Yang (Migration)

[2018] AATA 4630

Yang (Migration) [2018] AATA 4630 (14 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Hui-Ying Yang

VISA APPLICANTS:  Ms Tsui-Ying Chen Yang
Mr Ching-Liang Chen
Ms Mei-Jyun Chen

CASE NUMBER:  1710349

DIBP REFERENCE(S):  OSF2013/028692

MEMBER:Helena Claringbold

DATE:14 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 14 August 2018 at 10:03am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) visa – assistance for applicant’s mother can reasonably be obtained – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.15, Schedule 2, cls 116.211

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 29 August 2013, Ms Tsui-Ying Chen Yang, the first named visa applicant, (the visa applicant) applied for an Other Family (Migrant) (Class BO) visa, based on her being the carer of Ms Yu-Ti Chung, her mother.  Ms Hui-Ying Yang is the visa applicant’s sister and the sponsor and review applicant in this application. Mr Ching-Liang Chen, the second named visa applicant is the visa applicant’s spouse and Ms Mei-Jyun Chen, the third named visa applicant is the visa applicant’s daughter.

2. On 14 March 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visas. The refusal was based on r.1.15AA(1)(e)(ii) and r.1.15AA of Schedule 2 to the Migration Regulations 1994 (the Regulations) not being satisfied. This is a review of the delegate’s decision.

3. 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 visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.

4. The Tribunal invited the applicants to a Tribunal hearing on 3 May 2018.  This hearing was re-scheduled. On 18 July 2018, Ms Hui-Ying Yang, the sponsor, appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision. The Tribunal also received oral evidence from Ms Tsui-Ying Chen Yang, the visa applicant; Ms Hsueh Ying Yang, the visa applicant’s sister; and Mr Jonathan Yang, Ms Chung’s grandson. Interpreters in the Mandarin, Hakka and English languages assisted in the Tribunal hearing. The sponsor’s registered migration agent represented the sponsor in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case file and the evidence given at the Tribunal hearing.

   ISSUE

7. The issue in the present case is whether, the assistance for the Ms Chung, who is the person needing the care, cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

   BACKGROUND

8. Ms Chung, the person needing care, was born in 1932.  She is an Australian citizen.  She is a widow.  She has two children living in Australia and one child living in Taiwan.  

9. Ms Hui-Yinh Yang, the sponsor, was born in 1954.  She is an Australian citizen. Ms Hui-Yinh Yang, is the daughter of Ms Chung.

10. Ms Tsui-Ying Chen Yang, the visa applicant, was born in 1961 in Taiwan. Her father is deceased.  Her mother lives in Australia and is the person who needs care. Mr Ching-Liang Chen, her spouse, was born in 1955 in Taiwan. He lives in Taiwan.  She has three children living in Taiwan.

    CLAIMS AND FINDINGS

    Has the visa applicant claimed to be a ‘carer’ of the sponsor?

11. Clause 116.211 of Schedule 2 to the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the applicant applied for the visa based on claiming to be the carer of her mother, who is an Australian citizen.

12. Therefore, at the time of application, the applicant satisfies the requirements of cl.116.211.

    Are the requirements of Regulation 1.15AA(e)(ii) satisfied?

13. Regulation 1.15AA defines that the assistance cannot reasonably be:

    (e)(ii)      obtained from welfare, hospital, nursing or community services in Australia.

14. 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. 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].

15. Ms Chung, the person needing care, was born in 1932.  She is an Australian citizen.  She is a widow who has two daughters living in Australia and one daughter living in Taiwan.  At the time of application, Ms Chung provided a residential address in Dundas Valley NSW.

16. On 14 May 2013, a Carer Visa Assessment Certificate (CVAC) recorded her as needing daily assistance with hygiene, dressing, eating, mobility, exercising, transport and needing supervision with medication and ensuring she does not wander. 

17. Ms Hui Ying Yang was born on 3 September 1954.  She is an Australian citizen. She is Ms Chung’s daughter and she lives in Blacktown, NSW. She told the Tribunal that she works full-time and is unable to provide her mother with care. However, she cooks for her mother.  She stated that Ms Tsui-Ying Chen Yang, the visa applicant, is caring for Ms Chung. She previously stated ‘From December 2014 until March last year my mother received personal care from the family and community services (3 showers a week)’.

18. In addition she stated the following, up until 2006, Ms Chung lived with Mr Chau Kuang Yang, her son and his family.  Mr Chau Kuang Yang died in 2006.  From that time, Ms Chung began living with Ms Hui-Yinh Yang and she continues to live with her. In a written statement of June 2018, she stated that after Mr Yang died, Ms Chung spent her time ‘sporadically at public housing, Taiwan, mine and my younger sister’s place’. She claimed if the visa applicants are not granted visas, Ms Chung will have no option but to leave Australia and live in Taiwan, which she does not want to do.

19. The sponsor stated that she and Ms Hsueh Ying Yang discuss their mother’s circumstances.  She said that Ms Hsueh Ying Yang is the one who normally investigates what assistance can be provided to Ms Chung.

20. She told the Tribunal the following: Ms Chung has dementia and she will not take her medicine. It would be too difficult for Ms Chung to go to a nursing home because of her bad temper, her food preference, her distrust of people and her inability to speak English and to get along with people. She re-iterated that the visa applicant is the person who cares for Ms Chung, both in Australia and Taiwan. The applicant’s migration agent in his statement informed the Tribunal that Ms Chung was diagnosed with dementia in 2012 and the previous migration agent stated that due to her dementia, she required long-term and full-time care.

21. The sponsor told the Tribunal that when the visa applicant is not in Australia, she (the sponsor) is the person who cares for Ms Chung. She said that, she does the shopping and cooks for her mother. She also said that, Ms Chung is home alone when the visa applicant is not in Australia. She stated that she enquired about home services through friends but her mother cannot get along with other people. The sponsor stated that she does not trust the provision of home services, because when Ms Chung cannot speak English.

22. She said that, it had been about five years since her mother received assistance showering from Family and Community Services (FACS) and her mother rejected the service. She stated that after her mother rejected the showering service, a woman called to ask about her mother’s health. The Tribunal asked the sponsor whether any services had been provided for Ms Chung in her home in the last five years and whether, in last five years, her mother had been assessed by an Aged Care Assessment Team (ACAT), to determine whether services could easily be obtained for her into her home. The sponsor stated that perhaps her sister got in touch with them, once or twice, but the sponsor did not. She stated that as far as she knows, no one can offer care to Ms Chung.  She told the Tribunal that she did not know if Ms Chung had been assessed by an Aged Care Assessment Team (ACAT). 

23. Ms Hsueh Ying Yang was born on 8 February 1957.  She is an Australian citizen. She is the Ms Chung’s daughter and she lives in Guildford, NSW.  She previously stated, ‘Although my mother has an age pension and we could apply to a nursing home, but we’d never did and will never do that.  We will happily take care of her till her last day’. She stated that because of work she is unable to care for her mother. Ms Hsueh Ying Yang told the Tribunal that she had investigated nursing homes in various locations but they do not speak Hakka and the cost of the bond and monthly payments are prohibitive. She would like the visa applicant to remain in Australia to care for her mother.  She also misses her mother and does not have access to her, when Ms Chung goes back to Taiwan with the visa applicant.

24. Mr Jonathan Yang is Ms Chung’s grandson. He lives in North Parramatta.  He stated that he is unable to provide assistance to his grandmother because he is a day trader and self-employed and has personal issues. He told the Tribunal that they had been looking for places for his grandmother but the Hakka dialect is difficult.  He stated that only found two places where Hakka was spoken however; ‘they’ thought the distance for them to travel for visits made it unsuitable.  He said that his grandmother prefers to be cared for by the visa applicant. 

25. Ms Tsui-Ying Chen Yang, the visa applicant, was born on 1 March 1961, she is the Ms Chung’s daughter and she lives in Taiwan. The visa applicant told the Tribunal that she cares for her mother throughout the day and she is willing to care for her mother. She said that if she goes to Taiwan her sister would take care of her mother.

26. On 11 May 2016, the sponsor’s previous migration agent stated that ‘As a typical Chinese woman born of a typical Chinese family, she (person needing care) chooses not to live in a nursing home till she died. She would rather live with her children till the end of her life being housed and cared in the nursing centre with great difficulty in language communication’.  He stated that all near relatives in Australia are working and cannot provide care for Ms Chung.  Consequently, ‘during the last two years, they cannot but send her back to Taiwan to receive the temporary care by the other son in Taiwan’.

27. On 31 December 2014, a Family and Community Services (FACS), Service Agreement Home and Community Care Program, detailed that 0.75 hours, six times per fortnight, of home care assistance was offered to Ms Chung.  It stated that the agreement was developed after the assessment of Ms Chung’s support needs, at that time and after taking into account her circumstances and preferences.  It also stated that, the service would be reviewed regularly and could be adjusted if necessary. Although, it appears that Ms Chung signed the agreement there is no evidence of the service having commenced in Ms Chung’s home.

28. The Tribunal put information to the sponsor under the relevant provision.  The sponsor responded at the Tribunal hearing.  The information is as follows.

    ·The evidence provided by Ms Hsueh Ying Yang is that Ms Chung was last assessed by an ACAT in 2010. The evidence from Mr Jonathan Yang is that two organisations with Hakka speaking staff had been identified.

29. The sponsor responded and stated her mother needs 24-hour-care and she has mental issues and because of Ms Chung’s experience in the war, sometimes, she wakes at screaming.  She told the Tribunal that if Ms Chung went to ‘those places’ her health would decline and that Ms Chung stated that she would die and she does not want her to ‘go there’. She stated that visiting Ms Chung would also be difficult. She concluded that, the visa applicant is the person who could offer the best care to Ms Chung and Ms Chung is happiest being cared for by her family. She stated that her own health is deteriorating and she is under pressure and is depressed.

30. The sponsor’s migration agent stated that an ACAT assessment is not a requirement of the Regulations or policy and is irrelevant. He told the Tribunal that even if Ms Chung were granted the full subsidy, the services are not available. He said that 35 enquiries had been made seeking assistance on Ms Chung’s behalf and these enquiries resulted in only one provider having Hakka speaking staff.  Further, he claimed that when considering the rotation in staff, Ms Chung could be left without the ability to communicate with the people providing her with assistance.  He stressed that, as demonstrated by the results assistance for someone who speaks the Hakka language is difficult. 

31. The Tribunal accepts that Ms Chung suffers from the conditions claimed.  The Tribunal considered the evidence about Ms Chung, the assistance she requires and the claims that she needs 24-hour care. It also considered the evidence that Ms Chung is not willing to go into a nursing home and that she refused services previously offered to her in her home and that she wants to be cared for by the visa applicant and by her family. 

32. The Tribunal accepts that that enquiries were made on Ms Chung’s behalf seeking assistance for her for aged care assistance and services with Hakka speakers.  It accepts that a number of the facilities advised that they do not have Hakka speaking staff.  It also accepts that as a result of those enquiries an aged care facility has been identified who have Hakka speaking staff. In response to an email sent by Mr Jonathan Yang to the aged care facility, the administrative co-ordinator of the facility stated, “We do have a few staff who is able to speak Hakka as well. I personally can understand Hakka, but can’t speak anymore.’ The administrative co-ordinator attached information about the facility and an application form. However, there is no evidence that Ms Chung’s family responded to the identified aged care facility who have Hakka speaking staff or that they returned the application form on Ms Chung’s behalf to the facility. The address given in the email for the aged care facility is in Campsie, NSW.  Information before the Tribunal is that depending on the route travelled, the distances between Blacktown, Guildford, North Parramatta and Campsie, where Ms Chung’s family members live and the identified aged care facility is, are 31-31.3 kms, 16.2-27 km and 19.7-20.3 km respectively, with a guide time for the travel of between 38 and 53 minutes.  No further explanation has been provided to the Tribunal as to why the distance between Ms Chung’s family members’ homes and the identified aged care facility is unsuitable or why visiting would be difficult.

33. The information in the FACS agreement is that in December 2014, Ms Chung was offered some services in her home and she refused those services. Other information is that Ms Chung has not been assessed by an Aged Care Assessment Team (ACAT) since 2010. While an ACAT assessment may not be a requirement under the Regulations or in policy, having considered all of the evidence, the Tribunal is satisfied that an ACAT would determine whether the assistance Ms Chung requires could reasonably be obtained through a home care package suited to her needs. Information before the Tribunal is that the types of services the person needing the care can access under a home care package include, but are not limited to:

    ·Personal services: assistance with personal activities such as bathing, showering, toileting, dressing and undressing, mobility and communication.

    ·Nutrition, hydration, meal preparation and diet: assistance with preparing meals, including special diets for health, religious, cultural or other reasons; assistance with using eating utensils; and assistance with feeding.

    ·Continence management: assistance in using continence aids and appliances such as disposable pads and absorbent aids, commode chairs, bedpans and urinals, catheter and urinary drainage appliances, and enemas.

    ·Mobility and dexterity: providing crutches, quadruped walkers, walking frames, walking sticks, mechanical devices for lifting, bed rails, slide sheets, sheepskins, tri-pillows, pressure-relieving mattresses and assistance with the use of these aids.

    ·Nursing, allied health and other clinical services: speech therapy, podiatry, occupational or physiotherapy services, hearing and vision services. Home care level 1 and 2 packages are not intended to provide comprehensive clinical or health services. Home care level 3 and 4 packages have a greater emphasis on delivering complex care in the home, including more clinical care where needed.

    ·Transport and personal assistance: assistance with shopping, visiting health practitioners and attending social activities.

    ·Management of skin integrity: assistance with bandages, dressings and skin emollients.

34. Other information is that there are services for an older person with a diverse cultural and linguistic background and that they can obtain aged care services, including a Translating and Interpreting Service (TIS) for support available 24 hours a day, seven days a week, for the cost of a local call.

35. The Tribunal understands the apprehension Ms Chung may feel apprehensive in accessing these services.  Many people with language requirements and medical conditions and a needing for assistance in their care find themselves in similar circumstances.  The applicant provided information to the Tribunal about out of home services and limited in home services and the difficulty in finding Hakka speaking staff. The Tribunal accepts that National Accreditation Authority for Translators and Interpreters accredited Hakka interpreters are limited in Australia. However, it appears to the Tribunal that an aged care facility has been identified with Hakka speaking staff; it also appears to the Tribunal that limited investigation has taken place to investigate whether assistance cannot be reasonably provided to Ms Chung by appropriate level Hakka speakers in her home.

    Other considerations

36. On 15 May 2017, the sponsor’s migration agent lodged an application for review of the delegate’s decision record. On 3 April 2018, the Tribunal invited the sponsor to a Tribunal hearing on 3 May 2018. The Tribunal received a failure to deliver message notice. The Tribunal telephoned the migration agent’s office to enquire if the email address had changed. On 5 April 2018, the Tribunal sent the hearing invitation to a newly advised email address.  On 17 April 2018, the Tribunal received advice that the sponsor’s migration agent was unable to find the sponsor on their records. They requested that a copy of the application for review be provided to them.  On 26 April 2018, the Tribunal sent to the migration agent a copy of the application for review form.

37. At the Tribunal hearing, Ms Chung had difficulty hearing the online interpreter.  This prevented the Tribunal from taking evidence directly from Ms Chung.  As stated in this decision record, the Tribunal accepts that Ms Chung has the conditions as claimed. It appeared that the Ms Chung was not wearing a hearing device and only way Ms Chung could hear was with her daughter speaking directly into her ear.

1. At the Tribunal hearing of 18 July 2018, the Tribunal inadvertently began taking evidence from the visa applicant, believing that she was the review applicant. These circumstances were quickly realised and the review applicant took her proper role in the Tribunal hearing.   In addition, the Tribunal was told by the migration agent that the Hakka interpreter was required for all attendees.  As it turned out, with the exception of Ms Chung and Mr Yang, the other attendees required the services of a Mandarin interpreter and they all confirmed with the Tribunal that they understood the Mandarin interpreter. 

2. Taking account of all the circumstances, the Tribunal is not satisfied that Ms Chung’s refusal to obtain hospital, nursing or community services is reasonable.

3. The Tribunal is of the view that, Ms Chung has not been assessed by an ACAT since 2010; therefore, it is unknown at this time, whether relevant cost effective, out of home and or in home assistance, cannot reasonably be obtained for Ms Chung from welfare, hospital, nursing or community services in Australia.  As a result, the Tribunal is not satisfied that assistance for Ms Chung cannot reasonably be obtained, from relevant language speaking services at a manageable cost, either out of or in Ms Chung’s home. 

4. The Tribunal considered the evidence individually and as a whole; the Tribunal is not satisfied that Ms Chung cannot reasonably obtain assistance from welfare, hospital, nursing or community services in Australia. Therefore r.1.15AA(1)(e)(ii)is not met.

5. As the Tribunal has determined that a criterion for the grant of visa has not been satisfied, the Tribunal has not considered the remaining criteria.

6. For the reasons above, Ms Tsiu-Ying Chen Yang, the visa applicant does not meet the criteria for a Subclass 116 visa.  As Ms Tsiu-Ying Chen Yang does not meet the criteria for a Subclass 116 visa, it follows that the secondary visa applicants do not meet the criteria for a Subclass 116 visa.

   DECISION

7. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

   Helena Claringbold
   Member