Nolen (Migration)

[2022] AATA 3314

Nolen (Migration) [2022] AATA 3314 (26 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Drusilla Tenni Nolen

VISA APPLICANTS:  Ms Belinda Talata Bualey
Ms Christabel Yinkariya

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  2013721

HOME AFFAIRS REFERENCE(S):          OSF2018/028090

MEMBER:M. Edgoose

DATE:26 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·cl 116.211 of Schedule 2 to the Regulations

·cl 116.221 of Schedule 2 to the Regulations

·cl 116.321 of Schedule 2 to the Regulations

Statement made on 26 August 2022 at 10:58am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– certificate provided meets the requirements of r.1.15AA(2) – rating equals the impairment rating specified by the relevant instrument – the person with the medical condition is an Australian citizen – assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.221, 116.321

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 7 July 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 2 August 2018. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.211.

3. The delegate refused to grant the visas on the basis that cl 116.211 and cl 116.221 were not met.

4. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the visa applicant has claimed to be a ‘carer’

6. Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of the review applicant, who is the visa applicant’s sister.

7. 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 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

8. The visa applicant in this matter claims to be the carer of an Australian relative, who is an Australian permanent resident according to cl 116.211(2).

9. Therefore, at the time of application the visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 116.211.

   APPLICANT IS A CARER

   Whether the visa applicant is a ‘carer’

10. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.

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

11. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s brother in-law.

12. The review applicant in this matter is the sister of the visa applicant and the wife of Mr James Nolen who is the person requiring care.

13. Therefore, the visa applicant is the sister of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

14. 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.

15. 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 IMMI 14/085 or issued by a specified health provider in relation to a review of such an opinion.

16. On 17 December 2021 the Tribunal received an updated CVAC and a medical report from the review applicant visa her representative. The Tribunal has referred to the CVAC certificate that was completed through Bupa Medical Visa Services on 1 December 2021 by Dr Brinthan Kathirgama Kanthan. The CVAC reached an impairment total rating of 70. The medical conditions identified by Dr Kanthan were CVA affecting upper limb function with a rating of 30, CVA affecting lower limb function with a rating of 30 and CVA affecting communication with a rating of 10. The CVAV found that because of the medical condition, the review applicant has and will a need assistance in attending to the practical aspects of daily life for at least the next 2 years as it is a permanent condition. 

17. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

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

18. 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.

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

    Impairment rating – reg 1.15AA(1)(c)

20. 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.

21. In the present case, the impairment rating specified in the certificate is 70. This rating is equal the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

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

22. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 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 reg 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 2 years as a result of the medical condition.

23. In the present case the Australian relative (resident) is not the subject of the certificate. Based on the evidence provided the Tribunal is satisfied that the review applicant does require long term and permanent assistance due to the medical condition of her husband. As the Australian relative does require assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv) the requirements of reg 1.15AA(1)(d) are met.

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

24. 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.

25. Based on the evidence provided the Tribunal is satisfied that the review applicant and the person requiring care have exhausted every conceivable option available to them. The person requiring care’s relationship with two of his three children is non-existent and he had no contact with them. The third child has a family of his own and lives in Western Australia. The review applicant does receive some assistance however it is not enough to meet the 24 hour a day 7 day a week assistance required to meet the care requirements of her husband, the person requiring care.

26. The Tribunal also accepts that the review applicant has exhausted every option available to her in the surrounding areas of where she and her husband reside. That being the Tribunal is satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia to the level of care required by the review applicant’s husband.

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

    Willing and able – reg 1.15AA(1)(f)

28. Regulation 1.15AA(1)(f) requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

29. 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.

30. Based on the substantive submission from the review applicant’s representative the Tribunal is satisfied that the visa applicant is both willing and able to provide the substantial and continuing assistance required for her sister, the review applicant, and her brother in-law the person requiring the permanent care.

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

32. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl 116.221.

33. 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 116 visa.

    DECISION

34. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

    ·cl 116.211 of Schedule 2 to the Regulations

    ·cl 116.221 of Schedule 2 to the Regulations

    ·            cl 116.321 of Schedule 2 to the Regulations

    M. Edgoose
    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.