D'Cruz (Migration)

D'Cruz (Migration) [2022] AATA 1805 (16 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rock D’Cruz
REPRESENTATIVE:  Mr Derrick Peters (MARN: 1175659)
CASE NUMBER:  2018360
HOME AFFAIRS REFERENCE(S):          CLF2018/356814
MEMBER:Christine Kannis
DATE:16 March 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 16 March 2022 at 1:06pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant is the child of the Australian relative – Ms Barrett can reasonably provide significant assistance to sponsor – no evidence that Mrs D’Cruze’s family had meaningfully explored welfare, hospital, nursing or community services – insufficient evidence – at the time of decision the applicant is not a carer of the Australian relative– decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 December 2020 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).
The applicant applied for the visa on 18 October 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221 which requires the applicant is the carer of the Australian resident relative within the meaning of reg 1.15AA at the time of decision.
The visa was refused on the basis that cl 836.221 was not met because the delegate found the applicant did not meet the requirements in reg 1.15AA(1)(e)(i) and (ii) because sufficient evidence had not been provided to demonstrate that assistance could not reasonably be provided by any other relatives, or reasonably obtained from welfare, hospital, nursing or community services in Australia.
The applicant appeared before the Tribunal on 28 February 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Maria Barrett and Mrs Joan D’Cruze. Oral evidence by telephone was received from Mr Roan Barrett and Mr Joshua Barrett.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by MS Teams video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
In accordance with the President’s Direction Conducting Migration and Refugee Reviews (paragraph 8.2), the Tribunal has restricted its review to the particular criterion on which the primary decision was made.
The issue in the present case is whether the applicant meets the definition of carer in reg 1.15AA, for the purposes of satisfying the requirements of cl 836.221, which requires that at the time of decision the applicant is a carer of the person referred to in cl 836.212, that is the Australian relative the applicant claims to be the carer of at the time of application.
The term ‘carer’ is defined in reg 1.15AA(1)(a)–(f), (2) and (3) of the Regulations which is set out in the attachment to this Decision. The delegate was not satisfied that the applicant met:
·reg.1.15AA(1)(e)(i) – the assistance cannot reasonably be provided by any other relative of the resident (as defined) who is an Australian citizen or permanent resident; or
·reg.1.15AA(1)(e)(ii) – the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia
Prior to the hearing the applicant provided documentation which included but was not limited to statutory declarations, bank statements and a death certificate.
Background
In the present case, the visa application was made on the basis that the applicant is the carer of an Australian relative, his mother, Mrs Joan Philomena D’Cruze who is an Australian citizen.
The applicant is a citizen of the United States of America. He first came to Australia in 1993 and has departed and arrived on a number of occasions since then, primarily as the holder of a Subclass 601 visa. On 23 May 2018 he was granted a Subclass 600 Visitor visa which ceased on 9 November 2018. The applicant currently holds a Bridging visa.
Whether the applicant is a carer
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother.
The delegate noted that no formal assessment has been conducted to confirm the relationship status between the applicant and the resident, Mrs D’Cruze. At the hearing the Tribunal asked the applicant whether he is willing to undergo DNA testing to confirm his relationship with Mrs D’Cruze.
Given the applicant’s willingness to undergo DNA testing and the oral evidence received from the applicant and the witnesses, the Tribunal accepts that the applicant is the son of Mrs D’Cruze.
Therefore, as the applicant is the child of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
At the time of application, a Carer Visa Assessment Certificate (CVAC) dated 2 October 2018 was provided. An updated CVAC dated 27 August 2021 has also been provided. The updated certificate is signed and dated by the doctor undertaking the assessment on behalf of the authorised medical visa services, and the certificate addresses all the requirements for the assessment and report in a CVAC.
The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)–(iv). Accordingly, the applicant meets the requirements of reg 1.15AA(1)(b).
Residency status of person with medical condition – reg 1.15AA(1)(ba)
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition is an Australian citizen. Accordingly, the applicant meets the requirements of reg 1.15AA(1)(ba).
Impairment rating – reg 1.15AA(1)(c)
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.
In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore the 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)
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least two years as a result of the medical condition.
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
Regulation 1.15AA(e)(i) requires that the assistance cannot reasonably be provided by another relative who meets the relevant specifications.
Regulation 1.15AA(1)(e)(ii) requires that the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814.
The delegate’s decision
In the delegate’s decision it is recorded that on 17 November 2020 a request was made that the applicant provide statutory declarations from each of Mrs D’Cruze’s adult Australian relatives and that they address why they could not reasonably provide assistance to Mrs D’Cruze. The delegate recorded that in response a statutory declaration from Mrs D’Cruze’s daughter, Ms Maria Barrett, was provided. The Tribunal noted the statutory declaration dated 9 December 2020 in which Ms Barrett said:
Due to the sudden death of my husband, Guy Barrett it has been mentally and physically unstable & having to attend psychiatry help has taken a toll on me. To add to the problem of having to work to pay for my house mortgage and & other expenses it has become extremely difficult to care for my 83-year-old mother who is totally blind in one eye & partially in the other. In addition, she is deaf & having to suffer from “hammer toe” it’s made it difficult for her to walk. This has lead her to attend physiotherapy not only for her legs but back as well. For the record it was my husband who use to share the responsibilities of taking my mother to appointments & other needed chores. At this point of having her admitted to a retirement home will only lead to her health deteriorating since the specific care that is require will not be serviced. It’s due to these conditions it’s unreasonable to have her in a retirement home. Not forgetting our culture only allows an elderly to be taken by their child at this age.
The fact of my brother Rock D’Cruze having the credentials of not only taking care of our mother but has proven to be the only positive support for me as well. Having no personal family obligations or commitments of his own he not only fits the correct mold but will be a great asset all around. His background of working in a Trauma Hospital hs given him the skills & confidence needed to carry out every aspect of taking care of an elderly person. Thus who better to provide the care than my brother Rock D’Cruz.
The delegate noted that Ms Barrett had failed to provide evidence to show she is facing physical and mental challenges that would prevent her from providing assistance to her mother and had not provided evidence of employment and business demands on her time. The delegate noted Mrs D’Cruze has six grandchildren and that no statutory declarations had been provided by any of these family members. The delegate was not satisfied that the evidence provided demonstrated that Ms Barrett cannot reasonably provide assistance to Mrs D’Cruze including in conjunction with other family members. The delegate decided that it had not been demonstrated that it is unreasonable for Mrs D’Cruze’s relatives in Australia to provide the full extent of the assistance she requires on a collective or rotational basis. The delegate also decided that in the absence of sufficient evidence of a full exploration of what assistance may be available to Mrs D’Cruze from welfare, hospital, nursing or community services in Australia, reg 1.15AA(1)(e)(ii) was not met. These same issues have been considered by the Tribunal.
Pre-hearing witness submissions/statutory declarations and oral evidence at hearing
In a pre-hearing written submission, the applicant provided the following information:
·On hearing about the death of his brother-in-law and the poor mental health of his sister, he came to be with the family.
·After discussion and research, they concluded that practically and financially it would not be viable to use services available from community organisations or an aged are facility for their mother because of her high needs. Most importantly, their mother’s opinion, needs and wants were considered which was not to be placed in an aged care facility but to continue living at her home of 23 years.
·While awaiting a decision about his carer visa application, he has had the opportunity to care for his mother and his sister now has the time and opportunity to attend therapy sessions which she requires. She has been diagnosed with “nervous shock” by her psychiatrist.
·Since no other family member is able to undertake their mother’s care, he lodged the carer visa application to be a full-time carer for her.
Utilising the s 359AA process the Tribunal put to the applicant that his Movement Details show that he travelled to Australia 15 months after his brother-in-law’s death and he stayed for two weeks. He returned to Australia on 18 May 2017 and departed on 19 July 2017 and again visited Australia from 6 December 2017 to 19 December 2017 and from 9 March 2018 to 27 February 2019. He has now been here since 17 May 2019. His Movement Details show that, apart from three visits totalling three months in duration, he did not assist his sister to care for Mrs D’Cruze during the period from 15 September 2015 to 9 March 2018. The applicant agreed that his sister cared for Mrs D’Cruze without his assistance for extended periods.
The Tribunal asked the applicant about the discussion and research undertaken referred to in his written submission. He said in 2017/18 Mrs D’Cruze’s grandchildren looked into aged care facilities and “at home assistance”. He said they contacted several providers but he was not able to provide the names of those providers. He said the reason they did not pursue further enquiries about aged care facilities or assistance at home is because Mrs D’Cruze has refused to consider accepting care from anyone but family members. He said she said she may as well die if she has to go into an aged care facility and she refuses to have strangers help her at home. The applicant said in Indian culture the mother lives in the house, dies in the house and is taken to burial from the house. He told the Tribunal that his research revealed that in Australia 52% of people who are moved into an aged care facility will suffer depression, anxiety and loneliness and will not live long.
The Tribunal referred the applicant to the updated CVAC which set out Mrs D’Cruze’s current care requirements as requiring assistance with mobility, bathing/showering, dressing/grooming, supervising medication and personal safety and transportation. The applicant explained that when his mother is in the shower or the restroom he stands at the door to make sure she is safe. The Tribunal noted that the CVAC stated that it is Mrs D’Cruze’s daughter who helps with her showering. The applicant said his sister used to help with the showering but since he has been here for the past two years he has assisted Mrs D’Cruze with her showering. The Tribunal notes that the CVAC assessment was undertaken on 27 August 2021.
The applicant told the Tribunal that Mrs D’Cruze needs assistance with dressing insofar as she needs a zip done up or shoes placed before her. He said she attends to her underwear and hair without assistance.
In relation to supervision for personal safety the applicant told the Tribunal that Mrs D’Cruze also needs assistance to get up from an armchair and when she takes a walk outside the house. He said she does not need assistance to walk around inside the house.
The Tribunal noted that after her husband’s death Ms Barrett provided care to Mrs D’Cruze for significant periods without the applicant’s assistance and asked him the reason she cannot continue to provide the same level of care. In response the applicant said Ms Barrett is in therapy because she is not facing up to her husband’s death and she needs time for herself and to go into the community. He said because of this she does not have the inclination to do the laundry and the cleaning and so he is responsible for those household tasks. He said he also does the cooking.
In response to the Tribunal asking about his financial contribution towards the regular household expenses, the applicant said he does not pay anything towards the mortgage, the utilities or the groceries. He said he makes contributions when Mrs D’Cruze and Ms Barrett are not around and he gave an example of buying a Google remote control for Mrs D’Cruze.
The applicant told the Tribunal that when he lived in Texas he worked in a government hospital during which he gained experience in caring for patients.
The Tribunal accepts that the applicant provides some assistance with the care of Mrs D’Cruze.
In a pre-hearing written submission, Ms Barrett provided the following information:
·She was the full-time carer of her mother for 23 years when her husband was alive.
·Her husband worked full time and she worked two days and provided care to her mother on the other five days. Her husband cared for her mother on the two days she worked.
·The household expenses were paid by her husband’s full-time salary, carer allowance and her wages.
·After her husband passed away on 15 September 2015 she did not work for a few years due to mourning and depression. She has been treated by a psychiatrist.
·She received a modest payout due to her husband’s death and this temporarily supported her during this time. Her savings began to shrink and although she was receiving carer allowance she went back to work two days a week.
·The applicant has been able to help care for their mother on the two days she works.
·She needs to work full time to meet her household and personal financial needs.
·Although accessing community services has been considered by family members, her mother will testify that she will never accept personal care services from a stranger and would rather die than leave her home to live in an aged care facility.
·Her mother is deaf and 70% blind and feels comfortable in her home.
·The carer visa application was lodged after extensive discussion with her mother and after offering other options such as welfare and community services help and moving to an aged-care facility. Her answer was categorically in the negative. The carer visa application was made in her mother’s best interests and because the role was not possible to be undertaken by other family members.
·Due to the uncertainty around the AAT outcome, she has continued to provide care to her mother and has managed her finances on a “shoe-string” budget.

Ms Barrett told the Tribunal that when her husband was alive she worked every Friday and he cared for Mrs D’Cruze. She said sometimes she worked on a Thursday and on those days her daughter, Heidi, would help with Mrs D’Cruze’s care. She said Heidi had only one baby at that time and she now has four children.
Ms Barrett told the Tribunal that after her husband’s death, she did not work until 2018 or 2019 when she commenced working two days per week. The Tribunal noted that the applicant was not in Australia during periods in 2018 and 2019 and asked her about Mrs D’Cruze’s care when she was at work during those times. Ms Barrett said her daughter Heidi assisted with Mrs D’Cruze’s care at those times.
Noting that her pre-hearing written submission referred to her financial circumstances, past and current, the Tribunal asked Ms Barrett about the modest payout she received, managing her finances on a shoe-string budget and her need to work full time. Ms Barrett told the Tribunal that after her husband’s death she received a payout of his superannuation of $180,000. She said she will also be receiving compensation of $230,000 as soon as the paperwork is finalised. Ms Barrett said her outstanding mortgage is $30,000 and she intends paying it off once she receives the compensation payment.
Ms Barrett told the Tribunal that she thinks her current mortgage repayments are $150 per fortnight however her son has set up a direct debit for the repayments and she is not sure of the exact amount. Ms Barrett is currently in receipt of carer payment and evidence of this payment was provided. In response to the Tribunal asking the reason the applicant does not make any financial contribution to household expenses if she is managing on a shoe-string budget, Ms Barrett said he has his own savings and he pays for his own expenses such as clothing. She initially said she would never take anything from the applicant but then said he does pay for groceries sometimes. The Tribunal pointed out that he did not say this in his evidence. The Tribunal asked Ms Barrett whether Mrs D’Cruze makes any contribution to household expenses from her age pension. Ms Barrett said her mother’s medications are expensive and at first she said she did not take any money from her mother. The Tribunal pointed out that the cost of Mrs D’Cruze’s medications is unlikely to exceed her age pension and Ms Barrett then said that she does take money from Mrs D’Cruze’s age pension for her clothing, hairdresser and groceries.
The Tribunal referred Ms Barrett to her statement that the applicant has been able to help care for their mother on the two days she works. Ms Barrett confirmed that she looks after her mother on the remaining five days but also said both she and the applicant care for Mrs D’Cruze. She said she stands with Mrs D’Cruze when she is showering but her mother doesn’t like her to stand there because she wants to be independent and to be private. Ms Barrett told the Tribunal that after her shower Mrs D’Cruze has breakfast and then retires to her room and listens to audiobooks. She said later in the morning she gives her mother her medication and either she or the applicant makes her lunch. She said Mrs D’Cruze naps on and off all day but generally has an afternoon nap for an hour. She said when Mrs D’Cruze wakes up she goes for a walk in the backyard and if it is raining she does her walking exercises around the dining room table. She said they then watch television and she or the applicant cooks dinner.
In response to the Tribunal asking the reason she cannot care for Mrs D’Cruze without the applicant’s assistance, Ms Barrett said her mother has too many appointments and said she struggles with her own set of problems. She said her mother’s appointments include appointments for her eyes (every four or five weeks), podiatry (every five weeks), hearing aid (once a month), water therapy (once a week), physiotherapy (fortnightly) and general practitioner (as needed). Ms Barrett said she assists Mrs D’Cruze with her water therapy exercises and said she takes her mother to physiotherapy. Ms Barrett said she (Ms Barrett) sees a psychiatrist every three months and her last appointment was in November or December 2021. She says she takes Zoloft sometimes but prefers not to take medication.
The Tribunal asked Ms Barrett if any of her children assist her with caring for their grandmother. She said if she asks her children to come to the house and help they will but they have their own lives with work and family. She said her children visit each Sunday for dinner and sometimes they come for dinner on Thursday. She said they sometimes drop by on the way to the shop or to say hello.
The Tribunal asked Ms Barrett about her statement that she needs to work full time. She said she last worked full time from 2006 to 2008 in a government department. She currently works as an EA in a school on a permanent part-time basis. She works Wednesday and Thursday. The school have told her that they can offer her full-time work as an EA. Noting that Ms Barrett will be receiving a compensation payment of $230,000 out of which she will pay off her $30,000 mortgage, the Tribunal asked her the reason she wants to work full time after not having done so since 2008. In response she said that her psychiatrist has suggested that it may improve her state of mind however she doesn’t know whether it will.
The Tribunal asked Ms Barrett about the community services considered which were referred to in her written submission. She said in 2013 she contacted community services about bathing her mother or sitting with her at home. She said her mother refused to consider such assistance. She said a community service took her mother on an outing on one occasion and it was a bad experience because they did not assist her with her vision problem and she tripped over a bag and they did not take into account her hearing problem and shouted at her when she did not respond. Ms Barrett said after her husband died she wanted to access community services to assist with Mrs D’Cruze’s care but her mother said she did not want assistance from strangers.
The Tribunal finds that Ms Barrett provides significant care to Mrs D’Cruze. Although she said the applicant shares the care, her pre-hearing written submission says he helps care for their mother on the two days she works. Her evidence was that her daughter also assists on Wednesday with Mrs D’Cruze’s care. In addition, importantly the Tribunal places significant weight on the fact that Ms Barrett is in receipt of carer payment. The Tribunal notes that the qualification criteria for carer payment include that a carer provides constant care and a person is said to provide constant care if they personally provide care on a daily basis for a ‘significant period’ during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing carer payment is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities.
Ms Barrett’s reason for not being able to reasonably provide care to Mrs D’Cruze is that she needs to return to work for financial and mental health reasons. Minimal documentary evidence was provided to substantiate her claimed financial circumstances however her oral evidence was that she will be receiving a compensation payment out of which she will pay off her mortgage and have $200,000 remaining. No medical evidence was provided to substantiate Ms Barrett’s claim that working full time may improve her mental state.
The Tribunal finds that Ms Barrett can reasonably provide significant assistance to Mrs D’Cruze. The assistance is the assistance required as set out in the CVAC. The Tribunal finds that Ms Barrett currently provides this assistance to Mrs D’Cruze.
Mrs D’Cruze told the Tribunal that the applicant helps her by giving her breakfast and taking her into the backyard. She said one of her children stands outside the bathroom when she is showering and said Ms Barrett takes her clothes off for her. She said during the day she listens to audiobooks and naps in the afternoon. Mrs D’Cruze said she doesn’t need assistance from community services because she has her own room in her daughter’s house and she doesn’t like outsiders or strangers. She said she is happy having her children looking after her. Mrs D’Cruze said her grandchildren visit twice a week on Thursday and Sunday. She said her granddaughter, Heidi, comes on Wednesday and takes her to her house to see her great-grandchildren. She said her grandchildren are always coming in and out of Ms Barrett’s house.
The evidence before the Tribunal was that Mrs D’Cruze has another adult child, Winston, residing in Australia. Mrs D’Cruze told the Tribunal that she has not had contact with him for two or three years and when asked he said he could not assist with her care because he works and his wife has cancer. This was broadly consistent with the evidence given by the applicant and Ms Barrett regarding Winston not being prepared to assist in Mrs D’Cruze’s care. The Tribunal finds that Winston is not reasonably able to provide assistance to Mrs D’Cruze.
Four of Mrs D’Cruze’s six adult grandchildren residing in Australia provided statutory declarations prior to the hearing. The Tribunal received oral evidence from two of the declarants during the hearing.
A statutory declaration dated 10 February 2022 made by Mrs D’Cruze’s grandson, Mr Joshua Barrett was provided. Mr Barrett is aged 28. He stated that his wife suffers from depression and said they do not live close enough to attend to his grandmother’s needs “which is required on a 24/7 basis”. Google Maps indicates that the travel time between his address and Mrs D’Cruze’s address is 13 minutes. Mr Joshua Barrett told the Tribunal he and his wife work full time. He said he sees his mother and his grandmother once a week, on Sunday or Thursday. In response to the Tribunal asking whether he and his wife could assist in Mrs D’Cruze’s care he said they have commitments on several nights each week and on weekends including going to church. The Tribunal accepts that Mr Joshua Barrett has work and family commitments and is unable to provide all the assistance required by Mrs D’Cruze but finds that he can reasonably provide some assistance to his grandmother.
A statutory declaration dated 10 February 2022 made by Mrs D’Cruze’s grandson, Mr Roan Barrett was provided. Mr Barrett is aged 38. He stated that he and his wife have two children aged three and one and they do not live close enough to attend to his grandmother’s needs “which is required on a 24/7 basis”. Google Maps indicates that the travel time between Mr Roan Barrett’s address and Mrs D’Cruze’s address is 25 minutes. Mr Roan Barrett told the Tribunal that he visits his mother and grandmother once or twice a week. He said he sees them on Sunday because they attend church and then have dinner at his mother’s house. He said he sometimes visits on Thursday for dinner. Mr Roan Barrett said he works full time and his wife works part time as a relief teacher two or three days a week. In response to the Tribunal asking whether he and his wife could assist in Mrs D’Cruze’s care, Mr Roan Barrett said that they could assist if it is arranged in advance however they have family and church commitments so they could not assist every day. The Tribunal accepts that Mr Roan Barrett has work and family commitments and is unable to provide all the assistance required by Mrs D’Cruze but finds that he can reasonably provide some assistance to his grandmother.
A statutory declaration dated 10 February 2022 made by Mrs D’Cruze’s granddaughter, Ms Heidi Paulas was provided. Ms Paulas is aged 37. She stated that she and her husband have four children, aged nine, seven, four and three. She said they do not live close enough to attend to her grandmother’s needs “which is required on a 24/7 basis”. Google Maps indicates that the travel time between her address and Mrs D’Cruze’s address is 13 minutes. The Tribunal attempted to call Ms Paulas during the hearing however the call went to voicemail. The Tribunal noted Mrs D’Cruze’s oral evidence that Ms Paulas takes her to her home each Wednesday. In her evidence Ms Barrett referred to Ms Paulas assisting with Mrs D’Cruze’s care in the past, albeit when she had one child. The Tribunal accepts that Ms Paulas has family commitments and is unable to provide all the assistance required by Mrs D’Cruze but finds that she can reasonably provide some assistance to her grandmother.
A statutory declaration dated 10 February 2022 made by Mrs D’Cruze’s grandson, Mr Daniel Barrett was provided. Mr Barrett is aged 29. He stated that he and his wife have two children, aged two and three months. He said they do not live close enough to attend to his grandmother’s needs “which is required on a 24/7 basis”. Google Maps indicates that the travel time between his address and Mrs D’Cruze’s address is 11 minutes. Mr Daniel Barrett said his wife does not work. The Tribunal attempted to contact Mr Daniel Barrett by telephone during the hearing but the call was not answered. The Tribunal noted the oral evidence of the applicant and the witnesses that the family gather for dinner on Sunday and sometimes on Thursday. Given the close proximity of Mr Daniel Barrett’s address to his grandmother’s address, and in the absence of any further reasons than those provided in his statutory declaration, the Tribunal accepts that he has family commitments and is unable to provide all the assistance required by Mrs D’Cruze but finds that he can reasonably provide some assistance to his grandmother.
Mrs D’Cruze has two other adult grandchildren who live interstate in South Australia and Queensland. The Tribunal finds that these two grandchildren cannot reasonably provide assistance to their grandmother.
The written evidence before the Tribunal was that in December 2020 Ms Barrett contacted five residential care providers and three responded. No further information regarding any ongoing enquiries or responses was provided.
Prior to the hearing the Tribunal requested the applicant provide information including details of enquiries made and responses received in relation to assistance sought from welfare, hospital, nursing or community services including My Aged Care services as noted in the delegate’s decision. In response the applicant’s representative advised:
Although these options have always been points of consideration among the family members, Mrs Joan D’cruze will testify that she will never accept personal-care services from a stranger, and would rather die than to leave her home to live in an aged-care facility.
Being deaf and 70% blind, she feels comfortable in her home that she has lived in for many years.
The carer visa application was lodged after extensive discussions with her in this matter and after offering the other options to her – e.g. of seeking welfare and community services help and also, the option of moving to an aged-care facility.
Her answer from her was categorically in the negative
At hearing and in the pre-hearing written submissions it is claimed that it is not Mrs D’Cruze’s wish to receive any assistance from community agencies or to enter residential care. The applicant’s evidence was that research was undertaken in 2017/18 by Mrs D’Cruze’s grandchildren. Ms Barrett’s evidence was that after an unsuccessful outing in 2013, Mrs D’Cruze refused to consider any further assistance by community services. Mrs D’Cruze’s evidence to the Tribunal was that she did not want any assistance provided by strangers.
The Tribunal does not diminish the difficulties with a person having to come to terms with accepting assistance from welfare, nursing or community services or entering residential care. Making an adjustment of this sort is difficult for most people. The Tribunal has taken into account Mrs D’Cruze’s wishes and the claimed cultural factor. Nonetheless, the test is whether the required care can be reasonably obtained and while cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, a person’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34]. In this case Mrs D’Cruze wishes to be cared for by her children and does not want strangers involved in her care. The applicant referred to Indian culture and said a mother stays at home until she dies. No other cultural factors were raised and the cultural factor related to residential care and not community services. While it may be Mrs D’Cruze’s strong preference it is not, in the Tribunal’s view, a cultural reason for not accepting assistance from welfare, hospital, nursing or community services.
At the time of hearing there was no evidence before the Tribunal that Mrs D’Cruze’s family had meaningfully explored welfare, hospital, nursing or community services for their mother and grandmother. Therefore, the Tribunal is unable to assess whether the assistance Mrs D’Cruze requires cannot reasonably be obtained from the welfare, community or nursing services. It is not sufficient to provide little or no evidence of assistance from these services when assistance is potentially available. Based on the minimal evidence, or lack of evidence, the Tribunal is not satisfied that the assistance Mrs D’Cruze requires cannot reasonably be obtained from Australian welfare, hospital, nursing and community services.
Representative’s submissions
The representative submitted that Mrs D’Cruze’s grandchildren have personal and work commitments and they are unable to provide the type of care required by Mrs D’Cruze. He said there is nobody available to replace Ms Barrett. He said Mrs D’Cruze requires 24/7 care and there are no other family members or external organisations who can provide this care. Notwithstanding the claim that Mrs D’Cruze requires 24/7 care, there is no probative evidence before the Tribunal that she requires or receives assistance from the time she goes to bed at night until she gets up in the morning.
The representative said Mrs D’Cruze gave evidence that she felt comfortable being cared for by the applicant and Ms Barrett. He said the expectation in the Indian community culture is that parents are not put in a nursing home or ‘given to someone else’. He said if a person has dementia they may be put in such a facility however Mrs D’Cruze is physically not mentally disabled and she is able to make her own decisions. The representative submitted that if Mrs D’Cruze is placed in an aged care facility it may affect her mental state and her lifespan.
Conclusion
The CVAC sets out the assistance Mrs D’Cruze requires and this includes assistance with some activities of daily living, supervising medication and personal safety and transportation.
The applicant’s evidence was variously embellished or vague, in a manner that appeared to be to support his claim that he provides the required assistance to Mrs D’Cruze. The Tribunal does not suggest that he doesn’t provide his mother with care and companionship in the home. However, given the fact that Ms Barrett is in receipt of carer payment and taking into account the oral and written evidence, it is clear that Ms Barrett provides a significant amount of assistance with respect to Mrs D’Cruze’s day-to-day needs and taking her to regular appointments which include assisting with her weekly water therapy exercises. In addition, the evidence was that when Ms Barrett is at work on Wednesday, Ms Paulas provides assistance to Mrs D’Cruze.
The Tribunal has considered the statutory declarations provided by Mrs D’Cruze’s grandchildren and the oral evidence of Mr Roan Barrett and Mr Joshua Barrett and is not satisfied that they could not, in combination with their mother, reasonably provide the required (as set out in the updated CVAC to be assistance with mobility, bathing/showering, dressing/grooming, supervising medication and personal safety and transportation) support to their grandmother. This could be in combination with other services that could be obtained within the community. The Tribunal accepts that the grandchildren would prefer not to provide assistance as they have their own lives, but their preference is not the test and the Tribunal has found that despite their family and work commitments, they can reasonably provide the required assistance to their grandmother.

It is worth noting that care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA at [55[, the court held that reg 1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. In the present case the Tribunal is satisfied that it is reasonable for the required assistance (as set out in the updated CVAC) to be provided by more than one relative. It is clear that Ms Barrett and Mrs D’Cruze’s four adult grandchildren residing in Western Australia are a close-knit family who spend time with each other on Sunday and at other times during the week. Mrs D’Cruze said her grandchildren are always in and out of Ms Barrett’s house. Ms Paulas already assists in Ms D’Cruze’s care for some time each Wednesday.
As noted above , the Tribunal is not satisfied that the assistance Mrs D’Cruze requires cannot reasonably be obtained from Australian welfare, hospital, nursing and community services. If the family are totally opposed to welfare, hospital, nursing or community services, the Tribunal is not satisfied that the required care cannot reasonably be provided by relevant Australian relatives together with some welfare or community services care.
The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are not met.
Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.
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
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Christine Kannis
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.

[2022] AATA 1805

16 March 2022

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