Huang (Migration)

[2024] AATA 3074

Huang (Migration) [2024] AATA 3074 (19 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yiqiang Huang
Ms Huiqing Zheng
Master Shangli Huang

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  2108417

HOME AFFAIRS REFERENCE(S):          CLF2016/98065

MEMBER:Kira Raif

DATE:19 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.221 of Schedule 2 to the Regulations

Statement made on 19 August 2024 at 11:33am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance could not reasonably be provided by relatives in Australia – social and behavioural issues – sponsor’s needs are best met by family members – welfare, hospital, nursing or community services in Australia – applicant’s qualification in Aged Care – decision under review remitted       

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.221; rr 1.03, 1.15

CASES

Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 June 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) is a national of China, born in August 1978.  He applied for the visa on 21 December 2016. The application includes his partner and child. The delegate previously refused to grant the visa in May 2018 on the basis that the sponsorship requirements were not met. The matter was remitted by the Tribunal in February 2021. In June 2021 the delegate again refused the application on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant was the carer of an Australian relative. The applicants seek review of the delegate’s decision.

3. The visa applicants also made an application for a Carer visa offshore and it is the subject of a separate review before this Tribunal. The two applications were heard together as they raise the same issues.

4. The applicants appeared before the Tribunal on 19 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. The applicants were represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. At the time the application was made, 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 (Cth) (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.

6. 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 reg 1.15AA of the Regulations.

   Whether the applicant is a carer

7. Regulation 1.15AA(1)(a) requires 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 applicant’s step-father and he is an Australian citizen. The Tribunal is satisfied that the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

8. 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.

9. 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, or issued by a specified health provider in relation to a review of such an opinion.

10. The applicant presented with the application a CVAC certificate issued by BUPA, which states that the relative, Mr Pak Chung Wong, has a medical condition causing impairments of his ability to attend to the practical aspects of daily life. The Certificate has an impairment table rating specified in the certificate and states that because of the medical condition, the relative 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.

11. The Tribunal finds that the certificate provided meets 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.

12. 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.

13. 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. In the present case, the impairment rating specified in the certificate that was issued in February 2017 is 60. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

14. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 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 reg 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.

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

16. 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.

17. With respect to family members, the delegate noted that one of the sponsor’s children resides overseas and that he has another child in Australia but has had no contact with her since his divorce. The primary decision record indicates that the delegate wrote to the applicant inviting further information on whether assistance can be obtained from other sources. The applicant provided a statement from Dr Aldrin Tai who states that Mr Wong becomes anxious and distressed in the presence of unfamiliar people and surroundings and the recommendation is for him to reside in his home in the care of his family. The delegate notes that no other documentary evidence of efforts made by the sponsor to obtain services from community health services, hospital or nursing services has been provided. The delegate was not satisfied that r. 1.15AA(1)(e)(ii) had been met.

18. In his submission to the Tribunal of 12 August 2024 the applicant provided a number of documents, including copies of the CVACs dated February 2014 and February 2017, medical records which identify the applicant as the carer and a person who attended medical appointments / hospital with the sponsor, a number of photographs. The applicant provided a statement from Dr Lau, dated 17 August 2023. Dr Lau refers to the sponsor having ‘a lot of medical problems’ and states that the sponsor is now incapable of looking after himself and managing ADLs by himself. It is stated that his son lives in the US and his second wife and her son (the visa applicant) are his carers and look after him.

19. The applicant provided a declaration sworn on 10 August 2024. The applicant refers to his relationship with the sponsor and he refers to his step-father’s stroke in November 2009. The applicant states that since his arrival in Australia in October 2016 he supported his mother in taking care of his step-father. The applicant described the nature of support he has provided to the sponsor. The applicant states in his submission that his step-father does not like strangers to support him with personal needs and he will not accept care from strangers.

20. In oral evidence the applicant stated that the sponsor’s family in Australia comprises his own family, and a daughter. The sponsor’s son lives overseas. Mr Wong told the Tribunal that  his daughter lives far away, has a child with ASD and they have not seen each other for a long time and have no other interactions. Mr Wong told the Tribunal that his daughter used to come and visit but has not done that for months. The applicant told the Tribunal that the daughter previously had phone and electronic contact with the sponsor but she has not made any visits as she is looking after a child with an intellectual disability.

21. While the Tribunal has not been provided with any evidence concerning the daughter’s circumstances, the Tribunal acknowledges that there is nothing to contradict the applicant’s claims. There is no evidence to indicate that the sponsor’s daughter has taken an active role in providing care and support to the sponsor and the Tribunal also accepts that if she acts as a carer for a child with a disability, she may not have the opportunity to provide requisite support to the sponsor. The sponsor’s son lives overseas. The applicant told the Tribunal that his mother is in her 70’s and is struggling to support the sponsor and he is the primary carer. The sponsor has no other relatives. The Tribunal accepts, having regard to the above evidence, 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.

22. The Tribunal has considered whether assistance can be obtained from welfare, hospital, nursing or community services in Australia. The delegate expressed concern that there was insufficient evidence about seeking assistance from other sources and the applicant has not provided much additional evidence to the Tribunal to address these concerns.

23. The applicant told the Tribunal that a residential care facility would not be able to meet the sponsor’s emotional and psychological needs. The applicant states that since the sponsor’s stroke in November 2009, his mother has been caring for him and since he came to Australia, he realised it was hard to find someone to care for the sponsor on a 24 hour basis and provide him with the level of care that he requires. The applicant states that the sponsor is resistive to care from strangers and can become violent at times.

24. The Tribunal does not accept the applicant’s claim that a residential care facility cannot provide 24 hour care or the type and level of care required by someone with dementia (noting that residential aged care facilities are in fact designed to offer 24 hour care and many have dementia specific wards that are able to cater to the needs of dementia patients). The applicant states that a nursing home would not be able to meet the emotional needs of the sponsor and his at times violent outbursts. The applicant states that he did explore the nursing home option but the sponsor did not like the idea of a nursing home and prefers family care. The applicant also referred to lack of spaces, stating that when he explored the nursing home option, there was a waiting list. The Tribunal notes that the application was made more than three years ago and in that time the Tribunal is confident that a place could have been found.

25. There is little documentary evidence about the availability of residential care or any inquiries made by the family. However, the Tribunal acknowledges the evidence of Dr Aldrin Tai who states in his statement that Mr Wong becomes anxious and distressed in the presence of unfamiliar people and surroundings and the recommendation is for him to reside in his home in the care of his family. The sponsor also told the Tribunal in oral evidence that he wants the applicant to continue to care for him and that is consistent with the evidence of the applicant who repeatedly told the Tribunal that residential care will not be able to meet the sponsor’s emotional and psychological needs and that Mr Wong is resistive to care from strangers. While the Tribunal does not accept the applicant’s evidence that residential care will not be able to provide 24 hour care or dementia specific care or that there are no places available to provide care to the sponsor, the Tribunal is prepared to accept Dr Tai’s evidence that the sponsor’s needs are best met by family members.

26. In the circumstances, the Tribunal is satisfied, on balance, that the assistance cannot be 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.

27. Regulation 1.15AA(1)(f) requires that the 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 applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

28. 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.

29. The applicant provided to the Tribunal evidence that he has completed a Certificate III in Individual Support (Aged Care). The applicant told the Tribunal that he accompanies the sponsor to medical appointments and supports him with ADLs and other needs. The applicant told the Tribunal that his wife is working while he has not worked in Australia. His wife’s income is sufficient to meet the family’s financial needs while he has been caring for his step-father full-time.  

30. The Tribunal is satisfied 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).

31. The Tribunal is satisfied that at the time of decision, the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

    Conclusion

32. 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 836 visa.

    DECISION

33. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member