Lin (Migration)

[2019] AATA 1974

Lin (Migration) [2019] AATA 1974 (24 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Tze Chun Lin

VISA APPLICANT:  Miss Ai Chuan Lin

CASE NUMBER:  1728455

HOME AFFAIRS REFERENCE(S):           OSF2014/028260

MEMBER:Justin Owen

DATE:24 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2019 at 11:51am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – capacity to participate in hearing – dementia – support from daughter increasingly unsustainable – assistance reasonably obtained from welfare, nursing or community services – language barriers – TeoChow dialect – cultural needs – personal preferences – fear of ‘strangers’ in the home – comprehensive ACAT assessment not undertaken – 24-hour care – Home Care package – unique or exceptional circumstances – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 360
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 116.212, 116.221, 116.222

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Kumar v MIAC [2009] FMCA 649
Lin v MIMIA [2004] FCA 606

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 15 September 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 May 2014. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied the review applicant could not source the assistance she required from services in Australia and r.1.15AA(1)(e)(ii) was not met.

4. The review applicant appeared before the Tribunal on 26 March 2019. The Tribunal also received oral evidence from the visa applicant Miss Ai Chuan Lin who is the review applicant's daughter.  The Tribunal also received oral evidence from Ms Ai Lien Li who is the review applicant’s daughter and Mr Chiech Chuan Lim who is the review applicant’s son. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The Tribunal held a second hearing on 9 May 2019.  The Tribunal at this hearing received oral evidence from the visa applicant Miss Ai Chuan Lin, the review applicant’s other daughter Ms Ai Lien Li and the review applicant’s representative Ms Wen Qing Chen. The Tribunal hearing was again conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Are the sponsorship requirements met?

8. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).

9. Clause 116.222 requires that at the time of decision the sponsorship referred to in clause 116.212 that was approved by the Minister be still in force.

10. At the opening of the 26 March 2019 hearing, the Tribunal invited the review applicant to take either the Oath or an affirmation before she provided oral testimony to the Tribunal.  The review applicant replied that she did not understand.  The Tribunal then explained the differences between an Oath and an affirmation and the choice the applicant could make in selecting an Oath or an affirmation before giving oral evidence.  The review applicant repeated that she did not understand. Eventually an affirmation was taken by the review applicant.

11. The Tribunal outlined the review process at the hearing and asked the review applicant if the process was clear.  The review applicant responded that she did not understand anything.

12. The review applicant’s representative addressed the Tribunal and stated that the review applicant did not understand anything.  She urged the Tribunal to refer to the correspondence of Dr Ernest Tam, the review applicant’s geriatrician that had been submitted to the Tribunal just prior to the hearing (T1, Folio.177-181).  The representative said that the review applicant was suffering severe dementia and she was unable to understand.  She said that the review applicant was confused and was just nodding her head, knowing that today was an important day. 

13. The Tribunal asked if any Power of Attorney had been granted by the review applicant.  The visa applicant and the review applicant’s other daughter each confirmed to the Tribunal that no Power of Attorney had been granted.  The review applicant’s representative said she explained to the visa applicant and her sister that there was an enduring Power of Attorney that may be available to them, but confirmed that it had not been put in place. 

14. The Tribunal has noted the report of Dr Ernest Tam dated 23 March 2019.  The Tribunal notes that Dr Tam in his report wrote that the review applicant continues to suffer from multiple and complex permanent and disabling cognitive and medical conditions which included mixed-type dementia. 

15. Dr Tam writes that he has assessed the review applicant since September 2017and provided a Geriatrician Report to the Department dated 26 October 2017.  He writes that the review applicant had been attending regular follow-ups with him and had carried out a further assessment on 23 March 2019.  He states that the visa applicant and the review applicant’s other daughter Ms Ai Lien Li also attended the assessment.

16. Dr Tam wrote that the review applicant’s Mini Mental State Examination (MMSE) that day was 10/30 (orientation 1/10, attention 0/5, recall 2/3) though he states the MMSE was not applicable to the review applicant due to her illiteracy and TeoChow dialect. 

17. At the hearing the Tribunal asked the review applicant’s representative and the visa applicant how they wished to proceed with the review applicant’s evidence given her state of mind. 

18. The review applicant’s representative stated that she thought the review applicant didn’t understand the situation and she didn’t know where she was.  The review applicant’s representative said the doctor’s report clearly stated the review applicant didn’t understand things around her.  The review applicant’s representative in response to a question from the Tribunal said she did not wish the review applicant to give oral evidence. 

19. The Tribunal accepts that the visa applicant was sponsored by the review applicant as required under cl.116.212 at the time of application.  The Tribunal noted however that almost five years had elapsed by the time of its hearing.  The Tribunal was of the opinion that the review applicant’s health ad deteriorated since that time and her dementia has increased significantly.  The Tribunal had concerns that at the time of decision that the review applicant may not have had an understanding as to her duties and responsibilities as the sponsor of the visa applicant. 

20. The Tribunal notes the written opinion of the review applicant’s Geriatrician Dr Tan who states that the review applicant has demonstrated that, albeit with cognitive impairment, she has the specific mental capacity and special understanding of the obligations of sponsoring the visa applicant.  Dr Tan goes on to write that ‘I am satisfied that Ms Lin (the review applicant) understands her obligations and undertaking at the time of this Carer Visa application being lodged.’   The Tribunal accepts Dr Tan’s statement that at the time of this application in May 2014 the review applicant most likely understood her obligations as the sponsor of the visa applicant.  The Tribunal based on the first hearing had concerns as to whether the review applicant has an understanding of her obligations at the time of decision.  The Tribunal found the review applicant to be confused and restless whilst illustrating no understanding of any of the proceedings of the Tribunal hearing.  The review applicant during the hearing began asking for somewhere to lie down before leaving the hearing midway through proceedings.  She did not return.  The Tribunal noted the comments of the review applicant’s representative concerning the review applicant’s failure to understand questions and the purpose of proceedings.  On the evidence before it, the Tribunal had concerns that the review applicant did not have any understanding of her duties and responsibilities as the sponsor of the visa applicant.

21. The Tribunal furthermore noted from the oral evidence of the visa applicant and her sister at the 26 March 2019 hearing that the review applicant has not appointed any enduring Power of Attorney over her affairs.

22. The Tribunal notes Direction 8.2 of the President’s Direction, which states that the Tribunal should restrict its review to the criteria or issues before the primary delegate.  The Tribunal notes that the delegate refused to grant the visa on the basis of r.1.15AA(1)(e)(ii) as the delegate was not satisfied the review applicant could not source the assistance she required from services in Australia. 

23. Given the Tribunal’s concerns as to the review applicant’s capacity to understand her obligations as the sponsor of the visa applicant, and aware of its s360 obligations, on 18 April 2019 the Tribunal invited the review applicant to a second hearing to be held on 9 May 2019 where it could explore the capacity issue more fully.   

24. On 21 April 2019, the review applicant through her representative replied, stating that the review applicant, visa applicant and the review applicant’s other daughter and son would again give evidence at the hearing. 

25. On 2 May 2019, the review applicant through her representative made further written submissions to the Tribunal.  These included an executed Statutory declaration of the visa applicant dated 30 April 2019; an executed statutory declaration of the visa applicant’s sister Ms Ai Lien Lin dated 1 May 2019; a duly executed Power of Attorney of the review applicant and a duly executed appointment of enduring guardian of the review applicant.

26. On 9 May 2019, the visa applicant and her sister Ms Ai Lien Lin attended the Tribunal hearing with the review applicant’s representative.  The Tribunal enquired where the review applicant was.  The review applicant’s representative stated that the review applicant was not in attendance as she was not well and had refused to attend the hearing.  No medical evidence was presented to confirm this claim. 

27. The Tribunal noted that the Power of Attorney and the appointment of an enduring guardian had been signed and completed on the same day as the Tribunal’s first hearing on 26 March 2019.  The review applicant’s representative confirmed that the Power of Attorney and the enduring guardian appointment nominating the visa applicant and her sister Ms Ai Lien Lin as attorneys and enduring guardians had been prepared by her and signed by the review applicant after the Tribunal’s hearing back at the representative’s office. 

28. The Tribunal noted the review applicant’s confusion and state of mind at the hearing that day.  The applicant’s representative said that the review applicant had had something to eat and was in a better frame of mind by the time she attended the representative’s office and signed this documentation.    

29. The Tribunal asked the review applicant’s representative if she considered the review applicant had the capacity to understand what she was doing.  She replied ‘kind of.’  The review applicant’s representative said that the review applicant appeared to understand the effect of the Power of Attorney.  The review applicant’s representative confirmed that she had explained the effect of the Power of Attorney and the review applicant had confirmed her approval.  The Tribunal asked the review applicant’s representative whether she was satisfied that the review applicant understood the effect of the Power of Attorney and enduring guardianship.  The review applicant’s representative said she thought so.  The Tribunal reminded the review applicant’s representative of her duty not to accept instructions when she was aware that the donor does not have the capacity to grant the enduring power of attorney.  The review applicant’s representative said she understood.  The Tribunal raised the review applicant’s potential language issues that had previously been raised and her utilisation of the TeoChow dialect.  The review applicant’s representative stated the review applicant understood a bit of Mandarin and Cantonese so was able to understand what she was signing.      

30. The visa applicant confirmed the review applicant’s representative’s explanation concerning the signing of the Power of Attorney and the enduring guardianship.  The visa applicant said that she had explained the effect of the Power of Attorney to the review applicant previously. 

31. The Tribunal has reviewed the sponsorship issue and the review applicant’s capacity at the time of decision carefully.  Whether the review applicant has appointed someone with power of attorney over her affairs and whether she had the capacity to do so are findings of fact for the Tribunal to make.  The Tribunal notes that the review applicant’s capacity to give a power of attorney is not a question determined solely on the basis of medical evidence, but is a question for the Tribunal to determine on the totality of the evidence before it, both medical and lay: Kumar v MIAC [2009] FMCA 649.

32. The Tribunal notes that the power of attorney and enduring guardianship has been executed by a solicitor in the review applicant’s representative.  The Tribunal notes that solicitors have a duty to not accept instructions where the solicitor is aware that the donor does not have capacity to grant the enduring power of attorney. The Tribunal has noted the review applicant’s representative’s testimony from the 26 March 2019 that the review applicant did not know what she was doing.  The Tribunal does however accept that the review applicant’s periods of lucidity due to her dementia may vary due to a wide range of externalities including anxiety, nervousness from the hearing and being in an alien environment.  The Tribunal has placed a great deal of weight on the assertions of the review applicant’s representative, as a practising Solicitor and member of the Supreme Court of NSW, that the review applicant had the capacity to understand and understood the effect of what she was signing when signing the requisite documentation on 26 March 2019.  On balance, on the basis of the assertions of the review applicant’s representative, the visa applicant and on the basis of medical advice that has been provided to the Tribunal by the review applicant, the Tribunal accepts that the review applicant had capacity to grant the enduring Power of Attorney and the Enduring Guardianship to the visa applicant and her sister. 

33. The Tribunal furthermore notes the extensive evidence that has been provided concerning the ability of the visa applicant and her sister Ms Ai Lien Li to meet the obligations of the review applicant as sponsor.  The Tribunal notes Ms Ai Lien Li and her husband purchased a townhouse in Cabramatta in 1991 in joint names for her mother to live in.  Notices of strata levies and Council rates confirm the ownership.  The Tribunal accepts that the review applicant has been living there since 1991.  Ms Ai Lien Li has provided a statutory declaration that she and her husband intend for the review applicant to live there until she passes away.  She furthermore confirms that she and her husband are happy for the visa applicant to live at the property until and after the review applicant passes away.

34. The Tribunal also notes the documentary evidence and oral testimony concerning the requirement for financial assistance.  The visa applicant worked until 2016 in the import and export business in Hong Kong. Since that time she has dedicated herself to looking after the review applicant – both in Australia when on a Visitor visa and in Hong Kong when she flew her mother over to her.  The visa applicant provided evidence of her real estate holdings that includes a $AU1.5m property in Taiwan and a $AU3.8m property she jointly holds with her two siblings in Hong Kong.  In evidence, she stated she also has savings but nevertheless would be happy to liquidate her assets to look after the review applicant in Australia.  Ms Ai Lien Li – who holds a third of the Hong Kong property – stated she would be happy to see the property sold. 

35. The Tribunal is satisfied that the visa applicant requires no financial or accommodation assistance from the sponsor and review applicant.  The Tribunal is satisfied the visa applicant – through both her own resources and those of her sister – can meet her needs and the sponsor and review applicant is not required to provide any financial or accommodation assistance for two years and beyond.  The Tribunal therefore accepts that because of this support the review applicant as sponsor can undertake her sponsorship obligations to the extent necessary.     

36. The Tribunal therefore considers, on balance, the sponsorship requirements have been met.  At the time of application, and the time of decision, the visa applicant was sponsored as required by the legislation and satisfies cl.116.212 and cl.116.222.

    Whether the visa applicant is a ‘carer’

37. 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 r.1.15AA of the Regulations..

38. 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.

39. The Tribunal notes the extensive role the visa applicant’s sister Ms Ai Lien Li has played in caring for and providing assistance to the review applicant for many years.  The Tribunal notes that Ms Ai Lien Li with her husband purchased property in Cabramatta so the review applicant had somewhere to live some 28 years ago and have met all the payments and obligations on this property since that time. 

40. At the first hearing, the visa applicant stated that since a fall in 2017 the review applicant has lived with her sister Ms Ai Lien Li on the Central Coast in Gosford.  The visa applicant said the review applicant was no longer able to live by herself due to her declining health from this time. 

41. Ms Ai Lien Li in her statutory declaration stated that she began to help look after her mother with household chores on a weekly basis in 2002 and she would stay with the review applicant over the weekend at the Cabramatta property.  She said that she would look after all the review applicant’s living expenses and has done so until the present day.  The Tribunal accepts Ms Li’s evidence. 

1. Ms Ai Lien Li and her husband however also operate a coffee shop in Gosford that operates between 7am and 5pm six days a week.  Ms Li and her husband are also looking after a 16yo daughter at school.  The Tribunal accepts that the demands of operating a small business in the hospitality sector are particularly onerous.  Ms Li at the second Tribunal hearing spoke about how she is forced to leave the review applicant at her home in Gosford whilst she goes off to work and the review applicant is largely left by herself during the workday.  Ms Li and the visa applicant understandably have serious concerns for the safety of the review applicant in their absence and have provided examples of the dangers the review applicant’s has faced due to her dementia and confusion. 

2. The Tribunal considers Ms Ai Lien Li has played an admirable role in providing care and assistance to her mother for numerous years.  She continues to do so with the property she provides to the review applicant in Cabramatta and through the continued supply of all the review applicant’s necessities.  The Tribunal accepts that the challenges of running and operating a small business six days a week and the care and support she needs to provide her daughter have made providing the extensive care the review applicant now requires a considerable and onerous challenge, particularly given the review applicant’s declining health and her increased need for care and assistance.    Ms Li spoke about the care she provides her mother the review applicant, including sleeping in the same bed as her mother.  The Tribunal accepts, based upon the medical evidence required and the testimony of the parties, that the review applicant’s requirements are significant and onerous.   The Tribunal accepts that whilst she can and will undoubtedly continue to provide significant support to the review applicant, her personal circumstances mean that she is unable to continually provide care and assistance to the level the review applicant may require.  The Tribunal understands the concerns Ms Li and other family members expressed about the dangers the review applicant is exposed to during the day when Ms Li is at work, the visa applicant not in Australia, and the review applicant essentially left unsupervised in Ms Li’s home.  

3. At the first hearing the Tribunal heard oral testimony from the son of the review applicant Mr Chiech Chuan Lim.  Mr Lim has resided now in Melbourne for over thirty years.  He is married with three children.  He owns and operates the noteworthy bakery ‘Beakys Bakehouse’ since 2012 which is open seven days a week for eleven hours a day, not including the preparation of baked goods for three hours prior to opening.  Mr Lim runs the business with his wife.  The Tribunal recognises the considerable efforts of Mr Lim in operating his small business and recognises that, with three children, he simply does not have the time or opportunity to provide the assistance and care the review applicant requires.  Furthermore he resides in Melbourne and his onerous demands means he seldom visits Sydney.   The Tribunal accepts that the review applicant’s son Mr Lim is unable to provide care and assistance to her. 

4. The Tribunal has considered whether there are any other family members in Australia that may be able to provide assistance to the review applicant.  The Tribunal notes the review applicant has three adult grandchildren via her son.  The review applicant’s son Mr Lim in his statutory declaration states that his eldest son Michael works full-time.  He is in Melbourne.  He writes that his middle son is an active member of the Australian Defence Force and is currently based in Darwin.  His youngest son is 20yo and is both studying and working part-time. He too resides in Melbourne.  The Tribunal notes the statutory declarations made to this effect that have been previously provided to the delegate.  The Tribunal accepts that the review applicant’s three grandchildren via her son Mr Lim are unable to provide the care and assistance the review applicant requires.  The Tribunal furthermore notes that the review applicant’s other grandchild – the daughter of Ms Ai Lien Li is 16yo and studying.  The Tribunal accepts that she is unable to provide the care and assistance the review applicant requires. 

5. The Tribunal accepts the evidence that the review applicant moves back to Ms Li’s Cabramatta property – her home since 1991 – when the visa applicant visits Australia.  The Tribunal accepts that the visa applicant resides with the review applicant during this period and provides the care and assistance she requires. The Tribunal notes these periods have essentially worked as ‘respite’ care for Ms Li who has been looking after the review applicant otherwise.  The Tribunal found that the visa applicant had substantial knowledge of the review applicant’s needs and accepts her oral evidence concerning the provision of care and assistance to the review applicant when she is in Australia from Hong Kong.

6. The review applicant returned to Hong Kong with the visa applicant who provided her with care and assistance in 2016-2017.  The review applicant resided with the visa applicant.  The Tribunal asked the visa applicant if the review applicant could travel with her again to Hong Kong and, given the visa applicant is no longer working, the care and assistance the review applicant needs could be provided by the visa applicant offshore.  The visa applicant said that this was not possible.  She stated that she only took the review applicant as her own visa was expiring and she had no right to remain in Australia.  She stated that during the flight the review applicant suffered from back pain and swelling.  The visa applicant said the review applicant was not willing to return to Hong Kong again.  At the second hearing the review applicant’s representative pointed out that the review applicant does not have permanent resident rights in Hong Kong and can only stay for periods of up to three months.  The Tribunal on the evidence before it accepts that the departure of the review applicant to Hong Kong for ongoing care provided by the visa applicant is not sustainable.     

7. On the evidence before it, the Tribunal is satisfied that the assistance required by the review applicant cannot be reasonably provided by a relevant relative.  The Tribunal notes that in 2017 the review applicant’s family reported to Gosford Hospital that ‘they are coping well with looking after’ the review applicant (T1, Folio.149) and is of the view Ms Ai Lien Li – and the visa applicant when she visits Australia for that matter – will continue to provide some support and assistance to their mother the review applicant.  The Tribunal accepts the evidence that the review applicant has increasing medical needs and a requirement for assistance.  The Tribunal accepts that the review applicant has enjoyed tremendous support from her daughter Ms Ai Lien Li over many years but recognises that the continued provision of such constant assistance is in many ways unsustainable for Ms Li.  The Tribunal furthermore accepts the evidence that the review applicant’s son in Melbourne is precluded from any meaningful degree of support due to his own small business, his distance from Sydney and he is raising his own family.  The Tribunal accepts that there are no other family members in Australia capable or willing to provide care and support.  The applicant meets 1.15AA(1)(e)(i).

8. The Tribunal nevertheless notes that there are community, welfare and nursing services available to elderly citizens to assist with a wide range of in-the-home requirements.       

9. The Tribunal has considered whether the assistance required by the review applicant cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia: 1.15AA(1)(e)(ii). The Tribunal discussed this matter with the parties at both hearings.

10. The Tribunal notes from the delegate’s decision the review applicant supplied it that the visa applicant declared in a statutory declaration to the Department that neither she nor the family had sought assistance from services in Australia for the review applicant as the service providers will only provide limited hours of service.  The visa applicant declared that assistance had not been sought from a nursing home as the review applicant would have language issues communicating with the staff.  It was also declared that the review applicant was not willing to live in a nursing home.  The delegate noted that no evidentiary documents had been provided to support the claim that services in Australia were not able to provide the requisite care for the sponsor.  Whilst it was claimed that the services were not available or appropriate for the review applicant, in the absence of any evidentiary documents demonstrating the review applicant could not access the required assistance in Australia, the delegate was not satisfied that the required assistance could not be sourced from these services. 

11. The review applicant’s representative provided the Tribunal with evidence of inquiries made by the visa applicant to Australian home care services since the delegate’s refusal.  Between October and November 2017 the visa applicant wrote to eight potential care provides seeking assistance and care for the review applicant.  This occurred principally after a preliminary ACAT assessment was carried out by the Commonwealth Department of Health in October 2017.  A number of the providers confirmed that they could assist with the provision of assistance with domestic assistance and personal care.  The ACAT assessment found the review applicant would benefit from personal care, domestic assistance and individual social support.  Importantly, the Assessment Summary states the review applicant would benefit from ‘a comprehensive assessment which is conducted by an ACAT member in order to stay at home independently’ (T1, Folio.130).

12. The Tribunal notes that the review applicant was approved for services in personal care, domestic assistance and individual social support.  In questioning by the Tribunal the visa applicant and her sister Ms Ai Lien Li stated that the review applicant had not availed herself of any of these services since their approval over eighteen months ago in October 2017.  The Tribunal asked the visa applicant why these services had not been utilised.  She replied that her mother was embarrassed to have assistance with activities like bathing.           

13. The Tribunal asked the visa applicant and her sister Ms Ai Lien Li what care the review applicant receives from any external providers such as welfare, nursing or community services as well as what attempts – beyond those made in October-November 2017 - were made to secure such assistance.  The visa applicant confirmed that no further attempts had been made to secure any further assistance from welfare, hospital, nursing or community services.   The Tribunal notes that Ms Ai Lien Li did claim in her statutory declaration of 23 March 2019 that she telephoned a few local community service providers for assistance some years earlier on the advice of the review applicant’s GP but didn’t utilise the services because the providers didn’t speak the TeoChow dialect.  There is no corroborative evidence before the Tribunal however to substantiate this claim.     

14. Having reviewed the preliminary assessment by the ACAT and the recommendation that the review applicant would benefit from a comprehensive assessment – that may enable the review applicant to remain at home independently with further assistance and potential access to more comprehensive packages like Home Care – the Tribunal asked the visa applicant if a comprehensive assessment had been carried out.  The visa applicant stated that nothing had been done in response to the ACAT recommendation.  The visa applicant stated at the first Tribunal hearing that ‘we know what is needed’ in relation to the care required by the review applicant.  The visa applicant said that the review applicant refused to do another assessment and was nervous of strangers.

15. The visa applicant in her oral testimony stated that the review applicant needed 24-hour care and this had not been approved of by the ACAT.  The Tribunal notes that the ACAT was a preliminary assessment and it recommended a comprehensive assessment which could be conducted and would potentially allow the review applicant to stay at her home independently.  The Tribunal notes that there are a range of Home Care packages including Level 4 which are designed to assist the elderly remain in their own homes independently.  The visa applicant however has confirmed that she and the review applicant have not availed themselves of the opportunity for a comprehensive assessment to allow the provision of this care to be considered. 

16. The Tribunal asked the visa applicant if the reason the review applicant did not want external assistance with her care was her reluctance to have ‘strangers’ in the house providing care.  She agreed it was and said this had a mental impact upon her mother and she was used to care being provided by the family.  The Tribunal asked if there were other reasons as to why no attempts were made or were being made to procure external assistance for the review applicant.  She said that the language barrier was another issue.  The Tribunal notes the evidence of the review applicant’s geriatrician Dr Ernest Tam who wrote on 23 March 2019 ‘She speaks TeoChow now and cannot have communication with Cantonese speaking carer.’  The Tribunal notes the claims of the visa applicant and her sister that a lack of TeoChow-fluent speakers has precluded the review applicant from accessing services. 

17. The review applicant speaks TeoChow which is an amalgam of Mandarin and Cantonese.    The Tribunal notes however that the review applicant’s representative stated to the Tribunal via telephone that the applicants could speak Mandarin and Cantonese.  The Tribunal notes that in the signed response to hearing invitations ‘Mandarin’ was listed as the language the review applicant’s representative nominated for the provision of an interpreter.  The Tribunal recognises the review applicant speaks TeoChow but on the evidence before it has at least a general or basic understanding of Mandarin and Cantonese.  The Tribunal notes that there are a wide range of aged care service providers in either the Cabramatta or the Central Coast area that can provide services in the home that are fluent in either Mandarin or Cantonese:     

18. The Tribunal furthermore notes that the requests the via applicant made to aged care service providers in October and November 2017 mentioned nothing about the necessity for Chinese/TeoChow language speakers or any preference for the supply of services by Chinese/TeoChow providers.  There was no mention of any need, necessity or desire for the services to be only provided by Chinese providers and speakers. It was never listed as either a necessity or a preference.  In Hon Anh Voong v MIAC the Court confirmed the authority in Biyiksiz v MIMIA and Lin v MIMIA  that cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable.  The Tribunal has taken into account cultural factors in assessing whether the assistance the review applicant requires cannot reasonably be obtained from welfare, hospital, nursing or community groups.     The Tribunal notes that the review applicant did not appear to exhibit in the requests to providers for assistance in October and November 2017 any preference whatsoever for Chinese or TeoChow providers of care services.  The Tribunal nevertheless accepts that the review applicant prefers to have the services she requires supplied by Chinese or specifically TeoChow speakers.  The Tribunal considers that this preference pertains to the simplification and ease of the provision of services in her home rather than any particular cultural reason.  The Tribunal submits this preference of the review applicant is indicative of the review applicant’s personal preference rather than a cultural reason. The Tribunal is of the firm view that assistance can be reasonably provided to the review applicant that takes into account any language or wider cultural preferences she may have.      

19. The Tribunal has placed some weight on the refusal of the visa applicant and the review applicant to undertake a comprehensive ACAT assessment as recommended by the department of Health and potentially avail themselves of a Home Care package that may be able to provide the care the review applicant requires once a package is assigned to her.  The Tribunal notes that there are currently 100 providers covering the Cabramatta postcode and 81 in the Gosford area:  that offer Home Care packages.  A significant number of these providers state they can provide their services with Mandarin or Cantonese speakers.  A number are centres that state they have an understanding of Chinese culture.  Many state they provide can provide services 24 hours a day, seven days a week.   The Tribunal is not satisfied on the evidence before it that the assistance the review applicant requires cannot be reasonably obtained from such services.   The Tribunal is of the opinion that the provision of such services could enable the review applicant to either remain in her Cabramatta home or remain in Gosford with her daughter Ms Ai Lien Li essentially having much of the burden she currently faces in looking after the review applicant alleviated.   The Tribunal appreciates the review applicant following an assessment would be required to go onto a waiting list but notes the Department clearly and specifically recommended the review applicant undertake a comprehensive assessment now more than 18 months ago which has been ignored.  The Tribunal recognises the delay in obtaining further assistance via a Home Care package may be caused by this lack of action by the review applicant’s family.  The Tribunal does not consider such lack of action as a legitimate reason to grant a Carer visa because of such failure.    The Tribunal notes that the review applicant can continue to utilise the services she has already received approval for in the interim and be supported by her daughter Ms Ai Lien Li, notwithstanding the Tribunal appreciates her limitations on supporting the review applicant.  The Tribunal is not satisfied that the care and assistance the review applicant requires cannot reasonably be obtained from welfare, hospital, nursing or community groups. 

20. The Tribunal notes the evidence of the review applicant’s geriatrician Dr Ernest Tam who wrote on 23 March 2019 ‘Community service/aged care facility are deemed to be inappropriate for Ms Lin (the review applicant) due to her cognitive and medical conditions as well as special cultural and psychological needs.  Ms Lin has phobia of staying in a nursing home.  She also has fear of having strangers come to her house to look after her.’  The Tribunal notes that Dr Tan is stating that the review applicant is unsuitable for receiving aged care services either through residential care or in the home.  The Tribunal finds the assertion that the review applicant requires 24-hour care yet is unsuitable to receive such services either in residential care or through the provision of external services in the home to be unusual.  The Tribunal accepts that the review applicant may be uncomfortable with the idea of ‘strangers’ coming to her home to provide care and assistance.  This is an understandable state of affairs as it involves a change to routine.  The Tribunal has taken into account the opinion of her GP Dr Soukao Ly in Cabramatta, yet in the Tribunal’s opinion there is no evidence however to suggest these fears are a manifestation of special cultural or psychological needs.  There is no evidence of any professional psychological specialist assessment stating the review applicant suffers from psychological impediments that preclude ‘strangers’ from visiting her home to provide care or from receiving any care she requires from an aged care facility.  The Tribunal considers these indicative of the review applicant – and her family’s – personal choice rather than any cultural or psychological reason.

1. The Tribunal recognises the needs of the review applicant and agrees that the continued demands on her daughter Ms Ai Lien Li in terms of caring for the review applicant (in the absence of the visa applicant) are significant and in many ways unsustainable.  Nevertheless the Tribunal is not satisfied that the assistance the review applicant requires cannot reasonably be obtained from welfare, hospital, nursing or community groups.  The Tribunal considers the efforts that have been made to secure such services have been minimal.  Nothing has been done for over eighteen months at the time of decision.  The requests that were made after the delegate’s refusal were, in the Tribunal’s opinion, minimal.  The Tribunal notes that the review applicant did receive approval for the provision of some care services that were available to her either in Gosford whilst living with Ms Ai Lien Lu or in Cabramatta and failed to utilise them.  The provision of much more substantial care in the home via a Home Care package could potentially have been approved by the Department of Health if the review applicant had taken up the offer of a comprehensive assessment.  Such an offer has not been taken up.  The Tribunal appreciates the submissions that these offers have not been availed due to language and cultural reasons including the fear of ‘strangers’ in the home.  The Tribunal accepts that the review applicant would prefer – as most individuals would - to receive care from a family member but is not satisfied on the evidence before it that this is indicative of any specific cultural or language reason. 

2. The Tribunal finds that that it is not satisfied that the assistance required by the review applicant cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.  The visa applicant does not meet r.1.15AA(1)(e)(ii).   

3. The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.       

4. 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 that would permit a finding that the applicant meets prescribed criteria for the visa sought.

5. The visa applicant was 51 years of age at the time of application and 55 years of age at the time of decision.  An aged dependent is defined as someone who is old enough to be granted an aged pension under the Social Security Act 1991.  The visa applicant does not therefore meet the criterion for a Subclass 114 (Aged Dependent Relative) visa. 

6. To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia.  In the visa applicant’s statutory declaration of 23 March 2019, the visa applicant writes ‘My five other siblings are citizens of Taiwan, currently living in Taiwan.  I have one brother who lives in France.’  The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.

7. The Tribunal has a great deal of sympathy for both the visa applicant, her sister Ms Ai Lien Li and the review applicant in this situation.  The Tribunal accepts that the visa applicant has provided and continues to provide significant care to her mother the review applicant.  The Tribunal accepts that the visa applicant has travelled to Australia to care for her mother the review applicant on multiple occasions on Visitor visas, always respecting her visa conditions and returning home and as required.  The Tribunal accepts the testimony of the visa applicant’s sister and brother – hard working individuals running their own small businesses in the Central Coast of NSW and Melbourne respectively – that their personal situations makes caring for their mother the review applicant both challenging and in some ways unworkable, though the Tribunal notes that the review applicant has spent significant time previously residing with her daughter on the Central Coast and will on the evidence continue to receive some support from her daughter.  The Tribunal accepts that as the review applicant’s health declines it becomes increasingly difficult for the visa applicant’s sister Ms Liu to meet the review applicant’s needs.

8. The Tribunal has considered whether to refer this case to the Department for consideration by the Minister pursuant to s.351.  This legislation gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.  The Tribunal has carefully considered the review applicant’s circumstances and the claims made by the visa applicant.  The Tribunal has great sympathy for both parties given their circumstances.  On the evidence, the visa applicant – and especially her sister Ms Ai Lien Li - has played an indefatigable role over some years in providing care to the review applicant.  The Tribunal accepts that the review applicant’s dementia will continue to deteriorate and she is in need of assistance that will increase in the years forward.  The Tribunal considers the circumstances of the parties and considers they may be unique or exceptional.   The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and has decided to refer the matter to the Minister for his consideration. 

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

10. Having regard to the review applicant’s circumstances and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.    

    Justin Owen
    Senior Member