McLannen (Migration)

[2020] AATA 6061

McLannen (Migration) [2020] AATA 6061 (4 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Lorelei McLannen

CASE NUMBER:  1910191

HOME AFFAIRS REFERENCE(S):          CLF2018/664

MEMBER:David Crawshay

DATE:4 December 2020

PLACE OF DECISION:  Melbourne

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

·cl.836.221 of Schedule 2 to the Regulations.

Statement made on 04 December 2020 at 12:29pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – valid Carer Visa Assessment Certificate – evidence of medical assessment provided – rating exceeds the impairment rating specified by the relevant instrument – applicant is willing and able to provide assistance – Australian relative – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15, Schedule 2, cl 836.221

CASES

Perera v MIMIA [2005] FCA 1120

Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 April 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 January 2018 on the basis of being the carer of Mr Peter McLannen, who is the Australian resident. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221, which requires the applicant to be a carer of the Australian relative at the time of decision.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the Australian resident’s impairment rating of 20 in his Carer Visa Assessment Certificate (CVAC) was less than the required rating of 30. Because of this, the applicant did not satisfy subr.1.15AA(1)(c) within the definition of carer, and therefore did not meet cl.836.221.

4. The applicant appeared before the Tribunal on 23 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the Australian resident.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is the carer of the Australian relative at the time of this decision.

   Whether the applicant is a carer

7. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or “resident”). The term “carer” is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision.

   Applicant is a relative of the resident – r.1.15AA(1)(a)

8. Regulation 1.15AA(1)(a) requires the applicant to be a “relative” of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a “close relative” or other specified relation). In the present case, the Australian relative is identified as the applicant’s spouse.

9. The Tribunal has seen a copy of the marriage certificate of the applicant and Australian relative dated 6 December 2017. It has also seen other evidence that satisfies it that the other elements of s.5F(2) are satisfied

10. Therefore, as the applicant is the spouse 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).

    Certification – r.1.15AA(1)(b)

11. 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

12. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085, or issued by a specified health provider in relation to a review of such an opinion.

13. The Tribunal has been provided with a Carer Visa Assessment Certificate (CVAC) dated

    
    

    2 September 2020 in respect of the Australian relative. The Tribunal notes that it is in relation to a medical assessment carried out on behalf of Bupa Medical Visa Services and is signed by the medical adviser who carried out the assessment. The Tribunal further notes that the CVAC states that the Australian resident has a medical condition that is causing impairments of his ability to attend to the practical aspects of daily life, that these impairments are assigned ratings for the purposes of the impairment table, and that because of the medical condition the Australian relative has and will continue to have for at least two years a need for direct assistance in attending to the practical aspects of daily life.

14. The Tribunal is satisfied as to the genuineness of the certificate and finds that it 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) are met.

    Residency status of person with medical condition – r.1.15AA(1)(ba)

15. 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.

16. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

17. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.

18. In the present case, the impairment rating specified in the certificate is 60. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

    Resident’s need for assistance (where he is not the subject of certificate) – r.1.15AA(1)(d)

19. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least two years as a result of the medical condition.

20. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

    Assistance cannot be reasonably obtained/provided – r.1.15AA(1)(e)

21. 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.

22. According to the CVAC dated 2 September 2020, the Australian relative requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, taking medication (in the form of supervision), personal safety (again in the form of supervision) and transportation. He is said to have autism spectrum disorder and intellectual impairment – conditions that may impact upon his ability to self-care. In her summary comments, the examining doctor stated as follows:

    Peter is a 57-year-old man [he was 59 at the time of the assessment] with complex support needs. He has Autism Spectrum Disorder, mid-moderate intellectual disability, marked executive functioning difficulties, and very significant health needs including severe sleep apnoea, epilepsy, coronary artery disease, hypertension, morbid obesity, incontinence, and pre-diabetes. Peter has very poor literacy and numeracy skills. He also has a history of several conditions such [as] post concussive syndrome, and alcohol abuse which are likely significant contributing factors to his poor executive functioning, behaviours, and cognitive abilities.

    Peter displays several behaviours that are markedly challenging to others including violence and aggression, lying and fabrication, stealing, and inappropriate speech and touching of others. He has a long history of contact with the criminal justice system, including a period of incarceration between 18 and 27 years old. Peter’s independent living skills are in the extremely low range for his age and he is highly dependent on Lei and others to meet his daily care and support needs. He also has extreme difficulty managing his continence and relies on his Carers to maintain bowel and bladder hygiene. He satisfies the criteria for a Carer Visa at this assessment.

    [bracketed words added]

23. The CVAC therefore concludes that the Australian relative requires assistance with the full range of functions, that his independent living skills are in the extremely low range for his age and that he is highly dependent on others, including the applicant, to care for and support himself. These may be said to be the practical aspects of daily life for which the Australian relative has a need for assistance now and for the next two years under subr.1.15AA(1)(b)(iv).

24. At hearing, the Tribunal considered the question of whether the relevant assistance cannot reasonably be provided by members of the Australian relative’s family.

25. The evidence from the applicant and from the Australian relative was as follows. His birth mother has died and his biological father cannot be found. His foster parents live in Mudgee and he is estranged from his stepsiblings, who have blocked efforts by the applicant to reconnect. He has a biological sister with whom he is on good terms, although she lives in Adelaide and has five adult children of her own, one of whom still lives at home. He also has three children who live in Sydney. The evidence is that the eldest, who lives in the Rockbank area, is the most functioning of the three – he looks after his sister and his mother (the Australian relative’s ex-spouse), who both suffer from problems of their own. The middle child, the daughter, lives with her husband but has appeared to have inherited some intellectual impairments from the Australian relative. As above, she is looked after by her older brother. The youngest, a son, has been in-and-out of gaol. According to the applicant and the Australian relative, none of them has a good relationship with the Australian relative.

26. Post-hearing, the Tribunal received copious amounts of evidence attesting to the fact that the Australian relative’s family are not able to care for him. The Tribunal accepts that the Australian relative is estranged from most of his family. The only relative with whom he enjoys a functioning relationship is his sister who lives in Adelaide and is not able to provide the required assistance. His children are not able to provide the required assistance either, being preoccupied with their own issues or, in the case of his eldest son, caring for others.

27. Given the assistance needed by the Australian relative, the Tribunal is satisfied that such assistance (or even some of it) cannot reasonably be provided by any other of his relatives and r.1.15AA(1)(e)(i) is met.

28. The Tribunal now turns to the question of whether the relevant assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

29. The Australian relative is already being provided assistance by a number of agencies and people.

30. Alliance Community (Alliance) delivers services in relation to his National Disability Insurance Scheme (NDIS) Plan. A schedule of supports from Alliance shows that the Australian relative receives an average of five hours-a-day of “Assistance with Self Care Activities – Level 1”. A timetable of carers that purports to be from Alliance for the months of March and April 2020 shows that the five hours-a-day is mainly spent in one shift which typically begins in the morning and finishes in the afternoon, although on other occasions shifts can extend to around eight hours and shifts can be split into two, albeit rarely. No shift begins before 9:00am or finishes after 6:00pm. The Australian relative also keeps regular and standing appointments with medical practitioners and other health professionals.

31. It is clear to the Tribunal from the CVAC that the Australian relative requires around-the-clock care, not least because of his problems with mobility and his intellectual conditions. The Tribunal believes it is only because of the applicant’s assistance that the Australian relative only receives “Level 1” assistance under his NDIS plan. The evidence clearly demonstrates that the applicant plays a leading role in the Australian resident’s care and, but for her assistance, the Tribunal accepts that the Australian relative would likely need a higher level of assistance from outside agencies and for longer during the day. It is also clear that the applicant plays a leading role in the socialisation of the Australian resident, who suffers from an intellectual impairment and from autism, both of which he has a diagnosis. In particular, the evidence indicates that the applicant regulates the Australian relative’s sometimes impulsive behaviour.

32. However, while it is undoubtedly to her credit that the applicant has undertaken a large amount of the Australian resident’s care from the time that she moved in with him until now, the Tribunal is only concerned in this instance with ascertaining whether the relevant assistance (assessed in this case to be around-the-clock care with daily activities) cannot reasonable be obtained by the services mentioned in the Regulations.

33. The Tribunal pointed out to the applicant at hearing that there appeared to be no evidence on the Department or Tribunal files to show that enquiries had been made with services in the area in relation to the obtainability of assistance for the Australian relative. The applicant replied that she had telephoned My Aged Care in around 2018 to make enquiries about assistance but they told her that it was inappropriate as the Australian relative was below the age of 60. According to the applicant, they told her to seek help through the NDIS. She also said that she had approached the Benevolent Society about respite options but they had turned her away because of the Australian relative’s medical conditions (such as epilepsy and atrial fibrillation).

34. The Tribunal gave the applicant 28 days in which to make enquiries as to the obtainability of services within her area. This decision was made by the Tribunal in order to afford the applicant an additional measure of procedural fairness where she was unrepresented and where the issue was raised for the first time at hearing.

35. The applicant provided the Tribunal with a vast array of documents in response to its request. It is clear that she spent the time making enquiries of many organisations in her area. The Tribunal accepts that she has undertaken a detailed search of potential organisations and has provided an accurate and truthful account of the Australian relative’s conditions and requirements to these organisations and not an account that is self-serving

36. The Tribunal has considered the information provided by the applicant. It accepts that many of the organisations approached by her only offer in-home care which would be inappropriate for the Australian relative in the event that the applicant were not at home to assist him to live independently. These are discounted for the purposes of assessing whether the relevant assistance cannot reasonably be obtained. What remained were organisations that offered residential care.

37. It became apparent by reading the information submitted that several of the organisations contacted by the applicant said that they required an ACAT assessment before they could make a decision on the availability and suitability of their care options. Not surprisingly, these were aged care organisations. The Tribunal accepts that it would not be appropriate for the Australian relative to undergo an ACAT assessment.

38. The Tribunal also became aware that while the applicant made enquiries of an organisation that offered supported accommodation for people with disabilities (Ability Options), including completing an online form with the Australian relative’s details, there is no evidence that this enquiry has been answered or followed up by that organisation.

39. Be that as it may, however, the Tribunal notes that it needs to consider whether the assistance could reasonably be obtained from the relevant services from the point of view of the Australian relative and not from the point of view of the availability of assistance from those services: Biyiksiz v MIMIA [2004] FCA 814, [23]. In this instance, this would necessarily involve considering matters such as the preference of the Australian relative, but also the appropriateness of the assistance and other factors such as, the Tribunal believes, whether he would be able to achieve the stated aims of his NDIS plan.

40. Regarding the preference of the Australian relative, it is clear through his testimony at hearing as well as in various documents such as a report of neuropsychological assessment dated 30 September 2019, that he prefers the helo of the applicant over the help given by others. At hearing, he consistently told the Tribunal that he wanted to live in his house with just to live at his current residence with the applicant caring for him and feels comfortable doing so. him and the applicant and that they “want[ed] to be left alone”. In the report of neuropsychological assessment, he was quoted by the assessor as saying that he has “no one else in [his] life” except for the applicant.

41. The Tribunal now turns to the appropriateness of the assistance. It became apparent that the Australian relative has a number of behavioural issues that present a challenge to his being placed in residential care. He has variously been described as being aggressive towards others, impulsive in his behaviour and verbally and physically inappropriate (manifesting in offensive comments and touching of others). As above, the applicant has been credited with regulating his antisocial behaviour or, in some cases, advocating on his behalf in the aftermath of such instances. It is reasonable for the Tribunal to conclude that these antisocial patterns of behaviour would continue if not worsen if the Australian relative were placed into residential care.

42. What remains is to consider the issue of the Australian relative’s ability to achieve his goals under the NDIS plan agreed by him. This plan, approved in June 2019, has as one of its medium or long-term goals to “maintain and increase my level of social, educational and recreational activities”, and the activities mentioned include events organised by community organisations, going out for meals and movies, attending suitable TAFE courses, and otherwise accessing the community, in the process building his confidence. The parties’ evidence at hearing was that the Australian relative engages in activities outside of his house, such as shopping and going out for meals. He socialises with support people such as his neighbour with whom he enjoys a good relationship. There is no evidence at this point to show that he has availed himself of the opportunity to undertake TAFE courses.

1. The Tribunal believes that the Australian relative’s ability to be able to achieve goals such as the ones above would be compromised by his entering into residential care. Although it understands that the organisations in charge of such care may offer outings and other social activities for its residents, it is concerned about whether the Australian relative would be able to engage to the same level as he currently does and would be in a position to achieve his goals under his NDIS plan.

2. The Tribunal has had regard to the applicant’s evidence as well as documents submitted by her. While it accepts that the Australian relative may be able to receive assistance through the relevant services, for the reasons given above it does not consider that it is reasonable for him to do so. In this way, the Tribunal is satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are met and r.1.15AA(1)(e) is satisfied.

   Willing and able – r.1.15AA(1)(f)

3. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that “willingness” is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

4. The term “substantial and continuing assistance” has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of “special need relative” in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term “substantial” is directed to the level of assistance and the term “continuing” is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of “carer”, the Tribunal considers them to be of assistance when considering that definition.

5. The evidence in front of the Tribunal demonstrates that the applicant is willing and able to provide substantial and continuing assistance of the kind needed by the Australian relative. The Tribunal finds that she has been actively assisting the Australian relative in many facets of his life since she came onshore in 2017. In fact, it is fair to say that she has been central to his care even if some of that care is performed by others. There is no evidence to show that she would not continue to offer the required assistance into the future. In particular, there is no evidence to show that in the three or so years she has been in Australia the applicant has been engaged in any employment that would divert her attention from the considerable task of caring for the Australian relative.

6. Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

   CONCLUSION

7. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.

8. 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

9. 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:

   ·cl.836.221 of Schedule 2 to the Regulations.

   David Crawshay
   Member

   
   

   ATTACHMENT

   Migration Regulations 1994

   1.15AA Carer

   1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

   (a)the applicant is a relative of the resident; and

   (b)according to a certificate that meets the requirements of subregulation (2):

   (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

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

   (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

   (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

   (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

   (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

   (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

   (e)the assistance cannot reasonably be:

   (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

   (ii)obtained from welfare, hospital, nursing or community services in Australia; and

   (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

   (2)A certificate meets the requirements of this subregulation if:

   (a)it is a certificate:

   (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

   (ii)signed by the medical adviser who carried it out; or

   (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

   (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.