Youel (Migration)

[2021] AATA 2809

Youel (Migration) [2021] AATA 2809 (25 July 2021)

CORRIGENDUM

DIVISION:                    Migration & Refugee Division

APPLICANT:   Mrs Marites Albarracin Youel 

CASE NUMBER:   1831150

DIBP REFERENCE(S):                   CLF2017/54997 

MEMBER:   Jennifer Cripps Watts

DATE OF DECISION:  24 July 2021

DATE CORRIGENDUM SIGNED: 13 August 2021

PLACE OF DECISION:                   Sydney

AMENDMENT:   The following corrections are made to the decision:

The date of decision should be read as 25 July 2021 not 24 July 2021.

13 August 2021

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Marites Albarracin Youel

CASE NUMBER:  1831150

HOME AFFAIRS REFERENCE(S):          CLF2017/54997

MEMBER:Jennifer Cripps Watts

DATE:24 July 2021

PLACE OF DECISION:  Sydney

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 836.212 of Schedule 2 to the Regulations

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 25 July 2021 at 11:58am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably provided by other relatives or obtained from service providers – sponsor’s children live at a distance and are estranged from him – limited services available in small country town – decision under review remitted

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

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

2. The applicant applied for a subclass 836 Carer visa on 27 July 2017 and it was refused on 9 October 2018.  The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.  

3. Relevant to this matter, the primary criteria to be met include cl 836.221.  The delegate refused to grant the visa on the basis that cl 836.221 was not met because they were not satisfied that the applicant was the ‘carer’ (as defined) at the time  decision.

4. The applicant and her husband, Mr Youel, appeared before the Tribunal on 20 July 2021 to give evidence and present arguments.  Mr Youel is the Australian relative and sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. At the time of decision, to meet cl.836.221, the applicant must be the carer of a person referred to in cl.836.212, an Australian relative.  The issue in the present case is whether the applicant is the carer of an Australian relative.  The definition of carer is contained in r.1.15AA(1) of the Regulations. 

   Whether the applicant has claimed to be the ‘carer’

7. Clause 836.212 of the Regulations requires the applicant to be the carer (as defined) of an Australian relative.  The applicant claims to be the carer of an Australian relative, namely her spouse, Mr Youel.

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.  Relevant to this case, the spouse of an applicant is included in the definition of ‘close relative’.

9. Mr Youel is the spouse of the applicant, and the person who it is claimed the applicant provides care to.  The applicant and Mr Youel were married on 19 March 2014 in Albury, New South Wales, and have provided the Tribunal with a copy of a Philippines Report of Marriage certificate, dated 15 April 2014, obtained through the Philippines embassy in Canberra.    

10. On the evidence, the Tribunal is satisfied that Mr Youel is an Australian, and close, relative as defined in r.1.03, who is usually resident in Australia.

11. For the reasons given in this decision, at the time of application the applicant satisfied cl.836.212.

    Whether the applicant is a carer

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 r.1.15AA(1)(a)-(f) of the Regulations which is set out in the attachment to this Decision.

    Is the applicant a relative of the resident?  Regulation 1.15AA(1)(a)

13. Regulation 1.15AA(1)(a) requires the applicant to be a ‘relative’ of the resident who is the Australian relative, within the meaning of reg 1.03.  Relevantly, in the present case, the Australian relative is identified as the applicant’s husband.

14. Having regard to the r.1.03 definitions of Australian relative, and close relative, and other relevant information, the Tribunal is satisfied that Mr Youel is usually resident in Australia and is an Australian, and close, relative of the applicant within the meanings given in r.1.03 of the Regulations.

15. Therefore, the applicant meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

16. 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.

17. 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 or issued by a specified health provider in relation to a review of such an opinion.

18. When the application for the visa was made, a Carer Visa Assessment Certificate (CVAC) relating to Mr Youel was provided, signed by a registered medical practitioner, the ‘oversighting doctor’, for Bupa Medical Visa Services.

19. The Tribunal has carefully reviewed the information contained in the CVAC and finds that:

    a.A CVAC has been provided; and

    b.According to the CVAC, Mr Youel has medical conditions causing impairments of his ability to attend to the practical aspects of daily life; and

    c.The impairments have an impairment table rating, specified in the CVAC, of 40; and

    d.Because of the medical conditions, Mr Youel will continue to have, for at least 2 years (from 2017), a need for direct assistance in attending to the practical aspects of daily life.

20. The Tribunal acknowledges that the CVAC provided is signed and dated 13 July 2017, which is more than 2 years ago.  Claiming no medical expertise, it is noted by the Tribunal that Mr Youel is a man of advancing years.  The nature of the impairments is described in the CVAC, and includes reference to the applicant suffering from osteoporosis, osteoarthritis, diabetes and urinary incontinence. 

21. In this applicant’s circumstances, the Tribunal did not consider it necessary to request that an updated CVAC be provided, and one was not requested.

22. From observations made at the hearing, and having regard to facts and matters raised in the 2021 report of the occupational therapist, the Tribunal is satisfied that Mr Youel has, for ‘at least 2 years’ since the issuing of the report, required care and that it is reasonable to conclude, at the time of this decision, that he will continue to have a need for direct assistance in attending to the practical aspects of daily life, for at least 2 years.

23. The Tribunal finds that the CVAC meets the requirements of reg 1.15AA(2) and that it addresses each of the matters mentioned in r.1.15AA(1(b)(i)-(iv).

24. Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

25. 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.

26. In the present case, the person with the medical condition is an Australia citizen.  A copy of the identity page of Mr Youel’s Australian passport has been provided to the Tribunal, valid from 25 November 2014 to 25 November 2024.

27. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

28. 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 a minimum impairment rating of 30.

29. In the present case, the impairment rating specified in the CVAC 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) – reg 1.15AA(1)(d)

30. 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)

31. 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.

32. In the delegate’s decision, mention is made of the applicant not providing evidence of having undertaken an assessment by the Aged Care Assessment Team (ACAT) or having provided evidence from his son as to whether he can provide any assistance.  At the Tribunal hearing, the applicant said that the visa application was accompanied by an ACAT report, dated 23 September 2016, and she could not understand why it had not been received and considered before the decision was made to refuse her visa.  At the Tribunal hearing it was requested that the applicant provide a copy of the 2016 ACAT report, which she did the next day.  The Tribunal has considered the report and other evidence material to the question of whether assistance cannot reasonably be provided by another relative of Mr Youel or through welfare, hospital, nursing or community services.

33. Mr Youel has three adult children.  Evidence has been provided that indicates they live a long way from the area in south-western Riverina region of New South Wales where Mr Youel and the applicant live, and have lived for the last eight years or so.  Mr Youel’s two daughters and son provided statutory declarations in 2018 in which they clearly state they have been estranged from their father for some time and will not provide any assistance to him.

34. The ACAT report specifies the care types that Mr Youel is approved for; permanent residential care and residential respite care at a low level, for up to 63 days per financial year.  In addition, he is approved for a Home Care Package Level 1 and 2.  It is included in the 2017 ACAT report that the applicant, who had married Mr Youel three years previously, had been caring for him, both in Australia and the Philippines when they were there together.  Both the applicant and Mr Youel went to the Philippines and returned together in August 2015.  However, the applicant needed to return to the Philippines in 2016 to make appropriate visa arrangements to enable her to reside with her husband in Australia.  The applicant is back onshore and residing with Mr Youel.

35. A recent and current report dated 7 April 2021 from Mr Youel’s occupational therapist, Josephine van Eyk, has been provided and, in summary, includes the following facts and opinions relating to Mr Youel:

    ·He has ‘multiple chronic conditions’ (listed)

    ·The applicant ‘continues’ to provide the bulk of his day to day care assistance

    ·He has limited ability to attend to most household related chores and tasks and is assisted with all of them by the applicant

    ·He has been assessed for a mobility scooter and modifications to his home, such as a suitable access ramp

    ·His ‘mobility will continue to deteriorate given his chronic osteoarthritis and complications of diabetes’

    ·Berrigan hospital is an MPS (multipurpose service) meaning it has one ED bed, one acute beds and 10 high level residential care beds

    ·There is also a low level facility at Amaroo, but no doctor in the town for admission purposes at the local hospital if Mr Youel was to present there

    ·The majority of available healthcare is Telehealth

36. The applicant and Mr Youel had, up until about 18 months ago, lived in Finely, but they have now moved, within the same area, about 20 kilometres away to Berrigan.  They moved to a home in Berrigan with a backyard for the benefit of their rescue greyhound.  Services and transport infrastructure are very limited in the area because of the location.  Berrigan is situated in south-west New South Wales, about 300 kilometres from Melbourne and more than 600 kilometres from Sydney.  In the context of this applicant’s circumstances, the Tribunal has carefully considered the nature of the care actually required by Mr Youel.  There are significant limitations relating to the availability and accessibility of hospital, welfare or community options in and around the area where he lives.  The obtainability of community services would be unreasonably onerous for him.

37. 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)

38. 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.

39. The applicant and Mr Youel have now been married for more than seven years.  On the evidence, including the written and oral evidence provided by both the applicant and Mr Youel, and the report of the occupational therapist, the Tribunal is satisfied that the applicant is willing and able to provide substantial and continuing assistance to her husband.

40. Accordingly, the applicant meets the requirements of r.1.15AA(1)(f).

    Conclusion on ‘Carer’ criterion

41. 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.

42. 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

43. 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 836.212 of Schedule 2 to the Regulations

    ·cl.836.221 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    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.