Wong (Migration)

[2021] AATA 2997

Wong (Migration) [2021] AATA 2997 (9 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jim Kean Wong

CASE NUMBER:  1824924

HOME AFFAIRS REFERENCE:               CLF2017/32855

MEMBER:Rosa Gagliardi

DATE:9 August 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·Cl. 836.221 of Schedule 2 to the Regulations.

Statement made on 09 August 2021 at 11:42am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – medical assessments and certification outdated – clear frailty and unreasonableness of requirement for further assessment – assistance reasonably provided by other relatives or obtained from service providers – other relatives’ health conditions or family and work – cost of in-home or nursing home care – individual circumstances and subjective wishes – bond with applicant and care already provided – applicant’s wife, children and business in home country – not attempting to achieve a migration outcome – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cls 836.111, 836.211, 836.212, 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
MIBP v Nguyen [2017] FCAFC 149
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 16 August 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 April 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.836.211 and cl.836.221.

3. The delegate refused to grant the visa on the basis that cl. 836.211 was not met because he/she was not satisfied that the applicant was the carer of his mother, Mrs Nancy Chew.

4. The applicant appeared before the Tribunal on 9 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor (caree – person requiring the care) as well as from the sponsor’s sister, Ms Maureen Rutten.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant has claimed to be the ‘carer’

7. 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 his mother.

8. 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.

9. The applicant has consistently claimed to be his mother’s carer, at time of application and continues to maintain this position at the time of decision.  Furthermore, the person requiring the care is a relative as defined in Regulation 1.03 as she is the applicant’s mother who is an Australian citizen.

10. 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

11. The Tribunal notes that the elements of reg.1.15AA are cumulative.  If the applicant does not meet one element, there is no need to consider the remaining considerations.

12. 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)

13. 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 mother.  This matter is not in contention.  Therefore, as the applicant is son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

14. Regulation 1.15AA(1)(b) requires that a certificate, which meets 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.

15. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister, or issued by a specified health provider in relation to a review of such an opinion.

16. At the time of application, the sponsor who is currently approaching 86 years of age, provided a Bupa Medical Visa Services Certificate.  It is dated 11 April 2017.  At that time she was assigned a rating of 35 in terms of her impairment.  The consulting doctor also wrote:

    Ms Chew is an 81 yo lady with a past medical history of myeloproliferative disorder, hypertension, hypercholesterolaemia, osteoporosis, surgical removal of benign adenoma of submandibular gland 2014 resulting in right arm weakness, and frailty with bilateral lower limb weakness.  In the last 2 years she has sustained 4 falls with the most recent fall resulting in left femoral shaft fracture.  She mobilizes using a frame but requires constant supervision whilst walking and transferring due to her high falls risk as well as needing the presence of another individual for toileting, help with dressing and assistance with sitting up from lying down.  She has sustained a fall since last carer visa assessment and has since deteriorated resulting in increased needs care.

17. Myeloproliferative disorder is a condition in which the bone marrow produces too many deformed red blood cells, white cells or platelets that pile up in the blood.[1]  The illness can ultimately lead to leukemia.[2]  A medical report dated 18 May 2021 indicates that in the event of cardiac or respiratory arrest, the sponsor is not a suitable candidate for CPR or intubation.  It is reported that the applicant has been experiencing a decline of cognitive function and was mostly chair bound.  The consultation summary notes, “Nancy is looking pale and slightly fatigued, her haemoglobin has dropped to 86 g/L and she would benefit from packed cell transfusion symptomatically”. 

    [1] Myeloproliferative Disorders: Symptoms, Causes, Diagnosis & Treatment (webmd.com), accessed on 6 August 2021.

    [2] ibid.

18. The sponsor has also undertaken an ACAT Assessment on 29 March 2018, which indicated that she was eligible for a Level 3 Home Care Package in light of her “high needs”.  This level of care includes some personal care, allied health and therapy services, transport, home modifications, flexible respite, domestic assistance and residential respite high care.

19. It was argued at hearing, however, that the applicant is in the best position to care for his mother on a 24/7 basis as she is frightened of falling and requires assistance with toileting, (particularly at night) dressing and other daily chores.

20. The Tribunal did ask the applicant to undergo another Bupa Health Assessment given the current one is now outdated.  Nonetheless, having witnessed the frailty of the sponsor and her more recent requirement to undergo a transfusion, and cognitive decline, the Tribunal is in no doubt that the sponsor’s care needs have not diminished over time.  It is more likely than not that they have increased.  In these circumstances and given that the Sydney area in which the sponsor lives is in lock down, the Tribunal considers that it would be unreasonable to require the sponsor to undergo a further assessment given the risk factors and the consequences of any exposure to COVID-19 given her blood disorders and other co-morbidities.  It is also unlikely that restrictions will lift in Sydney any time soon to permit the sponsor to undergo an assessment in the short to medium term without risk.  Bupa, as a result of the pandemic has also provided reduced services.

21. As such, the Tribunal finds that the certificate provided does meet 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)

22. 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)

23. 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 minimum impairment rating is 30 and the sponsor has been rated at 35, even though the Tribunal would expect that any current assessment would produce a much higher result.

24. In the present case, the impairment rating specified in the certificate is 35. 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 s/he is not the subject of certificate) – reg 1.15AA(1)(d)

25. 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.

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

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

27. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

    Regulation 1.15AA(1)(e)(i) – Assistance cannot be provided by any other relative

28. The applicant is the only child of the sponsor.  He has a spouse and adult children in Malaysia and has visited his mother in Australia regularly.  On the last visit, the applicant gave evidence at hearing that he found his mother’s health to have declined to a point he became very concerned and decided he needed to remain with her to care for her, physically and emotionally.  From the evidence at hearing the Tribunal is satisfied that the applicant is not attempting to achieve a migration outcome and that his sense of responsibility towards his mother is genuine and motivated by concerns about what would happen to her if she had yet another fall at night when no one would see her.  He stated that he was not working in Australia and was caring for his mother full-time.  Asked how he was surviving in Australia, he stated that in Malaysia he and his wife had a business and that his wife was currently running that business.  The proceeds from that business and his mother’s pension enabled him to survive without difficulty.

29. The Tribunal accepts that the applicant has no siblings either in Australia or elsewhere. 

30. The sponsor, however, does have a sibling in Australia, Ms Maureen Rutten.  The Tribunal took evidence from her at hearing.  Evidence submitted demonstrates that Ms Rutten is 79 years of age.  As well as having age related illnesses, she suffers from vertigo and at hearing stated that she needed assistance herself.  She stated that irregularly she could visit the sponsor but that was also proving more difficult in her advanced age and due to mobility difficulties.

31. The Tribunal accepts that it would not be reasonable for Ms Rutten to provide the sponsor with the kind of round the clock assistance the sponsor needs.  The physicality of the assistance required combined with the intensity in terms of the provision of food and supervision overnight, as well as in the day, render it unreasonable for Ms Rutten to leave her home and stay permanently at the residence of the sponsor to provide care.

32. Ms Maureen Rutten’s husband is also aged and given some of the more intimate tasks that the applicant undertakes in terms of taking care of his mother’s hygiene, it would not be reasonable to expect that someone who is not blood related should undertake such chores.

33. Ms Rutten and her husband have two children - a nephew and niece of the sponsor.  The nephew, Mr Michael Rutten, has declared he is unable to assist because he has his own family.  At hearing it was argued that Mr Rutten works shift hours and could not be relied upon to provide the 24/7 care required by the sponsor.  The Tribunal accepts that it would be unreasonable for Mr Michael Rutten to essentially leave his wife and two children to take up permanent residency in the home of the sponsor.  Given he is required to work also, the Tribunal has serious doubts that he would be in a position to be able to provide the care required by the sponsor.

34. In terms of Michael Rutten’s wife, she claims that she needs to care for their two daughters and again, as she is not a blood niece of the sponsor, it would be unreasonable for her to provide the kind of resource intensive care required by the sponsor, Ms Chew.

35. This leaves the sponsor’s niece, Ms Suzanne Rutten, sister of Michael Rutten.  Probative medical evidence has been submitted indicating that Ms Suzanne Rutten suffers anxiety and depression, disc degeneration, a lumbar injury and associated chronic pain.  Her medical records show that the 40-year-old has suffered domestic violence and has developed Post Traumatic Stress Disorder associated with anxiety and agoraphobia.

36. The Tribunal is satisfied on the strength of the medical evidence that Ms Suzanne Rutten could not reasonably provide the full-time care required by the sponsor.  Indeed, any additional burden on her already physical and psychological fragile condition, could be detrimental to Ms Rutten.

37. In considering the evidence overall, the Tribunal is satisfied that apart from the applicant, the assistance required can not reasonably be provided by any other relative of the Australian relative who is an Australian citizen, being Ms Chew.

38. The Tribunal is satisfied that neither individually or in combination, assistance can reasonably be provided by another relative or relatives.  As such the Tribunal finds that reg.1.15AA(1)(e)(i) is met.

    Regulation 1.15AA(1)e(ii) – care cannot be obtained from welfare, hospital, nursing or community services in Australia

39. While the Tribunal acknowledges that the applicant has made some efforts to find appropriate residential care for his mother, which in the applicant’s absence, she would need, his efforts at best could be described as half-hearted.  He has presented claims that care in a nursing home is prohibitive and that if he were to obtain care for her in-house, the around the clock care needed would also be very costly.  The Tribunal accepts that in-home care, particularly private care, would be particularly expensive and the sponsor being on a pension would not be able to afford it, even though the applicant possibly has some resources due to his overseas business.

40. At hearing, however, the sponsor was vociferous in stating she was comfortable in her own home and in the food her son made for her.  She wanted to die in her home being cared for by her son.  She needed the applicant to take her to medical appointments and to keep pursuing treatment for her various conditions.  She had concerns that in a nursing home she would decline very quickly. 

41. Relevantly, 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. Nonetheless, 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]. The Tribunal considers that if a genuine effort were made to find culturally appropriate care in the community it could be found.

42. In Minister of Immigration and Border Protection v Nguyen [2017] FCAFC 149 the Court held that the Tribunal had erred in examining whether Ms Nguyen’s mother could reasonably obtain the care she needs. Essentially, the Court found that the Tribunal only focused on the availability of the welfare facilities but did not adequately explain whether such available welfare facilities could reasonably satisfy the caree’s special needs. This was consistent with the Court’s findings in the case of Biyiksiz v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814, where Gray J held:

    [21] factors that are subjective to the person requiring long term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa.

43. In other words, the decision maker is required to take into account a person’s individual circumstances and her subjective wish to receive the type of care she requires when examining whether he/she “can reasonably obtain” the appropriate care from the available services.

44. The sponsor is almost 86 years of age.  While she has serious illnesses, the Tribunal accepts that the applicant has been able to attend to her needs such that adverse ramifications of these illnesses are diminished and her psychological well-being has been maintained.  As the sponsor stated at hearing she did not wish to change the care routine her son provided her, and that she would be extremely distressed to find herself in a nursing home without any immediate family who could spend time with her, and provide her with the emotional assistance/companionship she had relied on the applicant for. 

45. The Tribunal has taken into account the sponsor’s subjective wish and the objective reality that in a nursing home everything that is familiar will be taken away from her, including her only child who has willingly cared for her for several years.  Further, given the multiplicity of illnesses faced by the sponsor, it would appear that she is at the end of her life and her expectancy to live greatly beyond two years is not high. 

1. The Tribunal accepts that it would be traumatic for the sponsor to make such an adjustment given her condition and reliance on the applicant.  Nonetheless, the Tribunal finds that this case is distinguished from other cases where a caree may have family relatives (children) who can visit a nursing home and provide some emotional support and a sense of family continuity.  While it is true that the sponsor has a sister, her husband and two children, it would be unreasonable to expect extended family members to take responsibility for ensuring the sponsor had some familial company at a nursing home as substitute for an immediate family member.  It is clear that given the sponsor does not have any other children or a spouse that her bond with the applicant is strong and that the sponsor’s continued ability to meet her health challenges can be attributed to the 24/7 care provided by the applicant.

2. Having considered the sponsor’s circumstances, the Tribunal is satisfied that the assistance needed cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of Regulation 1.15AA(1)e(ii) is met.

3. On the basis of the evidence, 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 reg 1.15AA(1)(e) are met.

   Willing and able – reg 1.15AA(1)(f)

4. 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. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

5. 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.

6. As noted above, the Tribunal is in no doubt that the applicant is not attempting to only achieve a migration outcome via this visa.  He has visited on numerous occasions to see his mother in Australia, and in effect has been her de facto carer even when he was living in Malaysia.  The Tribunal is satisfied that the applicant’s willingness to provide care from the start was set in motion due to his concern for his mother’s condition and her inability to leave the house unassisted to attend to medical/hospital appointment, including her need for assistance with other daily tasks.

7. Therefore, the Tribunal is satisfied that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

   Conclusion

8. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

9. 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 836 visa.

   DECISION

10. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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.