Michael (Migration)

[2019] AATA 3003

Michael (Migration) [2019] AATA 3003 (6 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Annie Hansa Michael

CASE NUMBER:  1816781

DIBP REFERENCE(S):  CLF2015/55723

MEMBER:Hugh Sanderson

DATE:6 June 2019

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 06 June 2019 at 10:49am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – person applicant initially claimed to care for died – sponsor did not meet required impairment level – applicant did not meet requirements for carer – ministerial intervention suggested to allow applicant to remain in Australia temporarily until sponsor’s medical condition stabilised – time of decision criterion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r.1.15AA, Schedule 2, cl.836.221

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 22 May 2018 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 8 September 2015. 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.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the person for whom the applicant was claiming to care for had died.

   Background

4. The applicant is a citizen of India. She was sponsored in her application by her sister, Rosie D’Souza, on the basis that Mrs D’Souza husband, Robert D’Souza, was in need of care.

5. A Carer Visa Assessment Certificate was provided for Robert D’Souza, finding that he suffered from chronic kidney disease, diabetes, hypertension, congestive heart failure, a previous fractured neck with a hip replacement and primary hypogonadism. He was assessed as having a total impairment rating of 30. It was claimed that Mrs D’Souza was not able to care for her husband as she was working full-time and suffered from her own physical disabilities.

6. On 21 May 2018 the applicant advised the Department of Immigration (the Department) that Mr D’Souza had passed away. She advised the Department that her sister (the sponsor) had been diagnosed with an aggressive form of breast cancer and was undergoing chemotherapy. She asked that the application be considered on the basis that she was caring for her sister.

7. The delegate who considered the application noted the following issues:

   ·The application was lodged on the basis that the applicant was the carer for Mr D’Souza, the husband of the sponsor who was the sister of the applicant, and a Carer Visa Assessment Certificate was provided for Mr D’Souza and no other person;

   ·Although the applicant’s sister may have her own medical problems at this time, at the time of the application there was no intention to provide care for the applicant’s sister; and

   ·As Mr D’Souza has now passed away, there is no permanent or long-term need for assistance in providing the direct assistance to the person with a medical condition (Mr D’Souza) and therefore the requirements in r.1.15AA(1)(d) of the Regulations for the definition of a carer was not met.

8. As the definition of a carer in r.1.15AA was not met, the applicant did not meet the criteria in cl.836.221 and the application was refused.

   Information to the Tribunal

9. The applicant provided extensive material to the Tribunal as to the sponsor’s medical condition. This indicated that she had been diagnosed with breast cancer in August 2017 and had been undergoing significant medical treatment since then. This included consulting a psychologist as well as receiving treatment to address the cancer.

10. The applicant appeared before the Tribunal on 22 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

11. The applicant said the only other relative she and her sister have in Australia is their niece who lives in Darwin.

12. The applicant provided details of the care she provided to the sponsor’s husband. She said that he was working one day a week at Fairfield Hospital as a security officer. She said that she took care of his dialysis, drove him to the hospital and provided general care for him. She said that when the sponsor returned home from work she would provide the care for her husband. This included assisting him in the shower, dressing him and otherwise providing for his care. She said that her sister provided the majority of all the care for her husband when she was at home.

13. The applicant said that at the time of the application the sponsor was working with the Corrections Department 35 hours a week as an administrative assistant. She would either be driven to work or catch a train.

14. She said that while the sponsor was having surgery in 2008 the nerves in her right leg were injured and as a result she now suffers from peroneal nerve palsy. There are no surgical options to rectify the injury suffered. She said that the sponsor received a negligence payment from the hospital. The injury means that she cannot drive a car and has difficulty bending over or lifting things. At the time of the application her condition was not as bad as it is now and her condition has been adversely affected by the treatment for her cancer. She said that the sponsor would accompany her doing shopping and other chores although the applicant did the majority of all household chores in 2015.

15. The applicant provided details of her trips back to India with the sponsor and the sponsor’s husband.

16. The applicant said the sponsor is working with the Corrections Department five days a week for 35 hours. She said that from about September 2017 to September 2018 she was required to stop work due to the treatment for her cancer. She and the sponsor relied upon the sponsor’s savings to meet their expenses over this time as the sponsor was not entitled to any social security payments. She said the sponsor had been receiving treatment from a psychologist since August 2017 after she was diagnosed with cancer. She was not aware if she had ever received any treatment for any mental health issues prior to then.

17. The applicant said that her sister had applied for a Carer Visa Assessment Certificate in June 2017 and February 2019. Both these certificates concluded that the sponsor did not meet the required impairment level and did not meet the requirements for a carer. She said the current application for assessment included further information about the sponsor’s mental health.

18. The sponsor gave evidence in support of the application. She said that in 2015 she was the primary carer for her husband when she was at home. This included dressing and undressing him and helping him shower. She said that she did not accompany the applicant when she did shopping because someone had to stay at home with her husband. She said that they rarely went out as they were depressed.

19. The sponsor said that she was currently working an average of 35 hours per week. This varies depending on how she is affected by her medication and appointments she has to have with her medical team. She is currently 15 hours in debt with her flex-time.

20. The sponsor said that she only started seeing a psychologist in August 2017 after she was diagnosed with cancer. She said that after she suffered her injury in 2008 she saw a psychiatrist for two or three sessions but did not need any psychiatric or psychological treatment for any mental health issues until after she was diagnosed with cancer. She said that she had not used any medication for depression.

21. Further time was given to provide a further medical assessment and also for submissions as to whether the applicant was claiming to be the carer for the sponsor at the time of the application.

22. The applicant provided a Carer Visa Assessment Certificate dated 14 May 2019 carried out by Dr De Silva. This found that the sponsor did not satisfy the requirements for a carer. The sponsor was found to have the total impairment rating of 15. The sponsor was found not to have the need for direct assistance in attending to the practical aspects of daily life because of her medical condition. The sponsor was found not to have, because of her medical condition, the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

23. The applicant provided further documents as to her medical condition and submissions as to why the Tribunal was not bound to accept the Carer Visa Assessment Certificate.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether the applicant meets the definition of a carer in r.1.15AA. The applicant initially claimed that she was the carer of the sponsor’s husband who provided a Carer Visa Certificate Assessment which met the requirements. The sponsor’s husband has since died. As this is a time of decision criterion the applicant cannot rely on the claim that she is the carer of the sponsor’s husband and does not meet the time of decision criteria on the basis of that claim.

26. The applicant is now claiming that she is the carer of the sponsor. The Tribunal has considered whether the applicant meets the time of decision criteria on the basis of claiming to be the carer of her sponsor. The Tribunal has first considered whether the appropriate certification has been provided and, if so, if the sponsor suffers the relevant impairment rating.

    Whether the applicant is a carer

27. 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 which is set out in the attachment to this Decision. The applicant is required to meet all the criteria if they are to satisfy the definition.

    Certification

28. 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.

29. 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.

30. The applicant initially applied for the Carer visa on the basis of her claim that she was the carer of the sponsor’s husband. The sponsor’s husband died 10 May 2018. The applicant now claims to be the carer of the sponsor, her sister.

31. The applicant has applied for at least three separate Carer Visa Assessment Certificates. All of these certificates have found that she does not meet the requirements for a carer. All three certificates were issued by different medical officers. The first two assessments were dated 3 July 2018 and 28 February 2019. The most recent certificate, dated 14 May 2019, found the sponsor had an impairment rating of 15, less than the impairment rating of 30 which is required to meet the criteria. It found that she did not have a need for direct assistance in attending to the practical aspects of daily life because of her medical condition. It found that the sponsor did not have, because of the medical condition, the need for direct assistance in attending the practical aspects of daily life which will continue for at least two years.

32. The applicant’s agent argued that the Tribunal should not accept the findings of the appropriately authorised expert in concluding that the applicant did not meet the criteria. It was argued that the certificate was unreasonable at law. The Tribunal has considered all the information provided by the applicant and the findings on the information provided by the applicant and the sponsor to the appropriate medical officer.

33. In the report of Dr De Silva it was noted that this was the third assessment for a Carer visa and the case was overseen by the lead physician and reviewed by a senior Medical Officer of the Commonwealth as part of the assessment process.

34. Dr De Silva correctly identified the sponsor’s medical conditions, referring to the information provided by the sponsor’s treating experts. Dr De Silva correctly identified the assistance requirements of the sponsor and made comments in respect of the assessment made in relation to the impairment level.

35. The Tribunal does not accept that the report from Dr De Silva is flawed in any way. The various conditions of the sponsor were identified and assessed by Dr De Silva and Dr De Silva applied the correct test when assessing whether the sponsor satisfied the requirements for a positive Carer Visa Assessment Certificate.

36. The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). The finding of Dr De Silva in the Carer Visa Assessment Certificate is that the sponsor who is the subject of the certificate does not have a need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years. As such, the requirements in r.1.15AA(1)(b)(iv) are not met.

37. Accordingly, the requirements of r.1.15AA(1)(b) are not met.

38. 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 07/012.

39. In the present case, the impairment rating specified in the certificate is 15. This rating is below the impairment rating specified by the relevant instrument and therefore does not meet the requirements of r.1.15AA(1)(c).

40. As the applicant does not meet the definition of carer in r.1.15AA(1)(b) and r.1.15AA(1)(c) it is not necessary to consider whether she satisfies the further criteria in the definition of a carer.

41. 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.

42. 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.

    Ministerial intervention

43. The applicant has requested the Tribunal support her in an application for Ministerial intervention. The Tribunal does support the applicant in requesting the Minister intervene and use their discretion in this application; however, it is only on the basis that the applicant be entitled to remain in Australia on a temporary visa pending the stabilisation of the sponsor’s medical condition.

44. The applicant has provided extensive information of the sponsor’s medical condition. Apart from suffering from the death of her husband, the sponsor’s three main medical conditions causing her impairment are the fact that she suffers from a peroneal nerve injury arising from medical negligence, breast cancer and depression. In the report from Dr De Silva it is noted that as some of the medical conditions she suffers from are not fully treated and stabilised they cannot be taken into account when the assessment for the Carer Visa Assessment Certificate was made. It may be that when those medical conditions are stabilised an assessment of the sponsor may find that she satisfies the requirements for a Carer Visa Assessment Certificate. Although not stabilised at this time, the opinions of her treating specialists are that the sponsor needs her sister present to assist in her care. This would assist in getting a positive outcome for her current treatment.

45. The Tribunal accepts that the sponsor does not have any other relative residing in Australia who would be able to provide any ongoing assistance or care. The only relative she has in Australia is her niece who lives in Darwin. The Tribunal accepts that the applicant provides significant emotional as well as practical support to the sponsor in relation to her treatment as well as assisting her in her basic necessities of life.

46. The Tribunal believes that the unique and exceptional circumstances in this case, being the nature of the medical conditions suffered by the sponsor and the fact that those conditions are not yet fully treated and stabilised for the purpose of a Carer Visa Assessment, would justify the exercise of Ministerial intervention. It is suggested that the intervention would be to allow the applicant to remain in Australia temporarily until any medical condition suffered by the sponsor had stabilised and, if the relevant provisions are then able to be satisfied, the applicant could then be considered for the grant of a Carer visa.

47. For the above reasons, the Tribunal would support on this limited basis the exercise of Ministerial intervention.

    DECISION

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

    Hugh Sanderson
    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.