Somprayoon (Migration)

[2023] AATA 772

Somprayoon (Migration) [2023] AATA 772 (30 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanach Somprayoon

REPRESENTATIVE:  Mr Roger Geddes Jewell (MARN: 9802780)

CASE NUMBER:  2015687

HOME AFFAIRS REFERENCE(S):         CLF2018/193142

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:        30 January 2023 at 12:47 pm (WA time)

DATE OF WRITTEN RECORD:               28 February 2023

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets

Statement made on 28 February 2023 at 2:35pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance cannot reasonably be provided by other relative or service providers – caree’s partner’s on-call work – circumstances of specified relatives and attempts to obtain out of hours care – type and timing of care required – applicant currently providing care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e), Schedule 2, cl 836.221

CASE
Xiang v MIMIA (2004) 81 ALD 301

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 October 2020 to refuse to grant the visa applicant a Other Family (Residence) (Class BU) Subclass 836 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing 30 January 2023 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2020 to refuse to grant the visa applicant an Other Family Carer Residence (Class BU) visa under section 65 of the Migration Act.

4. The visa applicant applied for the visa on 28 August 2018.  And the criteria for the subclass 836 visa are set out in part 836 of schedule 2 to the Regulations.  Relevantly, for this matter the primary criteria to be met include clause 836.221.

5. The delegate refused to grant the visa on the basis that clause 836.221 was not met because they were not satisfied that the required support could be provided by approved aged care providers in conjunction with assistance from other family members.

6. The review applicant Mr Somprayoon being the visa applicant and the son of the Australian citizen requiring care appeared before the Tribunal today on 30 January 2023 to give evidence and present arguments.  The Tribunal also received oral evidence from the visa applicant’s mother who is an Australian citizen requiring care and her de facto partner.

7. The following three people attended to the Tribunal today, Ms Pattaramon Jandabow, the Australian citizen requiring care, Mr Thanach Somprayoon, the visa applicant, and Mr Shane Carlyon, the partner of the Australian citizen requiring care.  The Tribunal found each of the three witnesses to be credible and places weight on their evidence.

8. The Tribunal was conducted in person with the assistance of an interpreter in the Thai and English languages, however, the interpreter was not required as the Tribunal was able to effectively communicate with each of the witnesses in English.  The review applicant was represented in relation to the review by Mr Roger Jewel.

9. For the following reasons the Tribunal has concluded that the matter under review should be remitted for consideration.  The issue at the present case is whether the care required by the Australian citizen can be provided by other family members or care providers either individually or combined.

10. By background the review applicant applied for the visa to care for his mother who is a 56 year-old Australian citizen residing at the family home in Perth, Australia.  Now, it is not disputed that she requires a significant amount of care and the Tribunal has been provided with an updated carer visa assessment certificate indicating an impairment rating of 40.

11. The Tribunal was also in receipt of significantly more evidence than what was available to the delegate at the time of the original decision.  This includes statements from family members outlining the composition of the extended family and reasons why they are unable to provide care.  Additionally, documented evidence of attempts to obtain out of hours care for the Australian citizen was also submitted to the Tribunal.

12. The Tribunal explored the availability of each qualifying member of the family to provide care and makes the following findings.  Essentially Ms Jandabow has two children, the visa applicant who resides in Australia with her and her de facto partner and her son who resides in Australia is aged 36.  She also has another child, a son, in Thailand and he is aged 38.  So the visa applicant Mr Somprayoon aged 36 has one child aged 13 in Thailand and she resides with her mother and they are not part of this application.

13. The Australian citizen Ms Jandabow has two sisters that also resides in Perth, one of which is estranged from the family and not willing to provide care, the other who also resides some distance away and is unable to provide the care required.

14. Now, due to the nature of the relationships and the availability to provide care and the short notice that is required to obtain care the Tribunal accepts that is not reasonable to expect that the sisters and siblings of Mr Carlyon are able to contribute to the care required of the Australian citizen Ms Jandabow.

15. The crux of the issue essentially revolves around the type and timing of the care required.  So the Tribunal accepts that the evidence that Ms Jandabow requires live in care and sometimes that is to be provided at short notice at any time.

16. Ms Jandabow lives with her partner Mr Shane Carlyon and her son who currently resides in the family home and provides the care required to his mother.  The Tribunal accepts Mr Carlyon works on call 24/7 and is often unavailable to provide care for his partner.

17. The visa applicant has predominantly resided in Australia for some five years and lives, as I mentioned, with his mother and her partner.  The Tribunal accepts that the applicant, therefore, provides the majority of the on call care to his mother notably essential when Mr Carlyon is absent for work.

18. The Tribunal also accepts that the remainder of Mr Carlyon’s family, as mentioned, including two adult children, reside significant distances away and are, therefore, unable to provide any short notice care.  The Tribunal also considered whether the visa applicant is, in fact, the carer, as I have touched on.

19. Mr Somprayoon currently provides the 24 hour support to his mother that is required, including driving her to medical appointments for care, shopping, and day to day hygiene.  It is accepted by the Tribunal that without live in care Ms Jandabow would be required to relocate back to Thailand or Mr Carlyon would have to change his employment providing financial strain on the family.  At the time of this decision the Tribunal finds that Mr Somprayoon is the fulltime carer of his mother.

20. Regulation 1.15AA(1)(a) requires that the applicant is a relative of the resident who is the Australian relative requiring care.  In the present case the Australian relative is identified as the visa applicant’s mother, therefore, the visa applicant is the son of the Australian relative and the visa applicant is the relative of the resident within the meaning of regulation 1.03 and meets the requirements of regulation 1.15AA(1)(a).

21. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of regulation 1.15AA(2) states that the Australian relative of the 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 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 and a need for direct assistance in attending to the practical aspects of daily life.

22. For a certificate to meet regulation 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 or issued by a specified health provider in relation to a review of such an opinion and the Tribunal received a current CVAC indicating an impairment rating of 40.

23. Additionally, the CVAC indicates the assessor is satisfied that because of the medical condition the person 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 and, therefore, the Tribunal finds that the certificate provided does meet the requirements of regulation 1.15AA(2).  And further, the certificate addresses each of the matters mentioned in regulation 1.15AA(1)(b)(i) through to (iv).  Accordingly, the requirements of regulation 1.15AA(1)(b) are met.

24. Residency status of the person with the medical condition regulation 1.15AA(1)(b)(a) 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 and, therefore, the requirements of regulation 1.15AA(1)(b)(a) are met.

25. I have touched on the impairment rating, as required by regulation 1.15AA(1)(c).  And in the present case that impairment rating is specified in the certificate 40, which exceeds the impairment rating specified by the relevant instrument and, therefore, the requirements of regulation 1.15AA(1)(c) are met.

26. The resident’s need for assistance, so this is regulation 1.15AA(1)(d), where the person to whom the certificate relates is not an Australian relative but a member of the family unit regulation 1.15AA(1)(d) requires the Australian relative to have a permanent or long term need for assistance in providing the direct assistance mentioned.  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 and as the person to whom the medical certificate relates is an Australian relative regulation 1.15AA(1)(d) does not apply.

27. Regulation 1.15AA(1)(e) this regulation 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 by welfare, hospital, nursing or community services in Australia.  The Tribunal having examined the circumstances of each qualifying family member and with consideration as to the care requirements of this Australian relative is satisfied that the assistance cannot reasonably be provided by a relevant relative.

28. Additionally, the Tribunal accepts that the family have endeavoured to obtain the care from welfare, hospital, nursing or community services in Australia and significant written communications exploring options from potential providers was submitted as evidence.  With consideration of all of the evidence the Tribunal, therefore, finds the requirements of regulation 1.15AA(1)(e) are met.

29. Regulation 1.15AA(1)(f) requires consideration, if the visa applicant is willing and able, to provide to the Australian relative, in this case his mother, the 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 and in contrast the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suited or fit to provide the assistance, as outlined in Xiang v Mimea [2004].

30. The Tribunal finds that the visa applicant who is currently onshore in Australia and has been for some five years living with his mother and her de facto partner is willing and able and has been providing the significant care required to the Australian relative and continues to do so of the kind needed and meets the requirements of regulation 1.15AA(1)(f).

31. In conclusion, given the findings the Tribunal is satisfied that at the time of this decision the visa applicant is the carer of the Australian relative being the review applicant and, therefore, satisfies clause 836.221.  For the reasons above the visa applicant meets the criteria for a subclass 836 visa.  In respect of other visa subclasses there is no material, which would permit a finding, that the applicant meets prescribed criteria for that visa sought and, therefore the Tribunal did not consider any other criteria for any subclass visas.

32. As the applicant meets 836.221 the appropriate course of action is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 836 visa. 

    DECISION

33. Therefore, the decision of the Tribunal is the Tribunal remits the application for the subclass 836 visa with the direction that the applicant meets the following visa criteria clause 836.221 of schedule 2 to the Regulations.

    Joseph Francis
    Member