance, helping with cooking and driving to pick up the children as well as taking her to psychologist appointments. Cleaners come once a week for 2 hours. [Ms B] said that the short-term support through NDIS is not enough to help her attend to daily activities or go outside or exercise or socialise. She said she had no friends or community network. She said that the workers do not get involved in moments of high emotional intensity. Sometimes she calls her former husband who can be angry but she has no option. A copy of her plan was provided.

1. The representative, Immigration Advice and Rights Centre, submitted in September 2022 that they had made extensive enquiries of community-based organisations to identify options for [Ms B] to obtain the care she needed, with preference expressed for Spanish speaking support. A volunteer legal assistant at Immigration Advice and Rights Centre made enquiries of numerous service providers between 2 August and 9 August 2022 about availability of care for [Ms B], outlining her medical condition and specific care needs. Details of the enquiries made and responses received are set out in a Statutory Declaration of [name deleted] which is attached at Attachment B.  Copies of the communications to the providers and their responses were provided to the Tribunal.

2. A letter dated 10 December 2021 from a Case Manager at [a named homelessness service] said that [Ms B] and her children moved to the refuge due to domestic violence on 6 July 2021. She said that [Ms B] struggled daily due to depression, anxiety, trauma and other health issues which make day-today activities difficult. She said services are not available to her for 24 hours daily. She said that the father has been constantly abusive and neglectful.

3. A letter dated 10 December 2021 was provided from an NDIS supporter coordinator from the service provider [Organisation 7]. She said that [Ms B] had reported ongoing verbal and emotional abuse from the father of her children which exacerbated her mental health issues. She was living in a refuge but had been placed on a priority list for housing. She said support from NDIS had been beneficial but they do not offer the emotional and family supported needed for someone with her complex mental health issues. She said that there were no current services that could provide the care she and her children need.

4. A letter was provided from [a] Service Supporter Worker at [Organisation 6], dated 25 August 2022, summarising the services being provided pursuant to NDIS funding. [She] concluded that in her opinion the NDIS was not providing the care needed for her condition, and that her current care was insufficient or inadequate.

5. It was submitted that the costs involved for private care were prohibitive as her sources of income were the Centrelink Disability Support Pension, NDIS transportation funds, minimal child support and rental assistance from the Department of Family and Community Services (FACS). It was further submitted that there are no mainstream organisations that can provide on-going emotional support and motivation outside business hours.

6. [Mr F] the registered clinical psychologist stated in March 2022 that it would be difficult to find an organisation that catered for [Ms B]’s complex needs as well as those of her children.

7. The Tribunal accepts the medical evidence in the BUPA assessment as updated in the medical report that the applicant has multiple complex needs and requires 24-hour assistance.  The Tribunal accepts that in the enquiries made of numerous services to meet the needs set out in the BUPA certificate, both in 2016 and 2022, there were difficulties with the suitability of all these facilities, even if used in combination, including the capacity of the facilities to fully meet the applicant’s care needs, including psychological support, practical needs and assistance with care of the children. While she has NDIS funding, the evidence establishes that this covers only psychology visits, transport, cleaning and some household tasks but does not cover the wide range of care needed as set out in the BUPA certificate. This was confirmed by one of the NDIS service providers.

8. The Tribunal is also concerned that the facilities cannot provide a care in the Spanish language. This was referred to by a number of medical practitioners and services. Department policy, which is useful as guidance to the Tribunal, and which refers to case law, notes that decision-makers ‘need to consider any claims that the assistance needs to be of a particular nature’.[4] In Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606, Justice Branson said that the former Tribunal was in error by treating as irrelevant considerations before it, namely the preference of an aged and unwell Chinese person to eat Chinese food, stating that ‘reasonably’ should be given its ordinary meaning of ‘sufficiently, suitably, fairly’. Justice Gray in Biyiksiz v Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814 confirmed that preference for being cared for at home, and cultural suitability were part of the consideration of whether assistance was reasonably obtainable.

   [4] Department of Home Affairs, Policy: Div 1.2/reg 1.15AA (re-issued 19/11/2016)

9. Considering the extensive evidence about communications with the service providers, reports from the service providers and doctors, and evidence from the review applicant about her daily life and use of services, the Tribunal is satisfied that the assistance required by the review applicant for her activities of daily living cannot be obtained from welfare, hospital, nursing or community services in Australia. The BUPA certificate and updated medical evidence establishes that she requires assistance with personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision and monitoring as well as emotional support which the psychologist has said cannot be catered for by the service providers. This is confirmed by service providers themselves. Furthermore, there is the added complexity of the fact that the review applicant has two children. It is clear that these services could not provide for her needs in regard to looking after the children.

10. On the basis of the evidence and reasons set out above, the Tribunal is satisfied that the assistance cannot be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services in Australia.

11. The Tribunal is satisfied therefore that the requirements of reg 1.15AA(1)(e) are met.

    Whether the applicant is willing and able to provide substantial and continuing assistance of the kind needed (reg 1.15AA (1(f))

12. 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.

13. 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.

14. A statement dated 30 August 2022 from [Ms A] confirmed that she is willing and able to provide care for [Ms B]. She said that [Ms B] is her sister and best friend. She said that their mother had taught them that the most important thing in life is family. She said that in previous visits she gained an understanding of her sister’s living conditions and mental health and that [Ms B] requires 24-hour emotional support and supervision. She said that she wanted to avoid further hospitalisation. She said that her previous visits were highly beneficial to [Ms B] and she saw progress. She said that she had witnessed violence by her former husband on [Ms B] and how she became afraid of everything around her. She said that she showed patience and compassion so that she could attend to daily tasks. She said that since her last visit in 2018 [Ms B] has become more depressed and anxious. She said that she had taken courses to help her obtain practical skills and knowledge for those experiencing anxiety and depression. She had completed courses in psychotherapy of emotional disorders, treatment of anxiety and depression, first aid, geriatric care and time management. Evidence of completion of these courses was provided. She said that these studies had helped her understand [Ms B]’s emotional needs and challenges. She said that the training had included how to prevent suicidal ideation or hospitalisation and first aid in regard to awareness of hazards and personal safety. She said that the time management course helped her to understand how to deal with procrastination.  She said that she is currently completing an Assistant Nursing Course, which would help her dress, shower and attend to medical needs. She is also completing a management course to assist her with managing finances so that they are financially stable. She said that she had taken these courses to help support her sister. She also has a driver’s licence. She noted that she herself has good management of her emotions and social skills as well as patience, resilience and empathy.

15. [Ms A] also provided photographs of [Ms B]’s house from August 2022 to demonstrate that [Ms B]’s house is very messy and disorganised and as a result has had mice and cockroach infestation. She said that she would be able to support her to keep her house clean and organised.

16. The representative submitted that [Ms A] already provides [Ms B] with a significant degree of emotional support by telephone.

17. In a Statutory Declaration in September 2022 the review applicant said that her sister had visited her in Australia three times. She visited in 2011 on a visitor visa to support her during her last weeks of pregnancy and provided emotional support. She also visited in 2018 for six months and lived with her. The help she provided was invaluable. She had a good bond with her children. She felt loved and trusted and she felt stronger.

18. The Tribunal is satisfied based on the evidence provided by [Ms A] and [Ms B], and in particular evidence of past care provided as well as the extensive relevant courses taken by [Ms A] in order to be capable of providing the care needed, that [Ms A] is willing and able to provide the substantial and continuing assistance of the kind needed. This includes the ability to care for the children, given that she is the children’s aunt and evidence has been given of her bond with them.

19. The Tribunal is satisfied therefore that the visa applicant meets reg 1.15AA (1(f).

    Conclusions

20. For the reasons set out above the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore cl 116.221 of Schedule 2 to the Regulations.

21. 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.

    DECISION

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

    ·Cl 116.211 and 116.221 of Schedule 2 to the Regulations;

    Jane Marquard
    Member

    
    

    ATTACHMENT A

    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.

    ATTACHMENT B

    Commonwealth of Australia STATUTORY DECLARATION

    Statutory Declarations Act 1959

    I, [named] of [address] SYDNEY in the State of NEW SOUTH WALES,

    LEGAL ASSISTANT, make the following declaration under the Statutory Declarations Act1959:

    1.I make this statement in my capacity as a volunteer legal assistant at [Organisation 8].

    2.     Between the 2August 2022 and the 9 August 2022, I made the following enquiries with regards to availability of care for [Ms B], outlining her medical condition and specific care needs.

    3.    On the 2 August 2022, I emailed [Organisation 9], and as of 30 August2022 I have not yet received a response in relation to my enquiry.

    4.    On the 2 August 2022, I emailed [Organisation 1] and received a response on the same day from [named] (Client Liaison Officer). She advised that they were unable to provide the requisite amount of care.

    5.On the 2 August 2022, I emailed [named] Disability Services and received a response from [named] (Customer Service) on the same day requesting further NDIS information in order to lodge an enquiry. On 9 August 20221 provided this information via email, and as of 30 August 2022 I have not yet received a response.

    6.On the 2 August 2022, I emailed Catholic Care; Diocese of [city]. On 12 August 2022 I received a response from [named] (Intake Officer) advising that they were unable to provide 24 hour care for [Ms B].

    7.    On the 2 August 2022, I emailed [Organisation 10] and as of the 30 August 2022 I have not received a response.

    8.On the 2 August 2022, I emailed [Organisation 11]. On 3 August 2022 I received a response from [named] (Customer Care Manager) advising that they are at full capacity for NDIS services and would have to reject the referral.

    9.On the 2 August 2022, I emailed Anglicare. As of 30 August 2022, I have not yet received a response.

    10.On the 2 August 2022, I emailed [Organisation 12]. On 12 August 2022 I received a response from [Ms H] (Intake Officer) asking to be contacted via phone to discuss the matter further. On 30 August 2022 I called [Ms H]. She advised me that her organisation can only provide care if the NDIS funding is sufficient. She mentioned that the costs would roughly be $60 an hour for weekdays, and that it would be unlikely that the funding would be able to cover for the 24-hour care needed by [Ms B]. She also stated her organisation would be unlikely to be able to provide the required care due to the lack in funding and staff availability.

    11.On the 2 August 2022, I filled out an online enquiry form with [Organisation 13] as I was not able to find an email address to contact them directly. As of 30 August 2022, I have not yet received a response.

    12.On the 2 August 2022, I emailed [Organisation 14]. On 3 August 2022 I received a response from [named] (Senior Practice Leader) advising, that [Ms B] would be unsuitable for their service.

    13.On the 9 August 2022, I emailed [Organisation 15]. On the 18 August 2022, I received a response from [Ms I] (Child, Youth and Family Support) referring us to [Organisation 16] and [Organisation 14]. [Ms I] did not indicate whether her service can assist [Ms B].

    14.On the 9 August 2022, I emailed KinCare. On the same day I received a response from [named] (CustomerService) advisingthattheywould not be taking any new clients.

    15.On the 9 August 2022, I emailed [Organisation 17]. On the same day I received a response from [named] (CEO) advising they were unable to assist [Ms B].

    16.On the 9 August 2022, I emailed [Organisation 18]. As of 30 August 2022, I have not yet received a response.

    17.On the 9 August 2022, I emailed [Organisation 19]. On the same day I received a response from [named] (Administration) requesting an in-person meeting to further discuss the needs of [Ms B], and I responded to this email requesting a phone call to discuss instead of an in­ person meeting. On 30August 2022, I called following up on the earlier email but I received no response.

    18.On the 9 August 2022, I emailed CareSouth. As of 30 August 2022, I have yet to receive a response.

    19.On the 9 August 2022, I emailed St Vincent De Paul. As of 30 August 2022, I have yet to receive a response.