Le (Migration)

[2020] AATA 447

Le (Migration) [2020] AATA 447 (6 February 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Tang Hong Le

CASE NUMBER:  1729194

HOME AFFAIRS REFERENCE(S):          CLF2013/208229

MEMBER:Amanda Mendes Da Costa

DATE:6 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 836 visa.

Statement made on 06 February 2020 at 10:01am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Court remittal – elderly mother’s health, treatment and personal care – whether assistance can be provided by other family members or health services – whether applicant willing and able to provide assistance – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2)

Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cll 836.111, 836.212, 836.221

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 Immigration and Border Protection on 22 August 2014 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 August 2013. At that time, Class BU contained three subclasses: Subclass 835 (Remaining Relative); Subclass 836 (Carer); and Subclass 838 (Aged Dependent Relative): item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied that the assistance required cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.  The delegate was also not satisfied that the applicant is willing and able to provide the resident with the assistance required.

4. The matter is before the Tribunal as a result of an order of the Federal Court dated 7 November 2017, allowing the applicant’s appeal and remitting the matter to the Tribunal for reconsideration.

5. The applicant appeared before the Tribunal on 9 May 2019 and 18 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Thi Tang Hoa Le, the applicant’s sister.  Mrs Hai Thi Vo, the applicant’s mother, attended the hearing (in a wheelchair) and although invited to give evidence at the first hearing declined to do so.  However, Mrs Vo did give brief evidence at the second hearing.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the assistance required by Mrs Vo cannot reasonably be provided by: any other relative of her, who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.

9. The second issue is whether the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed.

   Whether the applicant has claimed to be the ‘carer’

10. 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 mother Mrs Hai Thi Vo.  The Tribunal notes that at question 65 in the visa application the applicant listed her father (Huu Tang Danh Le) and her mother as the persons requiring care, although the applicant only submitted a certificate in relation to her mother.  The Tribunal notes that the applicant’s father died in 2016.  Accordingly, the Tribunal accepts that the applicant has applied for the visa on the basis that she is the carer of her sponsor, Mrs Vo.

11. The Tribunal also notes that in their decision, the delegate states that the applicant is the granddaughter of the sponsor, Mrs Vo.  The Tribunal finds that this is an error, as the evidence shows that the applicant is Mrs Vo’s daughter.

12. 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.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

13. The Tribunal notes that a copy of the bio-pages of Mrs Vo’s Australian passport was provided to the Department.  On the basis of this evidence, the Tribunal is satisfied that Mrs Vo is an Australian citizen.

14. 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

15. 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.

16. Regulation 1.15AA(1)(a) requires the applicant to be 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 mother.

17. Based on the evidence before it, the Tribunal finds that the applicant’s mother is usually resident in Australia.

18. Therefore, as the applicant is the daughter of the Australian relative, 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).

19. Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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.

20. 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 that Bupa Australia Health Pty Ltd (Bupa) is the health provider for the purpose of r.1.15AA(2)) or issued by a specified health provider in relation to a review of such an opinion.  The Tribunal notes that IMM 14/085 currently applies and IMMI 07/013 applied at the time of the visa application.

21. The Tribunal finds that the applicant provided a Carer Visa Certificate Assessment dated 29 August 2013 issued by Medibank Health Solutions and signed by the examining medical practitioner, Dr Peter Tutton.  In that certificate Dr Tutton certifies that in his opinion Mrs Vo satisfies the requirements for needing a carer as she has:

    ·an impairment rating of 30 or more points in the Impairment Rating Tables found at Schedule 1B of the Social Security Act 1991, with a total rating of 40;

    ·a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

    ·a need for direct assistance in attending to the practical aspects of daily life because of the medical condition; and

    ·because of the medical condition, the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

22. On 23 July 2019 the Tribunal sent a letter to the applicant pursuant to s.359(2) of the Act, inviting her to provide information in writing regarding:

    ·any medical certificate issued by a health service provider in accordance with r.1.15AA(2) of the Regulations; and

    ·whether the assistance required by the visa applicant cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia as prescribed by r.1.15AA(1)(e)(ii) of the Regulations.

23. On 7 August 2019 the applicant sought an extension of time in which to provide further information to the Tribunal.  The Tribunal wrote to the applicant on 12 August 2019, advising that the Tribunal had granted the applicant an extension of time until 26 August 2019 to provide any further information.

24. The Tribunal notes that at the time of this decision, the applicant had not provided any further information to the Tribunal.

25. As noted above, Bupa is the current provider specified by the Minister to undertake physical examinations for carer visa assessments.  However, the Tribunal is satisfied that the certificate provided by the applicant is valid for the purposes of r.1.15AA(2)(i) given that Medibank was specified as the service provider at the time the certificate was issued.

26. The Tribunal has considered the age of the certificate provided but as Mrs Vo medical condition and the nature of the assistance she requires has not changed 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.

27. 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.

28. 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.

29. 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.

30. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

31. The Tribunal is satisfied that r.1.15AA(1)(d) does not apply.

32. 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.

    Applicant’s oral evidence: 9 May 2019

33. The applicant told the Tribunal that she arrived in Australia in 2013 when she commenced caring for her mother and father.  In 2016 her father died and since his death she has been caring for her mother.  The applicant is married and has three adult children and two grandchildren, all of whom live in Vietnam.  The applicant and sponsor are currently living in the home of the applicant’s brother, Tang Hoang Danh Le, and his wife.  The applicant is solely responsible for the care of Mrs Vo and provides for all of her mother’s care needs.  This includes: shopping and cooking meals for her mother; washing and ironing; attending to her mother’s personal hygiene requirements through bathing and toileting; taking Mrs Vo to medical appointments; and providing her with companionship.  The applicant explained that Mrs Vo is wheelchair bound and that she cannot move without assistance.  She further explained that her mother suffered from memory loss and required assistance and monitoring to ensure that she took her medication and in the correct dosage.  Mrs Vo speaks very little English and only converses in Vietnamese.  The applicant told the Tribunal that she was prepared to continue to act as her mother’s carer for the remainder of Mrs Vo’s life.

34. The applicant explained that given the decline in her mother’s mental condition and her lack of English language skills, it was important that her mother was cared for by a family member who could communicate with her in the Vietnamese language.

35. The Tribunal has also considered the applicant’s affidavit affirmed 8 February 2016 in support of her application for review to the Federal Circuit Court of Australia.  In this affidavit the applicant attests to her mother requiring 24/7 care, which requires the applicant to assist her mother with cooking, cleaning, walking, administration of medicine and personal hygiene.  The applicant further attests to monitoring her mother 24 hours per day to prevent Mrs Vo from falling and taking her mother to all required medical appointments.  The applicant states that her mother cannot speak English and cannot tolerate non-Vietnamese food.

    Applicant’s oral evidence: 18 October 2019

36. The applicant told the Tribunal that there had been no substantial change in her mother’s health since May 2019 although she was older and remained frail.  She said that her mother’s left leg was swollen and she had pain in both knees.

37. The applicant explained that the care arrangements for her mother had not changed and they remained living in the home of her brother and his wife.  Mrs Vo visited her general practitioner approximately once a month or more often if needed.

38. The applicant said that she was not receiving any support from any other family members to care for her mother and Mrs Vo was not receiving any support from welfare, hospital, nursing or community services.  When questioned by the Tribunal, the applicant explained that she had not made any enquiries since the hearing in May 2019 regarding any welfare, hospital or community services for her mother.

    Oral evidence of Mrs Vo

39. Mrs Vo told the Tribunal that she only wished to have her daughter (the applicant) providing her with care.

40. Having considered the available evidence, the Tribunal finds that the resident has the following relatives, as defined by r.1.03, who are Australian citizens or permanent residents:

    ·Thi Tang Dung Le (daughter, aged 65 years);

    ·Thi Tang Hoa Le (daughter, aged 61 years);

    ·Thi Tang Diep Le (daughter, aged 56 years);

    ·Huu Tang Hoang Le (son, aged 52 years);

    ·Tang Hoang Danh Le (son, aged 47 years); and

    ·Brian Bach (grandson aged 24 years).

41. The applicant provided the Tribunal with the following statutory declarations from family members:

    ·Thi Tang Hong Le (the applicant), declared 4 December 2015;

    ·Hai Thi Vo (the sponsor requiring care), declared 4 December 2015;

    ·Thi Tang Dung Le, declared 4 December 2015;

    ·Tang Hoang Danh Le, declared 4 December 2015;

    ·Brian Bach, declared 9 January 2016; and

    ·Thi Tang Dung Le, declared 4 December 2015 and 9 January 2016.

    Thi Tang Dung Le

42. In her statutory declaration, Ms Le attests to being unable to care for her mother due to her own family commitments including her care for a great-nephew (then three years of age) and the strain that caring for her mother would have on her marital and other family relationships.

43. Ms Le lives in Melbourne with her husband and adult son (Brian Bach).  The applicant explained that her sister is busy taking care of her own family and is unable to care for their mother.  She also said that her sister was in poor health and recently underwent a surgical procedure.  This meant that she was unable to care for their mother.

    Thi Tang Hoa Le

44. Ms Le lives in Brisbane and is unable to care for her mother whilst she remains in Melbourne.  Ms Le told the Tribunal that family commitments made it difficult for her and her sister Thi Tang Diep Le to visit their mother often or provide her with any care. 

45. When questioned about the applicant’s care of their mother, Ms Le told the Tribunal that when their father was alive, she had applied for her sister to move to Australia to care for their parents.  When asked by the Tribunal about how her mother would cope if she went to live in an aged care facility, Ms Le said that she would be sad and disappointed if this happened because she had invested money to bring the applicant to come to Australia to care for their mother.

    Thi Tang Diep Le

46. The applicant told the Tribunal that her sister lives in Brisbane and is unable to care for her mother whilst she remains in Melbourne.

    Huu Tang Hoang Le

47. The applicant told the Tribunal that Mr Huu Tang Hoang Le was currently living in Melbourne with her and Mrs Vo (and Tang Hoang Danh Le and his wife), while he waited for a visa to travel to the United Stated of America.  The applicant said her brother intended to relocate to the USA on a permanent basis with his wife, who was sponsoring him. 

48. The Tribunal notes that Mr Le has not provided any oral evidence to the Tribunal for the purpose of the review.

    Tang Hoang Danh Le

49. Mr Le lives in Melbourne together with his wife, the applicant and Mrs Vo.  The applicant told the Tribunal that her brother was unwell and was no longer working given he suffered from chronic shoulder and back pain.  The applicant said that given his health problems, her brother was unable to care for their mother and her sister-in-law was busy caring for her husband.  The applicant also said that her sister-in-law didn’t want to have much to do with either herself or Mrs Vo.

    Brian Bach

50. Mr Bach is the grandson of Mrs Vo.  In his declaration he attests to operating a network marketing business in NSW on most days of the week and also working on a part-time basis as a pharmacy assistant in Footscray in Melbourne.   Mr Bach states that he lacks the experience to care for his grandmother and is struggling to balance his family and work commitments without the additional role as a carer.

51. The applicant told the Tribunal that Mr Bach is currently working in a chemist’s shop and, apart from a visit at New Year’s celebrations, he doesn’t have any contact with Mrs Vo.

52. At the hearing on 18 October 2019, the Tribunal was provided with a letter from Medibank Private, health insurer, dated 17 October 2019, confirming that the applicant currently has private health insurance.

53. During the hearing on 18 October 2019, the Tribunal noted that the applicant had not provided any further statutory declarations to it from family members since January 2016.  The Tribunal informed the applicant that it may form the view that the information provided in the statutory declaration by those relatives who were not giving oral evidence at the hearing was outdated, and doesn’t demonstrate that the assistance required by Mrs Vo cannot reasonably be provided by any other relative who is an Australian citizen, permanent resident or New Zealand citizen, which was one of the issues to be determined by the Tribunal in making its decision.

54. At the conclusion of the hearing on 18 October 2019, the Tribunal gave the applicant until 8 November 2019 to provide it with any further documentation regarding her review application, including updated information regarding family members.

55. The applicant did not respond within the timeframe stipulated by the Tribunal.  However, on 15 November 2019 the applicant’s migration agent provided the following statutory declarations to the Tribunal on behalf of his client:

    • Tang Hoang Danh Le dated 9 November 2019;
    • Tang Hoang Huu Le Brendan, undated;
    • Thi Tang Diep Le, dated 6 November 2019;
    • Brian Bach, dated 10 November 2019;
    • Thi Tang Dung Le, dated 10 November 2019;
    • Thi Tang Hong Le (the applicant), dated 11 November 2019; and
    • Tang Hoa Thi Le, dated 14 November 2019

1. The Tribunal notes that the statement of Tang Hoang Hu Le is unsigned and undated.  In the email accompanying the statements, the migration agent explained that this statement is unsigned because Mr Le is having a dispute with his sister, the applicant, and is unwilling to provide any further assistance to his sister or his mother in relation to the review.  Given the statement is unsigned, the Tribunal accords it little weight.

2. The applicant’s agent further advised that the information given to the Tribunal at the last hearing by Mrs Tang Hoa Thi was incorrect.  Although she told the Tribunal that she was married, she is in fact divorced.  Ms Le gave this evidence to the Tribunal because she did not want her mother (Mrs Vo) to hear this as it would distress her.

3. Mr Tang Hoang Danh Le states that he is currently living in the same house as the applicant and Mrs Vo.  His mother’s health has been deteriorating as she has aged.  Due to his ill health Mr Le is unable to care for his mother.  As his wife is caring for him on a full-time basis, she is unable to care for Mrs Vo.  In Mr Le’s opinion, none of his siblings, apart from the applicant are able to properly care for his mother.

4. Mr Tang Hoang Huu Le Brendan states that he is married to an American citizen and will be leaving Australia “for good’ to live in America with his wife.  Given that Mr Brendan will be leaving Australia he is unable to care for his mother.  Although the Tribunal has not heard any evidence from Mr Tang Hoang Huu Le Brendan, it does accept the applicant’s evidence regarding her brother’s circumstances.

5. Mrs Thi Tang Diep Le is married and operating a business in Queensland.  She is busy and although she loves her mother very much Ms Le is unable to provide 24 hour care for their mother.  In Ms Le’s opinion, only the applicant can care for Mrs Vo.

6. Mr  Bach states that he is employed in multiple jobs at Chemist Warehouse, Move Again Myotherapy and Western Bulldogs Football Club.  His mother is very busy with household chores and his father works full-time.  Accordingly, they are unable to care for Mrs Vo.  Mr Bach further states that he is struggling with balancing his family and work commitments and is unable to provide his grandmother with the 24 hour care she requires.

7. The Tribunal accepts that the applicant and her family consider that it is in Mrs Vo’s best interests to be cared for by the applicant in the home of family members.  The Tribunal further accepts that the applicant considers that given her mother’s advanced age and poor English skills, she requires a carer who speaks the Vietnamese language. The Tribunal acknowledges that Mrs Vo is accustomed to eating Vietnamese food and is likely to want to continue with this diet in future.

8. The Tribunal acknowledges that those relatives identified in paragraph 40 of this decision (other than the applicant) have expressed an inability to care for Mrs Vo and Ms Tang Hoa Thi Le told the Tribunal at the recent hearing that she was unable to care for her mother. 

   FINDINGS

9. 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.

10. 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.

    Welfare, hospital or community services

11. The applicant previously provided the Tribunal with the following evidence in support of her claim that she and her family had tried to access appropriate community and/or residential services for Mrs Vo:

    ·Copy of internet information about Bluecare’s in-home care package;

    ·Email from Centacare to ‘Michelle’ regarding a referral for a gentleman;

    ·Oral evidence that she recently contacted the Australian Multicultural Community Services about home assistance, and they said that they could not help as their employees do not speak Vietnamese;

    ·An email from Carers Vic to Hoa Le, which states that there is no organisation that could fund full-time in-home care.  The email invites her to call the service to discuss her situation more fully and consider how the service might be able to help her.  There is no evidence that this offer was followed up by Mrs Vo’s family;

    ·An email from Hoa Le to Comcare seeking information on residential care.  The Comcare response suggests that she contact the local council about low cost home help services;

    ·An email from Hoa Le to Silver Chain asking if the organisation offers full time in-home care.  The response from Silver Chain asks Ms Le to call to discuss eligibility for services;

    ·Schedule of home service fees from ‘Benetas at Home’ (private service provider); and

    ·Letter from Essen Lawyers to Mekong Vietnamese Aged Care which refers to an earlier phone conversation and asks them to confirm that there are no vacancies and whether there is a waiting list.

12. The Tribunal further notes that this information was provided prior to January 2016 and no further information has been provided to the Tribunal regarding any attempts by the applicant or her family to access appropriate community and/or residential services for Mrs Vo.

13. The Tribunal questioned the applicant about whether she or other family members had made any further enquiries of, or had tried to access, appropriate community and/or residential services for Mrs Vo.  The applicant told the Tribunal that her mother didn’t wish to enter a residential care facility and that she proposed to care for her mother until Mrs Vo’s death. 

14. The applicant told the Tribunal that it was not feasible for Mrs Vo to access welfare, hospital or community services because of her advanced age, the fact that she only speaks Vietnamese, she can only tolerate Vietnamese food, does not want to be separated from her family and does not want to be cared for by strangers.  Further, in Mrs Vo’s statutory declaration dated 4 December 2015 states that many of the residential care facilities are expensive and she would not be able to afford such care even with the assistance of the government.

15. The Tribunal has not been provided with any documentary evidence regarding Mrs Vo’s financial position.  The applicant said that her mother did not own any real estate and did not have the financial ability to fund residential care for itself.

16. In the absence of any financial documentation regarding Mrs Vo’s financial circumstances, the Tribunal is not satisfied on the evidence before it that Mrs Vo is currently unable to afford the cost of residential care.

17. The Tribunal notes that despite its invitation to the applicant she has not provided it with any further documentary material regarding any enquiries she has made regarding access to welfare, hospital or community services for Mrs Vo.  Accordingly, the documentary information available to the Tribunal regarding welfare, hospital or community services is now more than three and a half years old and the Tribunal is not satisfied that it provides an accurate or reliable picture of any welfare, hospital or community services that can reasonably be obtained by Mrs Vo.

18. The Tribunal considers that the visits made by the applicant with her mother to various residential care facilities were made several years ago and the applicant’s inability to recall where they were situated and the absence of any written material obtained by the applicant about the facilities, do not provide any accurate or reliable picture of any welfare, hospital or community services that can reasonably be obtained by Mrs Vo.

19. The Tribunal acknowledges the media coverage of difficulties associated with some residential care facilities in Australia and evidence given to the recent Royal Commission into Aged Care Quality and Safety, it considers that such reports do not constitute evidence of whether there are any welfare, hospital, nursing or community services in Australia that can reasonably be obtained by Mrs Vo.

20. The Tribunal has considered Mrs Vo’s circumstances and in particular, her care arrangements since she and her late husband arrived in Australia in 2013.  The Tribunal is satisfied that throughout this period the applicant has been the sole carer of Mrs Vo and has lived with her at the home of family members.  Mrs Vo is now aged 92 years, speaks little or no English, uses a wheelchair and suffers from a number of medical conditions which are consistent with her advanced age and require daily intimate care. 

21. For the past six years Mrs Vo has been dependent on the applicant for all aspects of her personal care including personal care (toileting, bathing and dressing), preparation of meals, shopping, cleaning of clothes, administration of medications, monitoring of health, and transportation to medical and other appointments.  The applicant also provides her with companionship and emotional support.  This care is provided on a daily basis.

22. Although the Tribunal has some concerns about the lack of documentary evidence regarding access to welfare, hospital or community services for Mrs Vo, in making its decision, the Tribunal has given significant weight to the cultural considerations for Mrs Vo (including her language, diet, traditions and beliefs).  These cultural considerations together with her advanced age, poor health, nature of the care required and personal circumstances have led the Tribunal to find that assistance cannot reasonably be provided to Mrs Vo by a relevant relative or obtained from welfare, hospital, nursing or community services in Australia.  Therefore the Tribunal finds that the requirements of r.1.15AA(1)(e) are met.

23. Based on the evidence before it, 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).

24. Given these findings, the Tribunal finds that at the time of this decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.

    DECISION

25. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration with the direction that the applicant meets the following criteria for a Subclass 836 visa:

    ·cl.836.221 of Schedule 2 to the Regulations.

    Amanda Mendes Da Costa
    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.