Chand (Migration)

[2020] AATA 2023

Chand (Migration) [2020] AATA 2023 (11 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satend Chand

CASE NUMBER:  1732867

HOME AFFAIRS REFERENCE(S):          CLF2015/63303 CLF2017/68358

MEMBER:Linda Holub

DATE:11 May 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 11 May 2020 at 8:43am

CATCHWORD
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsored by an Australian relative – 91-year-old father – dementia – mental capacity to understand sponsorship undertaking and obligations – carer of an Australian relative – assistance from other relatives – Statutory Declarations of the sponsor’s children and grandchildren – identity of the declarants – assistance from welfare, hospital, nursing or community services – language and dietary requirements – other options not investigated – Carer Visa Assessment Certificate – procedural fairness – section 376 certificate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15AA, 1.20; Schedule 2, cls 836.213, 836.221

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 Immigration and Border Protection on 7 December 2017 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 October 2015. 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 (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.836.213 and 836.221 in Schedule 2 of the Regulations.

3. The delegate refused to grant the visa on the basis that cl.836. 213 and 836.221 was not met because the delegate was not satisfied the applicant had provided sufficient evidence to determine that assistance cannot reasonably provided by any other relative of the resident (either individually or collectively).  The delegate was also not satisfied that the applicant had demonstrated that the assistance for the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background

1. The applicant who was born in August 1958, is a citizen of Fiji.  He resides with and was sponsored in his application by his father, Ram Chandar who is currently 91 years of age (born in December 1928).  The sponsor’s wife who is 87 years of age (born in December 1932) also resides at the same address.

2. The sponsor has the following children who are resident in Australia:

   ·Ruzwell Chand, son who is currently 67 years of age (born in April 1953).

   ·Amina Devi, daughter, who is currently 64 years of age (born in February 1956).

   ·Ishwar Chand, son, who is currently 57 years of age (born in April 1963).

   ·Om Chand, son, who is currently 49 years of age (born in June 1970).

   ·Dip Malti Devi, daughter who is currently 47 years of age (born in November 1972.

3. The applicant had travelled to Australia on numerous occasions since 1992 including in that year and subsequently in 2002, 2003, 2008 and 2009 staying for extended periods from one month to several months. 

4. The applicant had previously lodged an application for a Carer visa while he was offshore in Fiji.  That application was lodged in October 2009 and was refused in August 2010.  The applicant sought review at the then Migration Review Tribunal and the Tribunal affirmed that decision. 

5. The applicant arrived in Australia in connection with this visa on 18 July 2014 holding a Visitor visa.  He subsequently applied for Other Family (Residence) (Class BU) Carer (subclass 836) visa.  The application was lodged on 7 October 2015 with the sponsorship form (Form 40) signed by the applicant’s father as the sponsor on 3 October 2015.

10)The delegate who considered the application first considered whether the sponsor had the mental capacity to sponsor the applicant.  The delegate’s decision refers to the fact that the delegate gave weight to medical information provided at the time of application in assessing whether the sponsor understood his sponsorship undertaking at the time of application.

11)Given that one of the diagnosed medical conditions was dementia, the delegate’s primary concern was that the sponsor may not have had the mental capacity to understand the sponsorship undertaking and related obligations at that time he signed the sponsorship form.  The decision refers to several medical assessments and reports that make reference to the sponsor having ‘dementia’ and ‘cognitive function affected by reduced short term memory with dementia’.  The Carer Visa Medical Assessment Certificate(CVAC) dated March 2014, which gave the sponsor a rating of 45 also referred to the sponsor ‘having significant dementia leading to severe impact on cognition’ and that the sponsor ‘was unable to manage his affairs’ and that he had ‘limited conversation due to dementia’ and that his ‘intelligence was limited by dementia’.  The delegate had regard to the fact that the documents referred to all predate the date of application and the date on which the sponsor signed the sponsorship form.

12)In view of the delegate’s concerns the applicant was requested on 30 March 2016 to advise if any person had legal authority in respect of the sponsor at the time the application was lodged and if so to provide such evidence.  On 3 May 2016 the applicant provided documents relating to other issues in the application but no information relating to the matter of legal authority. On 9 May 2016 the applicant was once again asked if any person had legal authority.

13)On 31 May 2016 the applicant provided a Carer Visa Medical Assessment Certificate dated 26 May 2016 which gave the sponsor a reduced rating of 30.  Notably it did not include a diagnosis of dementia and did not give a rating for cognitive impairment. The covering letter from the applicant’s migration representative did not address the request for evidence of legal authority but did advise that the applicant would be ‘implementing strategies to assist his father cope with his dementia’.

14)Following the third attempt by the delegate (dated 16 November 2016) to obtain evidence of any legal authority that had been in place in relation to the sponsor to which was the applicant’s migration agent responded on 29 November 2016, it was submitted that the sponsor did have capacity to sign the sponsorship obligations at the time of application lodgement. The migration agent stated that “the sponsor is only in the early stages of dementia, and the very fact of his lack of guardian is illustrative of the fact that he retains the capabilities necessary for him to remain legally competent”[1].

[1] AAT file, folio 5.

15)On 29 September 2017 an invitation to comment was sent by the Department to the applicant addressing the dementia diagnosis of the sponsor.  It outlined the Department’s concerns that the sponsor may not have had the capacity to understand his sponsorship undertakings at the time the application was lodged.  These concerns arose out of the medical evidence provided in support of the application.

16)The delegate’s decision records that the applicant provided a response to the invitation to comment on 3 November 2017.  The response included:

1)A Geriatrician letter (Dr Sasikala Selvadurai) dated 30.10.2017 addressing the sponsor’s overall health, finding that his cognition had deteriorated and advising that his ‘cognition has deteriorated… he is unable to attend to payment of accounts, which his son now supervises. His son also supervises the management of his father’s financial affairs’.

2)A forensic psychologist report dated 30 October 2017, which made a number of findings and concluded ‘Mr Chandar’s cognitive decline has an ‘extreme’ functional impact’.

17)A cover letter from the applicant’s migration agent addressed some of the evidence that had been provided in support of the application and advised that the family was in the process of making an application to appoint one of the sponsor’s sons as his guardian. The agent concludes that where a delegate does not find that the sponsor had capacity, he submits that a decision was made in the sponsor’s best interests by family member(s) acting in proxy and with ‘supposed power of attorney’.

18)The delegate noted that the Department’s decision is not about the appropriateness of the family’s decision in respect of the sponsor’s care but rather whether the applicant, and the sponsor, meet the relevant regulations. In that regard, the delegate took account of the evidence that was provided showing that the sponsor was diagnosed with dementia prior to the date of application lodgement.  The decision points to specific references regarding the sponsor’s brain function and cognitive impairment in that documentation, including in the 2014 CVAC.  That certificate referred to a letter from the sponsor’s geriatrician dated 8 August 2013 provided to the Department with the application which concluded the sponsor had demonstrated cognitive impairment due to underlying mixed vascular an Alzheimer’s dementia. 

19)The delegate noted that the medical evidence provided subsequently did not represent the dementia diagnoses of the sponsor as seriously.  Furthermore, the delegate had regard to the fact that no medical evidence had been provided which attested to the sponsor understanding his sponsorship undertaking and obligation at the time of lodgement in October 2015.  And while the applicant’s migration agent stated that the sponsor was only in the early stages of dementia and that the sponsor had the capacity to understand his obligations, that view was not a medical opinion of a medical professional.

20)The delegate acknowledged that there is no express requirement in the Migration Act 1958 or the Migration Regulations 1994 that the Minister be satisfied that the person understood the sponsorship undertaking. However, the delegate articulated the approach in making his finding which is that the plain meaning of ‘undertake’ infers that a person commits to a course of action as detailed in regulation 1.20(2) in signing the undertaking in Form 40.

21)The delegate in assessing the totality of the information provided regarding the capacity of the sponsor to understand his sponsorship obligations at the time of application lodgement, came to the conclusion that the weight of the medical evidence indicated that he did not have the mental capacity to understand the sponsorship obligations at the time of this application being made.  The delegate found that no person or agency was legally authorised to commit to the sponsorship obligations on behalf of the sponsor.  On that basis, the delegate was not satisfied that the applicant was sponsored, at time of application, as required by the legislation and, consequently found that the applicant does not satisfy clause 836.213 in Schedule 2 of the Regulations.

22)Regulation 1.15AA(1)(e)(i) requires that the assistance cannot reasonably be 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.

23)The delegate had regard to information in the Statutory Declarations provided by the resident’s other children, his grandchildren and his wife who all declared they could not provide the care required by the resident.  The delegate noted that no recent supporting evidence of any claims made in their declarations had been provided.  For that reason, the delegate was unable to attribute any significant weight on those declarations.  The delegate also had integrity concerns regarding the declarations.  These concerns arose from the fact that one declarant resided in Sydney, but her declaration was witnessed in Canberra and because of significant similarity of the declarations that were supposedly authored by ten individuals and the similarity of their wording between those provided in 2012 and those provided in 2016.  The delegate also had concerns because of a lack of signature identification for the declarants.

24)The delegate found that the declarants’ statements do not satisfactorily demonstrate that a continuation of the collective approach to the provision of care by family members other than the applicant is unreasonable.  The delegate found that the applicant did not provide sufficient evidence to determine that assistance cannot reasonably be provided by any other relative of the resident (either individually or collectively), and therefore the delegate found the applicant does not meet regulation 1.15AA(1)(e)(i).

25)Regulation 1.15AA(1)(e)(ii) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. At the time of lodgement in October 2015, the applicant provided a report dated September 2012, which was prepared for a Subclass 116 – Carer (Class BU) visa application (lodged with the Department 5 October 2009). This report addresses the limitations and availability of care packages relevant to the resident, and the resident’s preference for in-home care based on his language and dietary requirements (amongst other reasons).

26)On 30 March 2016 the applicant was requested to provide evidence that the assistance for the resident could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.  In response on 3 May 2016, the applicant provided the same report dated September 2012, that had been provided at the time of lodgement.  On 31 May 2016 the same report was received by the Department a third time. In the accompanying letter from the applicant’s migration agent, it was claimed that the resident’s family had endeavoured to procure care, but no suitable facility could be found.  The letter referred to the resident’s physical, linguistic and cultural needs.  No evidence was provided to substantiate what facilities had been approached, nor were any named in the letter.

27)In the absence of any evidence to support the claims made the delegate do not find that it had been demonstrated that the assistance for the resident could not reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the delegate found that the applicant does not meet regulation 1.15AA(1)(e)(ii).

28)Considering all these matters, the delegate was not satisfied that the assistance required by the sponsor could not reasonably be provided by other relatives or the sponsor resident in Australia or obtained from welfare, hospital, nursing or community services in Australia.  The delegate found that the applicant did not meet the definition of a Carer as defined in regulations 1.15AA(1)(e) and therefore did not meet 836.221

29)As the delegate concluded the applicant did not meet clauses 836.213 and 836.221 the delegate refused the application.

Information to the Tribunal

30)Prior to the hearing held on 3 September 2019, the applicant provided further information to the Tribunal including:

·an Order made on 20 February 2019 by the ACT Civil and Administrative Appeals Tribunal appointing the applicant’s brother (Ruzwell Chand) as guardian of the sponsor.  Amongst other powers given to Ruzwell Chand, the Order gives him the power “to do things necessary to give effect to decisions about the matters set out above, including but not limited to:

§  giving or receiving information; or

§  giving consents to investigations and assessments; or

§  participating in negotiations; or

§  signing documents close quotation”[2].

[2] AAT file, folio 16.

·a Support Plan undertaken under the My Aged Care in respect of the sponsor following his assessment on 4 March 2019. It describes his situation at that time, provides background and an assessment. 

31)After the hearing the applicant provided the Tribunal:

·a submission in respect of issues raised at hearing.  Attached to the submission were a copy of the applicant’s Birth’s Certificate issued in August 2002 and a diagram showing his parents and siblings with a summary of their current circumstances.

·Statutory Declarations from the applicant’s siblings about their current circumstances and why they are unable to provide assistance to the Australian relative.

·a medical report in relation to the Australian relative’s wife.

·the Carer Visa Assessment Certificate and medical advisor’s report in respect of the Australian relative which was undertaken in early February 2020.

·a further submission regarding issues raised at hearing which was provided to the Tribunal on 23 April 2020.

32)The applicant appeared before the Tribunal on 3 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother.  The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.  The applicant was represented in relation to the review by his registered migration agent.

33)The applicant provided a copy of the front page of his passport showing his name as Satend CHAND.  He provided a copy of a Births, Deaths and Marriages certificate issued on 26 March 2004 showing Ram CHANDAR as his father (sponsor/relative).  He also provided a copy of a Deed Poll showing that he relinquished and abandoned the use of the name Vishwar CHAND and assumed and adopted the name of Satend CHAND.  This document is dated 2 February 2004 and predates the birth certificate issued on 26 March 2004.  The applicant provided a copy of a family tree in which the name Vishwar is crossed out by hand and replaced with Saten (sic).

34)At hearing the Tribunal referred to the fact that the certificates of the visa applicant’s siblings are older/original certificates and requested that he provide a copy of his original birth certificate.  The Tribunal noted that the Department’s Decision Record (a copy of which was provided to the Tribunal) referred to the fact that the applicant had been requested a copy of his original birth certificate showing his name at the time of his birth and his national identity card.  At the time of the delegate’s decision on 7 December 2017, the applicant had not done so.  The Tribunal also referred to the fact that the copy of the passport provided was issued in August 2014 and asked if there is an earlier one.  The visa applicant responded by saying he had a National ID. 

35)After the hearing the applicant provided a copy of a birth certificate that was issued on 28 August 2004.  The Tribunal is concerned that at the time of this decision, the applicant had not provided a copy of his original birth certificate.  Nevertheless, the Tribunal is prepared to accept the applicant is the son of the sponsor/resident.

36)The applicant claimed in written evidence that he cares for the sponsor.  At hearing he was asked about sponsor’s current situation.  He responded that his father cannot see or hear clearly.  He uses a hearing aid and he requires assistance with walking.  He stated that his driver’s license has expired so his father is unable to drive anymore.  The review applicant stated that he takes care of his father and takes him out shopping and for doctor’s appointments and collects his medicines.  He prepares meals and does all the domestic duties and he cleans the yard.  The applicant stated he accompanies the sponsor to the bathroom and assists him there.  His father normally is able to put on the clothes but the applicant helps him with the zipper.  When the weather is fine, he takes him outside with the walker.  The review applicant stated that because the sponsor’s bedroom is on the first floor, he helps the sponsor climb the stairs to his room.  The review applicant stated that he prepares the sponsor’s meals and cuts the food into small pieces.  The sponsor uses a catheter.  The review applicant changes the bag every week although the catheter itself is changed by the community nurse.

37)The Tribunal discussed the sponsor’s previous Carer Visa Medical Assessments one of which was undertaken in 2014 and another in 2016.  Given the significant length of time since the last assessment.  It was agreed that an updated assessment would be undertaken.

38)The Carer Visa Assessment Certificates list the reports that were provided as part of those assessments.  The 2014 assessment states that the following reports were considered in the assessment.

·Dr Pranavan (Oncologist) dated 13 March 2014.

·Dr Selvadurai (Geriatrician) dated 8 August 2013.

·Dr Gan (GP) dated 7 June 2013[3].

[3] DIBP file CLF2015/63303, folio 43.

39)The 2016 assessment refers to the following documents which were considered as part of the assessment:

·Report by Dr M Gan GP 26/4/16.

·Referral by Dr M Gan GP 22/1/15.

·Report by Dr Selvadurai 6/6/15.

·Dr J Kuo 29/8/14.

·Pathology reports 18/4/16[4].

[4] DIBP file CLF2017/68358, folio 257

40)Two issues arise from the previous medical assessments.  One relates to whether or not the sponsor understood the sponsorship undertakings at the time he signed the sponsorship form and the second relates to why the two assessments result in very different assessments of the sponsor.

41)The applicant responded that in both cases the correct medical reports were provided for the assessments.  He stated that he was not in Australia in 2014 as he arrived in 2015.  The Tribunal explained that irrespective of who provided the medical reports they were different and as a result of that the sponsor’s dementia is not referred to in the second 2016 assessment.  Given the references to the sponsor’s dementia in the 2014 assessment, it raises a concern as to whether the sponsor had the mental capacity to support the visa application.  The earlier medical assessment indicates the sponsor may not have understood the obligations he was taking on when he signed the sponsorship form - Form 40.

42)The review applicant responded that the family read the obligations to the sponsor and made sure he understood.  They explained to him that he would be supporting the lodgement of the visa application to enable the visa applicant to take care of him and then he signed.  The Tribunal responded that it must rely on the evidence before it and referred to the following: 

·In the 2014 Carer Visa Assessment Certificate under the heading Brain Function, it states “Significant dementia leading to severe impact on cognition”.  Under the heading Communication, the assessment states “Limited conversation due to dementia”[5].

[5] DIBP file CLF2015/63303, folio 41.

·The summary sheet of the assessment refers to the sponsor’s short-term memory being poor and that he has early dementia[6].

[6] DIBP file CLF2015/63303, folio 47.

·A report prepared by Dr Selvadurai, Consultant Geriatrician dated 8 August 2013, states that the sponsor has “cognitive impairment due to underlying mixed vascular and Alzheimer dementia”[7].

[7] DIBP file CLF2015/63303, folio 92.

·The applicant’s Statutory Declaration of 2 October 2012 also refers to the sponsor having “a range of serious medical conditions, including dementia, prostate cancer, short term memory loss, degree of blindness, (several words have been redacted although it is not clear by whom), frail, needing 24 hours direct care and practical assistance”[8].

[8] DIBP file CLF2015/63303, folio 98.

43)The Tribunal noted that the written evidence that had been provided initially in relation to the sponsor’s health showed very clearly that the sponsor had dementia prior to him signing and supporting the sponsorship application. 

44)The Tribunal explained to the review applicant that it also wished to explore why the 2014 and 2016 assessments gave his father different ratings.  The assessment dated 26 May 2016 gave the sponsor an impairment rating 30, whereas the one dated 26 March 2014 gave him an impairment rating of 45.  The Tribunal explained it was curious as to why he was given a higher rating when he was younger and had various medical conditions that were not referred to in the later medical reports.

45)The Tribunal noted that the May 2016 Carer Visa Assessment Certificate makes no mention of the applicant having been diagnosed with dementia under the heading ‘Medical Conditions’ where it states that “the examinee has the following medical conditions that may impact their capacity to self-care” (stroke, loss of vision one eye due stoke (sic) (occipital), prostate cancer, cervical infection, hypertension, diabetes and deafness[9].

[9] DIBP file CLF2017/68358, folio 257.

46)Furthermore, the medical reports which had been provided for the assessment are different. The Tribunal pointed out at hearing that the 2016 Carer Visa Assessment Certificate 2016 did not mention that sponsor has Alzheimer’s, dementia and / or any other cognitive impairment and in light of the fact that the reports provided for the assessments were different, it appears the CMO may not have provided with the sponsor’s full medical history. The Tribunal put this information to the applicant under s.359AA of the Migration Act as it may potentially be adverse.  The applicant indicated that he would comment on or respond in writing after the hearing.

47)The Tribunal then moved on to discuss with the applicant whether in combination the family and possibly service providers can provide the sponsor with the assistance he requires. The Tribunal noted that it accepts that any one of his other relatives on their own may not be able to provide the necessary care.  The applicant stated that his parents have their own lifestyle and food preferences and stated that they also like to go to family pray gatherings.  The Tribunal referred to the fact that the sponsor has a number of family members in Canberra and asked if someone could collect the sponsor and his wife for a pray gathering. He stated that he takes his parents with him and takes cares of them and whenever they want to return, he takes them home.

48)At hearing the applicant stated that in the past when the sponsor needed assistance, sometimes one of his siblings would take a day off.  The applicant referred specifically to that fact his younger brother Om would assist.  He stated that his brother, Ishwar has his own business, so he is unable to do so and other family members are in a similar position.  He stated that everyone has mortgage and some family members have small children so they are unable to assist the sponsor. 

49)At hearing the Tribunal confirmed with the applicant that the sponsor receives an aged pension and asked about services he may be entitled to.  Prior to the hearing the Tribunal was provided with an Assessment Summary of a Support Plan undertaken through the Australian Government’s My Aged Care program.  The assessment was undertaken in March 2019.  It describes the sponsor’s current situation, his background, and makes an assessment of the sponsor.  The recommendations refer to catheter management, the need for consideration to alternative accommodation for the sponsor due to his mobility issues and that the sponsor has consented for a referral to be sent for ongoing nursing services.  An attachment to the Assessment Summary refers to one area of concern relating to the sponsor requiring nursing care in relation to his catheter. 

50)The Tribunal asked the applicant the purpose of the document.  He responded that the aged care people made an appointment for an assessment, but he did not know what it was for.  He stated that a community nurse comes every six weeks to change the sponsor’s catheter and they have trained him to change the bag.  He was asked whether there are any other support services provided to which he responded in the negative. The applicant stated that when he first came to Australia, the sponsor was using the services of KIMCARE but that stopped and now he does everything. 

51)The applicant agreed to provide post-hearing submissions on this matter.

Evidence of applicant’s witness

52)The applicant’s brother, Ruzwell Chand provided the following oral evidence at the hearing.  He works full-time at a Harvey Norman store.  His wife is a cleaner who works full-time.  He stated that he would like to thank the applicant for looking after his father.  His stated that his father needs support.  He stated he and other family members are fully employed and have mortgages, so it is difficult for them to be there 24 hours per day. He referred to their house chores and that it is a very great help to have the applicant looking after their aged parents who have dementia.  He stated his parents cannot manage their medication themselves.  The witness stated that the applicant is doing a perfect job and would like him to be granted a visa. 

Further submissions

53)The Tribunal agreed it would consider further written submissions and allowed until 15 October 2019 for them to be submitted.  The Tribunal asked the applicant to provide an updated Carer Visa Assessment Certificate in respect of the sponsor and information regarding any services the sponsor may be entitled to.  In addition, the applicant was asked to provide an updated list of relatives of the sponsor and to make reference as to their current situation and why they are unable to provide assistance in relation to the sponsor’s care needs.  The applicant had also agreed he would provide a copy of his original birth certificate. On 7 October 2019 the review’s applicant’s representative requested a further six weeks to make submissions.  The Tribunal agreed to provide additional time until 11 November 2019 for submissions to be provided. 

CONSIDERATION OF CLAIMS AND EVIDENCE

54)The issue in the present case is whether the applicant meets the definition of a carer in r.1.15AA and whether the sponsorship requirements are met. The Tribunal has first considered whether the sponsor requirements met.

Whether the applicant is sponsored

55)Relevant to this application are the sponsorship undertakings in Regulation 1.20.  Regulation 1.20 requires that:

1)The sponsor for a visa is a person (except the person who proposes on the relevant approved form another person for entry to Australia applicant for a permanent humanitarian visa) who undertakes the obligation stated in subregulation (2) in relation to the applicant.

2)Subject to subregulation (4), the obligations of the sponsor in relation to an applicant for a visa of the following:

a)if the application is for a Skilled - regional sponsored (Provisional) (Class SP) visa, or a permanent visa (other than a Partner (Migrant) (Class BC) or Partner (Residence) (Class BS) visa) the sponsor undertakes the obligations to the applicant, to the extent necessary, financially and in relation to accommodation:

b)if the applicant is in Australia during the period two years immediately following the grant of the visa

56)The Tribunal has considered the written evidence submitted to the Department in relation to this application.  Relevant reports include the reports from Dr Narayan from June 2012, the sponsor’s GP Dr Gan from June 2013, his geriatrician Dr Selvadurai August 2013 as well as the 2014 Carer Visa Assessment Certificate.  In addition, the Tribunal considered the applicant’s and the sponsor’s Statutory Declaration of early October 2012.

57)As previously referenced, those documents clearly indicate that the sponsor had been diagnosed with dementia prior to him signing the sponsorship undertaking. 

·In the 2014 Carer Visa Assessment Certificate under the heading Brain Function, it states “Significant dementia leading to severe impact on cognition”.  Under the heading Communication, the assessment states “Limited conversation due to dementia”.[10]

[10] DIBP file CLF2015/63303, folio 41.

·The summary sheet of the assessment refers to the sponsor’s short-term memory being poor and that he has early dementia.[11]

[11] DIBP file CLF2015/63303, folio 47.

·A report prepared by Dr Selvadurai, Consultant Geriatrician dated 8 August 2013, states that the sponsor has “cognitive impairment due to underlying mixed vascular and Alzheimer dementia”.[12]

[12] DIBP file CLF2015/63303, folio 92.

·The applicant’s own Statutory Declaration of 2 October 2012 also refers to the sponsor having “a range of serious medical conditions, including dementia, prostate cancer, short term memory loss, degree of blindness, frail, needing 24 hours direct care and practical assistance”.[13]

[13] DIBP file CLF2015/63303, folio 98.

·The sponsor’s Statutory Declaration of 8 October 2012 also refers to him having a number of diagnosed medical conditions including dementia and short term memory loss.

·A medical certificate provided by Dr Pradeep Narayan dated 11 October 2012 who had examined the sponsor on “numerous occasions over the past three years” referred to the sponsor having a number of chronic problems including early dementia.  In the same certificate he wrote that the sponsor has “early dementia and further assessment is required for assessment and possible medical management”.[14]

[14] DIBP file CLF2015/63303, folio 110.

58)The Tribunal has considered the applicant’s previous responses provided to the Department in relation to whether the sponsor understood the legal undertaking of the sponsorship. 

59)In a letter to the Department on 29 November 2016 the applicant’s migration representative wrote that the sponsor is only in the early stages of dementia, and the very fact of his lack of guardian is illustrative of the fact that he retains the capabilities necessary for him to remain legally competent.  Nothing in that material indicates the migration agent has medical qualifications.  The Tribunal therefore did not place weight on that assertion but rather placed significant weight on the evidence of the medical practitioners and on the 2014 CVAC.

60)The Tribunal also had regard to comments in a letter provided by the applicant’s migration representative in November 2017 sent to the Department in response to the Department’s letter of 29 September 2017 which raised concerns regarding the sponsor’s capacity.

61)That letter suggests that the comments made by Dr Sasikala Selvadurai dated 8 August 2013 were taken out of context. It states that parts of her assessment related to the sponsor’s hearing impairment and his unwillingness to use a hearing aid at home and that no correlation between the sponsor’s behaviour and his cognitive ability was drawn. The letter also states that while Dr Selvadurai refers to the sponsor’s disorientation in time and place these do not affect his ability to understand his undertaking and obligations as a sponsor.  Along similar lines, the letter states that Dr Selvadurai’s references to the sponsor having minor difficulty with his memory refers to the sponsor misplacing objects and has no bearing on his ability to make decisions and therefore does not affect his capacity to understand his undertaking and obligations.

62)The letter also argues that although the sponsor’s impairment was rated as 0 in a Carer Visa Assessment Certificate dated 26 May 2015 this was due to a lack of quantification of his memory loss and cognitive dysfunction, it does not show that the sponsor lacked capacity to understand his undertaking and obligations as a sponsor.

63)The letter refers to s.6(i) the Mental Health Act 2015 (ACT) regarding decision-making capacity, which is not relevant to this decision. It also provides references to common law interpretations. In this context, the letter claims that they are confident that the sponsor understood and had the capacity to make an informed decision about the sponsorship according to common law.

64)The letter puts forwards the proposition that where delegate does not find the sponsor had capacity, the applicant submits that a decision was made in the sponsor’s best interest by family(s) acting in proxy and with supposed power of attorney.  Whether or not the sponsor’s family is acting in his best interests is not a decision to be made by the Tribunal. The Tribunal must assess whether the application meets the relevant legal requirements.

65)The Tribunal also considered the applicant’s oral response at hearing that the family read the obligations to the sponsor and made sure he understood and explained to him that he would be supporting the lodgement of the visa application to enable the visa applicant to take care of him and then he signed the sponsorship form.

66)The Tribunal is prepared to accept that the family read the obligations to the sponsor however on the basis of the medical evidence before the Tribunal it is not satisfied that the sponsor understood his sponsorship obligations.

67)The Tribunal also considered the evidence made available by the applicant as to whether any legal authority was in place at the time of application in relation to the sponsor.  The only written evidence is that a guardian was appointed by the ACT Civil and Administrative Tribunal on 20 February 2018 some two and a half years after the application was lodged.  On that basis, the Tribunal is not satisfied that any legal authority was in place at the time of application on behalf of the sponsor.

68)No further submissions were made by the applicant to the Tribunal regarding whether or not the sponsor understood his legal obligations when signing the sponsorship form at the time of application in October 2015.

69)In considering the evidence before it and the requirement that the sponsor undertakes certain obligations as outlined in Regulation 1.20, the Tribunal is not satisfied the sponsor understood the sponsorship obligations to which he was committing to and therefore is not satisfied that the applicant was sponsored at the time of application.  On that basis, the applicant does not satisfy clause 836.213 of Schedule 2 of the Regulations.

Whether the applicant is a carer

70)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 r.1.15AA of the Regulations which is set out in the attachment to this Decision.

71)The Tribunal first considered whether the assistance required by the sponsor cannot reasonably be provided by any other relative of the sponsor or obtained from welfare, hospital, nursing or community services in Australia.

72)As referenced in the background of this decision, the sponsor is married and in addition to the applicant has five children living in Australia.  His children Ruzwell Chand, Amina Devi, Ishwar Chand, Om Chand and Dip Malti Devi are currently 67 years, 64, 57, 49 and 47 respectively.  

73)The Department was provided with Statutory Declarations from the sponsor’s children resident in Australia in 2014 and 2016.  In 2016, his five grandchildren also provided Statutory Declarations.  After the hearing, the Tribunal was provided with more recent Declarations from his children.  The Tribunal is concerned that at no time was any evidence provided regarding the identity of the declarants.  The Tribunal has had regard to the delegate’s commentary on this issue in the Department’s Decision Record:

“On 9 May 2016 the applicant was requested by email to provide signature identification, and documents in support of any claims from the above declarants [referring to the sponsor’s children and grandchildren].

Copies of all the declarations made in April 2016 were received again on 2 June 2016.  However, no signature identification or supporting evidence from any declarant was received, nor was the request addressed by the applicant’s migration agent in his covering letter”[15].

[15] AAT file, folio 3, reverse side.

74)The Statutory Declarations provided to the Tribunal in November 2019 again were not accompanied by any identity documentation to enable the verification of signatures. 

75)According to evidence provided the sponsor’s wife is 87 years old and suffers from a number of medical conditions.  Based on the medical evidence, theTribunal accepts that she can only reasonably provide a minor level of the assistance required by the sponsor.

76)In Statutory Declarations provided by Ruzwell Chand to the Department it was claimed that he and his wife have four grandchildren who require their full support such as babysitting, dropping-off and picking them up from school and events.  He claimed he was restricted in his daily activities but did not provide any details.  He stated he and his wife feel like they have done a lot for their parents in “earlier days” and now want to concentrate on their own families.  Evidence was provided in 2012 that he has type 2 diabetes.  In the 2016 Statutory Declaration the Ruzell Chand stated that he is a full time salesperson with Harvey Norman and can only spare a few hours per week with his father and mother.

77)Ruzell Chand’s November 2019 Statutory Declaration essentially repeats the same information referring to his Type 2 diabetes which restricts his daily activities and refers to his two children and four grandchildren and involvement with them.  He also declared that his wife no longer supports his efforts to care for his parents as she believes they have done enough to care for them over the years.  Given his circumstances, he is only able to spend a few hours with his parents.  No evidence was provided in support of these claims.

78)The sponsor’s daughter Amina Devi provided Statutory Declarations in 2012 and 2016. In the 9 October 2012 document she stated that she has two daughters.  She stated that her husband has a problem with her father’s family, and as a result she seldom visits her parents: about once every two months. She does not have capacity to care for her father as she works full time and has to take care of her own family.  The Statutory declaration dated 25 April 2016 was essentially identical in form and substance to the earlier statutory declaration.

79)In Ms Devi’s Statutory Declaration dated 21 October 2019 she declares that she is unable to provide assistance to her parents because her husband has a demanding job so she is required to attend to home chaos. She also states that her husband is ‘very sickly and has had a stroke’ so she doesn’t want to commit to taking care of her parents in any way.  No evidence was provided in support of the claims.

80)In October 2012, the sponsor’s son Ishwar Chand provided a Statutory Declaration and a letter dated 2 October 2012 to certify that he is the director and owner of his waterproofing business – Ish & Son’s Waterproofing Pty Ltd.  He provided a further Statutory Declaration in April 2016.  In these Declarations, Ishwar Chand states he owns, manages and operates a water proofing business in Canberra and employees five staff.  He stated he normally starts work at 7am and finishes late at night.  He declared he tries to visit his parents once a week and spends about 2 hours with them.

81)In his November 2019 Statutory Declaration Ishwar Chand declares he has a full-time job as a builder.  At paragraph five of the Declaration, he states that he and his wife have time to visit his parents regularly.  However, at paragraph seven, he states they are limited to visiting them on special occasions. Ishwar Chand declares that he and his wife now have additional responsibilities taking care of their grandchildren, their home and work-related commitments.  He states that as the visa applicant is caring for his parents they have the luxury of spending time building the business and their relationship with their children and do not want to responsible for the day to day care of the sponsor. No evidence was provided in support of these claims.

82)The Statutory Declarations provided to the Department by the sponsor’s son, Om Chand dated 4 October 2012 and 25 April 2016 essentially make the same claims.  They state he had two jobs one as a building manager (7am to 3:30pm), and then as a cleaner (6pm to 9pm ). He wrote that he tried to visit the sponsor once every week or two.

83)Mr Om Chand Statutory Declaration dated 13 November 2019 stated that he is married and has three children. He lives away from his parents and states it would take at least 30 minutes to get to them in an emergency. He is employed as a building manager and contractor and works 12 hour days (8am to 8pm) during the week and on weekends as required. He and his wife do not want the responsibility of caring for his parents.  No evidence was submitted by Mr Om Chand regarding his claims.

84)In Statutory Declarations provided by Dip Malti Devi provided to the Department in 2012 and 2016 she claimed she lived in Sydney and has four children.  She also claimed she has her own family and business commitments but did not provide any details.  She claimed she can only travel to Canberra once in three to four weeks.  No evidence was provided in support of the claims of Ms Devi.

85)The sponsor’s grandson Rohit Chand’s Statutory Declaration made on 25 April 2016 states that he is married with two children. His daughter was in year 7 and his son in primary school. He refers to the fact that his children had to be picked up and dropped off at school but does not state that he undertakes this role.  It states he is employed full time, working 8am to 5pm and as a result he is only able to spend a few hours a week with his grandparents. No evidence was provided in support of the claims.

86)In the Statutory Declaration provided by the sponsor’s grandson Vikashni Sharma dated 25 April 2016 he claimed he is married with two children, one in university and one in primary school.  He stated that he works 8am to 5pm and as a result he is only able to spend a few hours a week with his grandparents.  No evidence was provided in support of the claims.

87)In the Statutory Declaration provided by the sponsor’s grandson Rajnesh Brummel dated 25 April 2016 he claimed he is in a de facto relationship and has two children. He declared he is a shift worker and works on weekends as required.  He tries to visit his grandparents once every two or three months.  No evidence was provided in support of these claims.

88)The sponsor’s grandchild Ashneel Chand also provided a Statutory Declarations dated 25 April 2016.  He declared that he is married and has one son.  He wrote that he is employed in the building industry and works from 6am to 5pm and works on the weekend as required.  He devotes any spare time to his son but tries to visit his grandparents once every week or two.  No evidence was provided in support of the claims.

89)The Statutory Declaration provided by the sponsor’s grandchild Ashwant Chand was also made on 25 April 2016.  It is exactly the same as that provided by Ashneel, but for the reference to a son being crossed and replaced with the word daughter. No evidence was provided in support of the claims.

90)In a Statutory Declaration provided by the sponsor in 2012 he also wrote that his daughter Amina’s husband is not on talking terms with their family and as such she rarely visits them.  He declared that his sons all work and have their own families to look after.  Put together his children can only provide about 6-8 hours weekly of care, most of that non-direct.  The Tribunal is prepared to accept that the Ms Amina Devi’s husband did not get along with her family in 2012.  The Tribunal has had regard to the fact that her 2019 did not repeat this claim.  On that basis the Tribunal finds that factor is no longer an issue in respect of the sponsor’s daughter.  The other claims are not supported by recent evidence. 

91)The Tribunal has given no weight to the Statutory Declarations provided by the sponsor’s children and grandchildren for the reason that it cannot be satisfied of the identity of the declarants.  In coming to this view the Tribunal has had regard to the fact that the applicant was notified by the Department on more than one occasion that such documentation was required.  No response was received by the Department on this issue.  Furthermore, the Department’s Decision Record addresses clearly sets out this concern (see paragraph 65 above) and therefore it could reasonably be expected that the applicant would have addressed this shortcoming at the review stage.

92)The Tribunal has considered a diagram which was attached to correspondence dated 18 November 2019 from the applicant’s migration representative.  It summarises the information provided in the Statutory Declarations in relation to those siblings who provided Statutory Declarations.  It also refers to another son of the sponsor who lives in the USA who visits his parents once a year.  The Tribunal does not give this diagram any weight as it does not provide any new or additional information than that contained in the Statutory Declarations and no corroborating evidence was provided. 

93)The Tribunal has considered the oral evidence provided by the applicant’s witness at hearing.  The Tribunal is prepared to accept that he and other family members are grateful to the applicant.  The Tribunal also accepts that he and his siblings have household chores and that it would be difficult for them to be with the sponsor 24 hours per day.  There is no suggestion that any one relative would be providing continuous care for the sponsor.  As no evidence was provided regarding his employment or that of his wife and siblings and their inability to contribute some assistance to the sponsor, the Tribunal does not accept the oral evidence provided by the witness.

94)The Tribunal considered the applicant’s oral evidence.  The Tribunal accepts that the sponsor has particular dietary preferences and requirements and would like to continue his religious and cultural practice in an appropriate way.  The Tribunal accepts that the applicant has been responsible for taking care of those needs and facilitating the social, cultural and religious activities.  The applicant’s oral evidence repeated the Statutory Declarations that his siblings and their children are unable to provide assistance to the sponsor.  These claims were not supported by evidence

95)Given the concerns outlined regarding the Statutory Declarations and other information and evidence provided as to why other family members cannot provide assistance to the sponsor, the Tribunal is not satisfied that the assistance required by the sponsor cannot reasonably be provided by the other relatives of the sponsor resident in Australia. 

96)The Tribunal has also considered whether assistance cannot reasonably be obtained from welfare, hospital. nursing or community services in Australia.

97)The Tribunal also considered evidence provided to the Department at the time of application, which included a report by Essence Consulting undertaken in 2012 about the availability of community/welfare and other home-based services that could be accessed by the sponsor taking into account his care needs, his dietary preferences and linguistic, cultural and religious needs.

98)The Department’s Decision Record documents that the applicant was asked in March 2016 to provide evidence that the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.  The applicant responded on 3 May 2016 by providing the same 2012 report.  On 31 May 2016 the same report was provided to the Department for a third time and on that occasion was accompanied by a covering letter from the applicant’s migration agent.  The letter referred to attempts by the sponsor’s family to obtain the care required by the sponsor from hospitals and elderly care homes.  It states that no suitable facility had been found to cater to the sponsor’s physical, linguistic and cultural needs.  The statement was not supported by any evidence regarding which particular facilities had been approached nor their responses.

99)In a post-hearing dated 18 November 2019 provided by the applicant’s migration representative to the Tribunal, the applicant has submitted that he has investigated options with retirement homes for both the sponsor and his wife.  Two facilities are referred to by name as having been approached.  The applicant contends that it would be in the government’s best interest cost wise to ensure that the couple live in their home and cared for there in their home environment.  The level of 24-hour care from an Indian speaking employee of the retirement home is not something any of these homes can provide.

1. No evidence was provided that the applicant has investigated options with retirement homes.  No evidence was provided that two specific facilities were approached nor was any evidence provided in regard to the outcomes of the approaches to them.  No evidence was provided that any of the retirement homes are unable to provide linguistically appropriate care.

2. On 13 December 2019 the Tribunal received an email from the applicant’s migration agent.  Attached to the email or a number of statutory declarations from family members as well as a number of health reports which have been addressed elsewhere in this decision.

3. The email states that the applicant’s father’s age and health conditions warrants that he remain at home with his wife and the applicant take care of him.  It states that it would be harsh to remove him from his comfort zone and place them in a care facility where everyone is a stranger to him and that he would not be comfortable living out of his home and being looked after by people with whom he is not comfortable. The letter states that at the age of 90 he is managing at home due to the care provided by the visa applicant. 

4. The Tribunal notes the submission made that due to the sponsor’s age and health conditions that it would be harsh to remove him from his comfort zone and place him in a care facility where everyone is a stranger to him and that he would not be comfortable living out of his home and being looked after by people with whom he is not comfortable.  However, the Tribunal’s consideration in relation to the requirements for the visa is not about the removal of the sponsor to a care facility but whether or not it is satisfied finds that the assistance required by sponsor cannot reasonably be provided by any other relative of the sponsor or obtained from welfare, hospital, nursing or community services in Australia.

5. Nothing in the applicant’s oral evidence at hearing reassured the Tribunal that attempts had been made to investigate options for the applicant to access welfare, hospital, nursing or community services for the sponsor.

6. Based on the evidence provided by the applicant it appears that little has been done by the applicant or any of his relatives in Australia to genuinely pursue any assistance which can be obtained from welfare, hospital, nursing, or community services.  The assessment undertaken by My Aged Care appeared to be focussed on the suitability of the sponsor’s current residence and his catheter management.  No evidence was submitted regarding any follow-up nor was any evidence provided regarding any additional assessments regarding the sponsor’s eligibility for a homecare package.

7. Submissions regarding whether assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia generally focussed on why they would not be suitable for the sponsor and evidence regarding attempts to access such services has not been provided.  Without evidence, the Tribunal does not accept that some level of assistance from welfare, hospital, nursing or community services in Australia cannot be accessed for the sponsor.  The Tribunal acknowledges that such assistance would not meet all the sponsor’s needs, however, it would complement the assistance that can reasonably be provided in combination by the sponsor’s relatives resident in Australia.  This would further reduce the assistance required to be provided by them and would make it even more reasonable.

8. For the above reasons, the Tribunal is not 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 and therefore does not meet the requirements of r.1.15 AA(1)(e).

9. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being a sponsor, and therefore does not satisfy cl.836.221.

Certification – r.1.15AA(1)(b)

1. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

2. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in Legislative Instrument IMMI 14/085, or issued by a specified health provider in relation to a review of such an opinion.

3. The Tribunal was provided with a Carer Visa Assessment Certificate dated 16 February 2020 in respect of the sponsor following an assessment of him that meets the legislative requirements.  However in view of the fact that the Tribunal has found that the applicant does not satisfy clause 836.213 of Schedule 2 of the Regulations and that the requirements of r.1.15 AA(1)(e) are not met, the Tribunal did not further consider the certificate or the sponsor’s impairment rating.

4. For the same reasons the Tribunal did not further consider submissions made regarding the discrepancies that arose in respect of the sponsor’s 2014 and 2016 assessments.  Having said that, the Tribunal did have regard to the submission provided to the Tribunal on 23 April 2020 on this matter.  In the main they related to the timing and involvement of the applicant’s current migration representative in his application.

Section 376 certificate

1. At hearing the Tribunal discussed with the applicant the existence of Section 376 certificate on the Department’s file. The certificate states “s.376 applies to the document(s)/information contained in folio(s) 378-380 of file number CLF2017/68358 and certifies that disclosure of this material would be contrary to the public interest because it relates to internal Departmental procedures”[16].

   [16] DIBP file, CLF201768358, folio 414.

2. Those folios relate to an internal email within the Department regarding the fact that the Carer Visa Assessment Certificate (CVAC) issued on 26 May 2016 referred to various medical conditions but made no mention of the applicant’s Alzheimer’s dementia or any other type of cognitive impairment and specifically stated that he had no cognitive impairment. 

3. The Tribunal explained that in its view the certificate is not a valid certificate because it does not explain why release is contrary to public interest. The Tribunal also explained that the certificate relates to issues regarding the sponsor’s 2014 and 2016 Carer Visa Medical Assessments that were put to the applicant under s.359AA of the Migration Act early in the hearing.

1. Initially both the applicant and his migration representative were confused about the purpose of the certificate, what it related to and why the Tribunal was asking the applicant to comment on its validity and the relevance of the documents to which it relates. The Tribunal acknowledged that discussion of the existence of s.376 certificates can be confusing and so it attempted to clarify and explain a number of times in different ways. The applicant appeared to understand and agreed with the Tribunal’s findings on the certificate. However, the applicant’s migration representative did not appear to understand.

2. The Tribunal again attempted to differentiate between the certificate and the documents to which it related and again explained that it had already discussed the potentially adverse information.  The Tribunal explained that existence of the certificate it itself will not affect its decision in any whatsoever.

3. Following further discussion, the applicant’s migration representative appeared to understand the issues regarding the certificate and clarified for the applicant. 

4. On 18 November 2019 the applicant’s migration agent wrote to the Tribunal indicating that it was their view that the material referenced in the s.376 certificate is relevant to the applicant’s case and that the applicant’s participation in the proceeding is undermined by the denial of access to this relevant material.

5. The letter states that this injustice enlivens the obligation of procedural fairness. It goes on to state that:

   “The Applicant has enough interest in the subject matter of the undisclosed material as it relates directly to the determination of the outcome of his case. As such the Applicant has a legitimate expectation that the Tribunal will afford him with procedural fairness and disclose information within the medical reports. The nondisclosure of the material relevant to the case will cause the Applicant to suffer from practical injustice. With this in mind, we humbly request that the Tribunal disclose the information contained in the 2014-2016 medical reports to the Applicant.

   In the event that the Tribunal determines that procedural fairness do not this might give rise to the disclosure of the 2014-2016 medical reports, we refer the Tribunal to s.359A of the Migration Act which states that the Tribunal must “give to the Applicant clear particulars of any information that the Tribunal considers would be the reason part of the reason for affirming the decision that is under review”.

   In our view the Applicant in this matter was offshore when the first application for a Carer Visa was lodged the documents were lodged by the previous lawyer. Our client advises that their family have used the same doctor over several years for his parents. He is unaware how and why the doctor’s report was not consistent with the previous medical report.

   We humbly request that the Tribunal provide the Applicant with clear particulars of the information present in the 2014 to 2016 reports and/or consider the current information before the Tribunal as a separate set of documents to the current application”[17].

   [17] AAT file, folio 97.

6. In response to this letter, the Tribunal wrote to the applicant on 14 April 2020 outlining the following:

   “I am writing in response to the letter of 18 November 2019 sent to the Tribunal by Ms Reddy.

   In that letter she refers to the matter of the certificate issued under section 376 of the Migration Act 1958. The existence of the certificate and the documents to which it relates were discussed with you at the hearing on 3 September 2019. The Presiding Member indicated at the hearing that in her view the certificate is not valid. The Presiding Member also indicated that it was her view that the documents to which the certificate referred to were relevant to its consideration. Those documents are an email exchange in relation to your sponsor’s previous medical assessments.

   Prior to the discussion regarding the existence of the section 376 certificate the Presiding Member had already put its concerns to you regarding the 2014 and 2016 Carer Visa Assessments. Those concerns related to two issues. Firstly, the medical reports provided for the 2014 Carer Visa Assessment and the 2016 Assessment itself raises concerns as to whether the sponsor had the mental capacity to understand the sponsorship undertaking and obligations at the time he signed the sponsorship form. The second related to why the medical reports which were provided for the 2016 assessment did not refer to the sponsor’s dementia and which appeared to result in a different assessment of the sponsor vis-à-vis the 2014 assessment.

   The letter of 18 November 2019 appears to link the medical assessments to the section 376 certificate. That is not the case. As outlined, the certificate relates to an email exchange, the content of which was discussed with you at the hearing. The Presiding Member has asked me to provide you with:

   1)a copy of the section 376 certificate;

   2)the documents which are covered by the certificate; and

   3)the 2014 and 2016 Carer Visa Medical Assessments pertaining to the sponsor which were provided to the Department”.

7. The applicant was provided 14 days to provide any further comment or response.

8. The Tribunal received a response on 22 April 2020. The letter addresses the migration representative involvement in the application from August 2015, the circumstances surrounding the 2016 Carer Visa Assessment and the conduct of the Department with regards to the issuing of the certificate dated 3 January 2018 pursuant to section 376 of the Migration Act 1958.

9. The letter states that the applicant believes the Department failed in its exercise of the power conferred by section 376(1)(a) of the Migration Act.  It states that the applicant agrees with the Tribunal’s finding that the certificate is not valid.  It states that had they been privy to the 2014 and 2016 CVACs they have been able to address the errors in the later assessment at the Tribunal hearing.  The letter states that the issuance of the certificate prevented the applicant from responding to the conflicting 2014 and 2016. It goes onto say that the release of the information would not have had a detrimental effect on any person.  Instead it would have given the applicant an opportunity to present his case.  The letter states that the applicant was deprived of procedural fairness and the opportunity to provide submissions on the validity of the certificate.  The letter concludes that the certificate does not explain how the disclosure of the information would not be in the public interest.

10. The Tribunal is satisfied that the applicant has been afforded procedural fairness in relation to the s 376 certificate by the Tribunal. The Tribunal made several attempts to explain its findings on the validity of the certificate and the relevance of the associated documents at hearing. While it appeared that this was eventually understood by the applicant at hearing, the post-hearing submission dated 18 November 2019 indicated that some confusion remained. It is for this reason the Tribunal wrote to the applicant on 14 April 2020 and provided all relevant documents. Furthermore, having considered the totality of the evidence presented, the issues that emerged from the documents related to the certificate were in the end not relevant to the Tribunal’s findings.

Concerns regarding the sponsor’s recent carer visa assessment

1. On 7 October 2019 the applicant sought an extension of six weeks to provide the additional written evidence. The Tribunal provided until 11 November 2019 for submissions. On 15 November 2019 the applicant’s migration representative sent an email to the Tribunal advising that the applicant’s father’s care provider needs additional time to prepare a detailed and sufficient report for him and sought a further extension of time.  No such report was provided to the Tribunal.

2. On 10 January 2020 the Tribunal telephoned the applicant’s migration agent requesting an update in relation to the health assessment. The Tribunal was told that the applicant has provided her with letter from BUPA dated 29 November 2019.  The representative stated that she believed that the applicant had booked an assessment and was waiting in the queue. She stated she would obtain an update are from the applicant. On 13 January 2020 the applicant’s migration representative provided an email to the Tribunal which attached an undated letter from BUPA regarding the assessment.

3. On 17 January 2020 the Tribunal requested evidence that a scheduled date for the assessment had been provided from BUPA or evidence that there had been a delay in scheduling the assessment. The Tribunal referred to previous correspondence indicating that there would be a four to six week delay for the assessment to occur and that time had passed. On 20 January 2020 the applicant’s migration representative wrote by email to the Tribunal stating that the applicant had informed her that BUPA had indicated a 6 to 8 week timeframe for the assessment to take place and at that time had not provided an actual appointment date.

4. On 21 January 2020 the Tribunal attempted to clarify the inconsistent information that had been provided regarding BUPA’s timeframes. In response the Tribunal was provided with a copy of an email from BUPA on 29 January 2020.  The email states that BUPA is currently experiencing high demand for such assessments and offered to provide an expected timeframe as to when the applicant may be contacted.

5. On 18 March 2020 the Tribunal again telephoned the applicant’s migration representative and requested an update as to whether a response from BUPA had been received regarding the timeframe for the sponsor’s assessment.  On the same day the Tribunal received an email advising that the assessment took place on 2 February 2020 and that BUPA would provide the documents directly to the Tribunal. On 19 March 2020 the Tribunal was provided with a copy of the BUPA report from the migration representative.

6. The Tribunal considers the delay in providing the assessment of the sponsor reflects very poorly on the applicant.  While the Tribunal accepts there was a delay until BUPA was in a position to undertake the assessment, the applicant did not provide the assessment at the earliest opportunity even though it was undertaken only a matter of days after the Tribunal had sought an update.  Furthermore, it was only provided after the Tribunal contacted the applicant’s migration representative.  This has created the impression that the applicant is avoiding a decision in the event the Tribunal affirms the Department’s refusal.

CONCLUSIONS

1. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought. [

DECISION

1. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Linda Holub
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.