Fauni (Migration)

[2019] AATA 3819

Fauni (Migration) [2019] AATA 3819 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Marvelyn Fauni
Miss Markeana Angela Tinio Fauni
Miss Markim Angeli Tinio Fauni
Master Michael Angelo Tinio Fauni

CASE NUMBER:  1813639

DIBP REFERENCE(S):  CLF2015/38003 CLF2018/49292

MEMBER:Kira Raif

DATE:7 February 2019

PLACE OF DECISION:  Sydney

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

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 07 February 2019 at 3:06pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – Federal Circuit Court remittal – carer of sponsor – significant wait for assistance – substantial and continuing assistance – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 836.221, r 1.15AA

CASES

Perera v MIMIA [2005] FCA 1120

Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 June 2016 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants are nationals of the Philippines. The first named applicant (‘the applicant’) applied for the visa on 26 June 2015. The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was the carer of the sponsor. The applicant sought review of the delegate’s decision.

3. On 14 February 2017 the Tribunal made the decision to affirm the decision under review. The applicants sought judicial review in relation to the Tribunal’s decision and by order dated 8 May 2018 the Federal Circuit Court remitted the matter to the Tribunal for reconsideration. The case is now before the Tribunal pursuant to that order.

4. The applicants appeared before the Tribunal on 13 December 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.

6. Relevantly to this matter, the primary criteria to be met include cl.836.221, which requires the applicant to be a carer of an Australian relative. The term ‘carer’ is defined in r. 1.15AA.

   Whether the applicant is a carer

7. Regulation 1.15AA(1)(a) requires the applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the spouse of the applicant’s mother (the applicant’s step-father). Evidence of the relationship has been submitted with the application. Therefore, as the applicant is the child of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

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

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

10. The applicant provided with her application a copy of the Certificate issued by Bupa Medical Visa services on 4 June 2015. The certificate specifies that her mother, Ms Anderson, is a person who has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. The certificate indicates that there is a need for direct assistance in attending to the practical aspects of daily life because of the medical condition and that the need for direct assistance will continue for at least 2 years. The Certificate indicates that an impairment rating of 35 has been assigned.

11. The applicant provided with her application a number of other medical reports relating to her mother and the Tribunal has given these due regard.

12. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) and (c) are met.

13. 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. The sponsor is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

14. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.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 r.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.

15. The sponsor is the applicant’s step-father and the assistance is required by the applicant’s mother. The Tribunal is satisfied that the person who requires assistance is the spouse, and a member of the family unit, of the sponsor.

16. With respect to direct assistance, the applicant’s evidence to the Tribunal is that her father is unable to care for her mother because of his own medical needs. The Tribunal is satisfied that the sponsor’s medical needs affect his capacity to care for his wife. The Tribunal is satisfied that the sponsor’s medical needs prevent his ability to provide direct assistance to the person who is in need of assistance. The Tribunal is satisfied that the sponsor has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv). The Tribunal finds that the applicant meets r. 1.15A(1)(d).

17. 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.

18. The Tribunal invited the applicant to provide evidence as to why assistance cannot be obtained from other sources. The applicant provided a written submission to the Tribunal on 28 December 2018. The applicant states that both her mother and step-father require help due to their medical needs. The sponsor used to care for her mother but due to his own poor health, he is no longer able to do that. The Tribunal accepts that evidence.

19. The applicant states that even though her mother has been assessed as being eligible for assistance by ACAT, such assistance requires a 12 months waiting period and can only be provided to the maximum of 15 hours a week, which is not sufficient. The Tribunal is mindful, however, that the ACAT assessment was done in 2016 and even if there was 12 months wait, that period would have passed by now. The applicant provided evidence to the previous Tribunal in June 2016 of having made inquiries about a home care package.

20. In oral evidence, the applicant told the Tribunal that she lives with her parents and prepares daily meals for them. She helps her mother with showering and toileting, clothes and mobility.  She takes her mother to medical appointments. She also provides the same assistance to her father because he has back pain. The applicant states that her mother has been assessed by ACAT but her mother does not want an outsider in the house and they only provide assistance two hours a week. The applicant provided to the Tribunal a copy of the ACAT assessment which indicates that the applicant’s mother has been approved for Care at Home for Home Care Packages Level 1-4.  The applicant said that the care is very limited and her mother does not want to be cared for by strangers. 

21. At the Tribunal’s request the applicant provided further evidence concerning the availability of care services. The applicant provided a current ACAT assessment dated 21 January 2019. The applicant states that the services that her mother requires are not immediately available from any service provider. The applicant also states that her mother cannot afford the service that she needs to and of the standard she is comfortable with. The applicant makes the same claims in relation to the My Aged Care facilities, stating that the person in need of care would be required to wait to obtain those services and there would be financial costs  the applicant states that the ACAT assessment in itself does not mean that the person receives immediate care.

22. The applicant presented the Tribunal a statement from My Aged Care dated 21 January 2019 stating that her mother has been recommended for Home Care Package Level 3, residential respite high care and specialised support services. The Assessment summary indicates that the sponsor is “unable to participate in most tasks” and that she was not prepared to consent to permanent residential care at this stage. The applicant presented pricing advice from a nursing home.

23. In her declaration dated 29 January 2019 the applicant states that the ACAT assessment means her mother can access suitable service providers but it is up to the provider whether services are available. The applicant states that she had approached Summit Care, which is close to her home. She states that if care is considered suitable, her mother would need to apply for Centrelink approval, which would take about six weeks, and pay a fee of $64 a day, which includes a bed and one meal, and she would need to make additional payments for all other services. The applicant states that her mother cannot afford to pay for the services. With respect to availably of other services, the applicant states that there is a waiting period. She approached other organisations and was told that there are no places presently available and her mother can be placed in a queue.

24. Although the applicant presented limited documentary evidence to support her claims, the Tribunal has found the applicant to be a credible witness and generally accepts her evidence. The Tribunal accepts that residential care would require a waiting period and financial costs. The applicant’s evidence is that it is not immediately available. The Tribunal also accepts the applicant’s evidence, which is supported by the report prepared for My Aged Care, that her mother is unwilling to enter residential care. The applicant’s evidence is that her mother does not wish to see strangers in the house. On balance, and having regard to the totality of these circumstances, the Tribunal is satisfied that the assistance cannot reasonably be obtained from welfare, hospital or nursing or community services.

25. With respect to relatives, the applicant told the Tribunal that her step-father has siblings but they cannot provide care because they live too far and also because they have some ‘issues’. The applicant said she has not met some of these relatives as they live outside of Sydney.  Her step-father has two daughters but there is no communication with them. The Tribunal accepts the applicant’s evidence that her step-father has limited or no contact with his relatives. The Tribunal accepts that such relatives would not offer the assistance required by the applicant’s mother. The Tribunal is satisfied that the assistance cannot reasonably be provided by another Australian relative. The Tribunal is satisfied the applicant meets 1.15AA(1)(e).

26. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

27. 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 that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

28. The applicant’s evidence to the Tribunal is that she has been caring for her mother and father since entering Australia. She described to the Tribunal the nature of care she provides and the Tribunal acknowledges that the applicant has a substantial knowledge and understanding of her parents’ needs. The Tribunal accepts that the applicant has been providing the assistance in the way she describes. The Tribunal is satisfied she is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

29. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfiescl.836.221.

    Conclusion

30. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

31. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl.836.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member