Li (Migration) - [2023] AATA 3522

Li (Migration) [2023] AATA 3522 (11 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mr Shuhua Li
VISA APPLICANTS: Mr Zhenyu Li
Ms Lu Sun
Master Shengxi Li

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)
CASE NUMBER:  1929635
HOME AFFAIRS REFERENCE(S):          OSF2015/000898
MEMBER:Deputy President Justin Owen
DATE:11 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 11 September 2023 at 2:13pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– visa applicant is the son of the ‘close relative’ who is an Australian citizen usually resident in Australia – no attempts were made whatsoever to obtain the care and assistance from community, government, hospital and welfare organisations the review applicant requires – applicant’s desire for this care to be obtained from his son is clearly a preference rather than for any specific cultural reason – not satisfied the visa applicant has the specialist skills required to provide the assistance the review applicant requires ––no evidence to show assistance cannot be provided by or obtained from welfare, hospital, nursing or community services in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 116.221, 116.321

CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
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 11 October 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 16 March 2015. 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 primary visa applicant (the visa 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 116.221.
The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate found it had not been demonstrated that the care the Australian resident (and review applicant) required, could not reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the visa applicant was unable to meet reg 1.15AA(1)(e)(ii) of the Regulations.
The review applicant appeared before the Tribunal on 23 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, Ms Shuzhen Sui and the visa applicant, Mr Zhenyu Li. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant meets cl 116.221.
Whether the visa applicant is a ‘carer’
Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.
Regulation 1.15AA(1)(a) requires the visa 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 visa applicant’s father.
The Tribunal is satisfied on the evidence before it the visa applicant is the son of the ‘close relative’ who is an Australian citizen usually resident in Australia. The Tribunal notes the evidence in the Departmental file that the close relative (and review applicant) arrived in Australia in September 2004, acquired permanent residence in November 2005 and Australian citizenship on 29 April 2008. The Tribunal accepts the claim the close relative is ‘usually resident in Australia’.
Therefore, as the visa applicant is the son of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).
Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.
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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 23 December 2021. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the person who has the medical condition has an impairment rating (of 40) specified in the certificate. The Tribunal is satisfied that 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.
The Tribunal finds that the certificate provided does meet 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.
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.
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.
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 reg 1.15AA(1)(c).
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 two years as a result of the medical condition.
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.
The review applicant’s most recent CVAC states the review applicant is fully dependent, requiring assistance with mobility, bathing/showering, toileting, dressing/grooming, supervising medication, supervision for personal safety and transportation. The review applicant was diagnosed with multiple comorbidities, suffering from osteoarthritis, depression and anxiety. He also suffers from chronic pain. The review applicant has been living with his wife, who also claims her own medical issues, in a home provided by the Housing Commission.
The Tribunal noted at the hearing that the review applicant was living with his wife, an Australian citizen usually resident in Australia. The Tribunal asked the review applicant why his wife could not reasonably provide the assistance he requires. The review applicant stated that she had been assisting him for a long time but now she was getting old and was very tired. The review applicant’s wife gave oral evidence at the Tribunal’s hearing and highlighted the strain she is feeling from providing ongoing care to the review applicant. The Tribunal notes the various pieces of medical evidence submitted pertaining to the review applicant’s wife, Ms Shuzhen Sui, as well as her signed statements. Ms Sui has been diagnosed with a range of medical ailments including hypertension, diabetes, Meniere’s disease and hearing impairment. In 2022 she suffered a stroke. Given Ms Sui’s health, and given the review applicant’s significant needs as someone fully dependent, the Tribunal accepts Ms Sui is no longer able to reasonably provide the assistance the review applicant requires.
The Tribunal enquired about any other family members. The review applicant stated he and his wife have two children, the visa applicant and their daughter who are both living in the People’s Republic of China (PR China) He stated both he and his wife have no other family members in Australia.
The Tribunal accepts the veracity of the review applicant’s statement concerning his lack of family members in Australia. The Tribunal accepts that the only Australian relative he has in Australia, who is an Australian citizen, permanent resident or eligible New Zealand citizen, is his wife Ms Sui. The Tribunal accepts that Ms Sui is unable to reasonably provide the review applicant with the considerable assistance he requires.
The Tribunal is subsequently satisfied that the assistance the review applicant requires as the Australian resident cannot reasonably be provided by another Australian relative. Accordingly, the requirements of reg 1.15AA(1)(e)(i) are met.
The Tribunal has considered whether the assistance cannot be reasonably obtained from welfare, hospital, or nursing or community services.
The Tribunal notes that in the applicant’s Form 47OF application form, the box ‘No’ was selected to Question 71 that enquires “Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?” The reasons provided were the review applicant had severe depression and he did not want anyone to talk to him or touch him. The explanation stated that his wife’s health was not good, and she could no longer cope with providing care. It was asserted that a family member was needed to provide care to the review applicant, as they could look after him physically but also provide emotional and psychological support.
The review applicant explained that he had sought to obtain services after undergoing an Aged Care Assessment Team (ACAT) Assessment in 2019. The ACAT Assessment approved the review applicant for a Home Care Level 4 package on 28 January 2020, as well as Residential Permanent and Residential Respite High Care.
The review applicant explained, and post-hearing provided the relevant documentation, that he was receiving through the Australian Chinese Community Association of NSW around nine to ten hours a week assistance. The review applicant explained that he receives this care usually on Monday, Wednesday and Friday. He stated that was the maximum amount of home care he was entitled to, and whilst he was receiving care for ten hours a week, there was still a further 158 hours where he needed assistance.
The Tribunal asked the review applicant if he had tried to get further assistance from other welfare, hospital, or nursing or community services. The review applicant stated he was only entitled to ten hours so there was no point in asking for more. He stated furthermore he was not good with other people and had a delusion disorder and was unsuitable for residential care.
The Tribunal noted the review applicant’s care needs (the review applicant is listed in his most recent ACAT Assessment as being fully dependent) and asked what evidence he had, considering his care needs, of contact and communications with providers of residential care and respite care. The Tribunal notes the review applicant was approved for both after his ACAT Assessment in 2019. The review applicant did not have any evidence of any attempts. His wife stated she had made some enquiries many years ago to an aged care provider in Hurstville and to a Chinese provider but there was no evidence of such attempts. Ms Sui stated that they gave up on the idea of residential care due to the review applicant’s special needs, along with his psychological challenges including his temper and anger. She stated that she had visited three aged care providers approximately five years ago. She claimed one facility told her the review applicant was not suitable whilst the others said at that time they had no vacancies but would let her know when there was availability. In response to the Tribunal’s request, Ms Sui said she had no written correspondence from these providers confirming this, stating she had probably thrown away the letters.
The Tribunal asked the review applicant if his claim was that he had not made any attempts to obtain the assistance he require through welfare, hospital, or nursing or community services as he had special needs and needed a family member to provide those services to him. He again restated he had needs that required assistance to be obtained from a family member in the home. He expressed a preference for such services to be provided by his family.
The review applicant stated his experience with external services, such as at the hospital, had been poor in relation to providing the food he required. This was reflected in the correspondence of his medical practitioner, Dr Huang in December 2021. Based on his experience in hospital, he had no confidence that the food he required would be reasonably obtainable from welfare, hospital, or nursing or community services.
The Tribunal notes that there is no corroborative evidence before it of the review applicant making any efforts to obtain care and assistance from community, government, hospital and welfare organisations beyond the assistance being received through the ten hours of assistance every week being provided by the Australian Chinese Community Association of NSW.
It is clear that no attempts were made whatsoever to obtain the care and assistance from community, government, hospital and welfare organisations the review applicant requires at the time of application. The Tribunal has considered the evidence before it, and the claims of Ms Lui that she subsequently visited some aged care providers, but ultimately is not satisfied that any genuine efforts have been undertaken to obtain assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist the visa applicant beyond the ten hours assistance obtained through a Home Care package that came out of the ACAT Assessment undertaken in 2019, more than four years after this Carer visa application was lodged.
The Tribunal acknowledges that on 29 August 2019 the review applicant was assigned a Level 4 Home Care Package after undertaking an ACAT Assessment. This ACAT Assessment provided permanent approvals for permanent residential care; residential respite care at a high level, as well as the Level 4 Home Care Package. The Tribunal acknowledges that the review applicant has been utilising the Level 4 Home Care Package for the provision of up to ten hours assistance in the home each week since 2020, normally across three separate days and for up to ten hours a week.
The review applicant and visa applicant both stated in their oral testimony that the review applicant needs 24/7 care. The Tribunal asked the parties if this was the case, why was residential aged care – as the review applicant has been approved for – unsuitable. As discussed earlier in this decision record, the review applicant and his wife both claim that the review applicant is unsuitable for residential care due to his specific mental health and anger management issues. They have both expressed a clear preference for the review applicant to remain at home and receive care from his son, the visa applicant. The parties have asserted that their son is the most suitable person to provide the increasing care the review applicant requires.
The Tribunal has considered all the evidence before it concerning what attempts to obtain the assistance the review applicant requires from any welfare, community, hospital or nursing services had been made. The Tribunal has considered this in the context of the review applicant’s health needs as highlighted in the CVAC and the other medical evidence submitted from the review applicant’s treating medical professionals.
The Tribunal acknowledges that the review applicant as the Australian resident may have a strong preference to receive care from the visa applicant in his own home. The Tribunal notes that reg 1.15AA(1)(e)(ii) requires that care must be sought in order to determine that there is no assistance that is able to be reasonably obtained from welfare, hospital, nursing and community services in Australia.
The Tribunal discussed the review applicant’s needs for assistance in some detail with the review applicant and his wife at the Tribunal’s hearing. The Tribunal asked why these services could not be obtained from external welfare, hospital or nursing or community services. The argument by both parties appears to be the review applicant has a strong preference to stay in his home and for his son to provide this assistance. He claims his specific health concerns make residential care unsuitable. He is opposed to entering residential aged care, despite his claim being that he now requires 24/7 assistance.
The Tribunal notes that the evidence before it strongly suggests that very limited attempts have been made to obtain any of the services the review applicant, as the Australian resident, requires at any time between the time of application and the time of decision. The Tribunal notes that to meet the criteria for the grant of this visa, the visa applicant is required to illustrate that this assistance cannot be reasonably obtained through welfare, hospital, or nursing or community services. The Tribunal acknowledges an ACAT Assessment was undertaken and the review applicant has utilised support in the home since 2020.
There is no corroborative evidence however that residential care has been enquired into, even given the claimed health challenges the review applicant faces (or for that matter his health needs as listed in his CVAC). The Tribunal notes the claims by Ms Sui that she approached several aged care residential providers some years ago, as well as the review applicant’s claim that some telephone calls were made. The Tribunal does not accept the claim of Ms Sui that the evidence of this contact, and the aged care residential provider’s response, has been lost or disposed of. The Tribunal considers the more likely scenario quite simply is that no attempts have been made. Given the very limited attempts that have been made to enquire into and obtain such services, the Tribunal is not satisfied that these services are not available.

The Tribunal is not satisfied from the very limited evidence before it that the assistance the review applicant as the Australian resident requires cannot be reasonably obtained from welfare, hospital or nursing or community services. On the evidence before it, due to the lack of any genuine enquiries into what services are available, the Tribunal is unable to come to a level of satisfaction that the services required cannot be reasonably obtained. There is no evidence from agencies or service providers confirming that they cannot provide suitable assistance, or that the availability of care they provide does not cover the care required by the Australian resident. There is no evidence of any requests ever being made beyond the undertaking of ACAT Assessments and the utilisation of some services through the Australian Chinese Community Association of NSW. There is no evidence of any attempt to enquire into whether permanent residential care, as approved in the ACAT Assessment now four years ago, has been sought. Quite simply, the Tribunal is not satisfied that any meaningful attempt has been made to obtain the services the Australian resident, the review applicant, requires.
The Tribunal accepts the review applicant as the Australian resident has a strong preference for the services he requires to be obtained from his son, the visa applicant, rather than from external services. The Tribunal notes the review applicant’s statements concerning food, and his dislike of the food available in hospital, that leads him to hold similar reservations about the food available in residential aged care, and his preference for Chinese cuisine. The Tribunal has also considered the correspondence of the review applicant’s General Practitioner, Dr Yu-Feng Judy Huang who in December 2021 wrote that the review applicant had declined hospital admission previously as he was unable to receive culturally appropriate services and food in hospital. The Tribunal has considered the issue of cultural reasons for the review applicant’s son, the visa applicant, to provide the care he requires. The Tribunal notes however that a mere preference for a particular service is to be distinguished from a cultural reason. In Hon Anh Vuong v MIAC [2013] FCCA 274, the Court found that the applicant’s mere preference to be cared for by his children rather than by strangers was not a barrier to his obtaining welfare assistance and therefore was not a matter that the Tribunal was required to consider further in its determination of reg 1.15AA. The Tribunal acknowledges the review applicant is currently receiving ten hours of assistance a week in the home from the Australian Chinese Community Association of NSW; but there is no evidence before the Tribunal of culturally specific services being sought by the review applicant in reasonably obtaining the much broader assistance he requires from welfare, hospital or nursing or community services. Quite simply, there is no evidence of the review applicant, with his specific fully dependent needs, seeking to obtain this assistance from any other providers, whether they are culturally appropriate and speaking Chinese providers or not, in aged residential care, respite care or elsewhere. On such evidence before it, the Tribunal considers the review applicant, as the Australian resident, has a preference to be cared for by his son, the visa applicant, rather than via obtaining external welfare, hospital, nursing or community services. The Tribunal considers the review applicant’s desire for this care to be obtained from his son is clearly a preference rather than for any specific cultural reason.
The Tribunal also notes Lam v MIBP [2013] FCCA 1263, where the Court confirmed it is for the applicant to satisfy the Tribunal that the relevant services are not reasonably obtainable. The Tribunal accepts the review applicant as the Australian resident may have a preference to obtain the services he requires from the visa applicant. There is no evidence before the Tribunal however that this preference is a barrier to the review applicant reasonably obtaining welfare, hospital, or nursing or community services assistance. Given there is little evidence of any effort that has been undertaken to obtain the services he requires (beyond those services currently being received), the Tribunal is not satisfied that the services the review applicant requires are not reasonably obtainable. The Tribunal is not satisfied that the Australian resident’s preference for his son, the visa applicant, to provide him with care services is a barrier to him reasonably obtaining those services via welfare, hospital, nursing or community services.
The Tribunal has considered the evidence before it pertaining to the efforts undertaken by the review applicant to obtain assistance from welfare, hospital, nursing or community services. The Tribunal accepts the review applicant has a strong preference for the care required to be provided by his family, preferably from his son the visa applicant in his home. The Tribunal is not however satisfied that the care required is not reasonably obtainable from available welfare, hospital, nursing or community services. In the absence of the review applicant undertaking what it considers are reasonable steps to enquire into and attempt to obtain such services (beyond the Australian Chinese Community Association of NSW services which the Tribunal accepts), the Tribunal cannot be satisfied that these services and this care is not reasonably obtainable from welfare, hospital, nursing or community services in Australia.
The Tribunal considers on the evidence before it that the attempts that have been made to obtain welfare, hospital, nursing or community services have been extremely limited. On the basis of such little corroborative and supportive evidence concerning attempts to access such assistance, the Tribunal is not satisfied that the assistance the review applicant requires cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e)(ii) are not met.
The Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are not met.
Regulation 1.15AA(1)(f) requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
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 noted that the delegate, having refused the visa applicant as not meeting the requirements of reg 1.15AA(1)(e), did not assess whether the visa applicant met the requirements of reg 1.15AA(1)(f).
At the Tribunal’s hearing, the Tribunal put the review applicant and the visa applicant on notice that meeting the requirements of reg 1.15AA(1)(f) was a further requirement for the grant of the visa. The Tribunal noted to the review applicant and the visa applicant that the delegate had not considered this requirement. The Tribunal explained the requirements of reg 1.15AA(1)(f) to the parties.
At the Tribunal’s hearing, the visa applicant was questioned concerning his previous experience, knowledge and skills at providing substantial and continuing assistance of the kind needed to his father, the relevant Australian resident for the purposes of this visa. The visa applicant stated that he had last seen his father in 2010. He sated he had never previously visited Australia and did not speak English. The visa applicant stated ‘no’ to the question as to whether he had any previous experience as a care provider. The visa applicant was unable to name the provider who was currently providing assistance to the review applicant and was uncertain as to specifically how long they had provided care assistance to the review applicant.
The visa applicant explained that he worked in the area of mechanics. He was able to provide an outline of the review applicant’s medical ailments that was reasonably consistent. The visa applicant in oral evidence to the Tribunal stated he was learning massage therapy so he could assist his father as a carer.
The Tribunal noted the visa applicant’s oral testimony and his responses concerning his experience, knowledge and skills at providing the substantial and continuing assistance of the kind needed by his father. The Tribunal had considerable doubts, based upon the visa applicant’s testimony, as to whether he had the skill set and aptitude necessary to provide the review applicant the substantial and continuing assistance of the kind he needed. The Tribunal, noting the specific care needs of the Australian relative, and noting the visa applicant’s lack of experience, training and expertise in providing the care the Australian resident required, put its concerns to the review applicant under s 359AA. The Tribunal noted the relevance of the visa applicant’s evidence to the Tribunal and the consequence of the Tribunal relying on the information he provided. The review applicant was invited to comment on or respond to the Tribunal at the hearing or subsequently in writing. The Tribunal offered to suspend the hearing whilst the parties sought advice from their representative.
The review applicant stated bluntly that he wished to comment on or respond to the information at the hearing. The review applicant responded firstly to the issue of the visa applicant’s willingness. He stated that the decision for his son to come to Australia to take responsibility for his care had been made by the whole family and had been after careful consideration. A decision had been made after discussions in their household. The review applicant stated that the whole family needed to be supportive and on board for this to occur, especially the family of his wife. He asserted this had not been a hasty decision. The review applicant conceded he had not seen his son the visa applicant for some years, but this did not mean he could not provide the care and assistance he required. He asserted the visa applicant was willing.
In relation to his ability to provide the assistance required, the review applicant stated his son was making efforts, including teaching himself English. He stated the visa applicant was taking steps to learn massage therapy which was one of the review applicant’s needs. The review applicant stated his son was willing to give up his house and savings in PR China and bring all those financial resources to Australia so he can dedicate himself to providing the review applicant with assistance.
The Tribunal has considered the evidence before it as to whether the visa applicant is willing and able to provide substantial and continuing assistance of the kind needed to his father, the review applicant. This is a question of fact before the Tribunal inextricably linked to the nature of assistance that the review applicant requires.
The Court in Perera v MIMIA [2005] FCA 1120 at [16] confirmed that the phrase ‘substantial and continuing’ assistance is a composite phrase, in the sense that its two elements are cumulative. The visa applicant must be willing to provide not only substantial assistance, and not only continuing assistance, but assistance which is both substantial and continuing. The word ‘substantial’ is directed to the level of assistance and the word ‘continuing’ is directed at the duration of the assistance.
The Tribunal furthermore notes that substantial and continuing assistance can in circumstances be provided in conjunction with assistance from community care providers: Gorgees v MIBP [2018] FCCA 2787 at [49].
In determining the meaning of ‘able’ in the phrase ‘willing and able’ the Tribunal’s focus is on the objective suitability or fitness of the visa applicant. As stated in Xiang v MIMIA [2004] FCAFC 64 at [7]:
A visa applicant must show that he or she is ‘willing and able’ to provide the required assistance. The first limb (the applicant’s willingness) is concerned with the applicant’s state of mind. Is the applicant prepared to do what is necessary to provide the assistance? The second limb (whether the applicant is “able” to provide that assistance) calls for an objective inquiry. The question is whether the visa applicant is a person who is suitable or fit to provide the assistance. That the visa applicant may not have provided assistance to a relative during the intervening period (or indeed at any time), especially for reasons beyond the applicant’s control, will normally be irrelevant to the tribunal’s inquiry.
The Tribunal is satisfied on the evidence before it that the visa applicant is willing to provide the substantial and continuing assistance his father requires. The Tribunal found the review applicant, the visa applicant, and the review applicant’s wife to be consistent about the health challenges of the review applicant. The Tribunal notes the visa applicant is in gainful employment in PR China, and has a stable life with his family. The Tribunal accepts he feels a strong degree of responsibility to assist his father (and for that matter his mother) at this point in their lives.
The Tribunal however is not satisfied, having evaluated the assistance to be provided, the visa applicant is able to provide the substantial and continuing assistance his father requires. The Tribunal notes the review applicant has some significant and increasing health needs as highlighted in his most recent CVAC. Based upon his testimony to the Tribunal, the review applicant needs significant direct care in his daily living.
The Tribunal is not satisfied the visa applicant has the specialist skills required to provide the assistance the review applicant requires. He has no skills or experience in providing ongoing care and assistance whatsoever. He has articulated no plan to acquire any such skills beyond learning massage techniques. By the visa applicant’s own evidence he does not speak English. The Tribunal notes the review applicant claimed his son was teaching himself English but this was not claimed by the visa applicant himself. The visa applicant has never visited Australia so has no familiarity with the Australian health system and accessing services. The Tribunal notes the visa applicant has ongoing family responsibilities to his own wife and son. He has claimed he will be financially secure through savings and the sale of his home, though there is no evidence to substantiate this. The review applicant and his wife are receiving government assistance to meet their daily needs and the review applicant discussed the financial challenges they face. Whilst the visa applicant’s wife (and secondary applicant) may be able to acquire employment in Australia whilst the visa applicant provides care, the Tribunal nevertheless retains significant doubts as to the visa applicant’s ability, skills and experience to provide the assistance his father requires. Whilst the visa applicant may at some point acquire English language skills and more familiarity with the Australian health care system, the Tribunal nevertheless harbours considerable doubts the visa applicant currently has, or will acquire in the future, the specific skills to provide the ongoing assistance his father requires. Having regard to the needs of the review applicant, the Tribunal is not satisfied the visa applicant has the ability to provide assistance that fulfils the review applicant’s needs in a continuing and substantial way. He has no skills, training or experience in providing constant care for an aged person with the needs of his father. He has little personal familiarity with his father having last seen him over a decade ago. He currently speaks no English, has no experience with the Australian health system, and has his own immediate family with their own needs and priorities. Ultimately, based upon the evidence before it, the Tribunal is not satisfied the visa applicant will provide the substantial and continuing assistance the review applicant requires. The Tribunal reaches the same conclusion concerning the visa applicant even if assistance is provided in conjunction with community care providers.
Therefore, the visa applicant is not able to provide to the Australian relative substantial and continuing assistance of the kind needed and does not meet the requirements of reg 1.15AA(1)(f).
The Tribunal has found that the visa applicant does not meet either reg 1.15AA(1)(e) or reg 1.15AA(1)(f).
Given these findings, the Tribunal concludes that at the time of decision, the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl 116.221.
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 visa applicant meets prescribed criteria for the visa sought.
The evidence before the Tribunal is that the visa applicant was born on 15 July 1974. The Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. As such, the visa applicant is not an ‘aged dependent relative’ as defined in reg 1.03 for cl 114.211 of Schedule 2 to the Regulations.
The Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 115 (Remaining Relative) visa as the visa applicant’s near relatives, as defined in reg 1.15(2), reside in the same country as the visa applicant. The visa applicant’s wife Ms Lu Sun and his son Master Shengxi Li, the secondary applicants, each reside with the visa applicant in PR China. At the time of application and the time of decision, the visa applicant is not the remaining relative of an Australian relative, as he has a spouse and a son who are PR Chinese nationals. As such, the visa applicant is not a ‘remaining relative’ and therefore is unable to meet cl 115.211.
Secondary applicants
The applications of the secondary applicants Ms Lu Sun and Master Shengxi Li were refused by the delegate on the basis that the visa applicant’s visa had been refused. As the Tribunal has affirmed the delegate’s decision, and found that the visa applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the applications of the secondary applicants.
The secondary applicant Ms Lu Sun does not meet cl 116.321 as she is not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.
The secondary applicant Master Shengxi Li does not meet cl 116.321 as he is not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.
There is no evidence, and no claims before the Tribunal, that the secondary applicants meet the primary criteria for the grant of Other Family (Migrant) (Class BO) visas.
DECISION

The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Justin Owen
Deputy President

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.