He (Migration)
[2022] AATA 4753
•14 December 2022
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 LiREPRESENTATIVE: 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, 1.15CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64STATEMENT 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 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 reports
Ms 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 CARER
Whether the visa applicant has claimed to be a ‘carer’
Clause 116.211 of the Regulations requires that the visa applicant claims to be a ‘carer’ of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a ‘carer’ of the review applicant, who is the principal visa applicant’s mother.
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 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
Findings and reasons:
The applicant claimed to be a ‘carer’ of another person (‘caree’) at the time of application; and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen.
Therefore, at the time of application the visa applicant claimed to be a ‘carer’ of an Australian relative and satisfies the requirements of cl.116.211.
APPLICANT IS A CARER
Whether the visa applicant is a ‘carer’
Clause 116.221 requires that at the time of decision, the visa 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)
Regulation 1.15AA(1)(a) requires that 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 visa applicant’s mother.
Therefore, as the visa applicant is the son of the Australian relative, the visa 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)
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.
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.
Findings and reasons relating to the above requirement:
·The Tribunal finds that there is a certificate.
·The certificate meets the requirements of reg 1.15AA(2), and
·according to the certificate:
·the resident or a member of the family unit has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life
·the impairment has an impairment table rating specified in the certificate
·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
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.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
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.
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.
Impairment rating – reg 1.15AA(1)(c)
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 30. This rating is equal to the impairment rating specified by the relevant Instrument. Therefore, the applicant meets the requirements of reg 1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
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)
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.
The Tribunal finds that the assistance cannot be reasonably provided by another Australian relative as the applicant has no relative in Australia.
The Tribunal has assessed the applicant’s present health status from the information provided by her medical professionals. She has received assistance from welfare, hospital or nursing or community services in the past, however, it is plain from her contemporary medical history that she has deteriorated to such an extent (after her car accident in 2017) that she requires full time care but is prevented from having this by cultural factors such as language, food etc and her reluctance to enter a nursing home - were one suitable to be found. The Tribunal finds that the assistance cannot be reasonably obtained from welfare, hospital or nursing or community services.
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.
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
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.
Findings and reasons in relation to whether the visa applicant is both willing and able to provide substantial and continuing assistance required.
The visa applicant has indicated that not only is he willing to assist the applicant, but has undertaken ‘carer’ type instruction to assist his mother and has had previous care of a relative.
Therefore, the visa 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).
Conclusion on ‘Carer’ criterion
Given these findings the Tribunal concludes that at the time of decision the visa applicant is a ‘carer’ of the Australian relative, being the review applicant and, therefore, satisfies cl.116.221.
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 Regulations
Michael Cooke
Senior MemberATTACHMENT
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.
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