SU (Migration)

SU (Migration) [2023] AATA 1488 (21 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr YongKang Su
Ms Guofang Wu
Ms Xiuying Su
Ms Vicky Su
REPRESENTATIVE:  Gang Wang, Legal Practitioner
CASE NUMBER:  1834493
HOME AFFAIRS REFERENCE(S):          CLF2017/55450 CLF2018/50041
MEMBER:Jennifer Cripps Watts
DATE:21 May 2023
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 21 May 2023 at 5:06pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – renal failure – dialysis – assistance cannot reasonably be obtained/provided – other relatives – collectively capable of providing assistance – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cls 836.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 November 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 28 July 2017. 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 (Cth) (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. Relevantly to this matter, the primary criteria to be met include cl 836.221.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because the primary visa applicant (the applicant) was not a carer when assessed against the requirements of reg 1.15AA(1) of the Regulations. The secondary applicants’ visas were refused because they did not meet the secondary criteria which requires, essentially, that they are members of the family unit of a person who holds a subclass 836 visa.
The first and second named applicants appeared before the Tribunal on 5 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and family members of the sponsor, including adult children and grandchildren. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether, at the time of this decision, the applicant is a ‘carer’, of the sponsor, as ‘carer’ is defined in reg 1.15AA(1) of the Regulations, which is set out in the attachment to this Decision. The elements of reg 1.15AA(1) are cumulative, all relevant subregulations must be met. If one is not met, the Tribunal need not go on to consider the remainder.
The Tribunal has considered the documentary and oral evidence given and any other relevant matters in reaching a decision. At the conclusion of the hearing, the applicants’ request for time to consider if they would provide post-hearing written submissions was granted to 19 November 2021. On Tuesday, 9 November 2021, the applicants informed the Tribunal that they would not be providing any further submissions. Post-hearing, the Tribunal requested additional information from two of the sponsor’s doctors. Two further medical reports were received and they have also been considered by the Tribunal.
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s aunt, the sponsor Shun Jian Cai.
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 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
The applicant, at the time of application, claimed to be the carer of the sponsor. With reference to reg 1.03 of the Regulations, ‘nephew’ is included as a ‘relative’.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the 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)
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 applicant’s aunt, who is usually resident in Australia.
Therefore, as the applicant is the nephew of the Australian relative, the applicant 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)
Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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.
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. The health provider specified in IMMI 14/085 is Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services (Bupa).
The visa application was accompanied by a certificate, Carer Visa Assessment Certificate, under cover of a Bupa letter dated 15 August 2017, signed by Dr H Rislizar, BMVS Panel Physician.
According to the certificate:
·The resident has a medical condition causing impairments of their ability to attend to the practical aspects of daily life
·the impairment has an impairment table rating specified in the certificate
·because of the medical condition, the person has, and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life
The Bupa panel physician includes that they considered medical reports from Dr Eugene Chong (GP Health Summary) dated 25 July 2017, Dr Ernest Tam (Geriatrician Report) dated 20 July 2017, Dr Eugene Chong (GP Letter) dated 11 July 2017 and Dr Surjit Tarafdar (Renal Specialist) dated 27 November 2015. A list of the relative’s medical conditions are listed.
The review of the decision to refuse the applicants’ visas was undertaken during the COVID-19 pandemic. Bupa assessments were not available for a significant amount of time. For this reason, and given the age of the sponsor, the Tribunal did not consider it appropriate or necessary to request an updated certificate.
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)
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)
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 which specifies an impairment rating of 30 (thirty).
In the present case, the impairment rating specified in the certificate is 40 (forty). This rating exceeds 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 she is not the subject of certificate) – reg 1.15AA(1)(d)
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.
The person to whom the certificate relates is the Australian relative. For this reason, reg 1.15AA(1)(d) is not applicable.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
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.
At the time of application, the names of the relevant Australian relatives of the sponsor, were given as the sponsor’s:
·Spouse, Mr Binghi Zong, born 1945
·Daughter, Ms Xan Mei (Sammi) Zhong, born 1978
·Daughter, Ms Yuping Zhong, born 1972
·Son, Mr Jian Fen Zhong, born 1974
·Granddaughter, Ms Shirley Su, born 1997
·Granddaughter, Ms Jessica Su, born 1996
·Nephew, Mr Yongde Su, born 1979
The sponsor’s husband has since passed away. At the time of this decision, three more relatives, grandchildren of the sponsor, have been added to the list as they are now adults: Amilie Su, Angie Su and Vincent Liu, three of the sponsor’s grandchildren. Statutory declarations have been provided by the relatives, the applicant’s wife and the sponsor.
The applicant has provided the Tribunal with a statutory declaration dated November 2021 which includes information relating to his circumstances and the assistance he provides to the sponsor, who is his aunt. These and other matters were discussed with the applicant at the Tribunal hearing. The applicant includes that from March 2017 to January 2020 he lived with the sponsor in Fairfield, Sydney. In January 2020 he moved back to Dubbo to live with his wife after discussions with the sponsor and ‘other relatives’. His wife, who owns and runs a restaurant in Dubbo, was pregnant at the time and suffering from severe morning sickness. Among other things, the applicant refers in his statutory declaration to his wife (a secondary applicant) making inquiries into welfare, hospital, nursing or community services for the sponsor, including:
·That on 21 September and 9 October 2021, Baptist Care who refer them to My Aged Care and said that they were ‘only able to take on client with Home Care Package’.
·On 21 September, they made inquiries with Simplicity Care by phone but received no response
·On 22 September 2021, they made inquiries with CareAbout and were informed of three options; government subsidised home care, private care and aged care home. They are in the process of applying for an ACAT assessment including for residential respite and/or a residential permanent placement.
·On 22 September 2021, they made inquiries of Silver Chain Care Team for home support services but were advised that this provide does not offer services in the sponsor’s area.
·On 22 September 2021, they made inquiries of Hardi Aged Care and were advised that with an ACAT assessment for respite and permanent place into aged care will provide 63 days respite at a cost of $53.56 per day or 85 percent of the daily pension. HardiCare, in their response, referred to the options for payment if the sponsor decides to ‘go permanent’ which would depend on a means and assets test.
·On 22 September 2021, inquiries were made to SummitCare and they were informed that this service does not offer home care.
·On 24 September 2021 they called Uniting Care and were informed that they do not provide the services required and they were referred to MyAgedCare.
·On 25 September 2021, they called Devotion Care and were informed that they only provide services for people with physical disabilities and that the sponsor is not eligible.
·On 27 September 2021 they made inquiries with Allity Service and ‘understood’ an ACT assessment through MyAgedCare is required.
·On 29 September 2021, they made inquiries with Blacktown Terrace Care Community and on 18 October 2021 were informed that an ACAT respite or permanent referral code is required.
·On 30 September 2021 they called MrAgedCare and booked a Home Support Assessment for the sponsor
·On 1 October 2021 they had a telephone assessment.
·On 13 October 2021, they called the NDIS and were informed that the sponsor is not eligible for NDIS because she was born in 1947 and is therefore over 65.
·On 14 October they provided the ACAT (Aged Care Assessment Team) assessment result to Hardi Aged Care and were informed, in summary, that they would have to pay out of pocket costs of $300 a day.
·On 18 October 2021 they called MyAgedCare and requested respite and permanent referral codes and were informed it would take about four to six weeks.
·The applicant goes on to detail the meeical reports and Bupa Medical Visa Services assessment
The sponsor, Ms Cai, has provided the Tribunal with a statement dated 29 October 2021, expressing her wish that the applicant ‘take care of me, because my adult family members below could not look after me to meet my physical and psychological needs although they are all my children and grandchildren’. Ms Cai lists nine relatives (who have provided evidence to the Tribunal). Ms Cai considered, but ‘abandoned’, the idea of a nursing home, and is ‘reluctant’ to live in one. She said she saw her husband pass away in a nursing home and believes he was not ‘not well taken care of’, citing as reasons the ‘different diet style’ and that her husband suffered ‘hunger’. The sponsor said she regrets sending her husband to the nursing home and says she needs the applicant and his wife to care for her in her home. The sponsor includes that they have taken ‘meticulous care’ of her since 2018. There are times during which the applicant and his wife have taken care of the sponsor. However, the matter of the applicant not providing direct assistance to the sponsor at other times, but particularly for the whole of 2020, is dealt with later.
A number of the services that the applicant’s wife contacted, as they are detailed above, referred them to the need for the sponsor to have a Home Care Package. A recent MyAgedCare support plan review was undertaken on 29 September 2021. It is included in the report that the reviewer spoke to ‘Mandy’, the sponsor’s granddaughter, who advised that the sponsor ‘now requires assistance with shopping’. On 4 October 2021, a MyAgedCare support plan review was conducted for the sponsor, noting that it was an update to the existing plan. Medical conditions listed are consistent with those in the report of Dr Tam, the sponsor’s doctor, and that a request was made (and granted) for the sponsor to receive transport support three times a week to Blacktown Hospital for dialysis.
Evidence has been provided, and it is accepted by the Tribunal, that the sponsor requires substantial and continuing assistance, due to her medical conditions, for her to attend to the practical aspects of her daily life. Her health conditions and medical or nursing assistance she requires include, for example, dialysis three times a week, attending doctor’s appointments, management of a colostomy bag and other significant challenges that the sponsor requires assistance with. The applicant and his wife, a secondary applicant, claim to care for the sponsor together, and sometimes in a sort of tag team arrangement, whereby one is in Sydney caring for the sponsor while the other is in Dubbo looking after the restaurant owned by the applicant’s wife. They have minor children in Dubbo who they share care of as well.
In his statutory declaration sworn on 1 November 2021, the applicant includes that since October 2016 there are no other relatives who can provide assistance to her ‘on an individual basis’ and lists the relatives and reasons why they cannot provide any assistance. The applicant refers to the sponsor’s ‘cultural and linguistically diverse background’ which is acknowledged. He mentions in correspondence with BaptistCare that it would be ‘helpful’ if any care could be undertaken by someone who speaks Cantonese, which the Tribunal considers not to be an unreasonable request.
From January to December 2020, the applicant lived with his wife in Dubbo. He refers, as does his wife, to his wife needing him because she was pregnant and suffering severe morning sickness and also that the decision was made that he would move out of the sponsor’s house and back to Dubbo after discussions with ‘Ms Cai and other relatives in relation to how Ms Cai is looked after if I move out’. The applicant moved out of Ms Cai’s home for almost 12 months in 2020 and, during this time, with reference to statutory declarations of other relatives of Ms Cai, collectively they cared for her and provided the assistance she required relating to her medical conditions and daily living needs. This is not an insignificant matter for the Tribunal when considering the assistance required by the sponsor cannot reasonably be provided by any other relative of the resident.
The sponsor Australian adult relatives have provided statutory declarations. A number of them gave oral evidence at the Tribunal hearing. With reference to written and/or oral evidence given by the sponsor’s relatives:
a.Her daughter, Sammi Zhong, lives in Chatswood and works full time . Two of her children were born in 2004 and 2011, and the third is now an adult, Vincent Liu. Sammi says she has, in the last five years, taken her mother to doctors’ appointments when ‘not fully engaged’ in her work, including to see the kidney doctor every two months, lung doctor twice a year and the general practitioner once a month. Ms Zhong claims she is ‘unable’ to look after her mother full time because she lives 30 kilometres away, has a full time job and two children. She says her mother does not like living at a nursing home or hospital ‘due to her language barriers, different diet habits, health issues, and living style’ and that her mother is ‘used to Asian home made food tailored for her health needs’ and that ‘she loves spending time with family relatives rather than employees of care center’.
b.Jian fen Zhong, the sponsor’s son, lives in Glenwood, New South Wales, which he says is ‘16 minutes driving distance away’. He is a full time butcher is married with three children born in 2010, 2011 and 2015, and says he has no spare time to provide any care to his mother, other than, as he has done for the last five years, picking up his mother after dialysis from Blacktown Hospital and taking her home ‘about 3 times a week on average’
c.Yuping Zhong, the sponsor’s daughter, lives in Bundanoon and is a self-employed chef at the Bundanoon Chinese Restaurant and works day and night shifts for about 50-60 hours a week. She is also the mother of six children, two of whom are under 18 years of age. Yuping says for the last five years she has taken her mother to her medical specialist appointments ‘about 5 times’ a year on average, including the lung and kidney doctors, for x-rays, ultrasounds and blood tests at Blacktown; to the eye clinic at Westmead Hospital; day surgery for artery tube implant for dialysis and a sleeping test. She is ‘unable to full time’ look after her mother. She has observed that the applicant has lived with her mother and taken care of her, and that he took her mother to medical appointments ‘most of the time’.
d.Yong De Su, nephew of the sponsor, lives in Taree and is a full-time self-employed chef. He says he has provided no assistance in the past five years, which seems to be on the basis that he lives in Taree which is far from Sydney, ‘hardly come(s) down to Sydney’, works six days a week and has family caring responsibilities.
e.Amilie Ho Wei Su and Angie Ho Lum Su, daughters of Yuping Zhong and granddaughters of the sponsor, live in Ryde; are full-time university students at Macquarie University the University of New South Wales respectively, and work at Footlocker as casual sales associates. Since she turned 18, Amilie has been ‘unable to provide any care for my maternal grandmother’. Angie was unable to leave her local government area to provide direct assistance to her grandmother during the COVID-19 lockdowns in Sydney. Recent statutory declarations dated November 2021 were provided by the sponsor’s granddaughters.
f.Jessica Su is a granddaughter of the sponsor and works ‘as a full time criminal defence solicitor’ since 2020. She works regular office hours, but also works sometimes in the evenings and at weekends. Ms Su has taken the sponsor to some of her doctor’s appointments, about four to 5 times, when her other relatives are unavailable and she is available. Ms Su declares that she is ‘unable to provide adequate daily care’ because she lives ‘about half an hour’ away and because of her full time work and ‘other commitments’. Ms Su gave oral evidence and provided statutory declarations, in 2018 and more recently one dated 2 November 2021.
g.Shirley Huo Yi Su is a granddaughter of the sponsor. She also lives in Ryde and is a full time university student studying to be a chiropractor. She works part time at a health clinic and, like her two sisters, works as a casual sales assistant at Footlocker. Ms Su is ‘unable to fully look after’ the sponsor because she lives half an hour away, has full time university and part time job commitments and ‘other commitments’. A recent statutory declaration dated 1 November 2021 was provided.
h.Vincent Liu, a grandson of the sponsor, lives in Chatswood. He studies full-time at Macquarie University and works as a casual at KFC in Lindfield. His hours vary. He was a minor prior to 2021 and says that he is now ‘unable to look after’ the sponsor because he lives 30 kilometres away from his grandmother’s home in Seven Hills, he has full time university and casual work commitments, and ‘other commitments’.

Information is provided in the applicant’s statutory declaration relating to the matters raised in the above statutory declarations by other relatives and is generally consistent with what assistance the sponsor’s other relatives have or have not provided in the past and what they say they are unable to provide in the future.
It is acknowledged that Guofang Wu, who is the wife of the primary visa application, and herself a secondary applicant for the visa, provided a statutory declaration, dated 1 November 2021, which has been considered. She lives with her two children and runs a restaurant in Dubbo with her husband. Ms Wu declares in her recent statutory declaration that in January 2018 the applicant quit his job to take care of the sponsor; he moved to live with the sponsor in Seven Hills. Ms Wu travelled to Seven Hills once a week and took care of the sponsor, while her husband would return to Dubbo to help with the restaurant. In 2019, Ms Wu went to live with the sponsor ‘Tuesday to Friday or Monday to Thursday each fortnight; when she was in Seven Hills caring for the sponsor, the applicant would go back to Dubbo to work in the restaurant.
Ms Wu declares in her recent statutory declaration that when she is in Seven Hills with the sponsor, the assistance she provides includes taking the sponsor to doctor’s appointments, cooking a special diet, assisting her with bathing, changing her colostomy bag, cleaning the house and checking on the sponsor when she sleeps. Ms Wu declares that the sponsor needs 24 hour a day care. In 2020, the applicant moved to be with his wife; she was pregnant and suffering ‘severe morning sickness, such as nausea and vomiting’. Their son was born in December 2020. In 2021, Ms Wu says that the applicant will ‘go back to live with Ms Cai’.
The sponsor, and her Australian adult relatives, have referred to the sponsor enjoying being cared for by her family. The Tribunal gives some weight to this as the wishes of the sponsor are considered to be important. However, the care does not necessarily need to be provided by only one relative. Especially where there are a number of Australian adult relatives, it is reasonable to think that they could collectively provide assistance to the sponsor, as in this case they seem to have done for over five or so years including through the 2020 COVID-19 period.
The children and grandchildren have jobs, go to university and have ‘other commitments’ which seems to indicate they are able to transport themselves to these study, work and other commitments. It is reasonable to think they could manage to travel for (in most cases) less than half an hour to assist the sponsor, other than where the Tribunal has accepted that a particular relative is not reasonably capable of doing so. For example, the sponsor’s son in Taree.
Yong De Su lives in Taree, which is a long way from Sydney and the Tribunal accepts that he would not be reasonably capable of providing any meaningful assistance to the sponsor.
It appears that the sponsor, all her Australian adult relatives, the applicant, and the sponsor’s treating doctors prefer that the sponsor continues to receive assistance in her home from her relatives.
It is accepted, with the exception of a 12 month period in 2020, that the applicant and his wife ‘tag team’ the care of the sponsor at significant trouble and expense by travelling between Sydney and Dubbo to provide the assistance the sponsor requires. Conversely, relatives of the sponsor who live within half an hour of her, for the most part, say they can provide no assistance at all. They have not said they are unwilling, but essentially that they are busy with work, study and other commitments. The Tribunal has considered their evidence in this regard and is of the view that the sponsor’s Australian relatives, notwithstanding that they have been in the recent past five or so years able to provide assistance to her, would simply prefer that one relative (her nephew, the visa applicant) take on the responsibility now with the assistance of his wife, who runs a business in Dubbo.
The grandchildren, in their statutory declarations refer to ‘other commitments’ as one of the reasons why they are unable to provide any assistance to their grandmother. These ‘other’ commitments are not specified and the Tribunal gives little weight to the claim that they have ‘other’ commitments that would render them incapable of providing even incidental or occasional assistance to their grandmother, in a collective arrangement with the significant number of other adult relatives of the sponsor who live in Sydney.
Recent evidence has been provided from medical professionals as to the sponsor’s medical conditions, treatment and medication. The information in the reports is consistent with the matters included in the certificate certified by the Bupa panel physician. As may reasonably be expected, given the sponsor’s age and medical conditions, her health has not improved but appears to have deteriorated since the certificate was provided. Her conditions, with reference to the report of Dr Ernest Tam, consultant physician and geriatrician, dated 7 October 2021, include Alzheimer’s Disease, old cerebrovascular accident, cerebral atrophy, frailty with limping gait, low back pain and bilateral sciatica, chronic renal failure 2008, bilateral staghorn renal calculus, limited exercise tolerance, congestive cardiac failure, chronic obstructive pulmonary disease, obstructive sleep apnoea 2016, hypertension, hyperlipidaemia, gout 2015, laparotomy for parastomal hernia and bowel obstruction 2012, recto-sigmoid tumour with excision of carcinoma of rectum 2008, elevated CA 125, mild anaemia, osteoporosis, multiple vertebral fractures, degenerative disease of thoracolumbar spine, bilateral cataract, bilateral essential hand tremor, vitamin C deficiency (new diagnosis), urinary incontinence. A substantial list of ‘current medications’ is included. Other medical and pathology reports appear to be consistent with the matters and support the conditions of the sponsor detailed in Dr Tam’s report.
Dr Tam refers to the sponsor having had an ACAT assessment by MyAgedCAre with approval for transport support to attend dialysis three times a week at Blacktown Hospital. Dr Tam expresses an opinion that ‘community service/aged care facility are deemed to be inappropriate for Ms Cai due to her cognitive and medical conditions as well as special cultural and psychological needs’.
After the hearing, the Tribunal wrote to the applicant requesting additional information be relating to a reference made at the hearing to her renal specialist who had been referred to as ‘Dr Harry’. The Tribunal requested that the applicant provide ‘an updated report from the sponsor’s general practitioner who manages Mrs Cai’s health and also from her renal specialist, including: more information about the injections the sponsor receives once a week; Mrs Cai’s prognosis; whether residential or palliative care has been discussed or recommended for her; and the doctors’ understanding of what Mrs Cai’s living arrangements were from January 2020 when the sponsor was living in Dubbo and not providing Ms Cai with full time care.’
On 10 February 2022, the Tribunal received an email from the applicant’s representative informing the Tribunal that the sponsor had attended an appointment with Dr Tony Wong (her GP) and Dr David Harris (the renal specialist) and that she had received a letter from Dr Wong, and requested an extension of time to provide the letter from Dr David Harris.
Below is a summary of the information subsequently provided in the doctors’ letters:
a.David Harris, Director of Nephrology & Dialysis, Western Sydney Renal Service, dated 7 February 2022. Professor Harris states that Mrs Cai has been a patient of his since 2009, that she has end stage kidney disease and has been having dialysis since 2012, takes medication and receives weekly injection. His prognosis is that Mrs Cai ‘is stable and doing well on dialysis, and should continue to do so for at least several years.’ He adds that Mrs Cai ‘does not require residential or palliative care’. Professor Harris includes that he is ‘not sure’ who brings Mrs Cai to her dialysis appointments, but expresses an opinion that ‘continuing daily assistance from her family is essential to her medical care and well-being’.
b.Dr Tony Wong, Alpha Medical Centre Seven Hills, dated 7 February 2022. Dr Wong has provided a letter addressed to the Tribunal which includes, in summary, that the sponsor ‘suffers from renal failure and needs dialysis … 3 times a week’. The sponsor also requires weekly injections to ‘boost her blood count’ and also that she suffers from ‘severe asthma and back pain’, concluding by saying her ‘condition will not improve, it will gradually worsen.’ Dr Wong includes a list of the sponsor’s medical conditions and the medication she takes. He expresses a view that the sponsor ‘does not need to go into residential nor palliative care at this stage’.
The sponsor had her MyAgedCare support reviewed in October 2021 and is provided with transport to and from hospital for her dialysis appointments. There is minimal information that has been provided relating to any other services that the sponsor receives or might be able to obtain through MyAgedCare on the basis of having undertaken an ACAT assessment. The Tribunal considers it reasonable to think, in circumstances where the sponsor is elderly and suffers from many debilitating medical conditions, that she might be able to obtain some in home services through MyAgedCare.
It is accepted that the sponsor prefers to be with her family, a view supported by her renal specialist and general practitioner, qualified by them both stating that the sponsor (notwithstanding that she has end stage renal failure) would, essentially, benefit from the continued presence of her family caring for the sponsor. Both medical practitioners express their view that the sponsor does not need to go into palliative or residential care.
A number of the relatives who provided statutory declarations, sworn around the time of the Tribunal hearing, say they have been providing what the Tribunal characterises as ‘incidental’ care between them over the previous five year period. It is not an insignificant matter that the applicant provided what appears to be limited, if any direct assistance, to the sponsor during the year 2020. It is reasonable to conclude that the sponsor’s relatives who lived in or very near to Sydney managed, collectively on the evidence provided, to assist the sponsor in attending to the practical aspects of her daily living for that year. The Tribunal does not suggest that co-ordination between family members is necessarily easy. However, it is not considered unreasonable, given that the sponsor’s relatives (with the exception of her son in Taree) live in or near Sydney, and have been providing assistance to her cannot continue to do so between them.
It is acknowledged and accepted that the applicant and his wife have looked into whether other out of home care can be obtained and that there is nothing suitable. It has been considered that the sponsor, her treating doctors and her family all prefer and consider it better if the sponsor stays in her own home cared for by relatives.
The conclusion the Tribunal has reached is that a plurality of assistance provided by the sponsor’s relatives, who the Tribunal considers are collectively capable of providing assistance, and the assistance the sponsor obtains from community, welfare and other services, such as transport to and from her dialysis appointments, would reasonably meet the needs of the sponsor in attending to the practical aspects of her daily life.
The Tribunal is not satisfied that the assistance the sponsor requires cannot reasonably be provided by those of her Australian relatives who live in Sydney and/or some of the services the sponsor already obtains or is entitled to obtain from welfare, hospital, nursing or community services in Australia.
Therefore the requirements of reg 1.15AA(1)(e) are not met.
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed.
As the applicant has not met reg 1.15AA(1)(e), it is not necessary for the Tribunal to make a finding as to whether they meet reg 1.15AA(1)(f).
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 cl 836.221.
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.
Secondary applicants
The decision to refuse the visa of the applicant is affirmed and therefore the Tribunal affirms the decision to refuse the visas of the secondary applicants as they do not meet the secondary criteria.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Jennifer Cripps Watts
Senior 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.

[2023] AATA 1488

21 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Natural Justice

Procedural Fairness