Zhao (Migration)

[2022] AATA 5239

Zhao (Migration) [2022] AATA 5239 (21 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Dominic Ming Zhe Zhao

VISA APPLICANTS:  Ms Qiuyi Zhao
Mr Cheng Zhu
Mr Runtong Zhu

REPRESENTATIVE:  Mr Christopher Hugh Levingston

CASE NUMBER:  1935514

HOME AFFAIRS REFERENCE(S):          2013/093657 OSF2013/093657

MEMBER:Michael Cooke

DATE:21 December 2022

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.116.211 of Schedule 2 to the Regulations

·cl.116.221 of Schedule 2 to the Regulations

Statement made on 21 December 2022 at 2:06pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – certification – ‘member of the family unit’ – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 116.211, 116.221

CASES
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 18 October 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 3 December 2013. 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 (Cth) (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. Relevantly to this matter, the primary criteria to be met include cl.116.211 and cl.116.221

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied that Lehua Zhao continues to be a ‘member of the family unit’ of the resident, Dominic Ming Zhe Zhao under subregulation 1.12 at time of decision. As the person with the medical condition was found to be neither the resident, nor a member of the family unit of the resident, I find that, at time of decision, the applicant was found not meet the requirements of regulation 1.15AA(1)(b)(i) within the definition of ‘carer’ at regulation 1.15AA.

4. The review applicant appeared before the Tribunal on 21 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife and the visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The review applicant was represented in relation to the review and attended the hearing. The representative has tendered a comprehensive submission to the Tribunal addressing the issue sin the case.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant meets the definition of ‘carer’ at regulation 1.15AA.

   APPLICANT CLAIMS TO BE CARER

   Whether the visa applicant has claimed to be a ‘carer’

8. Clause 116.211 of the Regulations requires that the visa applicant claims to be a ‘carer’ of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a ‘carer’ of Lehua Zhao who is the visa applicant’s father.

9. 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 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

10. The Tribunal finds that the applicant claimed to be a ‘carer’ of another person (‘caree’) at the time of application and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen -

11. Therefore, at the time of application the visa applicant claimed to be a ‘carer ‘of an Australian relative and satisfies the requirements of cl 116.211.

    APPLICANT IS A CARER

    Whether the visa applicant is a ‘carer’

12. 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 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 visa applicant’s father.

14. The Tribunal finds that the applicant is a relative of the Australian relative, having regard to the definitions of ‘relative’ and ‘close relative’ in reg 1.03 and Movement Records indicate she is ‘usually resident’ in Australia.

15. Therefore, as the visa applicant is the daughter of the Australian relative, the visa 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)

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. The Tribunal finds that:

    ·there is a BUPA certificate, and

    ·the certificate meets the requirements of reg 1.15AA(2), and

    ·according to the certificate:

    ·the resident or a member of the family unit has a medical condition causing impairments of the person’s 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

19. 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)

20. 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.

21. 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)

22. 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.

23. In the present case, the impairment rating specified in the certificate is 90. 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)

24. 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.

25. 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)

26. 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.

27. The Tribunal has had the benefit of oral and written evidence from the sponsor and his wife regarding whether the assistance cannot be reasonably provided by another Australian relative. They have indicated they are both busy small businesspeople who work irregular hours and both are involved in the day to day running of their computer repair shop. Their daughter is an HSC student. The ‘caree’ has a medical impairment rating (90) which according to his BUPA Certificate and doctor requires full time care. The only other relative in Australia is the visa applicant – his present ‘carer’.

28. The Tribunal has had the benefit of BUPA and ACAT information and additional information concerning the ‘caree’s aged care entitlements from the Government. Such is the severity of his condition (90 points) that he has been granted a Category Level 4 Home Care package. This has allowed him to receive the full time care he requires outside of a nursing home scenario in line with the Government policy. It has also ensured a significant cost saving for the Government in an era (according to The Commission into Aged Care) when aged care is in a crisis. At the same time, the ‘caree’ has cultural issues (as a Chinese origin person) such as language comprehension and food requirements. These cultural requirements (which are difficult to obtain normally) have been dealt with effectively by the care from his daughter – the visa applicant. Such as the totality of his need for assistance that the Tribunal finds that the assistance he requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

29. 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)

30. 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.

31. 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.

32. The Tribunal finds that the visa applicant is both willing and able to provide the substantial and continuing assistance required. She has done so now for 5 years.

33. 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 reg 1.15AA(1)(f).

    Conclusion on ‘Carer’ criterion

34. 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.

35. 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

36. 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.116.211 of Schedule 2 to the Regulations

    ·            cl.116.221 of Schedule 2 to the Regulations

    Michael Cooke
    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.