Ma (Migration)

[2021] AATA 2352

Ma (Migration) [2021] AATA 2352 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yun Ma

CASE NUMBER:  1819770

HOME AFFAIRS REFERENCE(S):          CLF2016/98251

MEMBER:Deputy President J.L Redfern PSM

DATE:11 June 2021

PLACE OF DECISION:  Sydney

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

·cls. 836.212 and 836.213 of Schedule 2 to the Regulations and;

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 11 June 2021 at 2:10 PM

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s need for assistance in daily life ­– consideration of sponsor’s capacity to understand sponsorship obligations – circumstances where the carer visa assessment certificate is two or more years old and an updated medical report has been provided by the general practitioner who is treating the sponsor – whether sponsor’s needs cannot reasonably be provided by another Australian relative – whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services – whether the applicant is willing and able to provide the sponsor substantial and continuing care of the kind needed – applicant found to be the carer of the Australian relative sponsor – decision under review remitted with direction.

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr. 1.15AA, 1.20, Sch 2 cl.836.2

CASES

Biyiksizv Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814
Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606

SECONDARY MATERIALS

Department of Home Affairs, Procedures Advice Manual 3, Div1.2/reg 1.15AA – Carer.
IMMI14/085
IMMI17/126

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 July 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Ms Yun Ma, applied for the visa on 16 December 2016. 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 (Cth) (the Regulations). In the present case, Ms Ma claims that she satisfies the criteria for the grant of a Subclass 836 visa as carer for her mother, Ms Yiqian Gao. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. The central criterion for the visa is that the applicant must be a ‘carer’ within the meaning set out in r. 1.15AA(1) of the Regulations.

3. On 3 July 2018, the delegate refused to grant the visa on the basis that the delegate was not satisfied Ms Ma was a carer to Ms Gao within the meaning of the regulation. The delegate was not satisfied that assistance could not reasonably be provided by another relative of Ms Gao living in Australia, in particular her youngest daughter and two persons identified by the delegate as the “niece” and “nephew” of Ms Gao. Further, the delegate was not satisfied that there was sufficient evidence to determine that this assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

4. The applicant appeared before me on 24 May 2021 to give evidence and present arguments, which she did with the assistance of her migration agent, Mr Chen, who also attended the hearing. Ms Gao attended the hearing in person and gave oral evidence. While there is medical evidence to the effect that Ms Gao has mental impairment through dementia, she was able to give cogent, considered evidence. I also received detailed submissions from Mr Chen and further evidence, including statements from Ms Ma and another witness, Mr Peter Leung, updated medical evidence and correspondence with service providers prior to the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. I have concluded that the matter should be remitted for reconsideration. In summary, I am satisfied Ms Gao needs, and will continue for at least 2 years to need, direct assistance in attending to the practical aspects of daily life. I am also satisfied Ms Ma is her carer and is willing and able to provide the assistance Ms Gao needs and that, in the circumstances of this case, this assistance cannot reasonably be provided by another relative who is an Australian citizen or permanent resident in Australia or obtained from welfare, hospital, nursing or community services in Australia. My reasons follow.

   RELEVANT LAW AND QUESTIONS FOR DETERMINATION

6. The purpose of the Carer visa is to allow an Australian citizen, permanent resident or eligible New Zealand citizen with a medical condition causing a significant level of impairment to sponsor an overseas relative to Australia to provide the assistance needed. The carer visa is available to both offshore and onshore applicants. Ms Ma applied for the Carer visa onshore and, as such, relevant visa subclass is the subclass 836 (Carer) visa. The primary criteria to be met by an applicant for this visa are contained in cl.836.2 of Schedule 2 to the Regulations. The criteria in cl.836.21 must be satisfied at the time of application and the criteria in cl.836.22 must be satisfied at the time of the decision.

7. Clause 836.212 of Schedule 2 to 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 Ms Ma is the carer of Ms Gao, who is her mother. 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. In her application for the Carer visa, Ms Ma claimed she was the carer for her mother and provided evidence in support of this claim, including identity documents, various medical reports detailing Ms Gao’s medical conditions, a statement, a statutory declaration from Ms Gao and a statement from Ms Ma’s husband, Mr Jianlin Wang. There is no statement in the decision record demonstrating that the delegate made an assessment about whether Ms Ma met this criterion, but it is not apparent that there is any dispute that Ms Gao is an Australian permanent resident and that she is the mother of Ms Ma.

8. Clause 836.213 requires that the applicant is sponsored by the Australian relative, who has turned 18, is a settled Australian permanent resident and is usually resident in Australia.  Ms Ma was sponsored by Ms Gao, who signed the Form 40 document headed ‘Sponsorship for migration to Australia’, which included certain undertakings. Regulation 1.20 of the Regulations provides that a ‘sponsor’ of an applicant for a visa is a person who undertakes the obligations stated in sub-regulation (2). Relevantly, those obligations include an agreement to ensure that adequate accommodation is available for the visa applicant for up to 2 years from arrival in Australia and to provide financial assistance as required to meet the reasonable living needs up to 2 years from arrival in Australia.[1] The delegate did not raise any issue disputing Ms Gao’s sponsorship or her capacity to sign or make the declaration set out in the Form 40. During the hearing, Ms Gao confirmed that she had signed the Form 40 and, for the reasons later outlined, I am satisfied she had capacity to sign this and make the declaration contained therein.

   [1] Part M of the ‘Sponsorship for migration to Australia’, Form 40 dated 16 November 2016.

9. As such, I am satisfied that, at the time of application Ms Ma satisfied the requirements of cls.836.212 and 836.213 of Schedule 2 to the Regulations. This does not appear to be in dispute.

10. Clause 836.221 requires that the applicant must be a carer of the Australian relative at the time of decision.

11. The term ‘carer’ is defined in reg 1.15AA of the Regulations as follows:

    (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.

12. 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 or issued by a specified health provider in relation to a review of such an opinion). In this case, IMMI14/085 applies.

13. Regulation 1.15AA(3) provides that the Minister, in this case the Tribunal, is to take the opinion in a certificate that meets the requirement of sub-regulation (2) on a matter set out in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies the criteria that the applicant is a ‘carer’.

14. In this case, and based on the decision of the delegate, it appears the critical issue that requires determination is whether I am satisfied that the assistance Ms Gao needs cannot reasonably be provided by another relative of Ms Gao (who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen) or that this assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Notwithstanding this, and for completeness, my findings in relation to all of the relevant requirements in reg 1.15AA(1) of the Regulations are set out below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. I am satisfied that Ms Ma meets the requirements of sub-regs 1.15AA(1)(a) and (ba) because she is the daughter of Ms Gao who is an Australian permanent resident.

16. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

17. Ms Ma provided a Carer Visa Assessment Certificate (the Certificate) and medical adviser’s report from BUPA Medical Visa Services dated 20 September 2016. According to the assessment by the examining doctor, Ms Gao had an impairment rating of 30 or more points, with a total rating of 45 impairment points, she had a medical condition that was causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life and she had a need for direct assistance in attending to those practical aspects because of that medical condition. It was also reported that because of the medical condition, she had a need for direct assistance in attending to the practical aspects of daily life that would continue for at least two years. The medical conditions recorded were dementia – Alzheimer’s, depression, balance and gait disorders, right shoulder impingement, cervical spondylosis, vertebral body fracture, right wrist break causing deformity and weakness, double incontinence, and bilateral knee osteoarthritis. It was noted that Ms Gao lived alone but that her niece and nephew, who were recorded as being “Peter Leung” and “Bao Zhu Shng”, would occasionally assist her with activities of daily living. The report noted that Ms Gao needed assistance with her mobility, bathing and showering, toileting, dressing, eating, supervision with her medication and supervision for transport. She was assessed as being fully dependent and it was noted that her “niece” provided her with assistance for daily living. Ms Ma and Ms Gao gave evidence that Mr Leung and Ms Song (incorrectly recorded as “Shng” on the Certificate) are not the nephew and niece of Ms Gao and their evidence in this regard is set out below. The Certificate was signed by Dr H Roslizar, who is also recorded as the examining doctor.

18. BUPA Medical Visa Services is a health provider specified by the Minister under IMMI14/085 at the relevant time. The Certificate provided by Ms Ma includes the details prescribed in reg 1.15AA(1)(b) and was signed and issued by a medical practitioner on behalf of BUPA. On its face, the Certificate provided meets the requirements of regs 1.15AA(2) and 1.15AA(1)(b) of the Regulations. However, the Certificate is now more than four years old. This can be attributed to the delay in the decision-making and review process, including a two-year delay in the primary decision-making process with a further delay before this Tribunal. According to Department policy,[2] where the BUPA certificate is two or more years old, it is open to the decision-maker to ask the person with a medical condition to undertake a fresh examination. However, it is noted that this is not prescribed in the Regulations and that decision-makers must be flexible, bearing in mind that any new examination will incur a fee. An alternative option suggested is for an updated report to be provided by the general practitioner who is treating the person with a medical condition.

    [2] Department of Home Affairs, PAM3: Div1.2/reg 1.15AA – Carer.

19. In this case, an updated report has been provided by Dr Ernest Tam dated 9 January 2021. Dr Tam is a consultant physician and geriatrician. Dr Tam states that Ms Gao has been his patient since August 2016 and that he has provided a number of reports since his first assessment, including an updated assessment which he undertook on 12 December 2020. According to Dr Tam, Ms Gao has the same cognitive state as when he first assessed her, namely she has dementia including Alzheimer’s disease and vascular dementia. He also noted that she had depression and panic attacks, chronic dizziness affecting her mobility, balance and gait disorder which was slowly worsening and that her risk of falls was high. Dr Tam also reported that Ms Gao had cardiomegaly, with evidence of right heart dysfunction and pulmonary artery hypertension, degenerative disease in her thoracolumbar spine, sciatica, cervical spondylitis, osteoporosis, vertebral fractures, osteoarthritis, right shoulder impingement, a right distil radius fracture, double incontinence, gastro-oesophageal reflux, and abdominal hernias. In Dr Tam’s opinion, Ms Gao needs high-level care and while she continues to suffer dementia, she was insightful and had sufficient capacity to understand her undertakings of being a sponsor.

20. The report provided by Dr Tam is detailed and consistent with the Certificate provided in 2016 but evidences further deterioration in Ms Gao’s medical conditions. I am therefore satisfied that the Certificate can be relied upon for the purposes of sub-regs 1.15AA(2) and 1.15AA(3) of the Regulations. This current medical opinion suggests that Ms Gao’s medical condition has remained the same in respect of some conditions but has materially deteriorated in relation to others. It is cogent, relevant and probative.

21. As such, I find that the Certificate provided meets the requirements of reg 1.15AA(2), it addresses each of the matters set out in reg 1.15AA(1)(b)(i)-(iv) and I am therefore satisfied that the requirements of reg 1.15AA(1)(b) are met.

22. 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 IMMI17/126.

23. In the present case, the impairment rating specified in the Certificate is 45. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

24. As the person to whom the Certificate relates is Ms Gao and she is the Australian relative who is the subject of the application, reg 1.15AA(1)(d) does not apply.

25. 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.

26. The delegate was not satisfied that assistance could not reasonably provided by another relative of Ms Gao, in this case, her younger daughter, Ms Lin Ma, or by the persons who were referred to in the Carer Visa Assessment Certificate as her niece and nephew.

27. Ms Gao provided a statutory declaration declared on 14 November 2016 to the effect that she had lived with her younger daughter, Lin Ma, in Australia until 6 February 2012 and that their relationship had deteriorated because Lin Ma had become a Falun Gong practitioner, which she disagreed with. According to Ms Gao her younger daughter left the home and after this she was told by her daughter’s husband that she would have to leave the house, which she subsequently did with the assistance of her older daughter, Yun Ma. Ms Gao stated that Lin Ma has not contacted her since 2012, that they have been estranged since this time and that she does not know her whereabouts. The delegate relied on the fact that Lin Ma was recorded as Ms Gao’s emergency contact on her incoming passenger card in June 2013 and July 2014. The delegate also relied on the fact that Ms Bao Zhu Song and Mr Peter Leung attended the examination by Dr Roslizar in 2016 and that it was noted that they were Ms Gao’s niece and nephew and they provided her with assistance, including transporting her to medical appointments. The delegate noted that on Ms Gao’s incoming passenger card dated June 2016, she declared that her niece Ms Bao Zhu Song was her emergency contact. In response to a request for information by the delegate, Ms Yun Ma provided information that her sister was recorded as an emergency contact on Ms Gao’s incoming passenger card because they did not have any other contacts in Australia at the time. The delegate was also advised that Bao Zhu Song and Peter Leung were not relatives of Ms Gao but just good friends who provided support to the sponsor when Ms Yun Ma was not in Australia. The delegate did not accept this explanation.

1. Prior to the hearing, Ms Ma provided a detailed statement responding to these issues. She also provided a statutory declaration from Peter Leung. Both Ms Yun Ma and Ms Gao gave evidence at the hearing.

2. Ms Gao said that she had two daughters, her younger daughter, Lin Ma, who she lived with for many years, and the applicant, Ms Yun Ma who, up until 2012, resided in China. Her younger daughter had a husband and a son, who would now be in his 20’s or 30’s. She said that she has had no contact with her younger daughter, her son-in-law or her grandson and that this had been the case since about 2012 when she and her daughter became estranged. Ms Gao explained that her youngest daughter left the home and that her son-in-law tried to find her and reported her to the police. She does not know what happened after this because her son-in-law told her that she was no longer welcome in the home and he asked her to leave. She did not know what to do at that time and her older daughter, Yun Ma, came to Australia in 2012 to assist her to obtain public housing. Yun Ma had been looking after her since 2012, apart from when she had to return home. Ms Gao returned to live with Yun Ma in China on number of occasions but had lived alone for short periods. She said she had no other relatives living in Australia who could look after her.

3. Based on her evidence at the hearing, reinforced by the report of Dr Tam, I am satisfied that Ms Gao understood the nature of the application and her role as the sponsor of Ms Ma. While I did not have the opportunity to assess Ms Gao’s understanding and capacity at the time she signed the Form 40 sponsorship application in November 2016, I had the opportunity to assess her evidence and capacity at the hearing. There is no evidence before me to suggest that Ms Gao’s capacity was diminished at the time she signed the sponsorship application and, if anything, the evidence is to the effect that her capacity may have deteriorated since this time due to the progression of her dementia.

4. Ms Yun Ma said that she has a husband who lives in China and even though they had been separated for long periods while Ms Ma travelled to Australia to look after her mother, he was supportive of her application. Her husband, Mr Jianlin Wang provided a statement stating that if Ms Ma was provided with a Carer visa, he would eventually join her in Australia on a spouse visa. Ms Ma said she has a son who is married who lives in China with his spouse. He had recently had a child. Ms Ma said that she had previously been working in finance but had to retire in 2012 because of her frequent trips to Australia to look after her mother. She said she was not working, spent all of her time looking after her mother and received a retirement pension from China. She also received money from her husband, who had previously been a teacher, and was also receiving a retirement pension. Neither had worked for several years. Her husband is 68 years old. She said that she had not seen her sister, brother-in-law or nephew since 2012. Ms Ma said that she had travelled to Australia on visitor visas since 2012 and when she was unable to return, she arranged for her mother to travel back to China with her. Her mother was not left alone for long but there was an extended period where she asked Bao Zhu Song and Peter Leung to assist Ms Gao. This was in the period from about June to November 2016. Ms Ma also said that Bao Zhu Song and her husband, Peter Leung, provided assistance to Ms Gao in this period and also attended the BUPA assessment with her, which is why they were referred to in the documentation. Bao Zhu Song and Peter Leung were not relatives of Ms Gao, they were friends. She stated that she may have written Ms Song’s name and contact number as the emergency contact on her mother’s incoming passenger card, but this was because there was no other emergency contact available. Ms Ma stated that for some reason unknown to her, Ms Song stopped communicating with her and her mother and they had not been in communication since October 2017.

5. According to Ms Ma, she had been looking after Ms Gao on her visits to Australia and on a full-time basis since 2016 when she applied for the Carer visa. Ms Ma said that she applied for the Carer visa because it was becoming increasingly difficult to care for her mother while living in China and travelling to Australia on visitor visas. There were a number of occasions when she had been refused visitor visas, which left her mother in a vulnerable position. According to Ms Ma she had no choice but to make the application because of her mother’s complex care needs and in the fact that she had no other support in Australia. Ms Ma also provided evidence about the various attempts she had made to find high-level residential care for her mother. She also provided detailed evidence about the care she provided to her mother on a daily basis, which included attending to Ms Gao’s showering, medication, medical appointments and special needs in relation to her incontinence and reflux.

6. I caused searches to be undertaken of the Department’s movement records for Ms Yun Ma and Ms Gao. The records revealed that Ms Yun Ma has travelled to Australia on visitor visas on 13 occasions since January 2012. On each occasion she stayed in Australia for approximately three months. Ms Ma says that when she could not come to Australia, her mother travelled to China for extended periods during 2012, 2013 and early 2016. This is consistent with the movement records for Ms Gao. When these movement records are analysed, it is apparent that Ms Gao was being supported by Ms Yun Ma almost continuously from January 2012 until June 2016. The longest period when Ms Gao was living by herself appears to be between June and September 2013. In most other cases when Ms Gao was by herself, namely when Ms Yun Ma was not in Australia, the periods were limited to approximately two weeks and in some cases just a few days. The longest period when Ms Yun Ma was not in Australia was the period from June to November 2016. This is the period that Ms Yun Ma said their friends Ms Song and Mr Leung assisted Ms Gao. This evidence is consistent with the oral evidence given by Ms Gao and Ms Yun Ma at the hearing and their statements. Relevantly, the movement records corroborate the evidence of both Ms Yun Ma and Ms Gao and are entirely consistent with their evidence that Ms Gao had no other relatives to look after her in Australia from early 2012. It is also relevant to note that prior to January 2012, Ms Yun Ma only visited Australia on one occasion for about a month in 2009.

7. According to Mr Peter Leung, he first met Ms Gao through a mutual friend who introduced him to Ms Gao and Ms Yun Ma in late 2014. The mutual friend told him that Ms Gao needed someone to help her at times when Ms Yun Ma was not there. Mr Peter Leung was married to Ms Bao Zhu Song but they later divorced. He stated that he accompanied Ms Gao on a medical assessment in 2016 with BUPA. The interpreting was being provided over the telephone and he said that when he was asked his relationship to Ms Gao, he said that they were friends and he was assisting her in coming to the appointment. He states that he may have said he was Ms Gao’s nephew, but this was not the case. Peter Leung states it is not related to Ms Gao at all and they were only friends. He also stated that Bao Zhu Song and her parents were not related to Ms Gao and that she is not the niece of Ms Gao. Mr Leung provided the names of his parents and the name of the parents of Bao Zhu Song, none of which were the same family names as Ms Gao or her husband, Qing Huai Ma.

8. Having regard to the evidence provided and the relevant corroborating evidence and the absence of any evidence to the contrary, I accept the evidence of Ms Gao and Ms Yun Ma that the assistance Ms Gao needs cannot reasonably be provided by any other relative who is an Australian citizen or an Australian permanent resident. Relevantly, I accept that Ms Gao’s only relative who is an Australian citizen or permanent resident is her younger daughter Lin Ma, from whom she is estranged, and her grandson, the son of Lin Ma, who she has not seen since 2012. As such, I accept that the criterion to be a ‘carer’ under reg 1.15AA(1)(e)(i) is met.

9. This is not the end of the matter because the requirements under reg 1.15AA(1)(e) contain two alternative limbs in the alternative and I must also consider whether I am satisfied that assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia under reg 1.15AA(1)(e)(ii).

10. I accept that Ms Gao has high care needs. She either needs a full-time carer in her home or high-level residential care. This is confirmed by an assessment from My Aged Care dated 19 August 2019, which concluded that Ms Gao was completely dependent on Ms Yun Ma for all of her daily living activities. It was also noted that Ms Gao did not have the financial resources to pay for the cost of private or non-funded services. I also accept, based on the evidence of Ms Ma and Ms Gao, that Ms Gao does not speak English and has a strong preference for Chinese food and exposure to Chinese culture.

11. Ms Yun Ma provided evidence of communications with various facilities about whether they could accommodate her mother. She had made enquiries of Mayflower Westmead, Fairlea Aged Care Penshurst and Harris Park, Courtland/Northcourt Aged Care, CASS Residential Aged Care, Montefiore Aged Care and Indochinese Aged Care. There were difficulties with the suitability of all of these facilities, including the excessive cost of a deposit, questions about the capacity of the facility to meet Ms Gao’s care needs, the waiting lists and questions about whether the facility could provide a carer that would be able to speak Mandarin and accommodate Ms Gao’s needs for Chinese food and culture.

12. Department policy, referring to case law, notes that decision-makers “need to consider any claims that the assistance needed must be of a particular nature”, relevantly, being assistance provided by a person speaking specific languages, from specific religious or cultural backgrounds and providing a specific cultural diet. The policy also notes that a distinction should be made between situations where assistance cannot reasonably be obtained because of these factors and situations where the assistance could still be obtained but the person requiring assistance has unreasonably chosen to reject it.[3]

    [3] Department of Home Affairs, PAM3: Div1.2/reg 1.15AA – Carer.

13. Ms Ma’s representative submitted that there was evidence the assistance required by Ms Ma cannot reasonably be obtained from community services in Australia because of the limitations identified in relation to each of the facilities approached. The representative also noted that the Royal Commission into Age Care Quality and Safety, which was established in response to growing concerns regarding the quality of residential aged care in Australia, published a report in September 2019 which outlined systemic failures within the aged care sector. It is submitted that, given the inadequacies identified in the current residential aged care system, it would not be reasonable to force Ms Gao into such a system when Ms Ma was available to take care of her complex needs and had done so for a number of years. For the reasons that follow, I consider there is considerable force in these submissions.

14. According to Justice Branson in Lin v Minister for Immigration and Cultural and Indigenous Affairs [2004] FCA 606 at [39], the former Tribunal was in error by treating as irrelevant considerations raised by the evidence before it, namely the preference of an ill and elderly Chinese person to eat Chinese food. Notably, her Honour stated that the word “reasonably” should be given its ordinary English meaning, which Justice Branson noted is a “word of broad meaning” and relevantly included “sufficiently, suitably, fairly”.[4] Her Honour further stated:

    The Regulations are intended to impact particularly on non-citizens of Australia. In the context which they provide, in the absence of an indication to the contrary, an assessment of what is reasonable in particular circumstances will, in my view, involve amongst other considerations, considerations of cultural suitability.[5]

    [4] Lin v Minister for Immigration and Cultural and Indigenous Affairs at [35] referring to the definition in the Oxford English Dictionary 2nd Edition.

    [5] Ibid at [36].

15. This reasoning was followed by Justice Gray in Biyiksizv Minister for Immigration and Multicultural Indigenous Affairs [2004] FCA 814 where his Honour found that the former Tribunal was in error in expressly rejecting the preferable method of care as a question for consideration of whether assistance was reasonably obtainable from community services. According to his Honour, at [23]:

    In my view, in these respects, the Tribunal fell into error. It considered the question whether assistance could reasonably be obtained from welfare, hospital, nursing or community services from the point of view of the availability of assistance from those services, and did not consider whether the assistance was reasonably obtainable by the applicant’s mother from those services. To do so, it would have been necessary for the Tribunal to consider the preferable mode of care for the applicant’s mother, including in particular her preference for being cared for in her own home by her own daughter. The Tribunal was also bound to give weight to financial circumstances and to the question of the comfort of the applicant’s mother. It was bound to consider whether she would have been uncomfortable as a Kurdish Alevi forced to live among others who were predominantly Turkish-speaking Sunni Muslims. It was not enough for the Tribunal to say that whatever discomfort this gave rise to might have been reduced if one or two people on the staff of the institution concerned spoke Kurdish. It had to consider the matter from the point of view of the applicant’s mother. The Tribunal was also bound to take into account any period of delay in the admission of the applicant’s mother to the Turkish Village, or to any other place that might have been available to her. Given that the applicant’s mother was found to need a level of care sufficient to meet the other elements of the definition of ‘special need relative’, the question of how she would be cared for if the applicant failed to obtain a visa and had to leave Australia within a short time of the decision assumed some importance.

16. As correctly identified by Department policy, these cases are authority for the proposition that the matters to be taken into account when assessing whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, are broad range of matters that may be relevant to the nature of the service provided to an Australian citizen or an Australian permanent resident. It is clearly not just about preferences and the question will be whether those preferences materially impact the nature of care or assistance being provided to the Australian citizen or permanent resident.

17. I accept the submissions of the representative that there is evidence, as established by the Royal Commission, of serious problems in the residential aged care system. These issues are referred to in the Final Report of the Royal Commission and are well summarised by the Commonwealth Parliamentary Library in its “quick guide” published 10 March 2012 as follows:

    The Final Report found that substandard care can occur in both routine areas of care (for example, skin care and food) and in complex care (for example, management of chronic disease and palliative care) (see p. 68 of Vol. 1). It also found that the Aged Care Act 1997 does not include a clear explanation of the basic responsibility of approved providers to ensure the care they provide is safe and of a high quality. The Commissioners recommend a definition of high-quality aged care that puts older people first and includes a general duty on approved providers to ensure, as far as reasonable, the safety and quality of its services.[6]

    [6] Final Report of the Royal Commission into Aged Care Quality and Safety: a quick guide – Parliament of Australia (aph.gov.au)

18. According to the Parliamentary Library Research Paper on Aged care: a quick guide published 30 April 2021; the Australian Government controls the number of subsidised aged care places.[7] The delays in the residential aged care system have been reported by the media in January 2020, with both the Guardian and the Sydney Morning Herald, reporting on statistics published by the Productivity Commission that about 40% of senior Australians were waiting nine months or more to be admitted into aged care facilities. [8]

    [7] Aged care: a quick guide – Parliament of Australia (aph.gov.au)

    [8] Older Australians wait longer for nursing home care: Productivity Commission report (smh.com.au).

19. In the present case, I am satisfied that the assistance Ms Gao requires for her activities of daily living cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia because there is evidence she has high care needs and linguistic requirements that may be difficult to be accommodated in residential aged care facilities. This latter issue is significant because the evidence is that Ms Gao speaks little to no English. Given her cognitive impairment from dementia, which is likely to worsen over time, this is likely to limit her ability to communicate about her care needs and any ailments that she may have in an institutional setting. These difficulties are exacerbated by the fact that Ms Gao does not have sufficient financial resources to pay for residential aged care and must rely on the availability of subsidised care places and a system that is currently overwhelmed and in need of reform. The combination of these factors is likely to result in less than optimal, and possibly unsatisfactory, care in respect of Ms Gao’s medical needs and her activities of daily living.

20. I am therefore satisfied that the requirement of reg 1.15AA(1)(e)(ii) is also met and that Ms Ma meets the requirement to be a ‘carer’ under reg 1.15AA(1)(e).

21. 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. I am satisfied that this requirement is met.  There is ample evidence about the assistance provided by Ms Ma, directly from Ms Gao and Ms Ma and corroborated by Dr Tam in his various medical reports. I am satisfied, based on the evidence, that Ms Ma has provided substantial and continuing assistance whenever she was in Australia since about 2012. This assistance has become demanding in recent years because of Ms Gao’s increasing health care needs and it was apparent from Ms Gao’s presentation at the hearing that she is frail with very limited mobility. Ms Ma gave evidence that she has been prepared to move to Australia to look after her mother, even though this has resulted in significant separation from her husband, son and grandchild in China. She has demonstrated her commitment to the role of carer, does not need to work and has a retirement income from China.

22. Given these findings, I am satisfied that at the time of my decision Ms Yun Ma is a ‘carer’ of Ms Gao, who is her sponsor and an Australian relative, and therefore satisfies cl.836.221 of Schedule 2 to the Regulations.

    Other criteria

23. Clause 836.227 requires that at the time of the decision, the decision maker must be satisfied that “the sponsorship mentioned in cl.836.213 has been approved by the Minister and is still in force”. There is no evidence before me about whether the sponsorship has been “approved by the Minister” but I am satisfied that the sponsorship signed by Ms Gao on 16 November 2016 remains “in force” in the sense that there is no evidence she has withdrawn her sponsorship of Ms Ma, in fact she confirmed her sponsorship in her evidence, or that she no longer has capacity to understand the undertaking of sponsorship of Ms Ma. This latter finding is not intended to convey a view by me that cl.836.227 requires such capacity at the time of decision. This would require a more detailed analysis of the meaning of this clause. However, for completeness I make this finding and it follows that, in this respect, I am satisfied that this requirement in cl.836.227 is met. Despite this, and given I have no evidence about whether the sponsorship is “approved by the Minister”, I will not make a formal direction in this regard.

1. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

   DECISION

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

   · cls.836.212 and 836.213 of Schedule 2 to the Regulations; and

   ·cl.836.221 of Schedule 2 to the Regulations.

   J.L Redfern PSM
   Deputy President