2309535 (Migration) - [2024] AATA 544

2309535 (Migration) [2024] AATA 544 (15 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr David Godwin
CASE NUMBER:  2309535
MEMBER:Glynis Bartley
DATE:15 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl.836.212 of Schedule 2 to the Regulations

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 15 January 2024 at 3:47pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Circuit and Family Court remittal – care cannot reasonably provided by specified relatives in Australia – medical reports – impairment rating – physical and mental health conditions needing assistance – substantial evidence, statutory declarations and supporting statements – specified relatives’ health, work and family caring responsibilities – conflict within family – assistance from service providers – approved for higher level home care package – religious requirements for food – applicant’s long-term and ongoing care – sincere evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e), Schedule 2, cls 836.111, 836.212, 836.221
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
Perera v MIMIA [2005] FCA 1120
Rafiz v MIAC [2004] FCA 564
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
ISSUE

The issue in this case is whether [the applicant] is a ‘carer’ of [his mother and sponsor].
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 July 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative): item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.212 and cl.836.221.
The delegate refused to grant the visa on 15 July 2020 on the basis that cl.836.221 was not satisfied. The delegate concluded that the applicant did not meet the definition of ‘carer’ in relation to his mother. Specifically, the applicant had not satisfactorily demonstrated that the assistance required by the sponsor could not reasonably be provided by her relatives in Australia.
The applicant applied for review of the decision on 23 July 2020. A differently constituted Tribunal affirmed the decision on 14 September 2022. The applicant lodged an appeal against the decision, and it was remitted by the Federal Circuit and Family Court [in] May 2023.
The applicant appeared before the Tribunal on 8 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic language.
The applicant was represented in relation to the review by his registered migration agent who attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant is a [Age]-year-old citizen of Iraq. His wife and [children] (aged [Ages]) are [Country] citizens and live in [Country]. The applicant travelled to Australia in 2017. He was previously a resident of [Country], however his residency expired in October 2022, five years after he left. The applicant was employed as [an Occupation] in Bagdad. According to the application, he has been unemployed since he left Iraq in 2010.
The sponsor is [an Age]-year-old Australian citizen by grant. She migrated to Australia from Iraq with her husband in 2009. The sponsor’s husband died in 2017. In addition to the applicant, the sponsor has a son, two daughters and a number of grandchildren living in Australia. She has [other children] living overseas.
CONSIDERATION OF CLAIMS AND EVIDENCE
Prior to the hearing the applicant’s representative provided additional documents to the Tribunal, including but not limited to the following: statutory declarations and statements by the applicant and the sponsor’s relatives in Australia, statements by the sponsor’s home care provider, medical reports regarding the sponsor and her Australian relatives, and statements by various priests and others associated with the sponsor’s religion.
In making my decision, I have considered the documents in the Department and Tribunal files, as well as the oral evidence at the hearing. I had the benefit of being provided with substantially more evidence than the delegate and the previous Tribunal.
The applicant’s oral evidence was generally consistent with the documents provided to support the application and the oral evidence from his mother. I had some concerns that the applicant may be socially isolating his mother from other family members, possibly due to his desire to protect her from being reinfected with COVID-19 and/or conflict within the family. I accepted the assurances from the applicant’s representative that this was not the case, and that the applicant understands his mother’s mental health and wellbeing is promoted by having contact with all of her children and grandchildren.
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of his mother.
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.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
There is a copy of the carer visa application made by the applicant and his mother in the Department file. In the application, the applicant claims to be the carer of his mother who is the sponsor. The sponsor is an Australian citizen, as evidenced by a copy of her passport provided.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.
Whether the applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the 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 applicant’s mother.
The Department’s file contains identity documents relating to the applicant and his mother. I am satisfied on the basis of the evidence before me that the sponsor is the mother of the applicant and meets the definition of close relative. I am also satisfied that the sponsor is an Australian citizen and is ‘usually resident’ in Australia.
Therefore, as the applicant is the son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life.
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.
The applicant provided a Carer Visa Assessment Certificate from Bupa Medical Visa Services issued on 1 February 2022. I am satisfied that the certificate meets the requirements of reg 1.15AA(2).
The certificate states that the Australian relative (the sponsor) has a medical condition, which is causing physical, intellectual or sensory impairment of her ability to attend to the practicable aspects of her life. The impairment has an impairment rating specified in the certificate and the sponsor will continue for at least two years to have a need for direct assistance in attending to the practical aspects of daily life. The sponsor has cervical and lumbar spine degenerative disease, osteoarthritis, bilateral shoulder rotator cuff impingement, prolonged grief with major depressive disorder, diabetes and hypertension. The sponsor has an impairment rating of 70 and requires assistance with mobility, bathing and showering, toileting, dressing/grooming, eating/feeding, supervision of medication, supervision for personal safety and transportation.
I am satisfied that the certificate provided meets the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
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. In the present case, the person with the medical condition (the sponsor) is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
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. In the present case, the impairment rating specified in the certificate is 70. This rating exceeds the impairment rating specified by the relevant instrument (30), and therefore meets the requirements of reg 1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) –reg 1.15AA(1)(d)
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 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. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
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.
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]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].
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.
There was consistent oral evidence at the hearing regarding the arrangements for the sponsor’s care. She lives with her son, daughter and [grandchildren]. The applicant and sponsor sleep in the same bedroom so that he can attend to her needs throughout the night. The applicant does not have any source of income. The sponsor currently receives a home care package of around five hours per week. This involves cleaning, social support and outdoor maintenance. The sponsor receives a Centrelink income support payment. Her daughter works full-time and contributes to the rent.
The applicant gave oral evidence at the hearing that his mother requires assistance with many activities of daily living, including toileting, showering and mobilising. She relies on a four-wheeled walker inside the home and a wheelchair when out in the community, including to attend medical appointments. The applicant said he is reluctant to leave his mother at home alone due to concerns for her safety. The sponsor is at high risks of falls so the applicant ensures that someone is with her at all times. She requires the administration of drops to her eyes numerous times throughout the day due to glaucoma and cataracts.
I accepted that the sponsor has significant care needs due to her multiple medical diagnoses. She requires supervision and assistance with many activities of daily living. The sponsor cannot be left alone due to the high risk of falls.
The sponsor’s relatives in Australia did not attend the hearing. The applicant’s representative provided statutory declarations and/or statements from the sponsor’s relatives in Australia beforehand. The following is a summary of the evidence provided by the sponsor’s relatives regarding their personal circumstances:
Children
·[Mr A]: is eldest son and receives a disability support pension. He has been diagnosed with a number of health problems, including a heart condition. [Mr A] visits his mother regularly but is unable to care for her due to his own health problems. A report by [Dr B], general practitioner, dated 16 November 2023, said [Mr A] has significant heart disease, depression and post-traumatic stress disorder. His daughter, [Ms C], is his carer. [Mr A] has been separated from his wife, [Ms D], since 2021.
·[Ms E]: is the sponsor’s daughter and lives in the same household as the applicant and the sponsor. She is divorced and is the primary carer of her three children. [Ms E] is employed full-time as [an Occupation 1]. She is unable to provide care to the sponsor due to her employment and the responsibilities of providing care to her [children].
·[Ms F]: is the sponsor’s daughter and is employed full-time as [an Occupation 2]. She has [children]; [a number] of whom are under 18 years. [Ms F] has some contact with the sponsor but is unable to provide care because of her employment and the responsibilities of providing care to her children.
Grandchildren
·[Ms G]: is the daughter of [Mr A] and a [student]. She helps to care for her younger siblings. [Ms G] is required to assist with household chores because her mother is unwell. She does not have capacity to provide care to her grandmother.
·[Ms C]: is the daughter of [Mr A] and provides care to her father and her infant [child]. Her grandmother (the sponsor) lives more than 30 minutes away and it not possible for her to provide care due to her other caring responsibilities.
·[Mr H]: is the son of [Mr A]. He is the primary carer for his mother, [Ms D], following her accident.
·[Mr I]: is the son of [Ms F]. He works full-time and does not have time to provide care to his grandmother. He also lacks the qualifications and experience to care for an elderly person.
Partners of Children
·[Ms D]: is the estranged wife of [Mr A]. [Ms D] was involved in a serious accident as a pedestrian in August 2018, which resulted in lifelong disabilities. This is confirmed in reports by [Dr B], general practitioner, dated 25 July 2023, and [A/Prof J], cardiothoracic surgeon, dated 24 August 2018. [A/Prof J] said [Ms D] sustained a crush injury after being pinned between a bus and a traffic light pole. According to other documents provided, [Ms D] receives a disability support pension and is being cared for by her son, [Mr H].
·[Mr K]: is the husband of [Ms F]. He has limited contact with the sponsor, and they have a strained relationship. [Mr K] has a number of health conditions and is not in a position to care for the sponsor. He also has caring responsibilities towards his own children. [Mr K] is not on good terms with the sponsor.
The sponsor’s daughters are working in [work] sectors, so I expect that they have relevant skills and experience caring for others with high medical needs. A number of the sponsor’s grandchildren are also experienced at providing care to relatives with various disabilities. Nevertheless, no family members other than the applicant are apparently willing to provide the assistance that the sponsor requires.
I accepted that the sponsor’s eldest son and his estranged wife both have significant health problems and are reliant upon others to care for them. Both are receiving a disability support pension in recognition of the impairments caused by their medical conditions. The sponsor’s daughters are working full-time and have caring responsibilities for their children. Although [Ms E] is living in the same household as the sponsor, in my view it is not practicable for her to attend to her mother’s needs during the night-time while maintaining her employment, as well as ensuring that her children’s day-to-day needs are met.
All of the sponsor’s grandchildren are working, studying or caring for others. While the sponsor’s children and adult grandchildren could potentially organise a roster to ensure that her care needs are met, this would be problematic given the conflict within the family. I accept that the sponsor requires 24-hour care. In addition, constantly changing caregivers is likely to be unsettling for the sponsor due to her age and mental health diagnoses. Reports from the sponsor’s psychiatrist and psychologist confirm the importance of the continuity of care she is receiving from the applicant. There was persuasive evidence that the sponsor is comforted by the constant presence of the applicant.
No relative is prepared to make a full-time commitment to the sponsor because they are caring for their immediate family members, working full-time or have their own health problems. As Finn J stated in Rafiz v MIAC [2004] FCA 564, what a relative is capable of doing and what that person is willing to do are not necessarily the same. Although the sponsor has a number or relatives living in Australia, I am satisfied that none is wiling to provide her with the care that she requires to remain living in her home.
In the circumstances of this case, I am satisfied that the assistance required by the sponsor cannot reasonably be provided by her Australian relatives.

I also considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34
The sponsor is currently receiving a level 2 home care package and has recently been approved for level 3. The applicant gave oral evidence at the hearing that this will involve up to 9 hours of care per week, including cleaning and domestic assistance.
The sponsor had an Aged Care Assessment Team (ACAT) review on 9 June 2023, conducted by [Ms L]. The applicant reported to [Ms L] that his mother is falling over more often because she cannot see well. She has also become incontinent. The sponsor declined assessment for residential respite care and permanent residential care. [Ms L] said the sponsor has an extensive medical history, including [deleted], pain and health problems. [Ms L] said the applicant is his mother’s primary carer and assists with all daily care activities, including personal care, cooking meals, domestic assistance, shopping, doctors’ appointments, and social and psychological support. The sponsor is uncertain and worried about how she will manage if her son has to leave the country.
The applicant gave oral evidence that his mother prefers to receive care from him. The sponsor confirmed this during the hearing. The applicant said his mother does not want to go into residential aged care. Her religion (Sabian Mandean) has strict requirements regarding the preparation of food and there are no aged care facilities that could cater for this. The applicant’s representative provided letters from various Sabian Mandean religious and community leaders to support the applicant’s account. There was consistent and compelling evidence that the sponsor is a strict follower of the Sabian Mandean religion and associated dietary requirements. The sponsor refuses to eat takeaway or other food that is not prepared in accordance with her religion. The applicant said he purchases meat from a specialist butcher to ensure it has been prepared properly in accordance with their religion. He has been preparing and cooking all of his mother’s meals since he came to Australia more than six years ago.
I accepted that the sponsor requires 24-hour care because she needs supervision and assistance with toileting at night. I also accepted that the sponsor strongly prefers to remain in her own home with family members.
The NSW and Australian governments provide various services to assist elderly people to continue to reside in their own homes. The sponsor has been assessed as eligible to receive a level 3 home care package, which will provide assistance with cleaning, social support and outdoor maintenance. I accepted that no welfare or community services could provide 24-hour assistance to the sponsor to enable her to live at home. Similarly, a combination of care provided by family members and community services would be insufficient to meet the sponsor’s needs. The cost of paying private carers would be prohibitive and the sponsor’s mental health would be adversely affected by the constant changes of personnel. I accepted that there are no aged care facilities that could meet the sponsor’s religious, cultural and dietary needs.
I am satisfied that the assistance required by the sponsor cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. Consequently, the requirements of reg 1.15AA(1)(e) are met.
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the 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 applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
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.
I am satisfied that the applicant is aware of and familiar with his mother’s medical conditions and care needs. There was consistent and persuasive evidence that the applicant has been providing constant care to his mother since he arrived in Australia in 2017. This was corroborated by the medical reports and other documents provided to support the application. On the basis of the oral and documentary evidence before me, I am satisfied that the applicant is currently providing a substantial level of care to his mother, including showering her and assisting her with toileting, both during the day and overnight. He is not working in the paid workforce due to his caring responsibilities. I accepted that the sponsor becomes anxious and distressed whenever her son is absent from the home. The applicant’s wife and children are living in [Country], and he has not seen them for more than six years. The applicant presented as being dedicated to his mother’s care. Although he does not drive in Australia, the applicant arranges community transport and accompanies his mother to all medical appointments. The applicant’s evidence regarding his concern for his mother’s welfare impressed me as sincere.
I am satisfied that the 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 on ‘Carer’ criterion
Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl. 836.221.
The appropriate course is therefore to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl.836.212 of Schedule 2 to the Regulations
·cl.836.221 of Schedule 2 to the Regulations
Glynis Bartley
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.