Boonrin (Migration)

[2023] AATA 2804

Boonrin (Migration) [2023] AATA 2804 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Thanakorn Boonrin
Mrs Jurawan Jakchai

REPRESENTATIVE:  Ms Pamela Nhi Tieu

CASE NUMBER:  2210416

HOME AFFAIRS REFERENCE(S):          CLF2019/28375

MEMBER:Margie Bourke

DATE:22 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that first named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:

·cl.836.221 of Schedule 2 to the Regulations; and

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the second named visa applicant meets the following requirement for a Subclass 836 (Carer) visa:

·        reg.1.12(2)(a) for the purposes of cl.836.321 of Schedule 2 to the Regulations.

Statement made on 22 August 2023 at 11:47am

CATCHWORDS
MIGRATION – Carer (Class BU) visa – Subclass 836 (Carer) – previous remittal on other grounds – sponsor’s age and multiple chronic health conditions – specified relatives’ health, work, caring or living at a distance – home care provider’s assessment that extensive extra assistance and supervision required – applicant’s care for four years – decision made without hearing necessary – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360(2)(a)
Migration Regulations 1994 (Cth), rr 1.03, 1.12(2)(a), r 1.15AA(1), Schedule 2, cls 836.221, 836.321

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 29 June 2022 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 9 July 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative): item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221, which requires the primary visa applicant is the carer of the Australian relative of the primary visa applicant.

3. The delegate refused to grant the visas on the basis that the first named visa applicant did not meet the requirements of cl.836.221 because the delegate was not satisfied the first named visa applicant met the definition of carer in reg 1.15AA(1).

4. The Tribunal has considered the information provided to the Department, and the information in the Department’s decision record dated 29 June 2022. The Tribunal has also considered the information provided to it, much of which was not available to the Department. The Tribunal has decided it can make a decision favourable to the review applicants based on the information available to it without proceeding to a hearing pursuant to s.360(2)(a) of the Act.

5. The applicants were represented in relation to the review.

6. The following are the written reasons for the decision that the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues in the present case include whether the first named visa applicant meets the definition of carer as set out in reg 1.15AA, and whether the second named visa applicant meets the secondary criteria.

8. The matter has previously come before me based on a decision by the Department refusing the applications dated 20 August 2019. In a decision dated 15 April 2021 I remitted this matter on the basis that the two review applicants met the sponsorship requirements of cl.836.213 at the time of application.

9. The two review applicants sought review of the second decision of the Department dated 29 June 2022 in relation to their applications for the Subclass 836 (Carer) visa. The Tribunal advised the review applicants that the matter had come before the same member of the Tribunal.

10. The Tribunal has used the terms ‘first named visa applicant’ and ‘second named visa applicant’ interchangeably with the terms ‘first named review applicant’ and second named review applicant’ in this decision.

    APPLICANT IS A CARER

    Whether the applicant is a carer

11. Clause 836.221 requires that at the time of decision, the first named review 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.

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

12. 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 first named visa applicant’s stepgrandmother.

13. Reg 1.03 definition of relative in relation to a person (b)(ii) includes a step grandparent or step grandchild. Based on the birth certificate, and change of name certificates I am satisfied that the first named visa applicant is the son of Jintana Phujit who is recorded as married to Michael Powell. Based on the Tasmanian birth certificate, I am satisfied that Michael Powell is the son of Beverly Powell. I am satisfied that Beverly Powell is an Australian citizen by birth, also born in Tasmania. Based on the information before me I am satisfied that Beverly Powell is the Australian relative the purpose of this review. I therefore conclude that the first named visa applicant is the step grandson of the Australian relative.

14. I am satisfied based on all the information before me that the Australian relative is usually resident in Australia. I am satisfied that the first named visa applicant is a relative of the Australian relative as defined in reg 1.03, namely her step grandson. I am satisfied that the Australian relative is an Australian citizen who is usually resident in Australia.

15. Therefore, as the first named visa applicant is the step grandson of the Australian relative, the first named 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).

    Certification – reg 1.15AA(1)(b)

16. 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 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

17. 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 or issued by a specified health provider in relation to a review of such an opinion.

18. I have considered the Carer Visa Assessment Certificate dated 12 July 2019, and current medical documents provided by the review applicant. I accept that it was not necessary for the review applicants to provide a further Carer Visa Assessment Certificate in the circumstances of this review.

19. The Tribunal finds that the certificate provided meet 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 first named visa applicant meets the requirements of reg 1.15AA(1)(b).

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

20. 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.

21. In the present case, the person with the medical condition is an Australian citizen by birth. Accordingly, the first named visa applicant meets the requirements of reg 1.15AA(1)(ba).

    Impairment rating – reg 1.15AA(1)(c)

22. 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.

23. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore the first named visa applicant 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)

24. 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 2 years as a result of the medical condition.

25. 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)

26. 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.

27. The Tribunal is satisfied based on the information provided that Beverly Powell’s husband is deceased. The Tribunal is satisfied that the sponsor, Beverly Powell’s son Michael is her only child. The Tribunal is satisfied that Michael is separated from his first partner, and has three adult children. Relatives of the Australian relative who must be assessed as to whether they can reasonably provide the assistance that Beverly Powell’s requires include her son Michael and her three adult grandchildren.

28. I am satisfied that Beverly Powell suffers from chronic and multiple health conditions and requires constant and regular care and assistance during the day and the night. I accept that Beverly Powell is 93 years of age, is wheelchair bound, is frail, suffers osteoarthritis, takes multiple medications due to heart failure and breast cancer and requires assistance within the home and with most personal and daily activities. I accept that Beverly Powell currently lives independently, and requires care and significant supervision and support in her home.

29. I am satisfied based on the statutory declaration dated 9 August 2023 and other documents previously provided including medical reports, that Beverly Powell’s son, Michael Powell, cannot reasonably provide the assistance his mother requires due to his age, his permanent health conditions of spinal stenosis and degenerative anterolisthesis. I am satisfied Michael Powell is prescribed daily medication for his pain, is a pensioner and due to his injuries and ongoing pain is unable to provide the assistance his mother requires. I am satisfied based on the evidence before me, that Michael Powell and his wife live with his mother, Beverly Powell. I am satisfied that Michael Powell’s wife is working full-time and providing care to Michael, and for these reasons is unable to provide the care that Beverly Powell requires.

30. I am satisfied based on the statutory declaration dated 20 July 2023 that Beverly Powell’s granddaughter, Bianca, is unable to provide the care that her grandmother requires because she is the carer of her partner who has a psychiatric condition, has two boys aged twelve and nine years of age, one of whom is diagnosed with ADHD and requires extensive support, and she also has ongoing back and hip pain from a previous car accident injury.

31. I am satisfied based on the statutory declaration dated 9 August 2023 that Beverly Powell’s granddaughter, Jacinta, is unable to provide the care that her grandmother requires because she is a single mother caring for three children aged 16, 11 and six years, and she resides in Rochester, approximately 1.5 hours drive from where her grandmother resides.

32. I am satisfied based on the statutory declaration dated 23 July 2023, that Beverly Powell’s grandson, Bradley, is unable to provide the care of his grandmother requires because he is working full-time and resides in Melbourne, a significant distance from where his grandmother resides.

33. The Tribunal is therefore satisfied that the assistance required by Beverly Powell cannot reasonably be provided by any other relative, who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The first named visa applicant meets the requirements of reg.1.15AA(1)(e)(i).

34. The Tribunal is satisfied based on the information provided that Beverly Powell has obtained assistance from hospital and medical services in Australia, and has undergone medical procedures in hospital as needed, including treatment for heart failure and cancer.

35. The Tribunal is satisfied based on statements provided by the Rochester and Elmore District Health Service (REDHS) that Beverly Powell has obtained Home Care package Level 2 which provides three 45 minute services per week and one podiatry service every eight weeks. These services were provided to the Australian resident to assist her to remain living in her home and not enter permanent residential care. The Tribunal accepts that Beverly Powell has been on a wait list to be upgraded to Level 3 Home Care package, and that in June 2023 the higher level package became available. The Tribunal therefore accepts that the applicant has obtained community and nursing services to assist her in her home.

36. The Tribunal has considered the assessment of the home package from REDHS that advised that Beverly Powell requires extra aids and equipment, including shower modifications, recliner lift chair, and a new walker and does not have sufficient funds. The written advice stated that if a higher level package of extra support was available, services could decrease to allow funding for the required aids and equipment.

37. The Tribunal is satisfied that home care packages are not designed to provide 24-hour supervision or constant care and support or ongoing overnight care. The Tribunal is satisfied that Beverly Powell requires extensive assistance and supervision including overnight care and this is not able to be provided by the home care packages.

38. The Tribunal is satisfied that that the Australian resident has been assessed pursuant to the myagedcare program is suitable for residential care, and been approved for permanent residential care and residential respite funding. The Tribunal accepts that Beverly Powell’s husband died shortly after being admitted to a nursing home in 2019. The Tribunal is satisfied that Beverly Powell does not wish to be admitted to a nursing home, and prefers to stay living in her own home while this is possible. The Tribunal is satisfied that currently Beverly Powell is being provided with home care packages to assist her to remain living in her own home. The Tribunal notes that this approval for residential or respite residential care is in place, but the home care packages have been provided, and further have been provided as the preferential support for Beverly Powell by REDHS. There is no evidence before the Tribunal that residential care is immediately available, or that residential care has been assessed as the appropriate form of care and assistance for Beverly Powell.

39. The Tribunal is satisfied that the assistance that Beverly Powell requires cannot be obtained solely from welfare, hospital, nursing or community services for her to remain living independently in her home. The Tribunal is satisfied that Beverly Powell obtains assistance from Australian services that are available; the Tribunal is satisfied that Beverly Powell requires additional assistance in addition to the Australian services that she has obtained. The Tribunal is satisfied that the assistance that Beverly Powell requires cannot reasonably be provided by or obtained from welfare, hospital, nursing or community services, and therefore the first named visa applicant meets the requirements of reg 1.15AA(1)(e)(ii).

40. The Tribunal is therefore 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 first named visa applicant meets the requirements of reg 1.15AA(1)(e).

    Willing and able – reg 1.15AA(1)(f)

41. 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.

42. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicia     l 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.

43. The Tribunal is satisfied based on the statutory declaration dated 9 August 2023 of the first named visa applicant that he has been providing the care for his stepgrandmother for the last four years, and he is aware of her medical conditions. The Tribunal is satisfied that the first named visa applicant organises Beverly Powell’s daily medications, prepares the meals, cleans the home and prepares for when the home care services and the REDHS nurses on Mondays, Tuesdays and Fridays. The Tribunal accepts the first named visa applicant assists Beverly Powell with her personal hygiene, showering, toileting, dressing and takes her for slow walks and gives her a massage. The Tribunal is satisfied that the first named visa applicant is present in the home for most of the 24 hours of the day to assist the Australian relative. The Tribunal is satisfied that the first named visa applicant is willing and able to provide the assistance of the kind required.

44. The Tribunal accepts the declaration of the first named visa applicant that he is willing to continue to provide substantial assistance for as long as it is required.

45. Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and the first named visa applicant meets the requirements of reg 1.15AA(1)(f).

    Conclusion

46. Given these findings, at the time of decision the first named visa applicant is a carer of the Australian relative, Beverly Powell, and therefore satisfies the requirements of cl.836.221.

    Secondary criteria

47. Clause 836.321 requires that the secondary visa applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

48. The Tribunal is not assessing or determining whether the first named visa applicant satisfies all the primary criteria, and until all the criteria is assessed, the first named visa applicant is not able to be the holder of a Subclass 836 visa.

1. The Tribunal is satisfied based on the information provided by both review applicants and other statutory declaration deponents, that the second named review applicant is the de facto partner of the first named review applicant. The Tribunal is satisfied that the second named review applicant is a member of the family unit of the first named review applicant within the meaning of reg. 1.12(2)(a) at the time of application, and continues to be a member of the family unit of the first named review applicant within the meaning of reg 1.12(2)(a) at the time of decision.

2. Therefore the Tribunal finds that the second named review applicant continues to be a member of the family unit of the first named review applicant for the purposes of cl.836.321 at the time of decision.

3. 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 836 visa.

   DECISION

4. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named review applicant meets the following criteria for a Subclass 836 (Carer) visa:

   ·cl.836.221 of Schedule 2 to the Regulations; and

5. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the second named review applicant meets the following requirement for a Subclass 836 (Carer) visa:

   ·Reg.1.12(2)(a) for the purposes of cl.836.321 of Schedule 2 to the Regulations.

   Margie Bourke
   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.