Zivanovic (Migration)
[2022] AATA 4827
•24 October 2022
Zivanovic (Migration) [2022] AATA 4827 (24 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Ms Mirjana Zivanovic
VISA APPLICANT: Mr Goran Krstic
REPRESENTATIVE: Mr David Pavkovic (MARN: 0853763)
CASE NUMBER: 2012524
HOME AFFAIRS REFERENCE(S): OSF2017/015013
MEMBER:Jane Marquard
DATE:24 October 2022
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.211 and cl 116.221 of Schedule 2 to the Regulations
Statement made on 24 October 2022 at 7:04am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– 24-hour high dependency assistance required – visa applicant is willing to provide the assistance – ongoing medical health issues – at the time of decision the visa applicant is carer of the Australian relative – assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia– decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 2, cls 116.211, 116.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 May 2020 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW AND SUMMARY OF FINDINGS
The review applicant, who is the person requiring care, is an Australian citizen of Serbian background. She is 77 years old. The visa applicant is her son, Goran, who is a Serbian citizen who currently resides in Serbia. He applied for the visa on 13 March 2017, seeking to be his mother’s carer in Australia.
The delegate of the Department of Home Affairs (the Department) in a decision dated 29 May 2020 refused to grant the visa on the basis that cl 116.211 of Schedule 2 to the Regulations was not met. The delegate was not satisfied that the assistance required by the review applicant could not reasonably be provided by any other relative or obtained from welfare, hospital, nursing or community services in Australia.
No hearing was necessary in this matter as the Tribunal was able to determine the matter pursuant to s 360(2)(a) of the Act, in the applicant’s favour, on the basis of documents provided, and in particular new evidence to the Tribunal.
The Tribunal has concluded that the matter should be remitted for reconsideration. The Tribunal is satisfied that the review applicant needs and will continue to need for two years, direct assistance in attending to the practical aspects of daily life. The Tribunal is satisfied that the visa applicant claims to be the carer of the review applicant and is willing and able to provide the assistance the review applicant needs. The Tribunal is satisfied that the assistance cannot reasonably be provided by another relative who is an Australian citizen or permanent resident or obtained from welfare, hospital, nursing or community services in Australia. The reasons for these findings follow.
SUMMARY OF RELEVANT LAW AND QUESTIONS FOR DETERMINATION
At the time of application, 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 visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa, claiming to be a carer of the review applicant.
The purpose of a carer visa is to allow an Australian citizen, permanent resident or eligible New Zealand citizen, with a medical condition causing a significant level of impairment to sponsor an overseas relative to Australia to provide assistance of the kind required for the Australian relative (or their family unit member).
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 of Schedule 2 to the Regulations, which requires that the visa applicant is a carer of the Australian relative mentioned in cl 116.211 of Schedule 2 to the Regulations.
The key issue in the present case is whether the assistance required could not reasonably be provided by any other relative in Australia or obtained from welfare, hospital, nursing or community services in Australia. There are also a number of threshold issues, discussed below.
FINDINGS
Whether the visa applicant has claimed to be a ‘carer’
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 the review applicant, who is his mother.
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.
The Tribunal is satisfied that the visa applicant has claimed to be the carer of the review applicant at the time of application, on the basis of declarations in his application. As the Tribunal has seen a copy of the review applicant’s passport and the visa applicant’s birth certificate, the Tribunal is satisfied that the person requiring care is an ‘Australian relative’ as she is an Australian citizen and the mother of the visa applicant.
The Tribunal is satisfied that at the time of application the visa applicant claimed to be a carer of an Australian relative, and therefore satisfies the requirements of cl 116.211 of Schedule 2 to the Regulations.
Whether the visa applicant is a ‘carer’
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. The relevant criteria in reg 1.15AA are discussed below.
Whether the visa applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the visa 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 mother. The visa applicant provided a birth certificate in which the review applicant is listed as his mother.
The visa applicant is an ‘Australian’ relative as she became an Australian citizen in 2006, as illustrated by her Certificate of Australian citizenship and passport.
Therefore, as the visa applicant is the son 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).
Whether a certificate has been provided which meets the requirements – reg 1.15AA(1)(b)
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.
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.
A Carer Visa Assessment was provided for the review applicant issued by BUPA Medical Services on 19 January 2016. The Tribunal is satisfied that it was signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in compliance with reg 1.15AA (2), (Bupa Australia Health Pty Ltd).
According to the certificate the review applicant has a medical condition causing impairments of her ability to attend to the practical aspects of daily life. She was assessed as having needs for assistance with mobility and using a walking stick to mobilize outdoors despite being slow and unstable. The certificate states that she requires assistance with dressing and grooming as she has difficulty with zips and buttons and with shopping and cooking but can feed independently, that she has issues with forgetfulness but generally is aware of her ability hence would avoid doing things that she is not capable of doing and requires assistance with transportation to the shops and medical appointments. The medical conditions the panel doctor has listed are IHD, COPD and Emphysema with a rating of 20, Arthritis with a rating of 10 and Chronic Severe depression with a rating of 10. It was concluded because of the medical condition, the review applicant 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.
The impairment has a table rating specified in the certificate (40).
A new updated Carer Visa Assessment Certificate (CVAC) dated 22 February 2022 from BUPA was provided to this Tribunal. The Tribunal is satisfied that it was signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in compliance with reg 1.15AA (2), (Bupa Australia Health Pty Ltd).
The physician noted that the applicant is 77 years old and has chronic multiple comorbidities. She suffers from severe osteoarthritis, cervical and lumbar radiculopathy and chronic major depression. She lives by herself with no care assistance. He said that her ‘safety is of grave concern’ and she will need 24/7 supervision and assistance for her wellbeing. It was reported that she has frequent falls and forgets to turn off the stove.
She was assessed as having severe functional impact on activities due to her chronic pain and fatigue. She requires a taxi to get to the shops and is unable to walk from a carpark to shops or take public transport. She was assessed as being able to do sedentary work at home for 1 hour. She could not stand for more than 5 minutes. She cannot sustain overhead activities and finds it difficult to bend forward. She was assessed as needing support to maintain personal hygiene and nutrition and self-neglecting most of the time. It was reported that she cannot concentrate on tasks for more than 30 minutes. The panel physician was satisfied that she has a medical condition resulting in the permanent need for personal care and attention to carry out routine bodily functions.
The panel physician was satisfied in conclusion that the review applicant has a medical condition that is causing physical, intellectual or sensory impairment to attend to the practical aspects of daily life. The physician was satisfied that she 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.
In the summary comments of the CVAC, it was stated that she has ‘chronic multiple comorbidities. She is suffering from severe osteoarthritis, cervical and lumbar radiculopathy and chronic major depression for many years. All these conditions are stable, treated and no further treatments are recommended. She lives by herself with extreme difficulty as she does not have any choice. Her safety is of grave concern, and she will need 24/7 supervision and assistance for her wellbeing. She satisfies the criteria of a carer visa’.
The certificate specified an impairment rating (50).
The Tribunal finds that the certificate provided meets 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.
Whether the person with medical condition has relevant residency status – reg 1.15AA(1)(ba)
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 as evidenced by a copy of her citizenship certificate and passport, found on the Department file. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Whether the impairment rating is equal to or exceeds the specified rating – reg 1.15AA(1)(c)
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.
In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument (30) and therefore meets the requirements of reg 1.15AA(1)(c).
Whether assistance cannot be reasonably provided/obtained – reg 1.15AA(1)(e)
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.
This is the key issue in this matter. The delegate of the Department was not satisfied that the applicant met Regulation 1.115AA (1)(e). The delegate in the decision of the Department stated, ‘I have considered all the information provided by the applicant, sponsor and the various agencies and placed more weight on the agencies informing the sponsor that there are government funded services available and the sponsor needs to contact My Aged Care to get an assessment undertaken so that she would know what services are available to her and based on the documents and information provided to date, I have determined that the sponsor has not explored these government services and the sponsor wishes for her son Goran to look after her’.
Can assistance reasonably be provided by relatives?
The type of assistance to be considered is the assistance referred to in the certificate provided by the health service provider, namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition (reg 1.15AA(1)(b)(iv)).[1] The Tribunal is not required to turn its mind to the ‘nature and scope’ of the assistance required, rather it is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider.[2] The CVAC identifies that the review applicant has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life. Further details of the type of assistance are set out earlier in this decision.
[1] Sefesi v MIBP [2016] FCCA 975 at [21].
[2] Sefesi v MIBP [2016] FCCA 975 at [21].
Importantly, as reg 1.15AA(1)(e)(i) is stated in the negative, the focus of the Tribunal must be on the reasons as to why the relatives cannot provide the care.[3] Whether any relatives can reasonably provide the assistance and what a relative is capable of doing are matters for consideration by the Tribunal in determining whether assistance cannot reasonably be provided.[4]
[3] Anveel v MIBP [2013] FCCA 2181 at [62].
[4] Anveel v MIBP [2013] FCCA 2181 at [61]–[62].
While the Tribunal should have regard to policy, as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[5] In assessing whether claims a relative in Australia cannot provide assistance are reasonable, Departmental policy suggests looking at issues such as the following:[6]
· the number of relatives already in Australia
· the nature and extent of the assistance required
· where the person requiring assistance lives
· where any relatives in Australia live (see Yee Joy v MIBP[7])
· any evidence of ongoing close family relationships
· the reasons given as to why relatives in Australia claim to be unwilling or unable to provide assistance.
[5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
[6] Policy: Div 1.2/reg 1.15AA – Carer Instruction - Assessing whether assistance can be reasonably provided by another relative (re-issued 19/11/2016).
[7] Yee Joy v MIBP [2015] FCCA 2537 at [23].
The Tribunal notes that the review applicant has provided evidence that she has no other relatives in Australia, except for Zoran, a son of a cousin. The review applicant’s daughter Gordana passed away in Serbia in 2020.
As set out in the CVAC, the applicant requires 24-hour assistance and supervision. Evidence was provided to the Department that Zoran had some health problems and was unable to provide the amount of care she needs. In a Statutory Declaration to the Department, Zoran confirmed that the review applicant is his mother’s cousin. He said that the review applicant’s health was worsening to a point where she needs constant care. He said that she relies on him when she needs something, and he visited a few times a week to help her. He said that his help was not enough for her, and she needed full-time assistance. He could not help her full-time as he had had a quadruple bypass, two hernia operations and a knee operation and was waiting for shoulder surgery. He was also employed and had work commitments which prevented him from providing full-time care.
Given these restrictions on his capacity to assist, the Tribunal is satisfied that Zoran cannot provide the care needed as specified in the CVAC, given that it is 24-hour assistance required, and he is employed and has health issues. The review applicant has no other relatives in Australia.
The Tribunal is satisfied therefore that assistance could not reasonably be provided by any other relative in Australia.
Can assistance be obtained from welfare, hospital, nursing or community services in Australia?
The Tribunal has considered the information provided by the review applicant as to availability of the type of care mentioned in the CVAC, that is – full-time care for all aspects of daily living.
In 2020 the following agencies provided information:
·Southern Care, which advised the review applicant to contact My Aged Care. Southern Care stated that they could offer 20 hours per week. The agency advised her that she could get private care, but it would be expensive.
·Sydwest, which advised that they provided two home care programs but did not offer full-time services. Under Commonwealth Home Support they provide up to three hours per week of services for personal care, domestic assistance or flexible respite. Under their home care package at their highest level, they include personal care, domestic assistance, flexible respite, shopping, transport, social support and care management if assessed under the Regional Assessment Services or the Aged Care Assessment Team. They also provide private care.
·Home and Community Care, Uniting, which advised that for 24-hour care she could move into a residential facility depending on availability. There was also home and community care, but not full-time and she required an Aged Care Assessment.
·Calvary Community Care, advised that they were not sure if there were any providers that could provide 100% care but they suggested contacting My Aged Care.
A letter from the treating general practitioner dated 1 April 2020 stated that the applicant needed constant 24-hour assistance and supervision for all activities of daily living. She said that apart from occasional help from a relative Zoran, she has no-one to help her and the practitioner also confirmed that no organisation could provide assistance 24 hours a day. She said that ‘maximum number of hours per week provided by Government Aged Care services will be 12 h per week, if she has level 4 package approved (as discussed with Aged care services), 24 h care is only possible through the private agency, but at the very high cost, which Mirjana is unable to afford from her aged pension’.
The review applicant said in a Statutory Declaration dated 8 May 2020 that her anxiety worsens when she is surrounded by unknown people and for this reason did not want to enter a nursing home. She said that her daughter had died, and this made her depression worse. She said that her English was not very good, and she would find it difficult in a nursing home. She said that she was on a pension and could not afford private services. She said that she felt secure and happy around her son and in Serbian culture it was customary for children to care for their parents.
In a letter dated 14 April 2021 from Dr Needham to Dr Ducic it was reported that the applicant had been referred on 14 April 2021. It was stated that she suffers from chronic pain due to her cervical spine disorder for which she regularly attends neurologist Dr Shareef Dowls for cervical spine injections with limited benefit. It was reported that she has history of CABG and left total knee replacement and walks with aids and has had a number of falls. The doctor said that she had a recent fall and was unable to rise from the floor, summonsing assistance by hitting her door with a broom.
A letter dated 24 April 2021 from Dr Ducic of Blacktown Family Medical Centre stated that the maximum number of hours per week provided by Aged Care services would be four a week under the level 4 package and she could not afford private care from her aged pension. Dr Ducic stated that she had been seen by the centre since 2009: ‘her medical conditions are rapidly deteriorating, and she is getting worse every day. Her mobility is continuously now very poor and she is only able to walk with the walking stick..both of her knees are much more painful and swollen as well as other joints and whole spine., her pain is only partically managed by narcotic analgesia..she also has to have cortisone/LA injection in her knees due to severity of her pain. Her vision is also very poor..she has also had a recent gastroscopy and may also have to proceed with cystoscopy due to the persistent haematuraia’. The doctor reported that she was under the care of a neurologist, cardiologist and endocrinologists. He said that she was also under the regular care of a psychologist for major depression and generalised anxiety disorder, was seeing a gastroenterologist for unusual liver lesions, and was ‘very socially isolated’.
A Home Care Assessment from the My Aged Care NSLHD Regional Assessment Service was provided to the Tribunal. The assessment provided telephone numbers for services which would provide shopping assistance and house cleaning for the applicant. She was offered one hour of domestic assistance and one hour of social support including shopping. She was also offered an opportunity to attend occupational therapy.
A letter from Dr Ducic dated 2 December 2021 stated that the applicant’s medical conditions were deteriorating, especially her mobility, which had been poor since 2013 when she was seen by rheumatologist Dr Liew. She had also been under the care of neurologist Dr Dowls since 2013 in regard to lumbo-sacral disc disease. It was reported that both her knees were painful and swollen due to severe osteoarthritis and that her vision had been poor since 2014. The report noted that she had heart surgery in 2013 under the care of cardiologist Dr Shafransky, and now was under the care of Dr Cranswick. She had been under the care also of a psychologist since 2013 for the management of depression and generalised anxiety. It was reported that she may require cervical spine surgery for severe neck pain. It was reported that she was persistently unstable, dizzy and required the wheelchair. It was concluded that her ‘multiple physical and psychological problems are now rapidly deteriorating and she will need the most urgent approval for the carer’s visa for her only son. Her daughter has died recently in Serbia and she has nobody to look after her in Australia’.
In addition to provision of the updated CVAC to the Tribunal, the review applicant provided a letter dated 20 July 2022 from Midwest Heart Clinic. Dr Cranswick, Senior Specialist Cardiologist, reported that the applicant does not speak English and lives alone in council housing. He said that her sole remaining relative is her son in Serbia as her daughter passed away three years ago. He said that she has multiple chronic medical conditions which cause anxiety and distress. He said that ‘these include coronary artery disease/hypertension/T2DM/arthritis limiting mobility’. He said that she takes multiple medications and is ‘barely coping alone at home’. He said that having her son reside with her would alleviate much of the stress, anxiety and depression she suffers.
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.[8]
[8] Biyiksiz v MIMIA [2004] FCA 814
The Tribunal accepts the evidence in the Aged Care assessment as well as enquiries made of agencies and through the general practitioner and other practitioners, that the applicant cannot obtain the assistance required on a 24-hour basis through one or a combination of services. The CVAC establishes that the review applicant is fully dependent for assistance with mobility, dressing/grooming, personal safety, and transportation. The Tribunal has taken into consideration that the applicant is 77 years old and has chronic multiple comorbidities as set out in the CVAC. The physician noted in the CVAC that her ‘safety is of grave concern’ and she needed 24/7 supervision and assistance for her wellbeing, with frequent falls and forgetting to turn off the stove. The Tribunal has also taken into consideration, given the applicant’s psychological state, cultural considerations (as it is traditional in Serbian families for children to care for their parents in the home), as well as language considerations (care in Serbian rather than English). The services are not obtainable through My Aged Care services and she could not afford private services. Regarding her capacity to pay for private care, the Tribunal notes that she applied for fee reduction in relation to the application fees for this visa. She provided the following statement, ‘I leave alone and must take care of all my needs. I have frequent visits to doctors and usually need to travel several times a week. When travelling I need to go in a wheelchair and therefore need a special car meaning additional costs for my travel. My income is sometimes not enough to support my basic needs.’ Supporting documents were provided to demonstrate her financial status.
The review applicant’s daughter died recently and there is no doubt that a family member could provide the kind of support needed for a person with depression having to deal with a death in the family. Department policy, which is useful as guidance to the Tribunal, and which refers to case law, notes that decision-makers ‘need to consider any claims that the assistance needs to be of a particular nature’.[9] Cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable.[10] The Tribunal is satisfied that assistance required by the review applicant for her activities of daily living, with particular focus on the Serbian culture and language, cannot be obtained from welfare, hospital, nursing or community services in Australia.
[9] Department of Home Affairs, Policy: Div 1.2/reg 1.15AA (re-issued 19/11/2016)
[10] Hon Anh Vuong v MIAC [2013] FCCA 274 citing Biyiksiz v MIMIA [2004] FCA 814 and distinguishing Lin v MIMIA FCA 606
The Tribunal is also satisfied that the assistance cannot be obtained through a combination of relatives and welfare, hospital, nursing or community services for the purpose of reg 1.15AA(1)(e). As discussed earlier the review applicant’s relative Zoran is unable to provide additional assistance to the review applicant due to his employment and own health issues. Given the 24-hour high dependency assistance required there are difficulties with suitability of service providers and in particular there is a lack of services in the applicant’s culture and language.
The Tribunal is satisfied therefore 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.
Whether the visa applicant is willing and able to provide the assistance – reg 1.15AA(1)(f)
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.
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.
The Tribunal notes that the visa applicant has had six visits to Australia, illustrating his willingness to visit his mother and care for her. The fact that he has visited on multiple occasions also means that he will be familiar with his mother’s medical conditions and her care needs.
The visa applicant said that he was willing and able to ‘provide complete assistance’ 24 hours a day. He said that he would provide supervision with her diet, medication, self care, grooming, travel, mobility etc. He said that he would be able to provide continuing assistance to taking her to medical appointments and treatment. He indicated that he understood her medical conditions, listing her various conditions and symptoms, including fatigue, lack of energy and feeling particularly bad when her blood sugar fluctuates. He knew that she used an inhaler on a daily basis. He noted that her depression had worsened after the death of his sister in 2020. He said that he had been visiting Australia on tourist visas for three-month periods and taking over her care during those periods. He said that during these visits he has tried to understand the situation she was in and finding ways to help her. He said that he is 56 years old (now 58) and has no health problems, and is physically fit. He would help her with everyday chores, including preparing meals and personal hygiene. He would do the shopping and get her medicines. He submitted that in Serbia ‘it is normal for children to help their parents’. He said that he would be happy to help her and he would make it his priority. He said that if it turned out that because of his obligations to her he could not get a job, her pension could support them both.
He informed the Department that he was divorced. He has two adult children. His daughter is married and resides in Germany. His son was nearing completion of a Masters in Mining and Geology in Belgrade at the time. He said that both his children were independent. He said that his children and ex-wife supported his decision to care for his mother. His job was listed as ‘organisation of transport and logistics’ for DM company, a position he had held since 2015.
On the basis of this evidence, the Tribunal is satisfied that the visa applicant is willing to provide the assistance, given his frequent long trips, his sense of obligation under Serbian culture and his articulation of his willingness. The Tribunal is also satisfied that he is able to provide the relevant assistance. Notwithstanding that he does not have medical training, many of the review applicant’s needs are practical ones which he could help with, and he expressed understanding of his mother’s medical conditions and needs. Further he explained that he is able to help as he is healthy and has few commitments in Serbia. He is also uniquely able to provide psychological support given the death of his sister, as he is the review applicant’s son. The Tribunal is satisfied on the evidence that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and he therefore meets the requirements of reg 1.15AA(1)(f).
Conclusion on ‘Carer’ criterion
Given these findings the Tribunal concludes that at the time of decision the visa applicant is carer of the Australian relative, being the review applicant, and therefore satisfies cl 116.221 of Schedule 2 to the Regulations.
CONCLUDING PARAGRAPHS
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
The Tribunal remits the application for an Other Family (Migrant) (Class BO) visa for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.211 and cl 116.221 of Schedule 2 to the Regulations
Jane Marquard
MemberATTACHMENT
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.
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