ZHU (Migration)

[2019] AATA 3799

ZHU (Migration) [2019] AATA 3799 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms BAO ZHEN ZHU

VISA APPLICANT:  Mr PENG LI

CASE NUMBER:  1721273

HOME AFFAIRS REFERENCE(S):           2013092501 OSF2013/092501

MEMBER:Justin Owen

DATE:6 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2019 at 4:51pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – providing substantial and continuing care to the sponsor – available care from Australian relatives – care from welfare, hospital, nursing or community services – language and wider cultural care preferences – lengthy delay in seeking access to care services – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 116.221; r 1.15

CASES

Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814
Hon Anh Vuong v Minister for Immigration & Anor [2013] FCCA 274
Lin & Anor v The Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2004] FCA 606

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 Immigration and Border Protection on 1 September 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 June 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 (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.116.221.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied that the visa applicant was able to provide substantial and continuing care to the review applicant and that Regulation 1.15AA(1)(f) was met.  The delegate found therefore that as the visa applicant was not a carer of an Australian relative and failed to meet clause 116.221. 

4. The review applicant appeared before the Tribunal on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s husband Mr Zi Wei Li and the visa applicant Mr Peng Li.  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 by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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.

8. 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.

9. The Tribunal notes from the departmental file the Carer Visa Certificate Assessment for the review applicant (D1, Folio.95-101).  The Certificate dates from 2 May 2013 and was completed by Medibank Health Solutions.  The review applicant was assigned a rating of 30.  The review applicant was identified as suffering from a range of conditions including ischaemic heart condition and neck of femur fracture with avascular necrosis.  The assessment stated she was deemed unfit for surgery for these ailments.  The assessment report stated that in order to prevent further deterioration and injury, the review applicant would be a candidate for a full-time carer.   A range of other medical documentation supporting this diagnosis and outlining the review applicant’s care needs was provided to the delegate. 

10. The review applicant provided the Tribunal with more recent medical evidence including a letter from her registered psychologist Mr Wei Lu (T1, Folio.75) stating the review applicant has been a patient of his since September 2018 and she has been depressed for ten years; and a letter from Dr Donald Lin dated 6 May 2018 (T1, Folio.17) stating that the review applicant has a range of conditions including diabetes, osteoporosis and impaired hearing on top of the aforementioned conditions.  The review applicant spoke about her health conditions at the hearing and emphasised the damage to her pelvis that was causing mobility issues as well as her depression.  The Tribunal accepts the evidence that the review applicant is in need of care. The Tribunal furthermore accepts that the review applicant’s health condition has deteriorated since her Carer Visa Assessment over five and a half years ago. 

11. The review applicant gave oral testimony to the Tribunal.  At times she was overcome with emotion in providing oral evidence to the hearing.  The review applicant stated that her 85-year-old husband was providing the bulk of her care and support.  She said he offers 24-hour care to her and assists with bathing, toileting, eating, shopping and cooking.  She said he does everything for her.    The review applicant said that her husband is ageing and is becoming weak and impatient.  She claimed sometimes he did not care about her and he is unhappy.  She said he did not treat her properly and sometimes fed her meals that were worse than dog food. 

12. The Tribunal asked the review applicant about support from other family members, in particular her son and daughter.   Statements had have been provided to the Tribunal and the Department respectively from the review applicant’s son and daughter as to their own ability to assist with the care and support of their mother. 

13. The review applicant stated that her son offers some care to her when he is in Australia.  She said he travels offshore much of the time with his business and sometimes she will not even see him once a month.   A travel itinerary was provided to the Tribunal for the review applicant’s son Mr Kun Li illustrating he departed for China on 11 February 2019 and returns on 10 May 2019.  The Tribunal can confirm that the review applicant’s son did depart Australia on this date and his movement records suggest he spends a significant amount of time each year offshore.  The review applicant provided copies of her son’s passport and a copy of the Australian Business Register name for her son’s business ‘More Meaningful Lives Pty Ltd’ (T1, Folio.35).  The Tribunal has had regard to the statements the review applicant’s son has provided to the delegate (D1, Folio.71) about his significant amount of overseas travel each year.  The Tribunal accepts based on the evidence it has been provided with that the review applicant’s son is unable to provide the review applicant with substantial and continuing assistance.      

14. In relation to any assistance and care that can be reasonably provided by her daughter, the review applicant stated in oral evidence that she has a daughter who lives in Campbelltown but does not talk to her.  She said a falling out had developed about five to six years ago as she had refused to look after and care for her daughter’s two children    The Tribunal recognises that Campbelltown is a significant distance from the ‘2035’ Maroubra region where the review applicant resides. The review applicant said that her daughter treats her like the enemy and when she has attempted to contact over the telephone she has been abused and humiliated by her daughter.   The review applicant’s husband gave similar testimony. 

15. The review applicant claims she has no other family members in Australia who can assist.  

16. The review applicant’s husband Mr Li also gave oral testimony to the hearing that reflected the review applicant’s statements concerning the limitations of support from their children in Sydney.  The Tribunal notes the significant burden Mr Li has taken on over the past years in caring for the review applicant at his age.  The Tribunal found him to be candid and honest in his testimony.  

17. Mr Li spoke about the care he provides the review applicant in conjunction with utilisation of the Commonwealth Home Support Program (CHSP) that the review applicant utilises generally for a two-hour block on Mondays and Fridays each week.  The review applicant provided a range of tax invoices from the CHSP that verifies this (TA, Folio. 65-74).  The Tribunal accepts that Mr Li has been the principal carer for the review applicant with CHSP support.  The Tribunal also accepts that Mr Li’s own health is becoming more of an issue and his ability to provide the care the review applicant requires is becoming more of a challenge largely due to his age.  Mr Li turns 86 years-of-age this year.

18. On the evidence before it, the Tribunal is satisfied that the assistance required by the review applicant cannot be reasonably provided by a relevant relative.  The Tribunal accepts the evidence that the review applicant does not enjoy support from her daughter and accepts that the review applicant’s son does provide assistance on occasion – yet his significant overseas travel in support of his business endeavours precludes him from providing the assistance the review applicant requires.   The Tribunal accepts the ability of her husband Mr Li to remain as the review applicant’s principal and primary carer is in decline.  The Tribunal accepts that there are no other family members in Australia capable or willing to provide care and support.  The applicant meets 1.15AA(1)(e)(i).

19. The Tribunal nevertheless notes that there are community, welfare and nursing services available to elderly citizens to assist with a wide range of in-the-home requirements.       

20. The Tribunal has considered whether the assistance required by the review applicant cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: 1.15AA(1)(e)(ii). The Tribunal discussed this matter with the review applicant.

21. The Tribunal asked the review applicant what care she receives from any external providers such as welfare, nursing or community services.  The review applicant mentioned the . Commonwealth Home Support Program (CHSP) that she utilises generally for two two-hour blocks on Mondays and Fridays.  Paying $11 an hour, the CHSP assists the review applicant with cleaning the bath, toilet, and kitchen and with bathing.  If there is spare time they will assist with massage that the review applicant states helps alleviate her pain. The Tribunal asked the review applicant what other attempts had been made to secure assistance from welfare, hospital, nursing or community services. 

22. The Tribunal notes from the departmental file that in June 2013 the review applicant’s then representative did make some limited attempts via email and telephone to contact a range of number of aged care facilities enquiring whether they offered in the home care, was that care free of charge, and if not how much would the aged care provider charge for this sort of care. (D1, Folio. 90-93).  Most providers that responded stated that they provided residential, not home care. 

23. The review applicant in her statement to the delegate in 2013 stated that her representative had been unsuccessful in seeking assistance as most did not provide 24-hour care as it was not subsidised by the Government.  She wrote that she was on a pension and could not afford aged care services.  She claimed that even those organisations that provided 24-hour care only accepted residential care or high care with unaffordable fees (D1, Folio.40-41).

24. The Tribunal does not consider the efforts that were undertaken to secure assistance from welfare, hospital, nursing or community services in June 2013 were neither particularly diligent nor comprehensive.  They amounted on the evidence before the Tribunal to five telephone calls to providers plus a couple of emails (D1, Folio.75-76).  The Tribunal notes that three of the requests were made to providers of residential care rather than home care.  Others were rejected by the review applicant’s representative as there was ‘no free in-home care facility’.  The Tribunal considers the attempt to acquire assistance from welfare, hospital, nursing or community services when first applying for this visa was on the evidence before it extremely limited.  The Tribunal notes the review applicant at the time claimed she was finding it difficult to acquire care and home services through the Chinese Australia Services Society Co-Operative Ltd as she lived in eastern rather than western Sydney.  She expressed concerns about language issues precluding her from accessing services from the local ‘Australian’ service providers and her preference for services supplied by Chinese providers.  The Tribunal notes however that the requests the applicant’s representative made to providers at the time mentioned nothing about the necessity for Chinese language speakers or any preference for the supply of services by Chinese providers.  The requests, after outlining the review applicant’s medical conditions, were simply asking if there were professionals from these establishments that could come to the review applicant’s property and look after her 24/7.  They went on to ask whether if home care was available, and if it was, would it be available free of charge.  Finally the correspondence from the review applicant’s representative enquired into the financial cost of such a service (if not available at no cost) and how soon it could be arranged.  There was no mention of any need, necessity or desire for the services to be only provided by Chinese providers and speakers. It was never listed as either a necessity or a preference.  In Hon Anh Vuong v MIAC the Court confirmed the authority in Biyiksiz v MIMIA and Lin v MIMIA  that cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable.  The Tribunal has taken into account cultural factors in assessing whether the assistance the review applicant requires cannot be provided by welfare, hospital, nursing or community groups.     The Tribunal notes that the review applicant did not appear to exhibit in the requests to providers for assistance in June 2013 any preference whatsoever for Chinese providers of care services.  The Tribunal nevertheless accepts that the review applicant prefers to have the services she requires supplied by Chinese speakers.  The Tribunal considers that this preference pertains to the simplification and ease of the provision of services in her home rather than any particular cultural reason.  The Tribunal submits this preference of the review applicant is indicative of the review applicant’s personal preference rather than a cultural reason. Even if the review applicant’s preference for the provision of Chinese providers of her care is a ‘cultural’ factor, the Tribunal notes in February 2018 the review applicant undertook an assessment by an Aged Care Assessment Team (ACAT) from the NSW Department of Health and was approved by the Delegate of the Secretary of the Department of Health as eligible for a Home Care Level 4 package. This is the highest level of Home Care package available and as the Tribunal discusses in paragraphs 26 and 31, a large number of providers have stated that they provide Level 4 services in the review applicant’s Maroubra area that are conversant in both the Mandarin language and the wider Chinese culture.  If the review applicant does have a cultural preference for Chinese-provided and Mandarin-fluent services, the Tribunal considers that this would be available by taking up the Home Care Level 4 package for which she has received approval now over a year ago.  The Tribunal is of the firm view that assistance can be reasonably provided to the review applicant that takes into account any language or wider cultural preferences she may have.       

25. The Tribunal notes that the review applicant did acquire care services from Chinese-fluent providers through the Commonwealth Home Support Program (CHSP) after the refusal of the visa applicant’s visa application that she utilises up until today. 

26. The Tribunal enquired into what recent efforts had been made to acquire external welfare, hospital, nursing or community services in order for the provision of care and assistance.  The Tribunal noted that the review applicant supplied the Tribunal with NSW Health pertaining to an Aged Care Assessment Team (ACAT) assessment of the review applicant on 12 February 2018.  The Tribunal notes that the Delegate for the Department of Health on 13 February 2018 approved the review applicant as eligible to receive Home Care package Level 4.  The review applicant received Medium priority for home care services and was placed on the national queue for access to home care.  She was informed that she would be notified when a home care package is assigned (T1, Folio. 61-62). 

27. The Tribunal notes Home Care Level 4 is the highest and provides the most services of the Home Care Packages.  The Tribunal notes that whilst waiting for a Home Care package an applicant may be eligible for other Commonwealth, State or privately funded aged care services. 

28. The Tribunal asked the review applicant a range of questions pertaining to this approval at the hearing.  The review applicant said she had not made contact with the Department since the approval of her Home Care package a year earlier.  The Tribunal noted the correspondence approving the care stated that the first step was for the review applicant to seek a formal income assessment from the Department of Human Services.  The review applicant said that she had not done this and had not received a formal income assessment.  She said it was because she did not know she had to do this as neither herself nor her husband spoke English.  The Tribunal pointed out that translation and interpreter services are readily available when utilising government services.  On the evidence before the Tribunal, the review applicant has not taken any steps to avail herself of the Home Care Level 4 package she was approved for over a year ago.

29. The Tribunal considers on the evidence before it that the assistance the review applicant requires can be reasonably provided from welfare, hospital, nursing or community services in Australia.  On the evidence before it, the Tribunal notes that the review applicant undertook an ACAT in February 2018 and was approved as eligible to receive Home Care Level 4.  She received Medium priority for this home care service and was placed on the national queue.  The Tribunal notes the review applicant’s representative at the hearing said the review applicant and her husband had no idea about the correspondence and what they are required to do (i.e. an income assessment) as they do not speak English.  The Tribunal is not satisfied with this response.  Translation and interpreter services are available to assist in situations such as this, including through the Translating and Interpreting Service (TIS National) of the Department of Home Affairs that provides interpreting services to people who do not speak English and to agencies and businesses that need to communicate with their non-English speaking clients. These services enable non-English speakers to independently access services and information in Australia.  The Tribunal accepts there is a waiting list for the Home Care service but notes the review applicant was provided the opportunity to go onto the waiting list over a year ago.   The Tribunal notes that the review applicant furthermore can continue to avail herself of the Commonwealth Home Support Program (CHSP) that is providing her with specific services in the home at a basic level of care with affordable fees. 

1. The Tribunal furthermore notes that the Federal Department of Health record the review applicant supplied the Tribunal states that the review applicant was approved for residential care and respite care – each non-time limited – on 31 January 2013.  The review applicant confirmed she had never availed herself of either of these packages since the approval.   

2. The Tribunal has placed a significant amount of weight on the approval of a Home Care Level 4 package for the review applicant’s in home care in February 2018.  There is no reason before the Tribunal as to why the review applicant should not be able to utilise this Home Care package for the care she requires once a package is assigned to her.  The Tribunal notes that there are currently 100 providers covering the Maroubra 2035 postcode that offer Home Care Level 4 packages: A large number of these providers state they can provide their services with Mandarin speakers.  A number are centres that state they have an understanding of Chinese culture.  Many state they provide can provide services 24 hours a day, seven days a week.   The Tribunal is of the firm view that the assistance the review applicant needs can be reasonably provided by such services.  The Tribunal appreciates the review applicant is on a waiting list with Medium priority.  The Tribunal notes the claims at the hearing that she has not contacted the Department since being approved for the home care package and has not undertaken an income assessment as directed by the Department.  The review applicant’s representative attended the hearing and with the review applicant have the opportunity to address this oversight.  The Tribunal recognises the delay in availing herself of the Home Care package that may have been generated by the review applicant’s failure to respond to the Department’s approval.  The Tribunal does not consider such negligence as a legitimate reason to grant a Carer visa because of such failure.    The Tribunal notes that the review applicant can continue to utilise the CHSP program in the interim and be supported by her husband Mr Li, notwithstanding the Tribunal appreciates his increasing limitations on supporting the review applicant.  

3. The Tribunal is not satisfied that the assistance (needed) cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met. 

4. The Tribunal therefore is not 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 not met.

5. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

6. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses, there is no material that would permit a finding that the applicant meets prescribed criteria for the visa sought.

7. In respect of other visa subclasses, there is no material that would permit a finding that the visa applicant meets prescribed criteria for the visa sought.  The visa applicant was 47 years of age at the time of application and 52 years of age at the time of decision.  An aged dependent is defined as someone who is old enough to be granted an aged pension under the Social Security Act 1991. The visa applicant does not therefore meet the criterion for a Subclass 114 (Aged Dependent Relative) visa.

8. To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia.  In oral evidence to the Tribunal, the visa applicant said he has a son that lives in China.  The visa applicant confirmed at the hearing that his son (who was named incorrectly by the delegate in the decision record as a secondary applicant) is not applying to come with Australia.  The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

   Justin Owen
   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.