WEI (Migration)

[2019] AATA 6641

WEI (Migration) [2019] AATA 6641 (16 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr JINTANG WEI

VISA APPLICANTS:  Mr YONG WEI
Ms LI XIAO
Ms QIJIA WEI
Ms QIXIAN WEI

CASE NUMBER:  1829404

HOME AFFAIRS REFERENCE(S):          OSF2014/007179

MEMBER:Hugh Sanderson

DATE:16 July 2019

PLACE OF DECISION:  Sydney

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

·cl.116.221 of Schedule 2 to the Regulations.

Statement made on 16 July 2019 at 2:58pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – carer – assistance cannot be provided by relative – substantial and continuing assistance – willing to provide assistance – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 116.221, r 1.03, 1.15AA

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 1 October 2018 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 19 November 2014. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate found that the visa applicant was not the carer of the review applicant as defined in r.1.15AA. Specifically, the delegate was not satisfied that the assistant required by the review applicant could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

   Background

4. The review applicant is a citizen of China and is currently 76 years old. He and his wife were granted Parent visas in 2012. They now have the right to reside in Australia. The review applicant separated from his wife in 2013 and they now live separately and apart. He has a daughter, Yan Wei, who resides in Australia and sponsored him for the Parent visa. She is married with a young child. She and her husband are employed as nurses. Her mother lives in her home and she provides care for her. The review applicant lives in a different home that is owned by his daughter.

5. The first named visa applicant (hereinafter the visa applicant) is a citizen of China and is currently 49 years old. The second named visa applicants are his wife and two children.

6. The review applicant was diagnosed as suffering from multiple medical issues. This includes major depression, ischemic heart disease, intermittent bilateral leg claudication, diabetes and hepatitis B. An assessment for a Carer Visa Assessment Certificate dated 26 May 2014 found that he had a total impairment rating of 40 and satisfied the criteria.

7. The visa applicant provided various documents in support of the application. This included evidence of his daughter’s work in Australia, details of the attempts made to obtain community assistance for the review applicant and various medical reports. Aged Care Assessment Team reports were provided dated 20 October 2014 and 19 February 2015. These noted the approval for the applicant of a home care package. He was receiving community assistance three days per week.

8. The delegate who considered the application noted the following issues:

   ·Due to the review applicant’s daughter’s work and the responsibility to her care for her mother and child, assistance cannot reasonably be provided by any other relative of the review applicant resident in Australia;

   ·The review applicant had not stated when the care for which he was assessed by the Canterbury Community Aged Care Assessment Team would be available;

   ·The review applicant had indicated that he was not willing to go to a nursing home even if this was available; and

   ·It appeared the review applicant was refusing to accept services that would be reasonably obtainable for him.

9. Taking these matters into account, the delegate was not satisfied the assistance required by the review applicant cannot reasonably be obtained from welfare, hospital, nursing community services in Australia. The delegate was not satisfied the criteria in r.1.15AA(1)(e)(ii) was met and accordingly the visa applicant did not meet the criteria in cl.116.221 and refused the application.

   Information to the Tribunal

10. The review applicant provided further documents to the Tribunal in support of the application including the following:

    ·Updated medical reports from the review applicant’s general practitioner, Dr Lin, dated 12 February 2019 and 3 June 2019;

    ·Reports from Wilson Wong, psychologist, dated 11 February 2019 and 2 June 2019;

    ·Details of cost for Uniting Aged Care Home and Catholic Healthcare; and

    ·Service agreement and receipts for payment for Australian Unity Home Care Package.

11. The review applicant appeared before the Tribunal on 15 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s daughter and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review by his registered migration agent.

12. The review applicant’s daughter gave evidence as to the difficulties in caring for the review applicant. This included the arrangements she had made for home care and enquiries she has made to have the review applicant placed in a nursing home. She gave evidence of the difficulties she has in being able to provide any care to the review applicant due to her responsibilities for her work and the care she provides to her mother and child. She gave evidence of the depression suffered by the review applicant and how this affects his attitude as to who is able to give him care. She described the difficulty in finding any nursing home that would be suitable or acceptable to the review applicant.

13. The visa applicant gave evidence of his plans to care for his father. This included selling assets in China to be able to support himself and his family in Australia. He plans to continue his interest in the business he owns in China through a manager. He gave evidence of his previous care for his grandfather, as well as caring for his father while he visited Australia in 2018.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the visa applicant meets the definition of the carer of the review applicant.

    Whether the visa applicant is a ‘carer’

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

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

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

18. Therefore, as the visa applicant is the son of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

19. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

20. For a certificate to meet r.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 IMMI 14/085), or issued by a specified health provider in relation to a review of such an opinion.

21. A certificate has been provided to the Department dated 26 May 2014 from the appropriate authority at that time. This found the review applicant had a total impairment rating of 40 and his medical condition was causing physical, intellectual or sensory impairment of the ability of him to attend to the practical aspects of daily life. It was found that there was a need for direct assistance and attending to the practical aspects of daily life because of the medical condition and that the need for direct assistance in attending to the practical aspects of daily life will continue for at least two years. The certificate meets the requirements of r.1.15AA(2).

22. This certificate is now more than two years old. Despite this, the Tribunal is satisfied that the certificate meets the requirements of the regulations and that the applicant continues to have an impairment rating of at least the amount assessed in the certificate and has a continuing need for assistance for at least two years. The applicant has provided updated reports from his general practitioner and treating psychologist. These reports confirm the applicant continues to suffer the medical condition upon which the assessment was made and that his medical condition has, if anything, deteriorated since 2014.

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

    Residency status of person with medical condition – r.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.

25. In the present case, the person with the medical condition has the right to reside permanently in Australia. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

26. 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.

27. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

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

28. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.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 r.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.

29. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

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

30. 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.

31. The only other relatives of the review applicant who are resident in Australia are his wife and daughter.

32. The review applicant is separated from his wife and they have not lived together for a number of years. His wife has multiple medical conditions that prevent her from providing care to the review applicant.

33. The review applicant’s daughter works full-time as a nurse. Her mother lives with her and she provides care for her mother. She is currently trying to spend time with her father and provide care for him, however, it is understandable in light of her responsibilities to her work and her care for her mother that this is proving impossible. She is married and has a child for whom she has a responsibility to care for.

34. In light of the obligations of the review applicant’s daughter, the Tribunal finds that the assistance required by the review applicant cannot be reasonably provided by another Australian relative resident in Australia. The Tribunal is satisfied the criteria in r.1.15AA(1)(e)(i) are met.

35. The review applicant is currently receiving homecare from Australian Unity Home Care Service for which he is part paying. The amount of care he receives is one hour per day. It is not possible for the review applicant to obtain more assistance through this service. This does not come near to meeting his proper care needs.

36. The Tribunal has taken into account the availability of nursing home care for the review applicant. The review applicant’s daughter has made enquiries of nursing home facilities that would be available. These are limited. Particularly in light of the review applicant’s depression, it is not appropriate for him to be cared in a nursing home and it would be difficult for him to be able to survive in such an environment. There is only limited availability for the review applicant to be cared for in a nursing home.

37. In all the circumstances, the Tribunal is satisfied that the assistance required by the review applicant cannot reasonably be obtained from welfare, hospital or nursing or community services. The Tribunal is satisfied the criteria in r.1.15AA(1)(e)(ii) are met.

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

    Willing and able – r.1.15AA(1)(f)

39. Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

40. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

41. The visa applicant currently has his own business in China. He has agreed to come to Australia to care for his father on the basis that he would retain his interest in the business and that his role in the business will be taken over by manager. He has other assets which will provide financial support for him at least for a couple of years to meet the expenses for himself and his family. He will be living with the review applicant in the home owned by his sister and will not have to pay rent.

42. The visa applicant has previously cared for his grandfather in China. He has spent time with his father in 2018 and cared for him over that period. He was aware of the care requirements for the review applicant and is willing to provide the assistance required. He has the skills to be able to provide the assistance.

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

    Conclusion on ‘Carer’ criterion

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

45. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.

    DECISION

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

    ·cl.116.221 of Schedule 2 to the Regulations.

    Hugh Sanderson
    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.