Gulugul (Migration)

[2022] AATA 2269

Gulugul (Migration) [2022] AATA 2269 (5 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Judith Toto Gulugul

REPRESENTATIVE:  Ms Kathryn Smith

CASE NUMBER:  1835476

HOME AFFAIRS REFERENCE(S):          CLF2017/43175

MEMBER:Meredith Jackson

DATE:5 April 2022

PLACE OF DECISION:  Brisbane

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 05 April 2022 at 9:52 am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –valid Carer Visa Assessment Certificate – rating exceeds the impairment rating specified by the relevant instrument – visa applicant is a carer of the Australian relative – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 376

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 836.221

CASES

Biyiksiz v MIMIA [2004] FCA 814

Hon Anh Vuong v MIAC [2013] FCCA 274

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 14 November 2018 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 14 June 2017. 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 applicant was not the carer of an Australian relative as defined. The delegate was not satisfied that the availability of suitable residential aged care facilities or in-home assistance from community/welfare organisations or professional providers had been fully investigated by the applicant and sponsor. It had not been demonstrated therefore, that care of the sponsor, Ms Fidelma Marmar Jones, cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

4.The applicant appeared before the Tribunal on 31 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Fidela Marmar Jones and from the sponsor’s adopted daughter, Theresia Aghayere, an Australian citizen.

5.The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

BACKGROUND

7.The applicant is Judith Toto Gulugul, born in 1965. Ms Gulugul is the sister of an Australian Relative, Fidelma Marmar Jones, who was born in Papua New Guinea in 1952. Ms Jones is an Australian citizen separated from her husband, Peter Jones, who is a resident of Vanuatu. The delegate accepted that the applicant was a relative of the sponsor and that there were no relatives in Australia who could reasonably provide the relevant assistance to Ms Jones. The decision to refuse to grant Ms Gulugul the visa concerned a failure to provide evidence that the availability of public care services in Australia had been fully investigated.

8.On review, the applicant made written submissions to the Tribunal about a subsequent investigation of available services, which found nothing was affordable or suitable. The submissions showed Ms Jones had approached several mainstream public care facilities and while care was reasonably available, it was too expensive for her circumstances. Ms Gulugul stated that her sister has no assets to secure or fund a suitable level of care, her estranged husband does not meet her expenses very often and certainly not regularly, and it remains the case that no other relative in Australia is available to provide care on the level that Ms Gulugul has done since 2016. The applicant requested that the Tribunal make a decision on the papers before it. The Tribunal considered the request and decided to proceed with the hearing, on the basis that shortly after the primary decision was made on 14 November 2018, on 5 December 2018, the Department received information that did not support the applicant’s claim that no other Australian relative could care for Ms Jones.

ISSUES AND LAW

9.The issue in the present case is whether at the time of this decision, the applicant is a carer of an Australian relative.

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 sister. The department did not make a finding on the claim, on the basis that the Department’s integrity checks regarding the relationship between the applicant and her sponsor had not been finalised. The Tribunal is minded to make a finding, because after three and a half years, there is no evidence before the Tribunal that Ms Gulugul has subsequently been found not to be the applicant’s biological sister as claimed; and the applicant provided a Certificate of Birth Entry from Papua New Guinea, citing her mother as Maria Poipoi Tiatia and father as Adolf Gulugul Nichola. A baptism certificate of the sponsor naming the same parentage (Gulugul and Poipoi) was also provided to the Tribunal. In addition, Ms Jones’ claimed relatives in Australia, the witness Theresia Aghayere, Ms Jones’ adopted daughter, and Gemma Anderson, her other claimed sister, have provided statements that indicate Ms Gulugul as Ms Jones’ sister. The Tribunal is satisfied for the purposes of this decision that the applicant is a relative of the resident.

12.Therefore, as the applicant is the sister 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).

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 in Legislative Instrument IMMI 14/085.

15.On 14 March 2022, the applicant provided an assessment from BUPA dated 28 October 2021 certifying that the sponsor suffers from end stage renal failure and diabetic Nephropathy requiring dialysis three times a week, ischemic heart disease; Type 2 diabetes and chronic Hepatitis B. The sponsor was also assessed as legally blind. The Tribunal is satisfied that the certification meets the requirements of reg 1.15AA(2), and the resident has a medical condition causing impairments of her ability to attend to the practical aspects of daily life. The applicant’s impairment rating is specified in the certificate as 40, where 30 is the minimum required. Because of her medical condition, Ms Jones 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 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 requirements of reg 1.15AA(1)(b) are met.

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 citizen by grant. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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.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 meets the requirements of reg 1.15AA(1)(c).

20.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)

21.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.

22.The delegate’s decision contained a finding that having considered the extent of the resident’s care needs and the family and work commitments of her Australian relatives, the delegate was satisfied that, collectively or separately, those people would not reasonably be able to provide the full extent of assistance required. The Tribunal has had reference, however, to a matter arising since the decision was made and which is present on the departmental file.

23.Departmental file number CLF2017/43175 contains a certificate and notification regarding the Tribunal’s discretion to disclose certain information under s 376 of the Act. The Tribunal sent a copy of the certificate to the applicant prior to the hearing, inviting her to comment on whether she considered the certificate to be valid. The Tribunal has examined the certificate, which contains a public interest reason why the information should not be disclosed and is satisfied that the certificate is valid. The applicant stated at the hearing she had received the certificate and accepted it as valid.

24.Pursuant to s 359AA of the Act, the Tribunal said it would exercise its discretion and disclose the ‘gist’ of the information covered by the certificate to the applicant. The Tribunal said the information was relevant to the review because it was information which, if Tribunal were to rely upon, may be the reason or part of the reason to affirm the decision under review. The Tribunal put the information to the applicant and advised her that the Tribunal had not made up its mind about it and further, she did not need to comment immediately but could seek an adjournment to consider it.

25.The information was that there was an Australian relative of the sponsor who claims to have been pressured by another relative to declare that there was no one to care for the sponsor and this was false information as an alternative carer was available among the Australian relatives.

26.The applicant sought an adjournment of ten minutes to consider the information and the adjournment was granted. On resumption, the applicant said there was no-one in her family in whom she felt confidence as a carer other than her sister, the applicant, and her daughter Theresia, but Theresia had a family and a full-time job. She stated that she was not willing to be cared for by the remaining relatives because “half” of them were estranged from her and she did not get along with them. Her other sister, who once might have had time, now had a husband who was suffering from cancer and was not in a position to provide care, and she emphasised that the relative had not offered to provide a statement for the review saying she was available to provide care.

27.The Tribunal has considered the information provided to the Department and whether it indicates someone else, or a group of persons, could provide care. The Tribunal places little weight on the information provided, and accepts the sponsor’s explanation of her family circumstances. The Department’s acceptance that there was no other relative to care for Ms Jones is relevant, and the Tribunal is satisfied that situation has not materially changed excepting for the credible inference that one potential carer relative now has more immediate responsibilities than before and no longer works remotely on a fly out basis.

28.With regard to whether community services can be reasonably obtained to provide the required care, 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. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’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].

29.The applicant submitted on review that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. She provided evidence she had approached a range of nursing home and care providers, each of whom had high entry costs out of the reach of Ms Jones, who has demonstrated she has no assets other than a very modest bank balance and a disability pension from Centrelink of $1,093.50 per fortnight. While family members acknowledge they assist Ms Jones from time to time, the pension is her only regular income source for the sponsor and Ms Jones and Ms Gulugul use it to fund their modest requirements.

30.The applicant provided a Commonwealth Department of Health decision and eligibility notification for Australian Government subsidised age care dated 3 September 2018, the result of an assessment undertaken by the Metro North ACAT Aged Care Assessment Team. The sponsor was assessed for care being Australian Government subsidised aged care, and is entitled to permanent residential care, respite care of a period of up to 63 days per year of subsidised care (with the possibility of extensions of up to 21 days), or a Home Care Package at a Level 4.

31.In a submission to the Tribunal, the applicant argues that there are a number of reasons why such care would not be suitable. At present, the government will fund up to $52,377.50 per year in regard to a Level 4 Home Care package. On top of this, she argues, Ms Jones would be required to pay $11.02 basic daily fee, but this is conservative given the level of care she requires around the clock. This renders it “doubtful” the Home Care Package at its highest level can reasonably provide the care the applicant needs.

32.At the hearing, the applicant stated that Ms Jones also needs someone who can communicate with her in her own language of Tolai, which the applicant can. While she speaks English, it is at a functional level, rather than as a native speaker. Ms Jones was somewhat forthright on the subject of what would happen to her if she entered a nursing home in Australia, painting a bleak picture and flatly rejecting it as a solution in somewhat concerning terms. In short, the Tribunal was left with the clear impression she would strongly resist the move.

33.The Tribunal has carefully considered the care needs of the applicant and the additional perspectives of culture, language and whether adequate care cannot be provided by a relevant relative, or the welfare, hospital nursing or community services in Australia. Given her financial position and the needs she has, the only possible system for her is the public one. The complexity of her conditions, her language and cultural comfort zone and her vision impairment, however, persuade the Tribunal that this is not a reasonable option.

34.The Tribunal finds the sponsor’s needs for 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.

35.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.

36.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.

37.The applicant has declared that she is both willing and able to provide the substantial and continuing assistance required, and she has been doing so since 2016. Ms Gulugul is resident in the same premises as Ms Jones, and claims she shares a bedroom with her in order to ensure she is cared for throughout the night; she is able to conduct arrangements for all aspects of her care at a moment’s notice as Ms Jones’ welfare is her only concern. The Tribunal notes  that she has been doing so to the satisfaction of the sponsor since 2016, with very little financial support, and this weighs heavily in the applicant’s favour. The Tribunal is satisfied the applicant is committed to providing the required assistance.

38.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).

39.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.

40.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

41.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.

Meredith Jackson
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.