Sethi (Migration)

[2023] AATA 1433

Sethi (Migration) [2023] AATA 1433 (8 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Judy Sethi

VISA APPLICANTS:  Ms Wendy Duncan
Ms Srishti Duncan

CASE NUMBER:  2301942

HOME AFFAIRS REFERENCE(S):          OSF2016/049514

MEMBER:Maxina Martellotta

DATE:8 May 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 08 May 2023 at 11:12am                

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– the person with the medical condition is a member of the family unit of the resident – review applicant’s mother has been receiving full time assistance from nurses and carers – the required assistance has been reasonably obtained from an aged care residential service – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65

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

CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814

Hon Anh Vuong v MIAC [2013] FCCA 274

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 15 December 2022 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 visas on 26 October 2016. 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). The primary visa 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. Relevant to this matter, the primary criteria to be met includes cl 116. 221(1), which requires that at the time of decision the primary visa applicant is a carer of an Australian relative of the review applicant. ‘Carer’ is defined in reg 1.15AA.

3. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate was not satisfied that the assistance could not reasonably be provided by any other relative of the resident (reg 1.15AA(1)(e)(i)) and also that care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(ii)). The sponsor (the review applicant) seeks review of the delegate’s decision.

4. The delegate also refused to grant the visa to the secondary visa applicant who had applied for grant of a carer visa on the basis she is a member of the family unit of the primary visa applicant. As the primary visa applicant did not satisfy the criteria, the delegate concluded that the secondary visa applicant did not satisfy cl 116.321 of Schedule 2 to the Regulations.

5. The review applicant appeared before the Tribunal on 21 April 2023 to give evidence and present submissions. The Tribunal also received oral evidence from the primary visa applicant who participated by video. Other evidence considered by the Tribunal included documents provided by the review applicant to the Tribunal in support of their application and documents provided by the primary visa applicant and review applicant to the Department in support of the visa application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the assistance could not reasonably be provided by any other relative of the resident and also whether the care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(ii)).

   Background

8. The review applicant acquired Australian citizenship in 1991. She was born in July 1952.  The review applicant has sponsored the primary visa applicant. The primary visa applicant was born in August 1988.  The secondary visa applicant is the primary visa applicant’s daughter; she was born in June 2005. The visa applicants are both Indian citizens.

9. The care recipient is the review applicant’s mother, the primary visa applicant’s grandmother and the secondary visa applicant’s great grandmother. She is an Australian citizen and was born in October 1926.

   Whether the primary visa applicant is a ‘carer’

10. Clause 116.221 requires that at the time of decision, the primary 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 that the primary visa 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 this case the resident for the purposes of this provision is the review applicant who is in the aunt of the primary visa applicant. This relationship is confirmed by documents including birth certificates provided to the Department and to the Tribunal.

12. As such, the Tribunal is satisfied the primary 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)

13. Regulation 1.15AA(1)(b) requires a certificate, which meets the requirements of reg 1.15AA(2), states that:

    ·     the Australian relative (resident) or a member of the family unit of the resident has a medical condition;

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

    ·     the impairment has a rating (under the Impairment Tables) that is specified in the certificate; and 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.

14. As noted, the person requiring care with the medical condition, is the mother of the review applicant (who is also identified as the resident). The tribunal is satisfied and finds that the person with the medical condition is a member of the family unit of the resident.

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 14/085), or issued by a specified health provider in relation to a review of such an opinion. The Tribunal has considered the Bupa Medical Visa Services Carer Visa Assessment Certificate (the CVAC) dated 28 June 2016.

16. The CVAC reports an impairment rating of 70 points. It considered the following medical reports as part of the assessment:

    a)Discharge letter dated 07/06/2016 by Dr James Wu (on behalf of Dr Ayyar Venkatraman − Dept of Gen Med SCGH);

    b)Discharge letter dated 07/04/2016 by Dr Lily Tucker (on behalf of Dr Matthew Skinner − Dept of Gen Med SCGH);

    c)Discharge letter dated 29/2/2016 by Dr Nathan Luies (on behalf of Dr Katharine Ingram − Dept of Rehab & Aged Care SCGH);

    d)Discharge letter dated 10/01/2016 by Dr Brent Joubert (on behalf of Dr Khalil Patankar − Dept of Gen Med RPH);

    e)Discharge letter dated 13/11/2015 by Dr Jana Combrinck (on behalf of Dr Andrew Klimaitis − Dept of Gen Med SCGH);

    f)Discharge letter dated 22/10/2015 by Dr Thomas Christiner (on behalf of Dr Selvanayagi Ketharanathan − Dept of Gen Med SCGH);

    g)Discharge letter dated 24/07/2015 by Dr Michael Lim (on behalf of Dr Sivanthi Senaratne − Dept of Gen Med SCGH);

    h)Discharge letter dated 24/06/2015 by Dr Michelle Killalea (on behalf of Dr Sivanthi Senaratne − Dept of Gen Med SCGH);

    i)Discharge letter dated 12/05/2015 by Dr Alastair Dunbar (on behalf of Dr Matthew Skinner − Dept of Gen Med SCGH);

    j)Discharge letter dated 12/05/2015 by Dr Kal Vin Fong (on behalf of Dr Jujnovioh − Dept of Rehab & Aged Care Joondalup Health Campus);

    k)GP letter dated 05/05/2016 − GP Management Plan by Dr Mujeeb Rehman.

17. The care recipient has been diagnosed with a range of medical conditions associated with her advanced years. These include:

    a)Ischaemic heart disease

    b)Congestive heart failure

    c)COPD/asthma

    d)Depression

    e)Chronic back pain − compression fracture of spine

    f)Visual impairment

    g)Hearing impairment

    h)Gastroesophageal reflux; Gastritis

    i)Osteoarthritis − Rt shoulder, hips

    j)Urinary incontinence

18. The CVAC also concluded that the examinee was fully dependent and required assistance with:

    a)Mobility

    b)Bathing/showering

    c)Toileting

    d)Dressing/grooming

    e)Eating/feeding

    f)Supervision of medication

    g)Supervision of personal safety

    h)Transportation

19. The CVAC states that the requirements for a carer are satisfied as the review applicant’s mother has a medical condition which results in the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

20. Updated medical information provided since the CVAC includes:

    a)Medical certificate provided by Dr Moussa dated 9 December 2017 stating that the review applicant’s mother has severe medical conditions requiring respite and full time care and that her granddaughter (the primary visa applicant) has been attending to her care for three years.

    b)Letter dated 12 July 2018 stating that the review applicant’s mother was receiving the highest level of community support through a Level 4 care package but that she required constant supervision and monitoring which could not be provided through the care package.

    c)Discharge notes from Bentley Hospital dated 5 February 2018 which described a principal diagnosis of anxiety − unable to cope at home recurrent presentation together with comorbidities. The notes states that her granddaughter is her primary carer but has returned to India due to visa issues.

    d)Discharge notes from Royal Perth Hospital dated 26 July 2019, 3 November 2019, March 2020, 29 April 2020 and 12 May 2020. These noted a principal diagnosis of cellulitis of the lower leg and exacerbation of congestive heart failure.

21. Medical information provided to the Department since the CVAC and the review applicant’s evidence confirmed that the review applicant’s mother has been in respite residential care with various services.  Since 2020 she has moved into residential care accommodation on a permanent basis. The care service is operated by Aegis.

22. The Tribunal is cognisant of the fact the CVAC was prepared approximately six years ago. Updated medical evidence before the Tribunal confirms that the medical conditions of the care recipient have not improved and the Tribunal accepts the certificate as still applicable.

23. The Tribunal finds that the certificate provided meets 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)

24. 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. 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)

25. 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.

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

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

27. 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.

28. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 (Anveel) at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: Anveel at [61].

29. Relevantly, the Federal Court has also held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

30. The Tribunal has considered the evidence provided in the form of submissions, medical documents, the oral evidence provided at hearing and documents that were provided to the Department and the Tribunal.

31. At hearing the review applicant provided the following evidence:

    a)Her mother is now aged 96 and since June 2020 she has been residing on a permanent basis at Aegis aged care service.

    b)She (the review applicant) works full time. She visits her mother every evening after work.

    c)Her mother is no longer mobile and requires assistance to move in and out of her bed as well as assistance with all her daily care needs.  Her mother is legally blind, has a hearing impairment and suffers from severe depression caused by the breakdown of her marriage and the loss of her other daughter to breast cancer.

    d)The primary visa applicant is her deceased brother’s daughter. She and her niece lost contact for many years but in about 2014 they managed to reconnect.  The primary visa applicant has been travelling to Australia on a visitor visa for periods of up to six months on a regular basis between 2015 and 2019. Prior to the review applicant’s mother moving into residential care when her niece was in Australia, she had taken care of her mother. Her niece would live at her mother’s home and provide daily care and support.  She paid for her niece to undertake a course to qualify as a carer.

    e)Although her mother is now a permanent resident with Aegis, she submits that the primary visa applicant still has a role in providing care.  This would involve her sitting with her mother at the aged care residence to watch over her and provide assistance to the staff in the care of her mother.

    f)She does not have faith in the services being provided to her mother. When it became apparent that her mother could no longer remain at home, she was admitted to six different respite residential services.  She removed her mother from the first one within 24 hours because the room and sheets were not clean.

    g)In January 2023 her mother told her that she was assaulted by another resident at the residence where she now lives.  The review applicant reported this to the manager of the service and also to police but is unhappy with the response she received.

    h)Her mother tells her that she does not like where she lives and that no-one ever comes when she calls. She believes that her mother is excluded from activities and has made complaints to management who advise that the issues are to do with staff shortages. She believes her mother’s life is at risk.

    i)The Tribunal should not place any weight on the medical certificate provided by Dr Singh dated 16 September 2022 because that doctor is employed by the residential aged service and his opinion would be biased.

    j)Her niece (the primary visa applicant) was in Australia in late 2022. She would accompany her when she visited her mother. Sometimes she would remain with her mother to keep her company and bring home cooked meals for her to eat.

    k)The review applicant has a brother who lives in the same city. They are estranged and whilst he occasionally visits their mother, he is the carer for his wife who has had a stroke and so he has limited capacity to spend time or provide assistance with their mother.

    l)The review applicant also has two nieces and a nephew. One niece and her nephew live interstate. They both have young families. Her other niece resides in the same city but she has three young children under the age of four years; she also has limited capacity to provide assistance.

32. In response to questions asked by the Tribunal, the review applicant confirmed that:

    a)It is no longer a viable option for her mother to be cared for at home due to her high care needs.

    b)Whilst she has concerns about her mother’s standard of care and has raised this with management, she has not lodged a formal complaint about her concerns to a relevant external body such as the Aged Care Quality and Safety Commission.

    c)She agrees that her niece would not be able to undertake many of the practical care tasks her mother requires such as showering, lifting, etc as she is not a member of staff at the aged care residence.  Her assistance would be directed at keeping her mother company, preparing her food that she enjoys and ensuring that staff responded to her mother in a timely manner and that her mother received an adequate standard of care.

    d)In relation to photographs provided to the Tribunal, by the review applicant showing her mother in the company of other people at the nursing home, these people include her brother-in-law and his partner, her own partner and family friends. 

33. The review applicant provided copies of emails between herself and Aegis about the incident which she said occurred in February 2023. That correspondence confirmed that the review applicant had spoken with the service provider and that the service was working with staff and carers to ensure that such an incident did not occur again and that the resident who had interacted with her mother was no longer a resident.

34. The primary visa applicant provided the following evidence:

    a)Prior to her grandmother going into residential care, she would come to Australia for up to six months at a time. She would stay with her grandmother in her home and assist her with her day-to-day care needs.

    b)The COVID-19 pandemic prevented her from travelling to Australia from 2020.

    c)She recently returned to Australia in late 2022. She visited her grandmother with her aunt (the review applicant) and usually would stay for about an hour.  If granted a carer visa she would devote all her time to sitting with her grandmother to ensure that she receives the care, she needs from the residential aged care service.

    d)She agreed that she would not be able to undertake many of the practical care tasks as these would only be able to be done by employed nurses and carers, but she would keep her grandmother company, bring her home-cooked meals, help with feeding her and ensure that she is properly taken care of by staff.

35. In this matter, the evidence is that the review applicant does not have any faith or trust in the aged care services who are providing her mother with full time care.  The review applicant’s mother is now 96 years of age and has been living in residential aged care on a permanent basis since June 2020. The Tribunal is satisfied that the review applicant’s mother (the person with the medical condition) requires full time assistance; she is dependent upon others to care and support her. The Tribunal is satisfied that there are practical aspects of daily life for which the review applicant’s mother currently and for the next two years requires direct assistance.

1. It is also apparent from the medical evidence that the review applicant’s mother requires a high level of care which are being provided by an aged care residential service. As noted by the most recent medical certificate provided by Dr Singh (16 September 2022) the review applicant’s mother is totally dependent upon staff and carers employed by the residential home due to her high care needs. The Tribunal does not accept the review applicant’s submission that this particular medical opinion is affected by bias.  In the Tribunal’s view the information provided by Dr Singh is consistent with other medical evidence which documents the review applicant’s mother’s declining health and her increased care needs. It was also consistent with the evidence provided at hearing by the review applicant and primary visa applicant that such is the level of care required that this care cannot be provided in the home.

2. The review applicant says that no other relatives are able to provide assistance. The review applicant also says that whilst her mother is now in permanent residential care, she does not trust the care being provided and wants the primary visa applicant to be present to provide supervision of that care.

3. It is apparent from the evidence that the review applicant’s mother has been receiving full time assistance from nurses and carers employed by the Aegis residential aged care home. They have been providing that care since mid-2020. The review applicant’s submission is in effect that she does not trust the standard of care that her mother is receiving and that her niece, the primary visa applicant, would be able to supervise the care and assistance her mother is receiving in the residential home.  The review applicant confirmed at hearing that she did not have any medical evidence to support her claims that her mother’s health or wellbeing was at risk due to a lack of care being provided by the residential service provider.

4. In this case the Tribunal is satisfied that the review applicant’s mother is receiving the assistance she requires by Aegis. The review applicant has demonstrated through her own evidence that she is able to supervise the care her mother receives. The evidence demonstrates that she has been proactive in advocating for her mother’s care needs. In the Tribunal’s assessment this is not something in which she requires assistance. Further the Tribunal is not satisfied that there is evidence to support the review applicant’s submission that her mother requires a family member to be present throughout the day to supervise the care being provided by the residential aged care service.

5. In this case the Tribunal concludes and finds that the review applicant’s mother has been residing and receiving full time assistance from Aegis, a residential aged care service since June 2020. The Tribunal also finds that the review applicant’s mother is bedbound and is totally dependent upon nursing and care staff for all her care needs.  

6. In this case the Tribunal concludes that given it has been demonstrated the required assistance has been reasonably obtained from an aged care residential service on a permanent basis since mid-2020 and continues to be done so as of the date of decision the requirements of reg 1.15AA(1)(e) are not met.

   Conclusion

7. Given these findings the Tribunal concludes that at the time of decision the primary visa applicant is not a carer of the Australian relative, being the review applicant, and therefore the requirements of reg 1.15AA(1)(e) are not met. This means that cl 116.211 is not met.

   Secondary visa applicant

8. In relation to the secondary visa applicant,[1] the Tribunal finds that, as the primary visa applicant does not meet cl 116.211 and accordingly, does not meet the criteria for a Subclass 116 visa, the secondary applicant cannot meet the criteria for a Subclass 116 visa as a member of the family unit of a person who has satisfied the primary criteria. Further, no claims have been made, and no evidence provided, that the secondary applicant meets the primary criteria for a Subclass 116 visa.

   Other visa subclasses

   [1] The secondary criteria are set out in Division 116.3. At the time of decision cl 116.321 requires the applicant must continue to be a member of the family unit of a person who is the holder of a subclass 116 visa.

9. In respect of the other visa subclasses there is no material which would permit a finding that the primary visa applicant meets prescribed criteria for the visa sought.

10. The primary visa applicant was born on 19 August 1988. The Tribunal finds that the primary visa applicant is not entitled to the grant of a Subclass 114 (Aged Dependent Relative) visa as the primary visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. As such, the primary visa applicant is not an ‘aged dependent relative’ as defined in reg 1.03 for cl 114.211 of Schedule 2 to the Regulations.

11. The Tribunal finds that the primary visa applicant is not entitled to the grant of a Subclass 115 (Remaining Relative) visa because she has relatives who reside in the same country (India) as the primary visa applicant, according to the visa application, which includes her mother, father and brother. This information indicates that the primary visa applicant is not, therefore, a ‘remaining relative’ of the ‘Australian Relative’ and, therefore is unable to meet cl 115.211.

    DECISION

12. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Maxina Martellotta
    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.