Khonkrathok (Migration) - [2021] AATA 4287

Khonkrathok (Migration) [2021] AATA 4287 (15 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Thongmee Khonkrathok
Miss Benyapha Waeokrathok
CASE NUMBER:  2013244
HOME AFFAIRS REFERENCE(S):          CLF2018/191928
MEMBER:Andrew George
DATE:15 October 2021
PLACE OF DECISION:  Darwin
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.836.212 of Schedule 2 to the Regulations; and
·cl.836.221 of Schedule 2 to the Regulations

Statement made on 15 October 2021 at 5:19pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – valid Carer Visa Assessment Certificate – rating exceeds the impairment rating specified by the relevant instrument – assistance cannot reasonably be provided by another relative – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.111, 836.212, 836.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 6

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 13 August 2020 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visa on 17 August 2018. 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.
A typographical error in the Decision Record confuses cl.836.212, namely that the applicant claims to be a carer, with cl.836.221, namely that the applicant is a carer.[1] Such errors are easily made. Nevertheless, the substance of the decision is a refusal to grant the visas on the basis that cl.836.221 was not met as the applicant was not a carer within the meaning of r.1.15AA(1)(e).[2] Materially, the delegate found:[3]
“Having assessed all of the information available to me, I am not satisfied that the family have fully investigated the availability of care facilities, in-home care from service providers (either welfare based or private care agencies) or a combination of family support and in-home assistance.
Therefore, I am not satisfied that the care Ms Yupaporn MORGAN requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Consequently, I find that subregulation 1.15AA(1)(e)(ii) is not met.”
[1] Decision Record/6
[2] ibid.
[3] ibid/4.
Further, the delegate inferred that “ … the applicant’s motivation to seek permanent residence via a Carr visa subclass 836 is to obtain employment in Australia rather than devote herself to the care required by the resident”, contrary to r.1.15AA(1)(f).[4]
[4] ibid/6.
The applicants appeared before the Tribunal on 7 September 2021, represented by Ms Cooper of Maleys Barristers and Solicitors. Prior to the hearing, Ms Cooper submitted and indexed and paginated Hearing Book that complied with the practice directions.
The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s sister, Ms Yupaporn Morgan (nee Khronrathok)[5]. Ms Morgan acquired Australian citizenship on 26 March 2011.[6]
[5] Departmental File/74.
[6] ibid/73.
For the purposes of the Carer visa, an ‘Australian relative’ includes a relative of the visa applicant who is an Australian citizen: cl.836.111. The term ‘relative’ is defined in r.1.03 of the Regulations.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.
Whether 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 Australian relative is identified as the applicant’s sister.
It is not controversial that the applicant is the sister of the applicant,[7] and the Tribunal is satisfied of as much. Accordingly, 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).
Certification – r.1.15AA(1)(b)
[7] Hearing Book/149.
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 two 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, pursuant to IMMI 14/085, or issued by a specified health provider in relation to a review of such an opinion. The Tribunal has before it a Carer Visa Assessment Certificate dated 2 August 2018, as provide by Bupa Medical Visa Services.[8] The Tribunal is satisfied that, according to the certificate:
a.the resident or a member of the family unit has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life;
b.the impairment has an impairment table rating specified in the certificate; and
c.because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.
[8] Departmental File/128.
The Tribunal finds that the certificate provided meets 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.[9] Accordingly, the requirements of r.1.15AA(1)(ba) are met.
Impairment rating – r.1.15AA(1)(c)
[9] ibid/73.
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by s.5 of IMMI 17/126, being an impairment rating of 30.
In the present case, the impairment rating specified in the certificate is 30.[10] This rating is equal to the impairment rating specified by s.5 of IMMI 17/126 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)
[10] ibid/128.
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 two years as a result of the medical condition.
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)
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal has had the benefit of a detailed statutory declaration from Mr Alan Morgan,[11] sworn on 9 April 2021. It is unnecessary to detail Mr Morgan’s health conditions, suffice to note that the Tribunal is satisfied that Mr Morgan is not able to care for Mrs Morgan. The Tribunal is satisfied that Mr Morgan has relied upon the applicant to care for her sister.
[11] Hearing Book/127-133.
The Tribunal accepts that Mr Morgan has thoroughly investigated obtaining services from the following organisations to assist Mrs Morgan: Sommerville Community Services, Anglicare NT, Carpentaria, Calvary, and Southern Cross Care. The Tribunal is satisfied that Mr and Mrs Morgan’s’ impecuniosity prevents access to these services.
During the hearing, the Tribunal was shown an email dated 25 June 2021 from the Local Area Coordinator of the National Disability Insurance Scheme (NDIS). A copy of this email was later provided to the Tribunal. This email approved a plan for Mrs Morgan where the applicant is integral to providing Mrs Morgan with support at home and at work. Noting this plan, the Tribunal is satisfied that the assistance cannot reasonably be provided by another relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are met.
Willing and able – r.1.15AA(1)(f)
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 6
4.
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.
The Tribunal has the benefit of a detailed statutory declaration from the applicant, dated 9 April 2021.[12] From this document, the Tribunal is satisfied that the applicant has long cared for her sister and is willing and able to continue to do so. Further, the Tribunal does not consider that the applicant has significant opportunities for paid employment outside of the family. In making this finding, the Tribunal is mindful of the applicant’s limited language skills and her NDIS funded duties to her sister.
[12] ibid/137-140.
Accordingly, the Tribunal is satisfied that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).
Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa. In so doing, the Tribunal notes that it is open for the Minister to reconsider the circumstances of the second named applicant.
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.836.212 of Schedule 2 to the Regulations; and
· cl.836.221 of Schedule 2 to the Regulations
Andrew George
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.