Hino (Migration)

[2021] AATA 1562

Hino (Migration) [2021] AATA 1562 (19 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eddie Pithyou Hino

CASE NUMBER:  1818613

HOME AFFAIRS REFERENCE(S):          CLF2016/56677

MEMBER:Denis Dragovic

DATE:19 April 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 19 April 2021 at 1:57pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – availability of suitable facilities or assistance from other family members or providers – other family members’ physical and mental health and other responsibilities – sponsor’s cultural and personal preference for son’s care – approved for intermediate-level home care and high-level subsidised respite care – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 367
Migration Regulations 1994 (Cth), r 1.115AA, Schedule 2, cl 836.221

CASE
Jajo v MIBP [2013] FCCA 1554

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 20 June 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 September 2016. 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 (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 found that the sponsor and applicant had not ‘fully investigated the availability of suitable aged care facilities or in-home assistance for the resident from welfare agencies or professional service providers.’ As such the delegate found that it was not demonstrated that the care the sponsor requires ‘cannot reasonably be obtained from welfare, hospital, nursing or community services.’

4. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. Specifically, that the applicant is represented and during outreach with the representative the options were offered of appearing at the Sydney Tribunal offices to be heard by video to the Melbourne Tribunal offices where the member is based or alternatively using MS Teams video conferencing technology. The representative chose the latter and volunteered to host the applicant and witnesses at his offices. Considering that the number of witnesses I deemed to be manageable and that they were to be supported by the representative who would be sitting alongside them in person I took a favourable view to proceed. In doing so I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The applicant appeared before the Tribunal on 9 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sisters, Ms Dorez Heno, Ms Jacklin Heno, Ms Madlin Heno, Ms Nadia Heno. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

6. The applicant was represented in relation to the review by his registered migration agent.

7. The file had a s.376 certificate which I found to be not valid as it noted that the disclosure of the material would be ‘contrary to the public interest’ because the documents related to ‘internal Departmental integrity checking processes’. But this is not an explanation. It is a description of the documents. The certificate does not explain why releasing internal integrity checking documents is contrary to the public interest. At the hearing I explained that I found the certificate not to be valid and proceeded to provide a general overview of the documents noting that they included a summary of the applicant’s visa history, concern over the sponsor’s cognitive ability which was subsequently dismissed by the delegate, questions over the applicant’s different names which were subsequently responded to without further concern, summary notes of opinions that appear in the decision and general case notes. There was no adverse information that was not considered and addressed in the delegate’s decision. I offered a copy of the certificate to the representative who responded that it was not necessary.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant is a carer

9. 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 r.1.15AA of the Regulations which is set out in the attachment to this Decision.

   Applicant is a relative of the resident – r.1.15AA(1)(a)

10. Regulation 1.15AA(1)(a) requires the applicant is 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 applicant of the Australian relative, who is an Australian citizen and has been resident in Australian since 2012, is the son. Therefore, 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). I also find that the ‘relative’ is usually resident in Australia.

    Certification – r.1.15AA(1)(b)

11. 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.

12. 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 (see Legislative Instrument IMMI 14/085 which specifies Bupa Australia Health Pty Ltd as the specified health service provider), or issued by a specified health provider in relation to a review of such an opinion.

13. The certificate provided by the applicant is dated 6 September 2016 and was under taken by Bupa Medical Visa Services.

14. The Tribunal finds that the certificate provided does meet 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) are met.

    Residency status of person with medical condition – r.1.15AA(1)(ba)

15. 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.

16. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

17. 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.

18. In the present case, the impairment rating specified in the certificate is 45. As the nature of the ailments are unlikely to have improved since the sponsor’s 2016 assessment, I find that this rating remains relevant and that it exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)

19. 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.

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

    Assistance cannot be reasonably obtained / provided – r.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.

    Any other relative

22. The applicant is a citizen of the United States and the son of the sponsor, his mother, as well as her husband, his father. The applicant claims to have provided the same care for his parents while in the United States and subsequently since he arrived in Australia in June 2012, a total of 13 years as of the date of application.

23. He described the care he has provided as including baths, dressing, grooming, mobility, ambulation, transferring and feeding, shopping, house chores and cooking, housekeeping, laundry and medication reminders. He notes that the care he provides is culturally appropriate as he speaks the Assyrian language and he understands her beliefs and respects her privacy.

24. The sponsor is of Iraqi origin but acquired United States citizenship in 1991 together with her husband and the applicant, her son. She was living in the United States from 1991 through to 2012 when she moved to Australia as a permanent resident. She has four daughters living in Australia who arrived in Australia in 1996 as women-at-risk refugees. For the purposes of clarity, the Tribunal will refer to each by their first name, Dorez, Medlin, Jacklin and Nadia. At the time of the application they were all living at the same address but have subsequently moved. Two daughters live together, Dorez and Medlin. Jacklin continues to live with the sponsor while Nadia lives separately.

25. Nadia provides care to Dorez and is a recipient of carer support from Centrelink. Evidence was provided by the applicant. Jacklin provides care to Medlin. Jacklin is a recipient of carer support from Centrelink. Evidence was provided by the applicant.

26. Prior to the hearing a letter requesting information was sent to the applicant. The information requested included the following:

    ·Please provide the names and addresses of all adult relatives of the sponsor including spouse, de facto partner, child, parent, step-child, step-brother, step-sister, grandchild, aunt, uncle, niece or nephew, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

    ·Please provide statements from each of the adult relatives as to what assistance they provide to the sponsor currently and why they are unable to provide further assistance OR make themselves available at a forthcoming hearing.

    ·Please provide information regarding any service providers the sponsor’s family have engaged with to seek assistance from including 24-hour residential aged care.

27. The applicant chose that his witnesses would provide evidence at the hearing. At the hearing each of the sisters was given an opportunity to explain their circumstances and the reasons why they cannot provide assistance.

28. Dorez, submitted a statutory declaration detailing her circumstances. In summary she is single with no children. She stated that she suffers arthritis, anxiety, depression and PTSD from domestic violence in the past. She also claims that she suffers chronic obstructive pulmonary disease, bronchitis, rhinitis, tachycardia, tennis elbow, dyspepsia, severe nerve pain and extreme back pain. She provided a health summary sheet from Dr Lai Leong. The report notes that at the time she was receiving off the shelf and prescription medication and creams and that her conditions included bronchitis, Chronic obstructive pulmonary disease for which she has a puffer, rhinitis which is defined as an ‘inflammation and swelling of the mucous membrane of the nose, characterized by a runny nose and stuffiness and usually caused by the common cold or a seasonal allergy.’[1], anxiety, tachycardia, which is a fast heartbeat, nerve pain, tennis elbow, dyspepsia which is an upset stomach[2] and asthma.

    [1] >

    Dorez claimed that she cannot assist her mother because she does not live with her and that she does not drive despite having a driver’s license. She relies upon her sister Nadia for transport.

29. At the hearing Dorez explained that she lives with her sister Madlin. She said that she visits her mother one day a week. When she visits her mother she stays one to four hours but doesn’t provide any lifting assistance as she can’t lift more than 2 kg. Dorez claimed that Nadia cooks for her though she is able to cook but only simpler foods.

30. Madlin lives with Dorez. Madlin claims that she is unable to care for her mother because she has bilateral deafness and vertigo. She also claims to be ‘battling breast cancer’ and osteoporosis. She listed her health conditions as including fatty liver, hyperthyroid, low vitamin B-12, low vitamin-D, low iron, anxiety and depression.

31. A health summary sheet by Dr Lai Leong lists Madlin as being on medication for hyperthyroid, Gastro-oesop hageal reflux disease which is described as a treatable disease[3], and vertigo. The health summary sheet shows Madlin had breast cancer in 2015. It shows that she also has adjustment disorder/anxiety/depression. Madlin also claims not to drive a car.

    [3] >

    Jacklin, who is the carer for Madlin, claims not to have time to look after her mother as she looks after her sister, driving her to the shops and to appointments. She confirmed that she lives in the same place as her mother. I asked what support she gives to her mother as she lives in the same house. She said that she would bring her mother water, or when her brother was busy with other things, she would provide support. She said that she has cooked meals for her mother, given medicine, helped her go to the toilet, but never driven her to medical appointments. She also said that she helps her brother when he needs to clean their mother, but she noted that their mother is used to being cleaned by her son.

32. Nadia, who is the carer of Dorez, gave evidence claiming that she is unable to provide care to her mother. She said that she has two children and is separated from her husband. Her responsibilities include taking her children to school while the rest of her time is spent supporting her sister, Dorez. She said she cooks for her children and sister and as such does not have the time to cook for her mother. The reason, she explained, is that everyone has their own requirements, the children like certain foods, her sister needs different food, but what she cooks for them may not be convenient for her mother. She explained that it’s a matter of preferences. She can’t cook the style of food her mum likes. She said that the food she cooks for her children isn’t traditional Iraqi food as her children were born in Australia. She claimed that she had to take Dorez to appointments every day. She said that it’s not just doctors, but physio as well as for example a podiatrist (once every few months to cut her nails) or the dentist. When I challenged this claim, she clarified that she takes Dorez to the doctor once a week, sometimes twice a week, because she feels that she is sick.

    Welfare, hospital, nursing or community services

33. In February 2021 the sponsor was approved by an ACAT assessment for ‘high level’ subsidised residential respite care as well as Home Package Level 3, this is ‘intermediate level care’ and includes the following[4]:

    [4] care
    Domestic assistance
    Household assistance
    Assistance with aids and appliances
    Social support
    Meal preparation
    Medication management
    Nursing support
    Allied health support
    Shopping
    Transport
    Social support
    Support with changes to memory and/or behaviour

34. I asked the daughters if their mother had this level of care and additional support was required by her, why then would other members of the family not be able to provide the remaining needs. Jacklin answered that her mother is used to the support of her son, she doesn’t accept any support from anyone else and doesn’t like change.

35. I noted that the applicant has stated that they will proceed to access support through the Home Package and as such it seems that the sponsor and the family more broadly have agreed to accept outside help. Jacklin stated that her mother continues to want to have her son provide the support. Following a natural justice break the representative qualified that the family had only agreed to pursue government support in an effort to have their bathroom fixed to make it more appropriate for their mother. Considering that the government has approved a Home Care package I find that it is not reasonable that they would not accept this noting that the sponsor’s husband and daughter live with her and as such she would not be alone while receiving support.

36. I put to the sponsor that the government has approved her to receive additional support in her home and asked whether she is accepting of this. She said that nobody can provide adequate care for her other than her son. I asked if she had thought of moving to a nursing home. She responded that she does not accept to go to the nursing home as she has a son. She asked rhetorically, why should she go when she has a son.

37. The sponsor claimed that based upon her culture it is her preference that her son provide care. She said that only her son can provide care and not even her daughters. She said that daughters may get married while the son stays at home. I put to her that information I have read suggests that it should be her daughters and not her son that provides care (the daughters leave home when they are married and the son brings a wife home but in this instance the sisters are not married and have remained either at home or in the vicinity of the mother)[5]. She said that her son has compassion towards her. While I accept that it is the sponsor’s preference to have her son continue to provide support I find that it is not reasonable for her to not accept the support of her other daughters or that of a government carer.

    [5] and

38. The sponsor’s husband was not invited to provide evidence. The representative described the evidence that the husband could provide would be ‘extremely limited’. There is no suggestion that the husband requires any assistance but there are claims, which I accept, that due to the age of the husband that he cannot provide assistance to his wife.

1. The sponsor has been approved for Home Package Level 3 care. This is intermediate level care and includes personal care along with other support such as transport, nursing, medication and meal preparation. The type of support available matches the support needs identified by the Bupa assessment. As it has been approved, I find that the support is reasonably obtainable. Additional caring needs may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. I find that the daughters’ reasoning for not be able to provide any contribution to their mother’s care, particular Jacklin and Nadia, but also Madlin and Dorez, is not reasonable. I note that Jacklin lives with the sponsor and has provided care to the sponsor during times when the applicant is unavailable. She can continue to provide the same level of care as she has in the past. Similarly for Nadia and less so for Madlin and Dorez. The level of care required to supplement the support available through the Home Package is limited. Based upon the care identified as being required by the sponsor it is not reasonable for the daughters to not do what is required by their mother above what the Home Care package allows such as turn on the TV and switching channels or prepare Assyrian food as and when required.

2. As such the Tribunal is not 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 r.1.15AA(1)(e) are not met.

3. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

4. At the hearing the Tribunal gave an opportunity to the representative to give any evidence pertaining to the eligibility of the applicant to the other sub-classes of visas within Class BU. None was provided.

5. The evidence before the Tribunal is that the applicant was born on 28 February 1968. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

6. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa as the applicant’s near relative, a sister, resides in the United States which is the same country that the applicant is a citizen of. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

   DECISION

7. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

   Denis Dragovic
   Senior 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.