Huang (Migration)

[2022] AATA 3317

Huang (Migration) [2022] AATA 3317 (15 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jing Huang

VISA APPLICANTS:  Mrs Fei Huang
Mr Surui Huang

CASE NUMBER:  2012836

HOME AFFAIRS REFERENCE(S):          OSF2018/028285

MEMBER:Ann Duffield

DATE:15 August 2022

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 15 August 2022 at 1:15pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of the sponsor – willing and able to provide substantial and continuing assistance – available care from Australian relatives – care reasonably provided by welfare, hospital, nursing or community services – no further attempts to seek community assistance – current carer’s health issues – NDIS services – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.221; rr 1.03, 1.15

CASES

Anveel v MIBP [2013] FCCA 2181
Truong v MIBP [2014] FCCA 1289

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 26 June 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 19 April 2018. 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 cl 116.211 and cl 116.221.

3. The delegate refused to grant the visas on the basis that cl 116.211 not met because the delegate was not satisfied that the applicant met the definition of “carer” as stipulated in Regulation 1.15AA, in particular that the assistance required by the resident cannot reasonably be provided by any other relative or obtained from welfare, hospital, nursing or community services in Australia. The delegate was further not satisfied that the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind envisaged by the Regulations.

4. The review applicant appeared before the Tribunal on 27 July 2022 via Teams to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant (the visa applicant) via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The secondary applicant on the application, Mr Surui Huang, DOB 6 July 2007, is the son of the visa applicant. He is 15 years old. There is some suggestion in the review applicant’s submission that the visa applicant’s husband, Mr Guofeng Su, is also travelling with the visa applicant and the secondary applicant to Australia as part of the application

6. The Tribunal discussed this with the review applicant and the visa applicant at the hearing and they asked that he be considered in the application. The Tribunal informed them that it could not remedy the fact that he was omitted in the original application or the application to the Tribunal and it could not therefore consider Mr Guofeng Su as an additional applicant to the matter. The applicants indicated that they understood and wished to proceed with the application as it stood.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the Australian resident cannot reasonably be provided with assistance by any other relative or obtained from welfare, hospital, nursing or community services in Australia, or that visa 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).

   BACKGROUND

9. The review applicant is a citizen of Australia born on 17 February 1971 (51 years old). She previously sponsored her mother, Mrs Shufen Guan, DOB 4 October 1939, to Australia as a carer for Mr Strik (DOB 18 May 1978), the resident, in July 2010. That application was successful upon review to a differently constituted Tribunal in September 2011. Ms Guan is now 83 years old and has been the carer to Mr Strik since she arrived in 2012. She has been receiving a carer pension of $1075 per fortnight in relation to that role since her arrival.

10. The visa applicant, Ms Fei Huang (DOB 11 April 1967) is the sister of the review applicant and sister-in-law to Mr Strik, She is retired. She has not declared any experience in mental illness. She claims to speaks basic English.

    Information before the Department and Tribunal

11. The review applicant states that Mr Strik continues to suffer severe mental illness that prevents him from performing everyday functions. A Carer Visa Assessment Certificate dated 22 November 2021 indicates a total impairment rating of 30 points to Mr Strik. He has been diagnosed with schizoaffective disorder of a relapsing and remitting type which has had a severe impact on his function with multiple previous hospital admissions and ongoing inter-episode symptoms. Mr Strik’s most recent hospitalisation was in November 2020. A copy of that certificate is on the Tribunal file.

12. The review applicant states that they made a request for NDIS assistance in June 2020. The review applicant provided the Tribunal with a copy of a letter from Mission Australia confirming that an NDIS Access Request has been submitted on behalf of Mr Strik on 12 June 2020. There is no evidence that the review applicant has made any attempt to seek other in-home assistance, hospital, community or other assistance for Mr Strik.

13. According to statements provided by the review applicant and visa applicant, the visa applicant intends to find her own accommodation close to the home of the review applicant and Mr Strik. The visa  applicant and her son will be assisted financially by the visa applicant’s husband as well as the review applicant who has stated that she will pay for their accommodation, car and utilities for two years after their arrival.

14. The visa applicant has stated that she will prepare nutritious meals and assist Mr Strik to take his medicine, maintain his hygiene, wash his clothes, take him to doctor’s appointments and accompany him for exercise. The visa applicant and her son visited Australia in early 2017 and have met Mr Strik. The visa applicant states that she is aware that Mr Strik is suffering from mental illness, but she is not frightened or scared.

15. Mr Strik has only a brother, Anthony, and elderly father in Australia. His elder brother and mother are both deceased. The review applicant states that Anthony is a barrister, married and with a young daughter and is not able to find the time to visit, let alone provide care and support to Mr Strik. Mr Strik’s father lives in the south coast of NSW and rarely visits.

16. Mr Strik has been admitted to mental hospitals some twenty times in the past 5 years according to Dr Andrade, Mr Stik’s medical professional. The review applicant states that hospital only provides acute care and it is not possible for Mr Strik to stay in hospital on a fulltime basis. She states that a nursing home is not a valid solution for Mr Strik however has provided no evidence to indicate that any efforts have been made to find alternative solutions. The review applicant has provided a letter from NSW health dated 13 May 2020 stating that Mr Strik is a “current consumer” of St George Community Mental Health Service. He attends for psychiatry appoints and to obtain his medication.

17. The review applicant states that Mr Strik’s current carer, her mother, is 83 years old and recently suffered a fall. She is no longer in a position to assist Mr Strik. There are a number of medical records, including hospital admissions and discharge documents indicating that the review applicant’s mother suffered a serious fall in 2020. The review applicant has also stated that her mother has been diagnosed with dementia in April 2022.

18. The review applicant and Mr Strik also have a daughter who is now 18 years old and lives with the family. She is a full-time student and is unable to take care of Mr Strik.

19. The review applicant states that she suffers from depression and cannot look after her husband. She says that she also needs help. She has provided a health summary sheet from her GP stating that she suffers from depressive anxiety disorder and hypertension.

    Tribunal hearing and Post Hearing submissions

    Evidence from Ms Jing Huang – Review applicant

20. The review applicant told the Tribunal that she has ben unemployed for almost two years. She says that she was terminated from her employment because she complained of bullying and had negative performance reviews. As a result, she has been suffering from a major depressive disorder. She has been receiving unemployment insurance payments in relation to her situation but that will soon come to an end. She is in the process of suing her former employer for compensation in relation to the depression she claims she suffers because of her former employment. She said that she didn’t think she’d go back to work again but hoped that she would be able to in the future.

21. The review applicant told the Tribunal that she saw a psychologist every two weeks and a psychiatrist every three months. She has provided documentary evidence to support these claims. She has provided a psychologist report that was prepared in September 2020 in relation to her insurance claim but there are no recent reports. She has provided a health summary sheet for herself which indicates that she Is taking Agomelatine, Atacand and Ostelin Vitamin D3 capsules. The summary also notes that she was diagnosed with Depressive anxiety disorder in 2020, hypertension (also in 2020), vitamin D deficiency in 2020, haemorrhoids and hypertension also in 2020.

22. The review applicant has also provided evidence of her ongoing appointments with her psychologist and psychiatrist. The review applicant states in her post hearing submission that after her medication has been adjusted, she has felt better but she has fatigue and experiences flashbacks. Her mental health carers have told her that she is still in trauma because of the unresolved court case. Her ongoing legal battles, physical discomfort from high blood pressure and fatigue 9derived from anxiety and depression) mental fogs as well as psychological injures make her feel hopeless and she is not in the position to look after Mr Strik.

23. The Tribunal put to the review applicant that since she had been unemployed for the past two years that it appeared that she would be able to provide the care and assistance that Mr Strik requires. She said that she didn’t do anything for him or herself because of her depression. She did not cook, clean, wash clothes or attend to his needs in any way. She just stayed in her room. She said that her mother took care of everything including her own needs. The Tribunal asked the review applicant how her 83-year-old mother coped with everything given her recent diagnosis of dementia and her recent hospitalisation because of a fall. She said she felt guilty that she had to have her mother do everything because she was so depressed.

24. The Tribunal put to the review applicant that the Carer’s report prepared last November appeared to indicate that Mr Strik’s condition has stabilised over the past couple of years and asked if that were also her assessment also.  

25. The review applicant said that Mr Strik still needed help with hygiene and meals she said that overall, she had noticed improvements in his health. She said that for the past two years NDIS provided weekly psychology and physiotherapists appointments. He also received a monthly visit from a dietician. As a result of the latter, she said that Mr Strik had lost about 10 kilograms in weight and seemed better.

26. In her submission to the Tribunal dated 19 July 2022 she stated that her sister would not have to provide medical support for Mr Strik as he has professional doctors to look after his medical needs. She states that apart from cooking meals, washing dishes, washing sheets and clothes, house cleaning, taking Mr Strik to appointments and other activities and shopping, she will supervise Mr Strik to make sure he is not doing “silly” things. She states that if her brother-in-law migrates as well then he can take care of their son while the visa applicant looks after Mr Strik.

27. Mr Strick has not been hospitalised since November 2021 but before that was hospitalised frequently. She said that he usually works three days a week but sometimes he might work less. He drives himself to work. The review applicant said that her mother provided Mr Strick with the little things that made his life better including meals, clean bedding and clothes and a clean house. The review applicant told the Tribunal that the NDIS plan was managed by an agent.

28. Asked if the NDIS provided any other services the review applicant said that they have access to NDIS funded cleaning services but don’t utilise that. She said that they did have someone come and clean the windows and NDIS paid for that.

29. The review applicant told the Tribunal that her mother is still receiving carer pension in relation to Mr Strick. He himself doesn’t receive a disability pension because he has part time work, and she is in receipt of her income protection insurance for the time being. She also has some savings and an investment worth around $100,000.

30. The review applicant suggested that if her brother-in-law could not come to Australia with her sister then, perhaps, they could all live together in her house. The Tribunal asked if that would be feasible or even desirable given that her sister had a fifteen-year-old son, and that six people would be living in the same place. She was non-committal.

31. In her post hearing submission, the review applicant states that her mother’s dementia is getting worse, and she definitely needs a carer. She states that based on her current physical and mental health condition she cannot handle both her husband and her mother. She states that the visa applicant will definitely give her family physical and emotional support and play a very important role in her family’s welfare. She says that the worse case scenario if she doesn’t recover from her depression is that her sister will end up caring for her too.

    Evidence from Shufen Guan – review applicant’s mother and current carer

32. The Tribunal questioned Ms Guan and she appeared disoriented and confused. She repeatedly told the Tribunal that she had a poor memory and didn’t remember things. She did however tell the Tribunal that her daughter and granddaughter didn’t do anything in the house or look after Mr Strik. She said that she did everything herself.

33. In a statutory declaration dated 10 June 2020 Ms Guan states that she has high blood pressure and heart problems, constantly feels dizzy and faints. One such episode resulted in her hospitalisation. She has provided hospital records to support her claims.

    Evidence from Bradley Strik - caree

34. The Tribunal spoke to Mr Strik after being assured that he was having a “good day” and was willing and able to participate in the hearing.

35. Asked to describe a normal day Mr Strik told the Tribunal that on a non-workday he slept in a bit and Mrs Guan got him out of bed and gave him some breakfast. He told the Tribunal that Ms Guan did all the cooking and cleaning. He said that it was a comfort to him to get into a clean bed and have the house tidy,

36. Asked if his daughter made a contribution to the upkeep of the house or his needs, he told the Tribunal that she was busy and independent and had three jobs and studies at university. He said that some days he did not see her at all. She has an awareness of his mental health issues, but they don’t talk about it.

37. Mr Strik told the Tribunal that he worked three days a week in supported employment arranged by the NDIS. He packed boxes and put labels on jars. He appeared content with this work and said he was able to drive to work because it wasn’t too far, and it was familiar route for him.

38. Mr Strik knows the visa applicant having met her several times when they visited China and when she visited Australia. She doesn’t speak English very well, but he doesn’t see that as an impediment as his current carer, Ms Guan didn’t speak English very well either. When questioned about whether he thought it was necessary for the visa applicant to come to Australia to look after him he said that it was good to have food ready for him, a clean house and clean sheets. He said he appreciated having family members around as it was good for him.

39. Mr Strik thought that the visa applicant would be renting a place for herself and her family nearby. He told the Tribunal that both the visa applicant and her husband had a pension and could manage their expenses. He said that his wife had some savings and some investments which would also help. The Tribunal asked him if not having his carer live in the same house would de a detriment and he said that he didn’t think it would be a strain. He said he could take his medication earlier in the evening and go to bed earlier.

    Evidence from Fei Huang – visa applicant

40. The Tribunal asked Ms Huang to provide her understanding of Mr Strik’s care and support needs and she said that she would help clean cook and take him shopping. Asked about her understanding of his condition she said that he had schizophrenia and needs medication for that. Pressed for more details she said that sometimes he will be irritable and sometimes depressed and she would need to talk to him to relieve his emotions and accompany him on walks. Asked if she spoke English very well, she said that she spoke basic English. The Tribunal asked how she could comfort and counsel him if she didn’t speak English. She said she could speak well enough. The Tribunal asked her what she would do if Mr Strik had an auditory or visual hallucination or if he became aggressive.  She said that she can look after him such as cook and clean and take him to doctors and help him contact other people and relive his emotions. She said she would help her younger sister’s family and do whatever she can.

41. The Tribunal asked the visa applicant if she was aware of her sister’s health issues and she said that she had a job but due to her depression she is not working at the moment and needs some help. Pressed if it were not possible for her sister to provide the care that Mr Strik needed, she said that her sister has depression and also her mother suffers from dementia and they need help, and she has the time.

42. The visa applicant told the Tribunal that she would either live with her sister or on her own with her son close by. The Tribunal put to her that it may be difficult to provide the care Mr Strik needs given that she will be living in an unfamiliar place without competent language skills and trying to raise a teenage boy. She said that it will be OK as her son will be in school.

43. Asked if she had talked to her sister about the kind of incidents that have led to Mr Strik being hospitalised, she said that she knew a little bit. She said that maybe his condition was genetic but maybe the collapse of his business contributed. She said she was prepared for that as she had travelled to Australia in the past and stayed with him and her sister.

44. The Tribunal put to her that it did not seem as if she understood what kinds of behaviours Mr Strik can exhibit and therefore her your safety may be at risk. She said that they have spent some time together and she has seen his condition.  The Tribunal put to the visa applicant that from what she had said, it didn’t think that she has an understanding of Mr Strik’s condition or how his behaviour can and has manifest in the past. She said that she knows he has a severe condition so he does not drink and she knows he can be violent and that sometimes he can’t recognise people.

    FINDINGS AND REASONS

    Whether the visa applicant has claimed to be a ‘carer’

1. 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 applicant is a carer of her brother-in-law, Bradley Strik, who is an Australian citizen born on 18 May 1978.

2. 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. The tribunal is satisfied that the visa applicant is a “relative” of Mr Strik within the meaning of r.1.03.

   Carer visa report

3. The review applicant provided a Carer Visa Assessment Certificate (CVAC) for Mr Strik dated 22 November 2021 recording a total impairment rating of 30 points. The applicant suffers from schizoaffective disorder of a relapsing and remitting type which has had a severe impact on his function. sponsor has been hospitalised on some 20 occasions in the past five years. The medical condition suffered by Mr Strik causes physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. Mr Strik needs direct assistance in attending to those aspects and will require that assistance for at least two years.

4. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

   Whether the assistance cannot otherwise be reasonably provided or obtained

5. Regulation 1.15AA(1)(e)(i) 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 New Zealand citizen; or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulation 1.15AA(e)(ii).

   Meaning of ‘reasonably’

6. Regulation 1.15AA(1)(e)(i) requires consideration from the perspective of the Australian relatives when determining whether the assistance cannot ‘reasonably’ be provided by the Australian relatives.[1] While it is not necessary for the Tribunal to also consider what care is actually required by the person needing the care when making this assessment,[2] the reasonable capacity of another relative to provide ‘the assistance’ referred to in reg 1.15AA(1)(e)(i) is to be assessed by reference to the period that the assistance is required under the certificate (being at least two years to meet the requirement of reg 1.15AA(1)(b)). In Nguyen v MICMA, the Federal Court held that to construe ‘the assistance’ referred to in reg 1.15AA(1)(e) as referring only to a person’s medical condition as divorced from the period of time for which direct assistance has been certified by a medical practitioner to be needed would be inconsistent with the purpose of the regulation.

   Whether the assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen or from other services in Australia 1.15AA(1)(e)(i)

   [1] Anveel v MIBP [2013] FCCA 2181 at [60]–[61] and [69].

   [2] Anveel v MIBP [2013] FCCA 2181 at [61].

7. In assessing whether claims a relative in Australia cannot provide assistance are reasonable, Departmental policy suggests looking at issues such as the following

   ·the number of relatives already in Australia

   ·     the nature and extent of the assistance required

   ·     where the person requiring assistance lives

   ·     where any relatives in Australia live

   ·     any evidence of ongoing close family relationships

   ·     the reasons given as to why relatives in Australia claim to be unwilling or unable to provide assistance.

8. Mr Strik has a brother and father residing in Australia however his father lives some distance away. His brother is a lawyer and has stated that he cannot provide the help required and only sees the family a couple of times a year. He is married and has a young daughter. He provided a statement to the department in March 2018 but otherwise made no further submissions nor has he provided any additional reasons as to why he cannot provide any measure of support for his brother.

9. The review applicant and Mr Strik have an eighteen-year-old daughter who also lives at home with them. It has been stated by both parties that she is studying and working three jobs and is unable to assist. Both parties have also stated that she doesn’t provide any assistance at all to Mr Strik or attend to the general upkeep of the home, leaving that task to the review applicant’s elderly mother who has dementia. Apart from her busy schedule, they have provided no additional reasons as to why she cannot assist. She lives in their home and is there overnight. It does not seem unreasonable to the Tribunal to expect that she would be able to assist her father when necessary or in the event of an emergency.

10. The Tribunal has not received a statement from the review applicant and Mr Strik’s daughter setting out how it is she is not able to assist Mr Strik with the most basic tasks, such as, for example, ensuring he takes his medication, or washing his sheets. The evidence before the Tribunal is that Mr Strik’s needs are not complex, nor do they require full time assistance. Clearly he has not been receiving full time assistance in the past many years and has fared relatively well in the past two years under the current arrangements, despite his serious mental health issues.

11. The review applicant herself states that she also does “nothing” around the home, confining herself to her room because of her severe depression. Again, the task of maintaining the household falls to her mother. The review applicant has stated on several occasions that both herself and her mother require care.

12. The Tribunal accepts that the review applicant is suffering from a mental illness, however she has provided no recent report on that illness nor does the Tribunal have any documented evidence that, at the present time, she is incapable of performing even the most basic functions for herself or anyone else or that her condition is ongoing or permanent. The Tribunal notes in this regard that despite the undoubted stress involved in launching a legal action, she has nevertheless been able to attend to that matter.

13. It seems to the Tribunal, that despite the evidence of the parties that nobody in the household is capable of providing Mr Strik with the care he is said to require from a sponsored carer, his condition over the past two years has improved. He is able to hold down a part time job, take himself to work by car three days a week and walk to his medical appointments unassisted.

14. According to the evidence of the review and visa applicants, the care Mr Strik requires is largely in the preparation of meals and housekeeping and to be reminded to take his medication. The Tribunal also acknowledges that Mr Strik finds the companionship and sense of family provided by his current carer and his present arrangements as comforting to both his physical and mental needs. It also acknowledges that the current stability of his condition has been assisted by those current arrangements which include extensive support from the NDIS, his wife being home all day, the presence of his daughter and the care provided by his mother-in-law.

15. Mr Strik and the review applicant have told the Tribunal that he has a dietician funded by NDIS whom he sees monthly and who has been credited with assisting Mr Strik lose 10kgs. The evidence is also that NDIS has agreed to fund house cleaning for the family. However apart from a request to have the windows cleaned, they do not appear to have taken up this offer. It seems to the Tribunal that this is a service that can and should be utilised, thus freeing up the burdens on the review applicant’s mother.  NDIS also funds his weekly psychologist appointments and his psychiatrist.

16. The Tribunal also accepts that his current carer is becoming quite elderly and has been diagnosed with dementia and has heart problems. The review applicant has given evidence that her mother also requires a carer and that her sister would come to Australia and look after, not only Mr Strik, but herself and her mother. Despite the age and health problems suffered by the review applicant’s mother she is, according to the evidence, nevertheless the sole carer of Mr Strik and the only person performing household duties.

17. The Tribunal is sympathetic to the proposal that the review applicant and her mother are themselves in need of their own carer. However, the Tribunal is unable to take that into consideration since neither she nor her mother have provided BUPA certificates, nor are they listed in the application, or the review, as the resident requiring care. In order to ensure that their own carer needs are met, she would be required to lodge a separate application making that argument.

18. The Tribunal is not satisfied that the care Mr Strik requires can reasonably be provided, in combination, by the three adults currently living with him along with the extensive support already being provided by the NDIS.

    Willing and able to provide substantial and continuing assistance of the kind needed  1.15AA(1)(f)

19. Whether the applicant is willing and able to provide substantial and continuing assistance of the kind needed to the relative is a question of fact and linked to the nature of assistance that the Australian relative requires.

20. In assessing the ability of the applicant to provide the assistance which is required, the Tribunal has considered the following relevant factors:

    ·his or her understanding of the assistance required and commitment to providing long term care;

    ·whether the applicant has specialist skills if such skills are necessary to provide the required assistance. If the applicant does not possess specialist skills, how the applicant proposes to acquire them;[3]

    ·how the applicant will be able to provide the required assistance whilst maintaining other obligations, for example where they have their own family which may need to be cared for, and;

    ·how the applicant proposes to financially support themselves if granted the visa.

    [3] In situations where the applicant does not hold the required skills and the Tribunal is considering how the applicant will acquire those skills, if at all, the Tribunal should take into account the entire circumstances including the applicant’s intentions and abilities. For example, in Truong v MIBP [2014] FCCA 1289, the person requiring care suffered from acute psychotic episodes and the Tribunal considered that she would require at times urgent assistance with transport and urgent contact with health professionals. The Tribunal noted the visa applicant’s intention to obtain a driver’s licence and presumed that he would also ‘eventually learn English’, but said that it was speculative as to how long it would take him to acquire these skills. Taking into account the nature of the medical condition, the Tribunal found that without experience in caring for someone with a mental illness and without a driver’s licence and the ability to speak English, the visa applicant was not able to provide the applicant with substantial and continuing assistance. The Court found no error in the Tribunal’s reasoning.

21. The evidence before the Tribunal does not support a finding that the visa applicant has a sufficient understanding of Mr Strik’s condition such that she would be able to provide the required care if Mr Strik suffers an episode that required medical or hospital or emergency intervention.

22. The Tribunal is mindful that all the parties have said that the visa applicant and her son will live in a different location therefore the likelihood of her being required to have the knowledge to provide the necessary care is remote, nevertheless, the Tribunal does not believe it is unreasonable to be satisfied that the visa applicant has such knowledge and could provide the necessary response if required. There is no evidence before the Tribunal, for example, that the review applicant has an Australian drivers’ licence or that she understands sufficient English to be able to navigate the emergency help services if it becomes necessary.

23. The visa applicant has also said that she will, without the assistance of her husband, be the sole carer for her 15-year-old son. She states that he will be at school during the day, however before and after school, weekends and holidays will undoubtedly put restraints on her availability to provide for Mr Strik. The parties have not made any submissions as to how they would overcome these restraints, but instead have acknowledged that the visa applicant would be assisted by her husband in relation to the care of their son. The visa applicant’s husband however is not included in the application and would not have been migrating with them in any case. Aside from this, it does not appear that the applicants have given any consideration to this matter such that would satisfy the Tribunal that the care of her son would not detract for the care she would be required to provide to Mr Strik.

24. The evidence before the Tribunal also shows that the visa applicant will be required to provide housekeeping, cooking and transport duties for Mr Strik as well as ensuring that he take his medication.

25. Mr Strik however drives himself to work three days a week and is within walking distance of his medical appointments. He has told the Tribunal that he performs these tasks alone. NDIS provide the professional medical services that Mr Strik requires, and he has a dietician. They also have a cleaning service funded by the NDIS that they can utilise but have not done so. Three are also three adults living with him who, in the Tribunal’s mind, can provide the limited further assistance required between them, in particular providing his meals, washing his clothes and sheets and ensuring he takes his medication.

26. For the reasons above, the Tribunal is not satisfied that, at the time of application the visa applicant claimed be a carer of an Australian relative and therefore does not satisfy the requirements of cl 116.211.

    CONCLUDING PARAGRAPHS

27. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

28. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Ann Duffield
    Senior Member