Shin (Migration)

[2018] AATA 2343

Shin (Migration) [2018] AATA 2343 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kyung Sook Shin

CASE NUMBER:  1701526

DIBP REFERENCE(S):  CLF2016/25631

MEMBER:Moira Brophy

DATE:29 June 2018

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 29 June 2018 at 10:50am

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Carer – Sponsor’s daughter – Power of attorney – Son provided assistance with the making of the application – Sponsor’s cognitive impairment – Reasonable care arrangements – Adult children in Australia – Combination of care provided by family and professional services – Sponsor recipient of Community services care – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, rr 1.03, 1.15A, 1.15AA Schedule 1 Item 1123B Schedule 2 cls 836.111, 836.212, 836.213 , 836.221

CASES

Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajov MIBP [2013] FCCA 1554

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 16 January 2017 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 21 April 2016. 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.836.213 was not met because the delegate was not satisfied the sponsor was able to comprehend the scope and extent of the sponsorship undertakings because of her medical condition. The sponsorship was therefore not accepted.

4. The applicant Ms Kyung Sook Shin appeared before the Tribunal on 5 March 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs An Soon Shin, who is the applicant's sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether at the time of application the sponsorship requirements are met and if so whether the applicant Ms Kyung Sook Shin is the carer of the sponsor Mrs An Soon Shin.

   Are the sponsorship requirements met?

7. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).

8. The applicant in this case is sponsored by an Australian relative as defined (her mother) and the sponsor has turned 18 (DOB 3 January 1926).

9. The issue is whether the sponsor was able at the time of application to comprehend the scope and extent of the sponsorship undertakings because of her medical condition. The sponsor was assessed by an ACAT assessor on 2 December 2015 as having Alzheimers Disease, mixed type with behavioural and psychological symptoms which impacted on her short term memory. A BUPA Carer Visa Assessment Certificate dated 8 April 2016 states the sponsor has dementia that has come progressively worse over the past few years.

10. The application was lodged on 21 April 2016. The sponsor signed the application. The delegate has determined that the medical evidence does not support a finding that the sponsor was able to comprehend the scope and extent of the sponsorship undertakings because of her medical condition.

11. The Tribunal considered this issue and whether the Enduring Power of Attorney dated 21 October 2014 and made by the sponsor An Soon Shin in favour of her son Joongsuk Shin covered the scope and extent of the sponsorship undertakings in the application. In making this assessment the Tribunal was mindful of the delegates finding that a decision to sponsor was essentially a decision about lifestyle or health. A general power of attorney gives the attorney the authority to manage a person’s legal and financial affairs while an enduring power of guardianship would be required to make a decision to sponsor as it was essentially a decision about lifestyle or health. The Tribunal is satisfied that an enduring power of attorney assigns the powers necessary to make decisions about sponsorship undertakings which are essentially a legal issue. The Tribunal was satisfied that Joongsuk Shin the son of the sponsor and the person who has been assigned the power of attorney provided assistance with the making of the application (see folio 24 department file CLF2016/25631) and was therefore aware of the sponsorship obligations and undertakings. The Tribunal is satisfied that the enduring power of attorney dated 24 October 2014 was in place at the time this application was lodged, and extended to cover the sponsorship obligations and undertakings as part of the application.

12. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl.836.213.

    Other Criteria

    Whether Ms Kyung Souk Shin has claimed to be a ‘carer’

13. Clause 836.212 of the Regulations requires that the applicant should applicant Ms Kyung Sook Shin claims to be the carer of an Australian relative.  In the present case, the visa application was made on the basis that Ms Kyung Sook Shin is the carer of her mother Mrs An Soon Shin.

14. For the purposes of the Carer visa, ‘Australian relative’ is defined under cl.836.111as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

15. There is a copy of the carer visa application made by Ms Kyung Sook Shin on the Department file. On that application Ms Kyung Sook Shin claims to be the carer of her mother who is the sponsor, Mrs An Soon Shin.  Mrs An Soon Chin is an Australian citizen, as evidenced by the copy of the citizenship certificate provided.

16. Eighth April 2 Therefore, at the time of application Ms Kyung Sook Shin claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.

    Whether Ms Kyung Sook Shin is a carer

17. Clause 836.221 requires that at the time of decision, Ms Kyung Sook Shin 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.

18. The issue for the Tribunal is whether the required assistance cannot be reasonably provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia and that Ms Kyung Sook Shin is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed.

19. With respect to those other matters set out in r.1.15AA and which are not in issue the Tribunal is satisfied that; the Australian relative is Ms Kyung Sook Shin’s mother and thus Ms Kyung Sook Shin is a relative of the “Australian relative” within the meaning of r.1.03; that there is a certificate issued by Bupa Medical Visa Services on 8 April 2016 stating that the Mrs An Soon Shin has a medical condition causing impairments of the person’s ability to attend to the practical aspects of her daily life and will continue to have for at least two years a need for direct assistance in attending to the practical aspects of daily life; the impairment rating of 70 exceeds the impairment rating in IMMI 07/12 (30) and that the person with the medical condition is an Australian citizen or permanent resident.

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

20. 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.

21. 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 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: at [61].

22. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

23. The medical evidence before the Tribunal indicates that Mrs An Soon Shin has dementia, cerebrovascular accident, kyphoscoliosis, balance and gait disorder, degenerative disease of the thoracolumbar spine, osteoarthritis of knees (bilateral), hearing impairment and urinary incontinence. The Tribunal accepts that Mrs An Soon Shin has considerable care needs due to her multiple medical diagnoses. Ms Kyung Sook Shin stated at the hearing that her mother requires her to provide care for her. However, the evidence before the Tribunal indicates that assistance to Mrs An Soon Shin can be reasonably provided by a combination of care provided by her extended family members in Australia in addition to services provided by community agencies.

24. Mrs An Soon Shin is 92 years old. She came to Australia in 1986 when she was aged 60 on a family invitation visa issued through her eldest daughter who was already in Australia. She lives in social housing with her husband and the applicant. Both Mrs An Soon Shin and her husband are in receipt of an age pension. Mrs An Soon Shin has six children. Three of her children reside in Australia.

25. Ms Kyung Sook Shin is 59 years old. She travelled to Australia in July 2013 after being granted a Visitor visa (Subclass 601).

26. Ms Kyung Sook Shin gave oral evidence that she prepares meals for her parents each day. She cares for her father in the morning and her mother in the evening. She baths her mother, gives her massages and takes her for walks. During the night she has to change her father’s nappy and take her mother to the toilet. She said that in recent times her mother has been more in need of her care than her father. Ms Kyung Sook Shin does not take her parents to medical appointments as she is not able to drive. Her younger brother Choong Suk Shin drives them to their medical appointments.  

27. The report by Jun Mo Jeong, registered psychologist, provided at the hearing states that Mrs An Soon Shin requires a high level of care due to her cognitive impairment and physical illnesses. The report stated that Mrs An Soon Shin requires a long term carer to assist her with her basic needs and to provide support for her general and psychological health.

28. The evidence before the Tribunal is that Mrs An Soon Shin has four adult family members who are Australian citizens or residents plus a number of adult grandchildren.

29. Mrs Sue Moon is 72 years old and she is Mrs An Soon Shin’s oldest daughter. Mrs Moon bought her parents to Australia. She supported her parents for a long time after they arrived but since her husband’s business has not been doing well she has not been in a position to provide that support. Mrs Moon normally visits her parents once a week and she spends four hours each Sunday with her mother. She has caring responsibilities to her husband who had open heart surgery in early 2017. Mrs Moon has three adult children living in Sydney. Her 36-year-old daughter Julie is working. She phones her grandparents but does not visit them. Her 30-year-old son Gary is working and he does not visit his grandparents. Her 31-year-old son is working and he visited his grandparents two or three times last year.

30. The Tribunal is satisfied that Mrs Moon has the capacity to provide some care and assistance to her mother and that she is able to call on her adult children to assist her around their work commitments.

31. Mr Joong Chul Shin is 69 years old. He is divorced and in receipt of an aged pension. Ms Kyung Sook Shin said that he did not feel a sense of responsibility to his parents and he has problems with drinking and gambling. She said that he visited his parents five times in 2017 and he has visited twice in 2008. Ms Kyung Sook Shin said that he had an infection last year and she was frightened that he would pass that infection to her parents. She said she was concerned when he talked to her parents that he may have infection in his saliva which he would pass on to them. He has two adult children who don’t live with him. His son Peter is an accountant and he has visited his grandparents once this year. Ms Kyung Sook Shin said that he is preoccupied with his girlfriend. His daughter Sarah is a pharmacist. She has problems in her relationship with her father that impacts on her relationship with her grandparents. She has not visited them in the last two years.

32. While the Tribunal did not have any independent medical evidence to support the assertions made by Ms Kyung Sook Shin about her brother’s capacity to provide care for her parents the Tribunal accepts that he has a limited capacity. However the Tribunal is satisfied either he or his two adult children can provide limited care especially on weekends.

33. Mr Choong Kun Shin was living in Australia but is currently living in Korea. He had been granted a carer pension to provide care to his father. Ms Kyung Sook Shin said that he had been unable to continue with those caring responsibilities as he had physical and psychological problems. She said he suffers from depression and insomnia and that when he gets angry it is frightening for her parents and for her. She said he suffers from tinnitus. She said he had come back to Australia on a number of occasions since he left in September 2015.

34. The Tribunal did not have any independent and persuasive medical evidence as to why Mr Choong Kun Shin had found within a short period after he had been granted a carer visa that he was not able to provide that care. The Tribunal is satisfied that if required Mr Choong Kun Shin can be called to provide care to his parents for at least part of the time.

35. Mr Joong Suk Shin is aged 54 and is currently not employed. Ms Kyung Sook Shin told the Tribunal that his wife has a mental illness that is presently controlled with medication. He has two children who are still of school age. His 11year-old son has special needs. Mr Shin visits his parents a minimum of once per week and generally more often. He is the recipient of the power of attorney for his mother and he is listed as the point of contact for all Centrelink matters. He does grocery shopping for his parents each week and he often takes them for drives.

36. The Tribunal is satisfied Mr Joong Suk Shin has the capacity to provide regular care and assistance to his parents.

37. Ms Kyung Sook Shin gave oral evidence at the hearing that her siblings and their children cannot assist her as they have their own lives and commitments. The Tribunal appreciates that each of Ms Kyung Sook Shin’s relatives has other commitments. However, when a family member requires care, it is often necessary for other family members to make adjustments to current and planned arrangements so that they can support the person requiring assistance. There is no medical evidence to support a finding that Mrs An Soon Shin’s relatives have any physical or psychological condition which may limit their capacity to provide care to her. While acknowledging that individually Mrs An Soon Shin’s family members are unable to provide all the assistance required by her, the Tribunal finds that it would be reasonable for all four of Mrs An Soon Shin’s adult children who are Australian citizens or permanent resident to provide regular assistance to her, notwithstanding their work, study or family commitments.

38. The Tribunal acknowledges that Mrs An Soon Shin prefers that assistance with personal care tasks be completed by female relatives. The Tribunal considers that her male relatives are able to assist with tasks such as taking her to medical appointments, shopping, meal preparation and supervision of medication while her daughter and granddaughters can attend to her personal care needs, such as showering.

39. The Tribunal has also considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

40. The Federal Court has 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].

41. The evidence at the time of hearing was that Mrs An Soon Shin and her husband currently were in receipt of 10 hours community assistance per week. Their meals were prepared and they were taken for walks. Mr Shin was showered but Mrs An Soon Shin is motivated by her personal preference to be cared for by Ms Kyung Sook Shin, and would prefer not to obtain the assistance she requires with personal care from any potential alternative source. In addition to this ten hours of assistance Mrs An Soon Shin had additional physiotherapy and occupational therapy provided to her. She also had the services of a dietician. The Tribunal noted a service provider was with the father at the time of hearing.

42. It was put to Ms Kyung Sook Shin at the time of hearing that key government-funded agencies such as those funded by the NSW Department of Family and Community Services along with care provided by her four adult children who are Australian citizens or permanent residents could meet her parent’s needs. Ms Kyung Sook Shin responded that her father needed 24 hour care. The Tribunal referred to this being an application to provide care to her mother not her father. Her brother has been granted a visa to care for her father.

43. The evidence before the Tribunal in respect of welfare, hospital, and nursing or community services indicates that Mrs An Soon Shin is motivated by her personal preference to be cared for by Ms Kyung Sook Shin, and would prefer not to obtain the assistance she requires from any potential alternative source. While the Tribunal appreciates Mrs An Soon Shin’s preference to be cared for within her culture and her fear of having to navigate a system she does not understand these were all problems reasonably foreseeable to the family at the time the decision was made to bring their parents to Australia. The Tribunal is satisfied her Australian relatives have the time and resources to ensure her cultural sensitivities and wishes are met.

1. The Tribunal is not satisfied that additional assistance, such as home care services, cannot reasonably be obtained for Mrs An Soon Shin from community services. The Tribunal considers that such services would complement the assistance already provided and that can be reasonably provided collectively by four of Mrs An Soon Shin’s relatives in Australia.

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

3. As the Tribunal has found that this criteria is not met, it is not necessary to consider the other criteria for the definition of a carer in r.1.15AA.

4. 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.

5. 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.

6. The Tribunal affirms the decision under review.

   DECISION

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

   Moira Brophy
   Member