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

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).
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.
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.’
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…

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 Hino (Migration)

Details

AGLC: Hino (Migration) [2021] AATA 1562
Case: [2021] AATA 1562
Decision Date: 19 April 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for their Australian resident mother. The Tribunal was required to determine whether the applicant met the criteria for a carer visa, particularly concerning the availability of suitable facilities or assistance from other family members or providers, and the health and responsibilities of other family members.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 836.221 of the Migration Regulations 1994, which defines a "carer" for the purposes of the visa subclass. This involved assessing whether the applicant was a relative of the Australian resident, whether the resident had a medical condition requiring ongoing assistance, and crucially, whether such assistance could reasonably be provided by other relatives or obtained from community services. The Tribunal also considered the sponsor's cultural preferences and the availability of government-subsidised care.

The Tribunal reasoned that while the applicant was a relative and the sponsor had a medical condition requiring assistance, the critical element was whether that assistance could reasonably be provided by other means. The evidence indicated that the sponsor had been approved for intermediate-level home care and high-level subsidised residential respite care, which covered many of her identified needs. The Tribunal found that the reasons provided by the sponsor's daughters for being unable to provide the remaining necessary assistance were not reasonable, especially given the availability of government support and the fact that some daughters lived with the sponsor. The Tribunal applied the principle that assistance does not need to be provided by a single person and that the combined efforts of relatives or community services could suffice. The sponsor's cultural preference for care from her son was acknowledged but found not to override the reasonableness of accepting other forms of support.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa, finding that the applicant did not satisfy the definition of a carer under the regulations because the required assistance could reasonably be obtained from other sources. The Tribunal also briefly considered and dismissed eligibility for Subclass 838 (Aged Dependent Relative) and Subclass 835 (Remaining Relative) visas.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEWhether the applicant is a carer 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) 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) 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. 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. The certificate provided by the applicant is dated 6 September 2016 and was under taken by Bupa Medical Visa Services. 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) 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 r.1.15AA(1)(ba) are met.Impairment rating – r.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.

Decision

Reasons for decision

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.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.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.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. 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 servicesIn 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] careDomestic assistanceHousehold assistanceAssistance with aids and appliancesSocial supportMeal preparationMedication managementNursing supportAllied health supportShoppingTransportSocial supportSupport with changes to memory and/or behaviourI 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. 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.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. 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 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.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. 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.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.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.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.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.DECISIONThe Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.Denis DragovicSenior 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

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