He (Migration) - [2022] AATA 4753

He (Migration) [2022] AATA 4753 (14 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Gui Zhu He
VISA APPLICANTS:  Mr Manxin LI
Mrs Xiubing Li
Miss Yishan Li
Miss Yixian Li
Master Weiliang Li
REPRESENTATIVE:  Ms Esther Yu (MARN: 9802211)
CASE NUMBER:  1908118
HOME AFFAIRS REFERENCE(S):          15/1309 OSF2015001309
MEMBER:SM Michael Cooke
DATE:14 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas 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
·cl.116.221 of Schedule 2 to the Regulations

Statement made on 14 December 2022 at 5:15pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – no other relatives in Australia – cultural and language service barriers – previous caring experience – availability of welfare, hospital, nursing or community services – cultural and language barriers – conditions in aged care facilities – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.221; 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 March 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 24 April 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. Relevantly to this matter, the primary criteria to be met include cll.116.211 and 116.221.
The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate was not satisfied that regulation 1.15AA(e) was met and that the principal visa applicant is a ‘carer’ of the Australian relative.
The review applicant appeared before the Tribunal on 30 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Andrew HO - a long-term friend of the sponsor. Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the that the principal visa applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading He (Migration)

Details

AGLC: He (Migration) [2022] AATA 4753
Case: [2022] AATA 4753
Decision Date: 14 December 2022

CaseChat Overview and Summary

This matter concerned an appeal by the visa applicant against a decision regarding an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The dispute centred on whether the applicant qualified as a 'carer' for an Australian relative. The decision was made by Senior Member Michael Cooke of the Tribunal.

The Tribunal was required to determine whether the visa applicant met the criteria to be considered a 'carer' under the Migration Regulations 1994. This involved assessing whether the Australian relative had a medical condition causing impairment in daily life, whether this need for assistance was ongoing, and crucially, whether this assistance could not reasonably be provided by other relatives in Australia or obtained from available welfare, hospital, nursing, or community services. The Tribunal also had to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal reasoned that the delegate's decision did not adequately consider all the evidence presented regarding the availability and suitability of aged care services in Australia. While the relative had been approved for various care packages, there were indications of long waiting lists and potential limitations in service provision, particularly concerning cultural and language barriers. The applicant's submission highlighted the relative's preference for culturally appropriate care and her lack of confidence in Australian nursing homes due to these differences. The Tribunal noted the significant findings of the Aged Care Royal Commission, suggesting that assumptions about the adequacy of aged care services should be made with caution. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with a direction that the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Migration Regulations 1994 be met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas 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· cl.116.221 of Schedule 2 to the RegulationsMichael CookeSenior MemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the that the principal visa applicant is a ‘carer’ of the Australian relative. The delegate’s decision (tendered to the Tribunal) indicates the following information has been sent to the delegate:A support plan for Ms HE dated 20 October 2017 by My Aged Care outlining that:·Ms HE is currently staying in a boarding house run by Yiu Ming Hung Food Tong Society and she seems to be well supported by her friends, her village community and distant relatives.·Ms HE is seeking case management, and would like to have residential respite high care and permanent care approvals completed as future care planning,·Ms HE is agreeable to future planning.·Ms HE was approved for Home Care Package level three, residential respite care high level and residential permanent care. She would benefit from Cantonese speaking workers. The approval was made on 20 October 2017.·The support plan was provided to Ms HE and GP Dr Dominic PAK andGeriatrician Dr Ernest TAM.·A letter dated 20 October 2017 by Gloria HO, ACAT assessor at Sydney Inner West ACAT outlining that:·Ms HE has been approved for Commonwealth funded care and these approvals do not expire and can be used at any time in the future,·A broadcast referral has been made to the providers noted on Ms HE’s support plan. Some service providers may not have availability and Ms HE may be placed on a waiting list. Ms HE is to contact My Aged care for further information regarding the progress of her referral if she has not been contacted in the next four weeks.·A progress geriatrician report for Ms HE by Dr Ernest TAM, which is dated 9 February 2019·Geriatrician report for Ms HE by Dr Ernest TAM, which is dated 26 August 2017·A letter by Inner West Aged Care Assessment Team noting that Ms HE has been placed on a waiting list for a home assessment.The Applicant’s Submission The applicant’s representative has tendered a submission addressing the key issues in the case as follows:The sponsor – Ms He needs a full-time carer for her daily life (we would like to refer to the Commonwealth doctor’s assessment, the reports from her treating doctor – Geriatrician Ernest Tam 5 March 2015; 26 August 2017 and 9 February 2019 and letter dated 30 November 2017 on the department file). Ms He has no family or close relatives in Australia. She started to seek full time services from welfare, hospital, nursing or community services since 2013. Ms He sought service from Baptist Community Service on the 04 April, had been told she needed to wait at least for one year. Ms He then sought service from Family & Community service and had been given only 1.5 hour per fortnight service. Ms He kept contacted Home care service. Until March 2015, the Home Care agreed to give 2 hours per week. Ms He then contacted Chinese Community Association and ACAT, as well as Vincentian Aged care service but had been told there were long waiting list. Eventually ACAT granted Ms He a home care service since 2019 and only 6 hour per week which were 3 hours on Tuesday and 3 hours on Thursday; the other age care services were only able to provide short term service (all these information and their contact details had been submitted to the Home Affairs since the age care services which approached by Ms He wouldn’t give a letter saying they had been approached by Ms He because it wasn’t part of their responsibility; therefore we only could provide the providers’ contact details for Home Affairs to clarify the matter with them. (please see the documents provided by us on the Department file).Ms He has multiple medical issues as well as chronic anxiety and panic attacks, due to her medical conditions, she had been hit by a car when she was walking on the street on 25th November 2017. We would like to submit that Ms He had tried her best seeking service providers in Australia - such as the Home and Community Care Program or the National Respite for Carers Program; unfortunately, the available providers could not give the appropriate care for Ms He. Her son and his family will be able to give Ms He a good care in physically and emotionally. In support this submission, I rely on the opinion of Dr Tam – her treating Physician & Geriatrician in his reportsMs He doesn’t believe in nursing homes because of the language, food and cultural differences from her own Chinese culture. Ms He has a preference for the food of her own culture and she lacks understanding in speaking and understanding English. Ms He doesn’t believe her requirements could reasonably be obtained from a nursing home in Australia. Therefore, she decided to sponsor her son to Australia to look after her. In addition, her son has a capacity and willingness to fulfill the requirements as a carer due to his continued studies via internet about caring for old age people and his experiences caring for his late grandparents in China (we would like to refer you to the visa applicant’s statement in the department file).The visa applicant had successfully operated in business in China and has accumulated reasonable funds (AUD1,000,000) to take to Australia if he is granted a visa. His family is willing to help in relation to take care of Ms He. The Aged Care Royal Commission commenced on 6th December 2018, well before the delegate’s decision, yet there is no reference in the decision to that significant investigation. The Interim Report, issued on 31st October 2019 is entitled “A Shocking Tale of Neglect”.The existence of the Royal Commission and the Letters Patent should have given some indication to the delegate of the problems facing the aged care sector and she should not have made assumptions based on facts which did not exist. The Final Report, issued on 1st March 2021, gives a shocking indictment of care provided in the aged care sector and must cast doubt on their ability to provide care for an elderly person. Where there is an available relative to care for an elderly person, that must be preferred until such time that the aged care sector has resolved all the problems exposed by the Royal Commission.For the reasons mentioned above, we hope your member will make a favourable decision.APPLICANT CLAIMS TO BE CARERWhether the visa applicant has claimed to be a ‘carer’