Fitzgerald (Migration)

[2024] AATA 366

Fitzgerald (Migration) [2024] AATA 366 (21 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs May Babaran Fitzgerald

CASE NUMBER:  2115600

HOME AFFAIRS REFERENCE(S):          CLF2018/211035

MEMBER:Deputy President Justin Owen

DATE:21 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa 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 21 February 2024 at 11:01am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance could not reasonably be provided by relatives in Australia – welfare, hospital, nursing or community services in Australia – sponsor lives remotely from relatives – limited services in regional community – lengthy genuine partner relationship – decision under review remitted          

LEGISLATION

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

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 Home Affairs on 19 October 2021 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 7 September 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 that it had been demonstrated that it would be unreasonable for the applicant’s Australian relatives to provide the care the sponsor requires. The delegate was also not satisfied the care the sponsor requires could not be reasonably obtained from welfare, hospital, nursing and community services. The delegate also found that there was no evidence to suggest the applicant was willing and able to assist the sponsor. 

4. The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, and sponsor Mr Barry William Fitzgerald and their daughter Miss Princess Fitzgerald.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant is a carer

6. 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.

7. 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 husband.   The Tribunal is satisfied on the evidence before it that the applicant is the spouse and therefore a ‘relative’ of the Australian relative who is an Australian citizen usually resident in Australia.    

8. Therefore, as the applicant is the spouse 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).

9. Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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.

10. 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.

11. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 20 August 2018 by Dr J E Carroll. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 40) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

12. The Tribunal finds that the certificate provided does meet 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 requirements of reg 1.15AA(1)(b) 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.

14. 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.

15. 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.

16. 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 exceeds the requirements of reg 1.15AA(1)(c).

17. 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.

18. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

19. 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.

20. The sponsor’s CVAC states the sponsor is partially dependent, requiring assistance with mobility, bathing/showering, dressing/grooming, eating/feeding, supervising medication, and transportation. The sponsor was diagnosed with conditions including prostate cancer with occasional urinary incontinence; ischaemic stroke residual hemiplegia left sided, predominant arm weakness; atrial fibrillation; hypertension; and degenerative cervical disc disease.  The sponsor has been living with the applicant over many years.  Until recent years they were also living with their two Australian citizen daughters who are each now studying at university.  

21. The Tribunal has considered the various medical evidence submitted concerning the sponsor’s health.  The applicant has a long history of prostate cancer and undergoing radiotherapy.  He has degenerative issues in relation to his spine that cause lower back pain. He has mobility issues and has a ramp installed at his home.   

22. The Tribunal has considered whether the applicant meets reg 1.15AA(1)(e)(i), which requires that the assistance the sponsor requires cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen.

23. The applicant resides with the sponsor/Australian resident who has the medical condition.  The applicant and sponsor have been in a partner relationship together for around a quarter of a century, having first met in The Philippines.  The parties originally married in The Philippines but claim to have had had issues with their registration. They married in Australia in 2017.  They have two daughters together: Princess born in 2000 and Maria born in 2002.   

24. The applicant and sponsor discussed with the Tribunal whether the assistance required by the sponsor could not be reasonably be provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen.

25. The sponsor and Australian resident requiring care lives in Moree, a town of around 7,000 people in North-West NSW, over 600km from Sydney and almost 500km from Brisbane.  He has been living there for over seven years and from the evidence is an integrated part of the community.  The sponsor is 83 years of age and has a living brother and sister each residing in Yass in southern NSW.  He has some nephews and nieces through his siblings who also reside in Yass.  Yass is around 700km from Moree.  The Tribunal accepts on the evidence that the sponsor’s Australian citizen family members in Yass are unable to reasonably provide the assistance the sponsor requires.

26. The Tribunal accepts the sponsor has no other family members that are Australian citizens, permanent residents or eligible New Zealand citizens that may be able to reasonably provide the assistance required other than the two daughters of the sponsor and the applicant. 

27. The sponsor and applicant’s eldest daughter, Miss Princess Fitzgerald, appeared before the Tribunal.  She explained that she is studying a full-time degree in Criminology at the University of New England.  Whilst she lives in Moree, she is living with her partner and furthermore presented evidence that she works at Kentucky Fried Chicken to support her university studies.  Whilst the Tribunal considers Miss Fitzgerald is able to provide some assistance to her father the sponsor, the Tribunal accepts that she cannot reasonably provide the assistance the sponsor requires.  The Tribunal notes the sponsor has specific needs and supervision of medication remains a significant issue with the sponsor’s increasing age and mental capacity.  He is taking a range of medications in relation to his radiotherapy that can have very grave effects if taken in excess.  The sponsor expressed concerns as to his ongoing memory and the significant role a carer takes in ensuring he does not inadvertently take his medications on multiple occasions.  The Tribunal accepts Miss Fitzgerald’s study and employment obligations make playing such a role very problematic.  The Tribunal concludes that Miss Fitzgerald cannot reasonably provide the assistance required by the sponsor. 

28. The sponsor and applicant’s second daughter Miss Maria Fitzgerald lives in Toowoomba where she studies at university.  The parties in oral evidence stated that she returns to Moree sometimes for university holidays and assists the sponsor.  The Tribunal accepts the evidence that Miss Maria Fitzgerald cannot reasonably provide the assistance required by the sponsor given her personal circumstances. The Tribunal notes that the parties in their oral testimony were transparent and open when stating that assistance was provided when Miss Maria Fitzgerald was in Moree.  The sponsor’s medical needs and demands however are clearly in excess of what can be provided by his second daughter.     

29. The Tribunal has considered whether the applicant and sponsor’s two daughters’ inabilities to reasonably provide the significant assistance the sponsor requires can be provided either individually or collectively with other family members and/or in conjunction with welfare, hospital, nursing or community services. The Tribunal is not satisfied the assistance can reasonably be provided. 

30. It is recognised by the Tribunal that the sponsor as the Australian resident has significant needs.  The Tribunal accepts the evidence that that care has been provided by the sponsor’s wife, the applicant, now for many years.  The Tribunal accepts that she has played quite simply an indispensable role in providing the sponsor with the assistance he needs and continues to do so today.    

31. The Tribunal is satisfied on the evidence that the sponsor’s family in Australia are unable to provide the assistance the sponsor requires. 

32. The Tribunal is subsequently satisfied that the assistance the sponsor requires, as the Australian resident, cannot reasonably be provided by another Australian relative.  Accordingly, the requirements of reg 1.15AA(1)(e)(i) are met. 

33. The Tribunal notes that for the applicant to meet reg 1.15AA(1)(e)(ii), the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital, nursing or community services.  

34. The Tribunal discussed the requirement that all options must be sought in order to determine that there is no assistance able to be reasonably obtained from welfare, hospital, nursing and community services in Australia.  The Tribunal also pointed out that more was required than just the sponsor’s personal preference for the care he needs to be obtained from his wife, the applicant. 

35. At the hearing the Tribunal discussed with the applicant and sponsor the response in the application form that stated the sponsor had not sought assistance from welfare, hospital, nursing or community services.  The parties confirmed that the sponsor receives extremely limited assistance and his care is essentially provided by the applicant. 

36. Years have now elapsed since the applicant and sponsor moved to Moree and the Tribunal is not entirely satisfied that satisfactory efforts have been undertaken in this time to ascertain if the assistance the sponsor requires can be reasonably obtained from services in Australia.  The Tribunal considers the evidence of these efforts being undertaken in Moree is vague, but ultimately accepts the sponsor has made enquires through aged care providers and the local veteran community.   

37. Likewise, the Tribunal furthermore notes that when considering the level and kind of care reasonably obtainable from welfare, hospital, nursing or community services, the Tribunal assesses that the assistance to treat the sponsor, is not reasonably obtainable in the sponsor’s community.      

38. On the evidence the sponsor as the Australian resident is integrated into his local community as a volunteer and a resident.  The Tribunal notes again that the sponsor resides in Moree, an isolated township with limited welfare hospital, nursing and community services that meet his specific needs.  The sponsor travels to Tamworth for a significant amount of his treatment.  The Tribunal discussed with the sponsor what efforts he had made to make contact to obtain such services locally. Ultimately, the Tribunal is satisfied that these services are very limited in Moree and the surrounding districts.

39. Recognising the sponsor’s needs, the Tribunal is therefore satisfied that the assistance the sponsor requires cannot reasonably be obtained from welfare, hospital, nursing or community services.  Whilst these services may be available if the sponsor is prepared to relocate to another larger town or city, given the sponsor’s personal circumstances, the Tribunal does not consider this to be reasonable.  The Tribunal notes the sponsor’s age, his ongoing battle with cancer, and his failing eyesight.  His daughter lives in Moree.  The Tribunal notes the sponsor is an active member of the Australian veterans’ community as President of the Northwest National Service (Nasho) Association Sub-Branch, a body comprised of former Australian servicemen who were conscripted into Australia’s armed forces.  His work in the veterans community in North-West NSW, and indeed his volunteerism in the wider community, is invaluable.  The Tribunal considers it would not be reasonable for him to essentially be required to relocate to obtain such services.

40. In having considered all the evidence before it, the Tribunal subsequently is satisfied on balance that that the specific assistance and support the sponsor requires cannot be obtained from welfare, hospital, nursing or community services.  The Tribunal accepts he does require essentially ongoing care to monitor such matters as his medication.  His failing eyesight and early dementia – combined with his ongoing cancer treatment – mean he is an individual of considerable and growing needs.  There is no question that his wife and long-time partner for well over a quarter of a century is providing the assistance and support he requires.  The Tribunal is satisfied the specific welfare, hospital, nursing or community services the sponsor requires are not available in the Moree township.

41. Services that the sponsor specifically requires from a carer are limited in an area like North-Western NSW.  The Tribunal is 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 met.

42. Having found the applicant meets reg 1.15AA(1)(e), the Tribunal has considered Regulation 1.15AA(1)(f) which 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.

43. Elements of what makes up substantial and continuing assistance have been the subject of conjecture. 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.

44. Residents together as partners now for decades, the Tribunal questioned the applicant as to the assistance she provides the sponsor.  The Tribunal is satisfied that the applicant has been in a genuine partner relationship with the sponsor since 1998 and been living together with the sponsor in Moree providing him with care and support since since 2017.   The Tribunal is satisfied that the applicant is both willing and able to provide the care the sponsor requires.  The applicant is articulate with good English skills, has experience caring for her own elderly parents previously, and is not in employment in Australia.  The Tribunal questioned the applicant in detail about the care the sponsor requires, and the care she provides.  The Tribunal found the applicant to be honest, candid and genuine in her responses.  Her care for her husband – and the exhaustion she feels as his carer – was obvious at the Tribunal’s hearing.  Quite simply, the applicant and sponsor – together with their daughter Miss Princess who gave consistent testimony – would appear to be an everyday Australian family where the applicant provides significant care and support for her husband who is gravely ill and undergoing significant treatment.     

1. Engaging with the significant era the applicant and sponsor state they have lived together, the Tribunal questioned the applicant about matters such as cooking, domestic cleaning, personal hygiene, showering, dressing, giving medication, transport and supervision and is satisfied the responses the applicant provided were both genuine and detailed.  The Tribunal accepts the applicant is providing these services to the sponsor. 

2. The Tribunal is satisfied the applicant has been providing ongoing substantial and continuing assistance of the kind needed by her husband the sponsor for some considerable years and continues to be both willing and able to do so today. 

3. Therefore, the 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).

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

5. 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.

6. For completeness, the Tribunal notes that what may have been the easier and more logical pathway for the applicant and sponsor to follow in relation to the applicant’s migration status would be to lodge an application for a Partner visa.  All the evidence before the Tribunal suggests the applicant and sponsor have been in a genuine and continuing de facto or spousal relationship since 1998.  They have two children together who are both now successfully at university and loving of their parents.  When the Tribunal enquired of this fact, the sponsor stated that he and the applicant had not sought any advice before lodging their application. 

   DECISION

7. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa 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;

   Justin Owen
   Deputy President

   
   

   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.