Denman (Migration)

[2022] AATA 5252

Denman (Migration) [2022] AATA 5252 (29 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Yoke Mui Denman

VISA APPLICANT:  Mr Stanley Van Goh

CASE NUMBER:  1920880

HOME AFFAIRS REFERENCE(S):          OSF2015/031219

MEMBER:Maxina Martellotta

DATE:29 November 2022

PLACE OF DECISION:  Perth

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

·cl 116.211 of Schedule 2 to the Regulations.

Statement made on 29 November 2022 at 12:04pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – assistance cannot reasonably be provided/obtained – Level 4 Home Care Package – Alzheimer’s dementia – significant functional decline – cognitive impairment – 24-hour care and assistance required – cultural, religious and linguistic considerations – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.211

CASES
Biyiksiz v MIMIA [2004] FCA 814

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 May 2019 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 26 November 2015. At that time, Class BO contained three subclasses: Subclass 114 (Aged Dependent Relative), Subclass 115 (Remaining Relative), and Subclass 116 (Carer) (item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations)). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevant to this matter, the primary criteria to be met include cl 116.221(1), which requires that at the time of decision the visa applicant is a carer of an Australian relative of the applicant. ‘Carer’ is defined in Reg.1.15AA.

3. The delegate refused to grant the visa on the basis that cl 116.221(1) was not satisfied because the visa applicant did not meet the definition of carer, as specified in Reg.1.15AA(1)(e)(ii). Specifically, the delegate was not satisfied that there was evidence to demonstrate the availability of residential facilities, or in-home assistance from welfare, nursing or community services had been fully investigated.

4. The review applicant appeared before the Tribunal on 9 August 2022 and 11 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, and two witnesses, Ms Tan and Ms Chan. The Tribunal provided the review applicant the opportunity to provide updated medical and carer information and evidence subsequent to both hearings. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. In addition to the oral evidence, other evidence before the Tribunal included written submissions and updated medical and service provider information provided by the review applicant and the Department file. All documents submitted up until the time of this decision have been considered.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

7. The review applicant was born in Malaysia in 1934. She is an Australian citizen resident in Australia. She is also the sponsor of the visa applicant.  The visa applicant is her son, a Canadian citizen resident in Canada.  The visa applicant claims to be the carer of his mother. The review applicant claims to have no other relative’s resident in Australia. The issue to be considered in this review is whether the visa applicant meets the definition of ‘carer’.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the visa applicant is a ‘carer’

8. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.

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

9. Regulation 1.15AA(1)(a) requires the visa applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 that is, a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s mother.

10. The Tribunal is satisfied, from the oral evidence and the documents included in the Department, file that the visa applicant is a close relative of the resident who is the Australian relative , as defined in reg.1.03. A copy of the visa applicant’s birth certificate confirms the review applicant is named as his biological mother.

11. As the visa applicant is the son of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

12. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

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

14. The Tribunal was provided with a Carer Visa Assessment Certificate (CVAC) undertaken by BUPA Medical Visa Service. It is dated 23 September 2022. The CVAC is signed by the examining doctor who carried out the assessment. The CVAC states that the requirements for a carer are satisfied as the review applicant has a medical condition which  results in the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

15. The Tribunal is satisfied that finds that the CVAC meets the requirements of reg 1.15AA (2). Further, the certificates address each of the matters mentioned in reg 1.15AA(1)(b)

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

16. Regulation 1.15AA (1)(ba) requires that the person who has the medical condition is an Australian citizen. A copy of the review applicant’s Certificate of Australian Citizenship provided in support of the visa application confirms her citizenship was conferred on 26 January 2007.

17. In terms of establishing if the relative is usually resident in Australia, the dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’.[1] Generally speaking, an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’.[2]

    [1]See Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’), Ignatious v MIMIA [2004] FCA 1395, and MIMIA v Hidalgo [2005] FCAFC 192.

    [2] See Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17].

18. A copy of the review applicant’s Certificate of Australian Citizenship confirms her citizenship was conferred on 26 January 2007. The Tribunal is also satisfied that the review applicant is usually resident in Australia. Evidence on the Department file in support of the visa application confirmed the review applicant lives in a property registered in her name. She first arrived in Australia in 1992 and, apart from periods of travel, has lived in Australia on a continuous basis.

19. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 1.15AA (1)(ba) are met.

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

20. 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.

21. In the present case, the impairment rating specified in the CVAC is 40. This rating exceeds the impairment rating specified by the relevant instrument and, therefore, meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

22. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

23. 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)

24. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia. Assistance is taken to be ‘direct assistance in attending to the practical aspects of daily life’[3]

    [3] Reg.1.15AA(1)(b)(iv)

25. The CVAC examining doctor has considered the following medical and assessment reports:

    ·Aged Care Assessment Team (ACAT) plan dated 8 September 2022

    ·Referral letter by Dr Adeniyi to eye specialist Dr Burvill dated 13 July 2022

    ·X-ray reports dated 28 June 2022

    ·Medical report prepared by geriatrician Dr Baird dated 28 June 2022

    ·Annual health assessment undertaken by Dr Adeniyi dated 11 November 2021

    ·Medical report prepared by Dr Adeniyi dated 17 August 2021.

26. The CVAC notes that the review applicant:

    a)     Was diagnosed with Alzheimer’s dementia in 2014 and that she has experienced significant functional decline over the last year with cognitive impairment.  She has been forgetting to take her medication, is forgetful and misplaces objects.  Safety concerns have been identified such as forgetting to turn of the stove or leaving the rice cooker on and forgetting to lock the door. During previous falls she had not been able to use the pendant alarm due to memory issues. She requires prompting to eat. 

    b)    She also suffers from osteoarthritis which affects her bilateral hands and feet, and the recent x-ray reports show severe degenerative changes. This has resulted in being unsteady when walking and experiencing falls. She needs assistance with stairs and getting in and out of the car.

    c)   The osteoarthritis in her hands means she struggles with opening and picking up objects, struggles with buttons and requires assistance in handling objects and dressing.

    d)    Her vision is declining but being in her home she is able to navigate the house independently.

27. The CVAC records the following medical conditions which may impact upon the review applicant’s capacity to selfcare include, Alzheimer’s dementia, Osteoarthritis of hands and feet and Degenerative lumbar disease with lumbosacral spondylosis

28. The CVAC states that the review applicant requires the following assistance:

    a)Assistance with mobility

    b)Bathing and showering

    c)Dressing and grooming

    d)Eating and feeding

    e)Supervising medication

    f)Supervision for personal safety

    g)Transportation

29. In September 2022, the review applicant was re-assessed  and been recommended by the Aged Care Assessment Team (ACAT) for a High Care Residential Respite that provides up to 63 days of subsidised residential care and a high priority Home Care Package at Level 4. The assessment also confirms that the review applicant has approval for permanent care. The assessment notes that the review applicant is an 88-year-old woman who is non-English speaking and speaks Cantonese.  She is Buddhist.

30. The visa applicant stated in evidence that some services associated with the Level 4 package have been put in place with a local service provider, Chung Wah.  The visa applicant provided information about the new services, which includes:

    ·Monday – three hours for shopping and each alternative Monday an additional two hours for social support;

    ·Wednesday – one hour weekly for domestic assistance; and

    ·Friday – two hours weekly for domestic assistance and respite.

31. The visa applicant in his evidence explained that, whilst most of the services required by his mother would be met by Chung Wah, that they cannot provide assistance to meet all her needs because his mother increasingly requires 24 hours supervision, and the package will not provide 24-hour assistance.

32. The evidence at hearing is that the review applicant lives alone in her home of thirty years.  In addition to the services provided by Chung Wah, she receives assistance and support from close neighbours and friends when her son, the visa applicant, is not in Australia. This was confirmed by the oral evidence provided by the review applicant’s neighbours who explained that even with the existing care services in place, they were often called upon to assist the review applicant when her son was not in Australia. The review applicant has no family members living in Australia.

33. On the available medical evidence, the Tribunal is satisfied that that the review applicant requires assistance and that she has a low level of independent living skills, and she is dependent upon other to care and support her. The Tribunal is satisfied that there are practical aspects of daily life for which the review applicant currently and for the next two years requires direct assistance.

34. The first question is whether assistance cannot reasonable be provided by another relative who is an Australian citizen, permanent resident or eligible New Zealand citizen. The Tribunal is satisfied on the evidence that the review applicant has no such relative, she is widowed. Her adult daughter resides in Malaysia and the visa applicant resides in Canada.

35. Accordingly, the central issue that arises is whether assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.  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, per Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason.[4]

    [4] Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

36. The Tribunal asked the review applicant why the assistance she requires cannot be met by her current services providers or by moving into residential care. The review applicant told the Tribunal:

    a)   She wants to remain in her home with the assistance of her son as her full-time carer complemented by in-home supports and care. She is familiar with her home and does not feel comfortable with strangers.

    b)    Culturally, it is important that her son is her carer as he is better able to understand and communicate with her in Cantonese and he also knows how to prepare the food that she likes to eat. As part of her religious observance, twice a month she is required to eat vegetarian food and her son understands how to cater for this. Her son also takes her to the temple twice a month.

    c)    She also stated that the service providers who currently came to her home were not consistent because staff often changed and did not always speak her language.  This causes confusion and discomfort.

    d)    The assistance she currently receives is limited.  It is not available on weekends and after hours.  At night, she suffers from cramps and if her son was there with her, he could help her.

    e)   She has been living in her home for 30 years; it is what she is used to and, as she only has a few years left, she wants to reside in her own home.  Her son is retired and single and can look after her, he understands her medical issues as he is the one who has been arranging services, medical appointment and attending appointment when he is in Australia.

37. The visa applicant told the Tribunal that:

    a)Whilst the assistance package provided to his mother would meet many of her assisted needs, his mother still needs his help because the services are limited by the hours of service and his mother is increasingly requiring full time supervision and assistance.

    b)His mother is afraid to go into a nursing home where the environment is not familiar. English is not her language and so communication is a problem because it is difficult for other people to understand her.  He can cook the food that she enjoys. She is mainly a vegetarian, and he takes her to the Temple.

    c)His mother trusts him and feels comfortable with him taking care of her.

    d)He understands her medical issues and needs as he has been the person who has assisted her with appointments

38. On the presented evidence, it is apparent that the review applicant’s care needs are increasing. On the balance, the Tribunal is satisfied that whilst the Level 4 package is able to currently provide assistance with a proportion of those needs there are significant gaps. The main issue is that there are limitations to the hours of assistance that can be provided, particularly after hours. The Tribunal is satisfied that the assistance the review applicant requires cannot be reasonably obtained through the Level 4 package she has been allocated as her care needs are such that she is requiring full time care and supervision.

39. The Tribunal in this matter has considered the questions of whether the care that the review applicant requires is reasonably obtainable from welfare, hospital, nursing, or community services and whether the review applicants wish to remain in her own home and to be cared for by her son is a personal preference rather that a cultural consideration.

40. The review applicant’s evidence is that she does not want to go into a residential care service she wants to remain in her home and have her son provide her with the full-time care that she requires. For this reason, the review applicant has not engaged or investigated what care options may be provided by a residential service.  The reasons for that position as described by the review applicant and the visa applicant include cultural, religious and linguistic considerations.  In the Tribunal’s view these are significant factors relevant to the review applicants care needs.  The review applicant states that her son speaks her language, can cook the food she prefers, and he can take her to Temple.  She feels comfortable and trusts him and she does not believe that she can obtain this in a nursing home. She also wants to remain in an environment that is familiar to her. The Tribunal otherwise notes that the visa applicant has engaged with a range of services providing in home care but as noted there are limitations in this regard.

41. The review applicant did not present any evidence to the Tribunal as to whether there were any residential services who could cater for her cultural, linguistic, and religious requirements. However, the Tribunal noted that a desktop search of residential services in the Perth metropolitan area identified that, whilst there are residential services which meet the criteria of culturally and linguistically diverse, none meet both the linguistic and language criteria identified by the review applicant.[5]

    [5] Myagedcare.gov.au – service provider search accessed 28/11/2022

1. In this matter, the Tribunal is satisfied that the review applicant’s position is not just one of personal preference but in the circumstances of her case the type of care that best meets her circumstances and needs is one that allows her to remain in familiar surroundings with a carer who can communicate in her own language and who can also best respond to her cultural and religious considerations. The Tribunal for all of these reasons accepts the submission that the assistance required by the review applicant cannot be reasonably provided from welfare, hospital, nursing or community services. In reaching this conclusion, the Tribunal also has noted previous Department policy, which identifies that the suitability of sources of assistance in relation to cultural factors is a relevant factor that may be considered when assessing whether assistance can be reasonably obtained from services.

2. The Tribunal is satisfied that the assistance cannot be reasonably provided by a relative, or obtained from welfare, hospital, nursing or community services in Australia and, therefore, the requirements of reg 1.15AA(1)(e) are met.

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

3. Regulation 1.15AA(1)(f) requires that the visa applicant is ‘willing and able’ to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance. [6]

   [6] Xiang v MIMIA [2004] FCAFC 64.

4. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase; in the sense, its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

5. Evidence provided in support of the visa application and oral evidence provided by the visa applicant at hearing confirmed that he is:

   a)Single and without dependents. As such, he is focused on providing his mother with full-time care.

   b)He is willing to commit to her care and is financially stable. As such, he is able to support his and his mother’s needs.

   c)He is willing to relocate and is physically fit, thus is capable of providing the required care.

   d)He has demonstrated that he is both willing and able to provide his mother substantial and continuing assistance of the kind needed. This capacity is demonstrated through the time he has previously spent with his mother, his engagement with her service and medical health providers, and his intimate understanding of her diagnosis and care needs.

6. The Tribunal notes that the visa applicant’s evidence is supported by references to the significant role he has played in his mother care in medical reports.   Tribunal is satisfied that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

   Conclusion on ‘Carer’ criterion

7. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and satisfies cl 116.221.

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.

   DECISION

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

   ·cl 116.221 of Schedule 2 to the Regulations.

   Maxina Martellotta
   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.