MAKO (Migration)

[2017] AATA 2105

MAKO (Migration) [2017] AATA 2105 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James William MAKO

CASE NUMBER:  1615441

DIBP REFERENCE(S):  CLF2015/10292

MEMBER:Kira Raif

DATE:27 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 October 2017 at 11:47am

CATCHWORDS

Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Carer of an Australian relative – Medical condition causing physical, intellectual or sensory impairment – Assistance reasonably provided by another relative – Organisations and care facilities providing full-time assistance

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 1, Schedule 2 cl 836.221, rr 1.03, 1.15AA

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 on 8 September 2016 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of the USA, born in January 1975. He applied for the visa on 16 February 2015. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was the carer of an Australian relative. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 September 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.

5. Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations.

   Whether the applicant is a carer

6. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother. Evidence of the relationship has been submitted with the application. Therefore, as the applicant is the son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

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

8. The applicant provided with his application a copy of the Certificate issued by Bupa Medical Visa Services in February 2015. The Certificate specifies that the sponsor is a person who has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. The certificate indicates that there is a need for direct assistance in attending to the practical aspects of daily life because of the medical condition and that the need for direct assistance will continue for at least 2 years. The Certificate indicates that an impairment rating of 40 has been assigned.

9. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) and (c) are met.

10. The applicant provided with his application and to the Tribunal a number of other medical reports relating to the sponsor and the Tribunal has given these due regard. The Tribunal accepts that the sponsor suffers from a number of serious conditions for which she requires ongoing treatment.

11. 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. The sponsor is an Australian citizen and a copy of her Australian passport has been submitted with the application. The requirements of r.1.15AA(1)(ba) are met.

12. 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. In the present case, the impairment rating specified in the certificate is 40. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c). Regulation 1.15AA(1)(d) is not relevant.

13. 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.

14. The applicant provided with his application a statement from his sister, who is an Australian resident, who states that she cannot care for her mother because she has three young children and is a student. The review applicant told the Tribunal in oral evidence that his sister is married and has three young children, so she cannot provide the care to their mother. The review applicant said that before he came to Australia, his mother lived with his sister but they had family problems and the sister asked his mother to move away. The applicant subsequently provided a statement to the Tribunal from his sister who claims that due to her family commitments and work, she is unable to provide care to her mother. The Tribunal is prepared to accept, as did the delegate, that the sponsor’s daughter is unable to care for the sponsor.

15. The applicant told the Tribunal that his mother has a brother in Australia but he is in his eighties. The Tribunal is satisfied that this person is not able to care for the sponsor. There are two nieces and nephews but the review applicant said they do not care for his mother. There is little evidence before the Tribunal about their capacity to do so and whether any form of assistance can be provided by these relatives.

16. The applicant provided with his application a written statement from his sister who claims to have approached a number of organisations seeking help for the sponsor but claims such help was not available. The applicant told the Tribunal in oral evidence that he had approached a number of organisations but some charge high fees and others have long waiting lists and his mother requires immediate care. The applicant told the Tribunal that his mother feels more comfortable with him with personal care and she may be uncomfortable with strangers. The Tribunal noted that there was very little evidence from these organisations about the services, the costs and the waiting lists involved. The Tribunal granted the applicant more time to obtain evidence about the assistance that may be obtained from various organisations. Following the hearing, the applicant provided to the Tribunal a statement from the Assyrian Australian Association which indicates the Association is unable to provide required care and is ‘not aware’ of any other government services that can adequately provide around the clock care. The Tribunal considers that statement odd, given the number of organisations, including government subsidised residential aged care facilities, that do provide full-time assistance of the type that is required by the sponsor.

17. The applicant also provided to the Tribunal a declaration in which he listed a number of organisations he contacted and referred to either the high cost of service or unavailability of carers. The Tribunal is prepared to accept that these particular organisations have given that advice to the applicant. However, the Tribunal is not satisfied that the applicant has made adequate inquiries about the care available. There is little evidence that appropriate inquiries have been made with residential care facilities that do specialise in the provision of aged care, and the applicant has not satisfied the Tribunal that such service would either be unavailable or inappropriate for the sponsor. The Tribunal is mindful that a number of such organisations offer subsidised care, so the cost of the care would be reduced. The Tribunal acknowledges and accepts the applicant’s evidence that his mother would feel more comfortable with him but that is not sufficient. The applicant has not provided adequate evidence to the Tribunal that culturally, linguistically and religiously appropriate services are not available.

18. Overall, the Tribunal has found the applicant to be a truthful witness and the Tribunal accepts that he provides care to his mother. The Tribunal also accepts that he is willing to continue to provide such care. However, the Tribunal has formed the view that inadequate inquiries had been made by the family concerning the availability of services from other sources, including welfare, hospital, nursing or community services. On the evidence before it, the Tribunal is not satisfied that assistance cannot reasonably be obtained from such services. The Tribunal is not satisfied the applicant meets cl. 1.15AA(1)(e).

19. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

20. The applicant stated on the application form that he has siblings in Germany and Greece. The Tribunal finds that the applicant has near relatives who are not in Australia and finds that he is not a remaining relative of an Australian relative. The applicant was born in 1975 and is not old enough to be granted an Aged Pension. He is not an Aged Dependent Relative of an Australian relative.

    Conclusion

21. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

22. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Kira Raif
    Senior Member