Dissanayake Mudiyanselage (Migration)

[2022] AATA 2956

Dissanayake Mudiyanselage (Migration) [2022] AATA 2956 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Gnanawathie Dissanayake Mudiyanselage

CASE NUMBER:  2011756

HOME AFFAIRS REFERENCE(S):          CLF2018/182975

MEMBER:M. Edgoose

DATE:19 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2022 at 12:33pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance reasonably provided by welfare, hospital, nursing or community services in Australia – impairment certification – assistance from family members – sponsor opening up a business – limited investigation of service providers – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.111, 836.212, 836.221; rr 1.03, 1.15

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 2 July 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 Act).

2. The applicant applied for the visa on 27 July 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant cannot reasonably obtain welfare, hospital, nursing or community services in Australia.

4. The applicant appeared before the Tribunal on 19 July 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Pincha Devage Thushari Nimanthika Wijewardana the daughter and sponsor of the visa. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant has claimed to be the ‘carer’

6. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s daughter.

7. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

8. The applicant claimed to be the carer of a relative. The caree is an Australian permanent resident.

9. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.

   Whether the applicant is a carer

10. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

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

11. 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 daughter.  

12. The Tribunal is satisfied that the applicant is the mother of the Australian relative and therefore meets reg 1.03. Therefore, as the applicant is the mother 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)

13. 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.

14. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion. . The Tribunal has considered the Bupa Medical Visa Services Carer Visa Assessment Certificate dated 16 January 2022 completed by examining doctor, Dr Somaiyeh Kadivar.

15. Dr Kadivar found that the resident has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life, that the impairment has an impairment table rating specified in the certificate and that because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life

16. The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in rr.1.15AA(1)(b)(i)–(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

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

17. 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.

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

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

19. 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.

20. In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

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

21. 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)

22. 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.

23. The Tribunal has given regard to the delegate’s decision dated 2 July 2020, that was submitted to the Tribunal by the applicant. According to the delegate’s decision on 14 May 2020 the Department wrote to the applicant requesting that she provide a declaration of all adult relatives of the sponsor that reside in Australia. On 23 June 2020 the Department received some information in response to this request. Included in this response was a individual statutory declaration from the sponsor and her husband, Mr Vimesh Chandima Wickremasinghe Godevithanage. Mr Godevithanage stated that he is unable to assist in caring for his wife due to studies and work commitments. He stated that

    ‘She has allowed me to peacefully work on my studies and career so I can financially provide for the family’

    ‘I currently have professional cricket training and work as a cleaner everyday…..’

    Although Mr Godevithanage has full-time work employment and other commitments that may preclude him from providing care to his wife, the sponsor, on a full-time basis the delegate was not satisfied that he was unable to contribute in any way to care for his wife and that there was no supporting documentary evidence to support his claims. 

24. According to the applicant’s visa application the sponsor stated that she has two children, a son Mr Rupasinghe Gamaarachchige Ravindu Yashodha born 23 April 2001, a daughter Miss Gamaarachchige Ranudivirangana born 04 September 2006 and a de-facto partner Mr Partnerdinesh Kaluarachchi born 04 August 1984. The Tribunal notes that on 26 June 2020 the applicant’s representative sent an email to the Department stating

    ‘the sponsor’s son was also subject to a significant amount of mental strain resulting from the attached and therefore he is not in a position to support his mother who needs specialised care and constant practical assistance’.

    The delegate was not satisfied that a statement only made by the representative is deemed sufficient evidence to support their claims and make lawful decisions. Notwithstanding this the delegate was not satisfied with the applicant’s response to the Department given that she had not included the sponsor’s children within her response on 23 June 2020. Given this the delegate was not satisfied that the sponsor’s son was unable to contribute to the care for his mother. Overall, the delegate was not satisfied that collectively the father and son could not provide assistance to the sponsor and therefore was not satisfied that reg 1.15AA(1)(e)(i) was met.

25. At hearing the sponsor informed the Tribunal that her husband is a professional cricketer and works for Saver’s discount supermarket in the retail section. At home he assists the sponsor by primarily taking care of the cleaning, gardening and walking the dogs with the assistance of the applicant. The sponsor further added that her son is now 21 years of age, is currently studying an electrician course and that he works part-time. The sponsor told to the Tribunal that although her son lives at home and does not help unless asked. Her daughter is now 16 years of age, is in year 10 at school and helps the sponsor at times around the house. The applicant provided the same response regarding the sponsors husband, son and daughter to the Tribunal.

26. At hearing the applicant stated that she would like to stay in Australia to help her daughter, the sponsor, who is in the final stages of setting up her own beauty salon business in the coming months. When the business is up and running the applicant will stay at home and look after the sponsor’s 16-year-old daughter, the applicant’s granddaughter. The applicant’s final comment to the Tribunal was that she wants to stay in Australia a little longer, that she doesn’t want to return to Sri Lanka due to its current situation and that she has now been in Australia for over 5 years and has seen her grandchild grow up.

27. At hearing the sponsor confirmed to the Tribunal that she is in the final stages of opening up a beauty salon which she plans to manage the day-to-day operations and employ a number of people. The Tribunal notes that no physical evidence of the planned business was submitted. The sponsor further added that she plans to open the business in 3 months’ time. She further claimed that she still needs her mother to remain in Australia with her as it makes her feel safe.

28. Collectively the Tribunal is satisfied that the sponsor’s husband, son and daughter could provide the required care. It would also appear to the Tribunal that the sponsor has regained much of her independence given that she is in the final stages of starting up her own business and therefore will not need the claimed care by the applicant, her mother. Given this the Tribunal is satisfied that the husband, son and daughter of the applicant can provided the assistance to the sponsor and therefore reg 1.15AA(1)(e)(i) is not met.

29. According to the delegates decision the applicant declared on Form 47OF that she had sought assistance from Insurance Co – Allianz – Home Help, gardening, transport etcetera but no evidence of any efforts to engage with this service provider was provided. On 14 May 2020 the Department wrote to the applicant to submit evidence that assistance required by the resident could not be reasonably be obtained from welfare, hospital, nursing or community services.

30. On 26 June 2020 the applicant’s representative made a submission to the Department via email and stated

    ‘Due to the intensive and constant nature of the assistance required, community service organisations do not have the resources to meet the sponsor’s individual requirements. The local counsel provides practical assistance with cleaning and vacuuming, however this is available only two days a week ………..’.

    The Department dismissed the representatives claims due to an absence of any documentary evidence to support the claims.

31. On 26 June 2020, the applicant submitted a statutory declaration from the sponsor, to the Department which claimed that she needed support from her mother, the applicant and that

    ‘….support and assistance cannot be replaced by any community organisation support as

    they cannot provide practical assistance according to my needs. Neither can anyone else

    provide the kind of support and care she provides as it is very specific and is required on a daily basis’.

    The delegate was not satisfied with this response given that the applicant had not thoroughly investigated a broad range of other potential care arrangements for the sponsor. Given this the delegate was not satisfied that the family had fully investigated the availability of in-home care from service providers or a combination of family support and in-home assistance. Given this the delegate was not satisfied that the applicant met the requirements of reg 1.15AA(1)(e)(ii).

32. The applicant told the Tribunal that she is not sure if her daughter, the sponsor, knows what services are available to her in Australia. However, the sponsor stated to the Tribunal at hearing that she was not looking for any services that are available to her in Australia. Given that the sponsor is not willing to accept or engage with the services available to her in Australia the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the applicant does not satisfy the requirements of reg 1.15AA(1)(e)(ii).

33. 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.

34. 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.

35. 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

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

    M. Edgoose
    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.