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0803462 [2009] MRTA  1491  (18 June 2009)

Last Updated: 19 August 2009

0803462  [2009] MRTA 1491  (18 June 2009)


DECISION RECORD

REVIEW APPLICANT: Mr Parnam Singh Heir

VISA APPLICANTS: Mrs Lakhbir Kaur
Mr Hansa Singh

MRT CASE NUMBER: 0803462

DIAC REFERENCE(S): OSF2008/040607

TRIBUNAL MEMBER: Don Smyth

DATE: 18 June 2009

PLACE OF DECISION: Brisbane

DECISION: The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 116 (Carer) visa:

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
  2. The visa applicants applied to the Department of Immigration and Citizenship for Other Family (Migrant) (Class BO) visas on 12 March 2008. The delegate decided to refuse to grant the visas on 29 April 2008 and notified the visa applicants of the decision and their review rights by letter dated 29 April 2008.
  3. The delegate refused the visa applications on the basis that the first named visa applicant did not satisfy cl.116.211 or cl.116.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the first named visa applicant did not satisfy cl.116.211 and cl.116.221 because she is not a carer of an Australian relative
  4. The review applicant applied to the Tribunal on 4 June 2008 for review of the delegate’s decisions.
  5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(5) of the Act. The Tribunal finds that the review applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

  1. At the time the visa application was lodged, the Other Family (Migrant) (Class BO) visa contained Subclass 114 (Aged Dependent Relative), Subclass 115 (Remaining Relative) and Subclass 116 (Carer): Item 1123A of Schedule 1 to the Regulations. The only subclass in respect of which any claims have been advanced is Subclass 116 (Carer).
  2. The Carer visa permits an Australian citizen, permanent resident or eligible New Zealand citizen who, or whose member of a family unit, has a medical condition causing a significant level of impairment and, because of that medical condition, has a need for direct assistance to attend to practical aspects of daily life, to sponsor a relative to provide the care needed.
  3. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.
  4. The primary criteria to be satisfied at the time of application are:
  5. The primary criteria to be satisfied at the time of decision are that:
  6. Part 116 also contains secondary criteria that must be satisfied by visa applicants who are members of the family unit of a person who satisfies the primary criteria.

Relevant defined terms

  1. 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).
  2. ‘Relative’ is defined in r.1.03 of the Regulations. Relevantly, that Regulation states:

relative, in relation to a person, means:

(a) ...

(b) in any other case:

(i) a close relative; or

(ii) a grandparent, grandchild, aunt, uncle, niece or nephew, or a step grandparent, step grandchild, step aunt, step uncle, step niece or step nephew.

  1. ‘Close relative’ is also defined in r.1.03 of the Regulations:

close relative, in relation to a person, means:

(a) the spouse of the person; or

(b) a child, adopted child, parent, brother or sister of the person; or

(c) a step child, step parent, step brother or step sister of the person.

  1. The term ‘carer’ is defined in r.1.15AA of the Regulations as follows:

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, 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

(c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice 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 obtained:

(i) from 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) 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.

(4) In this regulation:

Impairment Tables

means the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.

  1. Specific aspects of this definition have been the subject of judicial consideration, most notably, subparagraphs (1)(e) and (1)(f). In determining whether the assistance cannot reasonably be obtained for the purposes of r.1.15AA(1)(e), the Court has held that the question is whether the Australian relative can reasonably obtain assistance from the person or services; not whether that person is able to reasonably provide the required assistance, or those services are reasonably available: Lin v MIMIA [2004] FCA 606, Rafiq v MIMIA [2004] FCA 564 and Biyiksiz v MIMIA [2004] FCA 814.
  2. In addressing whether the visa applicant is willing and able to provide substantial and continuing assistance for the purposes of r.1.15AA(1)(f), 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 been the subject of judicial consideration in the context of the definition of ‘special need relative’ in r.1.03 of the Regulations. The Court in Perera v MIMIA [2005] FCA 1120, 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.
  3. The issue in the present case is whether the visa applicant is a carer of the relevant Australian relative.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Department’s file relating to the visa applicants.
  2. The review applicant appeared before the Tribunal on 3 June 2009 to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant and from Mrs Sarabjit Kaur Heir
  3. For convenience, the Tribunal will refer to the first named visa applicant as “the applicant”.
  4. The review applicant was represented in relation to the review by his registered migration agent.

Visa Application

  1. According to information provided by the visa applicant in her application, she is a 62-year-old citizen of India. She speaks Punjabi and Hindi and has limited English.
  2. The visa applicant married on 9 April 1964. Her spouse, Mr Hansa Singh, was also included in the visa application. He is a 63-year-old Indian citizen. He too speaks Punjabi and Hindi.
  3. The Department was provided with copies of various documents relating to the visa applicant and her husband. These included Police Clearance Certificates, a marriage certificate and extracts from their passports. The Department was also provided with a document from the Office of the Accountant General in Punjab indicating that the visa applicant’s husband was entitled to pension payments.
  4. At the time of the application, the visa applicant and her spouse were living in Amristar, India. The visa applicant’s five siblings were all resident in India. The visa applicant had two daughters, who were resident in India, and one son, an Australian citizen. The five siblings of the visa applicant’s spouse were also resident in India.
  5. The visa applicant was sponsored by her son, Mr Parnam Singh Heir (the review applicant). The review applicant stated that he arrived in Australia on 25 November 1995. He is now an Australian citizen. At the time of the application, he was living with his child and his spouse in a four-bedroom house in Runcorn, Brisbane. The Department was provided with a rate notice sent to the review applicant’s wife at the relevant Runcorn address.
  6. The review applicant described his occupation as “bus operator / self employed” and indicated that he had been working for Brisbane City Council since January 2003. The Department was provided with copies of an extract from the review applicant’s passport and his marriage certificate. The marriage certificate shows that he married Sarabjit Kaur on 26 June 1994.
  7. The visa applicant applied on the basis that her daughter-in-law, Sarabjit Kaur Heir (the wife of the review applicant), needed her care. The Department was provided with a copy of the daughter-in-law’s Australian citizenship certificate.
  8. The visa applicant stated that her daughter-in-law had developed a subdural haemorrhage and a bitemporal hemianopia after a triple valve replacement surgery in October 2006. She was 80 per cent blind. The visa applicant stated that her daughter-in-law needed her assistance with the practical aspects of daily life. She would be assisting with daily tasks such as bathing, toileting, cooking, shopping and house cleaning. She would also look after her five-year-old grandson. The visa applicant stated that she would be happy to care for her daughter-in-law for the rest of her life.
  9. With regard to whether her daughter-in-law could receive assistance from other relatives in Australia, the visa applicant stated that her son provided assistance temporarily. However, he worked full-time and also had a five-year-old son. She stated that her presence and ongoing care would significantly improve their daily lifestyle. The visa applicant also indicated that her daughter-in-law’s brother was living in Australia.
  10. The visa applicant indicated that her daughter-in-law had sought assistance from the PA Hospital Low Vision Care Clinic at Greenslopes and the Qld Blind Association but that these organisations were not able to provide long-term assistance.
  11. The visa applicant’s representative made written submissions to the Department. With regard to cl.116.211, it was submitted that Dr Mark D. McGree, Ophthalmic Physician and Surgeon, had stated in a report dated 1 March 2007 that the visa applicant’s daughter-in-law had a visual efficiency in the order of 15 to 20 per cent. It was submitted that Health Services Australia had issued a satisfactory certificate for the purpose of a carer visa application. The daughter-in-law’s physical impairment significantly reduced her ability to attend to the practical aspects of her daily life. In addition, she had a five-year-old son who needed ongoing care and assistance. It was submitted that the review applicant’s husband worked full-time. The visa applicant’s care and assistance would be invaluable not only to the physical condition of her daughter-in-law but also in relation to the household in general. The submission stated that the visa applicant would provide ongoing care and assistance to her daughter-in-law.
  12. With regard to the review applicant’s employment, the Tribunal was provided with letters from Yellow Cabs and the Brisbane City Council, both dated 22 February 2008 The letter from Yellow Cabs confirmed that the applicant had been an owner/operator with them since late 2005. He was still running his own taxi licence and working full-time under the Yellow Cab banner. Brisbane City Council indicated that the review applicant had been an employee since 15 January 2003.
  13. The Department was also provided with the Carer Visa Assessment for Mrs Heir. This stated that she had undergone triple valve replacement in October 2006. She had subsequently developed a subdural haemorrhage which was evacuated. This was complicated by residual intracerebral haemorrhage/contusion in the right temporal lobe. This resulted in “some high level cognitive dysfunction and impairment in vision particularly loss of visual fields”. A review by an ophthalmologist revealed “optic atrophy, a bitemporal hemianopia with nasal visual field deficit bilaterally”. The assessment stated that this condition had affected Mrs Heir’s ability to live independently. It stated that the condition in her eyes was permanent.
  14. The assessment indicated that direct assistance was required in relation to hygiene, toileting, dressing/undressing/grooming, eating/feeding, mobility, giving or supervising medication, and supervision/monitoring. No detail was provided as to the precise nature of the assistance required. The assessment also indicated that assistance would be required with transport. The medical condition resulted in a “need for personal care and attention on a daily basis to carry out routine bodily functions” and a “need for constant supervision or monitoring because the person requiring care may be a danger to themselves or others”. The assessment report indicated that the need would be permanent. The report indicated that Mrs Heir was suffering from loss of visual fields with a Social Security Act impairment rating of 40.
  15. A Carer Visa Assessment Certificate was signed by the Examining Medical Adviser on 14 June 2007. This indicated that the visa applicant’s daughter-in-law met the relevant requirements for a carer.
  16. The review applicant made a written statement, dated 24 March 2008. He stated that his wife was 80 per cent blind and unable to look after her own basic daily tasks like bathing, toileting, cooking, shopping and household cleaning. Further, he worked full-time and they had a five-year-old son.
  17. The review applicant stated that his wife had a brother living in Brisbane. However, this brother-in-law had his own family with a wife and three children. Both his brother-in-law and his brother-in-law’s spouse worked full-time. It was not practically possible for them to provide the necessary care to his wife.
  18. With regard to welfare, hospital and community services, the review applicant stated that it was expensive and almost impossible to hire someone to provide ongoing care to his wife and to provide occasional assistance to his five-year-old son as well.
  19. The review applicant submitted that his parents were retired and in a better position to provide the ongoing care which would significantly improve the daily lifestyle of his wife.

Departmental Interview

  1. The visa applicant attended an interview with an officer of the Department on 10 April 2008. The Department’s file contains both handwritten notes and a typed summary by the interviewing officer.
  2. With regard to the visa applicant’s presentation, the Departmental officer noted, “Appears that has problems walking and is quite old. Does not look like she can provide assistance & care required by sponsor.” The visa applicant indicated that she and her spouse did not have any medical issues. When asked whether she was very old to care for her daughter-in-law, the visa applicant stated that she had done the cooking and had dropped her grandson off on previous visits.
  3. The visa applicant indicated that her son had one child, Tanveer. She indicated that Tanveer was six years old and attended school. She indicated that her son, the review applicant, lived in a three-bedroom house and had almost paid this off. The visa applicant indicated that she had contact with the review applicant once or twice a week.
  4. When asked about her daughter-in-law’s medical condition, the visa applicant stated that she had had a heart valve operation and had had blood coming from her brain. She stated that her daughter-in-law’s eyesight was weak and she had coordination problems. She stated that her daughter-in-law had stayed in India for three months. She looked after her daughter-in-law on this occasion. They could not leave her alone. She indicated that her daughter-in-law took medication. With regard to the sort of care she would provide to her daughter-in-law, the visa applicant stated that she would cook the food, do the household work and look after her grandchild. She stated that no one cared for her daughter-in-law in the review applicant’s absence. She stated that her spouse would help her in Australia Her son, the review applicant, would provide for them financially.
  5. When asked whether she had considered the option of getting external help from organisations in Australia, the visa applicant replied in the negative. She stated that it would not be the same. They would go home. She stated that her son was unable to care for his spouse because he had to work. She indicated that the daughter-in-law’s brother lived far away. There was no one else.
  6. The visa applicant indicated that she would live with the review applicant.

Review Application

  1. In support of the review application, the Tribunal was provided with further written submissions, dated 23 July 2008, from the review applicant’s representative. The submission highlighted that the HSA report had stated that Mrs Heir’s condition affected her ability to live independently. It was submitted that Mrs Heir was in need of full-time care and that this would not be available if she were to remain in her own home with her husband and child. She would not be able to obtain the 24-hour care in her own home unless she paid a private nurse, something which the family could not afford. It was submitted that the visa applicant could provide the care. The submission stated that a shortage of medical professionals in Australia had impacted on the number of places available in nursing homes and residential care.
  2. The submission addressed various aspects of the delegate’s decision. It was submitted that it was unreasonable and impractical to expect that the required assistance could be obtained from another relative or resident. Mrs Heir’s brother had a family of his own and he and his spouse both worked full time. It was submitted that the care required was not short-term but “rather a full time commitment that most people are not in a position to provide” Reference was made to a Statutory Declaration from Mr Virk, Mrs Heir’s brother, which states as follows:
I am married and I have three children including twins, Jagmeet and Sukhmeet who are 27 years old and live away from home and a 17 year old son, Harmeet who still lives at home with my spouse and I.
I have my own business and my spouse also works which means that we both have substantial employment commitments .
At this time of our lives we are unable to assist my sister to the extent that is required even though we wish we could help her more.
Obviously, we can offer very limited assistance. However, we can not commit to any specific time or day other than to assist during some week ends or after business hours which I understand will not solve her need for constant care.
  1. The submission also referred to a letter to Centrelink from Dr Amanda Johns, Brain Rehabilitation Clinic. It was submitted that this letter stated, “This resulted in a very significant impairment in vision and high level cognitive dysfunction. This has had a devastating affect on her ability to live independently.” It was submitted that Mrs Heir required full time care which she could depend on.
  2. The submission addressed a finding by the delegate that the sponsor and the visa applicants had not explored the option of getting external help. It was submitted that the visa applicants “would have absolutely no idea on how the Australian system functions in order for them to be able to enquire, from India, about services that may or may not be available for their daughter-in-law”. Further, they would not be in a position to know what inquiries their son had made “other than to know that enquiries were made that confirmed that to attain outside help would be beyond his financial means”.
  3. With regard to the ability of the family unit of Mrs Heir to provide the required level of care with assistance from welfare, it was submitted that her five-year-old son would obviously not be able to care for her. Further, it would be unreasonable to expect the review applicant to work full-time at two jobs and also be a full-time carer. It was submitted that the review applicant had advised “that he works up to 12 hours most days driving a taxi and 2 days a week he works an 8 hour day for the Brisbane City Council”.
  4. With regard to the visa applicant’s ability to provide the substantial and continuing assistance required by Mrs Heir, it was submitted that the visa applicant had already efficiently provided the level of care required while she was in Australia. It was submitted that there was nothing in the Act or the Regulations which required the visa applicant to have an understanding of the full extent of Mrs Heir’s condition. It was submitted that the visa applicant had provided the required care in the past and would be able to provide the care required in the future without the need to understand the full extent of her daughter-in-law’s condition. The submission noted that Mrs Heir had reverted to speaking Punjabi more and more since her open heart surgery. The visa applicant, who could communicate with her daughter-in-law in Punjabi, was consequently “even more required as the principal care giver”.
  5. It was submitted that it was obvious that the review applicant and his family needed assistance desperately and consequently his parents wanted to help. The review applicant had advised that having his parents living with him so that they could care for his wife was “the most appropriate, convenient and financially viable option for the family in that they will not only save on outside services but will also share all living costs including utility costs, food and fuel”.
  6. The submission also addressed the relevance of the visa applicant’s age to her ability to provide care. With regard to the delegate’s observation that the visa applicant appeared to have mobility problems, reference was made to a medical report from Dr AS. Sandhu from the Sandhu Diagnostic Centre. A copy of this report, dated 6 June 2008, was submitted to the Tribunal. It stated that Dr Sandhu had examined the visa applicant on 6 June 2008 and found her to be medically fit.
  7. It was submitted that both the review applicant and the representative had contacted the Blind Association of Queensland (the Blind Association). The Blind Association had advised that there was limited assistance available but it did not extend to full-time care which was available from private organisations at a substantial cost.
  8. The Tribunal was subsequently provided with a letter, dated 27 November 2008, from the Blind Association. This letter, addressed to the review applicant, states as follows:
We are in receipt of your letter of 14 November for which we thank you. I have enclosed our 'Directory of Agencies' booklet which may be of some assistance to you. We have flagged the pages you may find of interest to assist you with the care of your wife. We are not aware of any Agencies that provide full time care at home, without any costs.
Home and Community Care (HACC) and Commonwealth Carelink Centres may have some information to assist you.
Home Instead Senior Care offers a range of non-medical services, with care from a few hours a day to 24 hours seven days a week if your wife would be eligible for this assistance. A fee is applicable.
Respite Directions may be able to assist, you can obtain a free information pack. You could also look at RSL Home Care, which may suit your needs.
If you contact Centrelink you may find your wife would be eligible for a Disability or Blind Pension, and if you wanted to care for her yourself, you may be eligible for a ‘Carers Pension’ You would have to discuss your situation with Centrelink so see if you would be eligible for any benefits.
  1. The review applicant’s representative submitted that the review applicant could not obtain any substantial assistance for his spouse unless he paid for it, which he could not afford. The alternative was for the review applicant to claim a carer pension. This was not an option as the family would not be able to survive financially on the small amount of financial assistance from Centrelink. It was submitted that, like in any other family, the head of the household would like to continue working so his family could enjoy a reasonable standard of living.
  2. It was submitted that Mrs Heir was destined to be “virtually incapacitated” for life. It would be unreasonable “to also expect her to live in near poverty if she is either required to pay for assistance so that her spouse can work or if her spouse leaves work to care for her and they become dependent on Government handouts”.
  3. It was submitted that the review applicant was working two jobs as well as caring for his spouse and their son. It was submitted that the review applicant was “at breaking point”. The situation would be exacerbated during school holidays.
  4. The Tribunal was also provided with a report, dated 11 February 2009, from Dr Mark D. McGree. Dr McGree stated that Mrs Heir fulfilled the requirement for legal blindness. He stated that nothing could be done to improve her vision and it was unlikely that it would improve significantly beyond this point. Dr McGree stated that Mrs Heir was investigating disability support services to help her manage in her daily life.

Tribunal Hearing of 3 June 2009

  1. The review applicant attended a Tribunal hearing on 3 June 2009.
  2. According to the review applicant’s evidence at the hearing, he continues to live at the same address in Runcorn. He owns the house. He lives with his wife and son, as well as his niece and his cousin’s sister. The review applicant described his niece as being 18 or 19 years of age and a student at university. He indicated that both his niece and his cousin’s sister are in Australia as students from India They are not Australian permanent residents or citizens. They are just living in Australia temporarily. The review applicant stated that he asked them to live with him because he needed a lot of help with his wife. His cousin’s sister has been living with him for one year and his niece for over six months. They assist with cooking, cleaning and taking the review applicant’s son to school. They also assist Mrs Heir with all her daily needs such as showering. They have university as well. The review applicant stated that he tries to stay home if there is no one there. He tries to have someone there all the time. The review applicant stated that his niece and his cousin’s sister would stay for another year or so. If they stayed for longer, they would not stay with him.
  3. The review applicant stated that the assistance could not be obtained from relatives because these relatives would not be in Australia permanently. They have no other relatives in Australia apart from Mr Virk, who has his own family and works full-time. Mr Virk is not able to provide the assistance they require.
  4. With regard to the living arrangements, the review applicant’s evidence was that his house is a five-bedroom house. If his mother were to come, his niece and his cousin’s sister would not be there.
  5. The Tribunal was provided with a copy of a letter from Dr Johns, dated 26 March 2007, which indicated that some improvement in Mrs Heir’s condition might be possible. The Tribunal asked the review applicant whether there had been any improvement in his wife’s condition. He stated that the eye specialist had stated that there was now no chance of improvement. The Tribunal asked whether there had been any improvement, for instance up until the time of Dr McGree’s letter of February 2009. The review applicant described visiting the Beenleigh Rehab Unit. He stated that they told him the last time that it did not look like his wife would improve. She has not improved at all.
  6. The review applicant indicated that his wife had been to the Beenleigh Rehab Unit five or six times. He stated that she attended a number of hospitals with regard to multiple conditions, including a heart problem. At the Beenleigh Rehab Unit, they did some exercises of the eyes and brain. They told his wife how to live and what to do. This did not produce any improvement in her ability to carry out day-to-day tasks. The review applicant referred to his wife’s surgery in late 2006 and the resulting brain haemorrhage. He stated that she also developed a rheumatic condition. She needs to see the doctor every three months in relation to this condition. She also has problems with her short-term memory. She needs someone there in the shower to see properly. She can only see diagonally. Sometimes she does not understand which is the hot tap and which is the cold tap. The doctor said not to leave her alone at all because she cannot see. The review applicant stated that he tries to make sure that she does not move around on her own, especially in the kitchen. She cannot find her way around the house. She needs someone to guide her to the shower, supervise her in the shower and give her her towel and clothes. When she is getting dressed, someone needs to find the clothes and help her dress. She is able to eat herself but needs help with cooking and food preparation. A couple of times she cut her finger. She cannot use a knife, or the stove or oven. The heart doctor said that she should walk for half an hour a day but the ophthalmologist said that she cannot walk alone She needs someone to go with her. Most of the time someone accompanies her around the house. She hits the wall a lot of times.
  7. QML Pathology come to the house around once or twice a week because the review applicant’s wife requires blood thinning medication. The review applicant stated that they call him because it is his responsibility to give her the correct dose. She takes the medication once a day. If he is at home, he does it. Otherwise he asks someone else to do it. The review applicant stated that his wife needs someone 24 hours as a matter of safety. She also has a problem with her heart and gets faint. The review applicant stated that he was told by doctors at the PA Hospital and Prince Charles Hospital that his wife should have someone there 24 hours. The Tribunal questioned this and questioned whether the available medical evidence indicated this. It provided the review applicant and his representative with additional time to provide any further documentation.
  8. The review applicant stated that his wife mostly speaks Punjabi at home but can speak English as well. She has some problems understanding. She needs a carer who can speak this language.
  9. The Tribunal asked the review applicant who had been caring for his wife. He stated that his mother had been in Australia for about one year. Immediately after the surgery, his wife’s sister was here. One sister was in Australia for about two months and another for a further two months. The review applicant’s mother stayed for about one year. They tried to extend her visa but it was not possible. However, the review applicant’s wife went to stay with her mother in India. The review applicant stated that it was very difficult for him during this time. The months immediately after his wife’s return were also very difficult. The review applicant stated that he tried to stay home as often as he could during this period. He used to work driving buses for the Brisbane City Council five days a week but reduced this to two days. He also drives a taxi. This is flexible so he can take his son to and from school or take his wife to the doctor.
  10. The review applicant confirmed that his mother stayed with them for nine months from March to November 2007. His wife went to India with his mother and stayed there with her until January 2008. His mother cared for his wife. He went to India and accompanied his wife on the return journey. The review applicant stated that his wife was also cared for by his mother in India during the period from September to November 2008. He travelled with his wife to and from India.
  11. The review applicant stated that his mother took care of all his wife’s daily needs. That was the main reason his wife travelled to India. They could not afford to pay someone in Australia. They could get someone to come perhaps a couple of times a week for one hour. When asked who had told them this, the review applicant stated that they talked to the Blind Association of Queensland.
  12. The Tribunal asked the review applicant whether his mother would be providing his wife with 24-hour care. He stated that he would do it when he was at home and his mother would do it at other times. He still works two eight-hour days each week as a bus driver. He drives taxis up to three days a week. This is flexible. The shift runs from 4am to 4pm However, he drops his son at school before starting work and then picks his son up from school. He works school hours.
  13. The Tribunal put to the review applicant that it might appear that he would be able to provide the assistance his wife required himself. It asked him why he needed assistance in providing direct assistance to his wife. The review applicant stated that he has to work. If he provided 24-hour care, he could not work. If he did not work, he could not pay the mortgage or eat. The Tribunal noted that the letter from the Blind Association had suggested that he investigate a Disability Pension or “Carers Pension”. It asked him whether he had investigated these things. The review applicant stated that carer payment would not be enough. He would have to pay the mortgage. The Tribunal put to the review applicant that the purpose of carer payment was to support people who were caring and that some people lived on these payments. The review applicant reiterated that it would not be enough. He said that he wanted to earn. He indicated some uncertainty as to how much he would get through carer payment and disability support pension. He stated that Centrelink had told him and it was not much. He would have to pay the mortgage and other bills. The review applicant indicated that his wife is in receipt of disability support pension but was unable to say how much she gets. He said that he had done the sums but did not have them in front of him.
  14. The Tribunal asked the review applicant about the advice from the Queensland Blind Association. He stated that someone offered to come to them for one day a week and clean the house for an hour or so. He was initially somewhat vague as to who provided this advice. When prompted by the Tribunal, he stated that HACC said they could provide one hour a week. He rang them and they talked to him on the phone. They said they did not give written advice. He tried to ring a few places. The Tribunal put to the applicant that HACC was based on an assessment of a person’s needs and asked whether the review applicant had arranged an assessment of his wife’s needs. He stated that the Blind Association came to his house and did an assessment. The review applicant stated that he rang HACC. The Guide Dog people came to his home. They could not provide the full-time assistance required. The Tribunal asked the review applicant whether he had contacted RSL Home Care or Home Instead Senior Care as suggested by the Blind Association. The review applicant stated that he rang a few but they could only provide one or a couple of hours’ care a week. They could not get any help from Punjabi speaking carers. When the Tribunal sought to confirm that his wife could understand English, the review applicant said that she could “a bit”.
  15. With regard to his mother’s ability to care for his wife, the review applicant stated that she did it for a year. There are no other family members to help. The Tribunal referred to notes made by a Departmental officer to the effect that his mother appeared to have mobility difficulties. The review applicant said that his mother does not have any problems walking. She would also be willing to provide substantial and continuing care. Both his parents are retired. His father receives an Indian pension. His mother knows about his wife’s condition from caring for her in the past. His father is supportive of his mother taking on this caring role. The review applicant stated that he would support his parents financially. If they were in Australia, he would work more. They would not have any accommodation costs.
  16. The review applicant indicated that his son, Tanveer, is now seven years old. He attends school. He stated that his mother could look after Tanveer and provide assistance to Mrs Heir at the same time. She would take Tanveer to school. She might be gone for 10 or 15 minutes. The review applicant stated that his wife could accompany them to school if his mother were there.
  17. The review applicant stated that his wife has other problems in addition to her vision. She goes to hospital regularly. He needs someone in the family to support him. The Tribunal noted that the condition referred to in the HSA assessment was “loss of visual fields” and indicated to the review applicant that this would be the Tribunal’s primary focus.
  18. The review applicant’s representative stated that the review applicant was not contending that his wife requires 24-hour, hands-on care every minutes of the day. Rather she needs someone to be with her most of the time. There are so many occasions when she needs help. She cannot simply ask someone to come in and help at that time. She is not able to live independently.
  19. The Tribunal also spoke with Mrs Heir. When asked about how her condition affects her ability to carry out day-to-day tasks, she stated that the main problem is reading and writing. Her son also needs to be dropped at school. She needs help with cooking and cleaning. The Tribunal asked Mrs Heir about tasks such as showering, going to the toilet and cleaning her teeth. Her response was that she can cope but needs help. She takes medicine. Sometimes she starts to bleed. It is hard if there is no one around. She also forgets things and has to write everything on the calendar. She forgets when blood tests need to be done. She sometimes forgets to take medications. The Tribunal asked Mrs Heir whether someone helps her to shower or get dressed. She stated that her husband’s niece and cousin help in that area. They supply the clothes and other articles she needs. They help her to move around the house. They clean the house, wash clothes and do the ironing.
  20. Mrs Heir stated that her mother-in-law also cared for her for a while. Her mother-in-law did everything. She cooked, cleaned and dropped Tanveer at school. She helped with things like getting meals and getting dressed. Her mother-in-law also looked after her when she was in India.
  21. Mrs Heir stated that she has a number of medical conditions. She has a pacemaker that has to be adjusted regularly. When her husband is working, there is no one else to look after their son. She has other appointments at the hospital.
  22. The Tribunal also spoke with the visa applicant. She described caring for her daughter-in-law in the past. She stated that she took her grandson to school, and did the housework and cleaning. She also indicated that she helped her daughter-in-law with showering, dressing and getting meals ready. Her son used to explain what medicines to give. Her daughter-in-law was in a lot of trouble. She used to feed her and bath her. The visa applicant said that she would provide care for her daughter-in-law for as long as she could. She would be willing and able to provide substantial and continuing assistance. She would live at her son’s house.
  23. The visa applicant expressed concern about her son and daughter-in-law being alone in a foreign country. She stated that she would like to be able to help them. She would not want them to suffer.
  24. The Tribunal gave the review applicant and his representative until 10 June 2009 to provide any additional material. It subsequently extended this period to close of business on 16 June 2009.

Post-Hearing Submissions

  1. Following the hearing, the Tribunal received from the review applicant’s representative letters from two doctors.
  2. The first was a letter, dated 5 June 2009, from Dr Ron Hazelton, Medical Director of the Brain Injury Rehabilitation Unit at Princess Alexandra Hospital. Dr Hazelton provided information concerning Mrs Heir’s medical history and described her as having sustained “a severe brain injury”. He stated that she “has a very poor short term memory, as well as severe visual impairment and is legally blind”. He stated that she “requires supervision for her safety 24 hours a day seven days a week and is unable to live alone because of her severe cognitive difficulties and visual impairment”. Dr Hazelton recommended that additional family assistance be obtained.
  3. The Tribunal was also provided with a letter, dated 5 June 2009, from Dr McGree. Dr McGree stated that he had “no direct experience in rehabilitation” and that he had referred Mrs Heir to the Low Vision Clinic at Greenslopes. He attached a copy of the relevant referral letter. This described her condition, indicating that she “has extreme visual field constriction down to less than 5 degrees associated with worsening on the temporal aspect of both fields”. It described her as having some difficulty with normal daily independent living.
  4. The review applicant’s representative also provided a further submission, dated 15 June 2009. It was submitted that “a search of available services” had indicated that the Australian citizen might be eligible for services such as those provided under the Home and Community Care (HACC) program. However, information “provided by HACC” indicated that being eligible for this service did not automatically mean that a person would “get the service due to the high level of demand for the service”. It was submitted that HACC services were not available at night when additional assistance might be required. Reference was made to advice to the effect that any services out of business hours “would need to be sought from private nursing organisations and would attract substantial fees”. The submission cited unsourced information indicating that HACC services in Queensland “are much lower than in other states”. It was submitted that the review applicant had contacted Centrelink and the Greenslopes Low Vision Care Centre and been advised that the sort of assistance recommended by Dr Hazelton was not available.

FINDINGS AND REASONS

  1. As noted above, cl.116.211 requires that the visa applicant claim to be the carer of an Australian relative, being a relative who is an Australian citizen, permanent resident or an eligible NZ citizen. The visa application was made on the basis that the visa applicant’s daughter-in-law, Mrs Heir, required the visa applicant’s care. However, the material submitted with the application also clearly referred to the review applicant’s need for assistance in providing direct assistance to his wife. The visa applicant was in fact sponsored by the review applicant. The Tribunal considers that it is sufficiently clear from the visa application that the visa applicant claimed to be the carer of her son, the review applicant.
  2. The visa applicant’s daughter-in-law, Mrs Heir, does not meet the definition of “Australian relative” in relation to the visa applicant as she is not a relative of the visa applicant. The definition of relative in r.1.03 includes a “close relative” and the term “close relative”, in turn, includes a child, adopted child or step child. However, Mrs Heir is not the child, adopted child or step-child of the visa applicant. She is not related to the visa applicant in any of the ways identified in the definition of relative in r.1.03.
  3. However, the Tribunal has accepted that the visa applicant claimed to be the carer of the review applicant. The Tribunal has before it a certified copy of the review applicant’s marriage certificate which identifies Hansa Singh as his father. It also has a copy of the visa applicant’s marriage certificate indicating that she married Hansa Singh on 9 April 1964. In all the circumstances, the Tribunal accepts that the review applicant is the visa applicant’s son. The term “child” is not defined in the Regulations. However, the definition of “child” in the Macquarie Dictionary, includes a son or daughter. The Tribunal accepts that, as her son, the review applicant is a close relative and therefore a relative of the visa applicant. As indicated by his passport, the review applicant is an Australian citizen. The Tribunal finds that at the time of application the visa applicant claimed to be the carer of an Australian relative, namely her son (the review applicant), and therefore meets the requirements of cl.116.211.
  4. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse of the Australian relative, who has turned 18. The visa applicant has been sponsored by her son, the review applicant. As set out above, the Tribunal is satisfied that the review applicant is an Australian relative of the visa applicant. Accordingly, the visa applicant satisfies cl.116.212.
  5. Clause 116.221 requires that, at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). This requires consideration of r.1.15AA of the Regulations. In the present case, the Australian relative is identified as the review applicant. The Tribunal is satisfied that the visa applicant is a ‘relative’ of the review applicant within the meaning of r.1.03, and therefore meets the requirements of r.1.15AA(1)(a).
  6. The Tribunal is satisfied that Mrs Heir, the review applicant’s wife, is a member of his family unit. It has before it a certificate that indicates that Mrs Heir, who suffers from loss of visual fields as a consequence of complications associated with an operation in October 2006, has a medical condition which is causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life. The Carer Visa Assessment Certificate, issued by HSA and signed by the medical officer who carried out the assessment on 14 June 2007, gave an impairment rating of 40 to Mrs Heir. It indicated that, because of the condition, Mrs Heir had, and would continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). The Tribunal further finds that the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the Tribunal finds that the requirements of r.1.15AA(1)(b) are met. The Tribunal finds that the rating mentioned in r.1.15AA(1)(b)(iii) exceeds the impairment rating of 30 specified by Gazette Notice IMMI 07/012 and therefore meets the requirements of r.1.15AA(1)(c).
  7. Under policy the certificate is valid for 18 months. The Department’s policy in PAM3 states as follows in this regard:
If the certificate is more than 18 months old (at time of visa decision), it is open to officers to ask the relative to undertake a fresh examination by HSA. As this is not prescribed in regulations, however, officers must be flexible in applying the 18 month “rule”, bearing in mind that a new examination or assessment will incur a fee.
  1. As noted in the policy, the 18 month “rule” is not prescribed in the Regulations. Some flexibility is required in applying such a “rule” The Tribunal notes that the HSA assessment described Mrs Heir as suffering from bitemporal hemianopia and loss of visual fields. The Tribunal also has before it a report, dated February 2009, from Dr McGree, which indicates that Mrs Heir’s condition is now such that she fulfils the requirement for legal blindness. Dr McGree stated that nothing could be done to improve Mrs Heir’s vision. The Tribunal has also had regard to the recent letter from Dr Hazelton, which states that the applicant sustained a severe brain injury and that she has severe visual impairment. The Tribunal considers that the evidence before it indicates that there has not been any significant improvement in Mrs Heir’s condition since June 2007. In spite of the lapse of time, the Tribunal considers it appropriate in this case to act on the earlier HSA certificate rather than requiring Mrs Heir to undertake a fresh examination by HSA. In all the circumstances, the Tribunal finds that the visa applicant satisfies regulation r.1.15AA(1)(b) and (c).
  2. Pursuant to r.1.15AA(1)(d), the Tribunal must consider whether the review applicant has a permanent or long-term need for assistance in providing the direct assistance to his wife. The Tribunal accepts that Mrs Heir effectively requires monitoring and supervision on an ongoing basis. The Tribunal has taken account of Dr Johns’s opinion that Mrs Heir’s condition has had “a devastating impact on her ability to live independently”. It also attaches significant weight to Dr Hazelton’s opinion, expressed in his letter of 5 June 2009, that Mrs Heir requires supervision for her safety 24 hours a day seven days a week. The Tribunal also considers that the constancy of Mrs Heir’s care needs is reflected in the fact that the review applicant has recruited various parties, including his mother-in-law, his niece and his cousin’s sister, to supervise and assist his wife. The Tribunal accepts that the short period when he did not have such assistance available caused him great stress and difficulty. In light of such evidence, the Tribunal accepts that the assistance required by Mrs Heir is great. The Tribunal accepts that the review applicant experiences considerable difficulty in balancing the demands of providing for the family, looking after his son and providing for his wife’s care needs. He is able to do so at present only with the assistance of his niece and his cousin’s daughter, assistance that is short-term in nature. The Tribunal accepts that the review applicant works two eight-hour days each week as a bus driver for the Brisbane City Council as well as driving taxis up to three days a week. He clearly has some flexibility in his employment such that he is able to take his wife to appointments as required. Nevertheless, the Tribunal considers that this leaves him with a significant need for assistance in meeting his wife’s day-to-day care needs. It finds that he has a permanent or long-term need for assistance in providing the direct assistance to his wife.
  3. The Tribunal is of the view that r.1.15AA(1)(e)(i) requires consideration of whether the assistance cannot reasonably be obtained from any relative of ‘the resident’. In this case ‘the resident’ is the review applicant. The Tribunal notes that the review applicant’s niece has been assisting in Mrs Heir’s care. As his niece, she is a relative of the review applicant. However, the Tribunal accepts that she is not an Australian citizen or permanent resident. In any event, the Tribunal accepts that the applicant’s niece and his cousin’s daughter have agreed to provide care on a short-term basis and this temporary arrangement does not address either Mrs Heir’s need for direct assistance or the review applicant’s long-term need for assistance in providing the direct assistance. The Tribunal is satisfied that assistance cannot reasonably be obtained from any other relative of the resident (the review applicant).
  4. Even if r.1.15AA(1)(e)(i) encompasses the relatives of Mrs Heir (and the Tribunal considers that it does not), the Tribunal is satisfied that the assistance cannot reasonably be obtained from her relatives in Australia. It is satisfied that they are unable and unwilling to provide the assistance required. In determining the reasonable obtainability of sources of assistance, the Federal Court in Lin v MIMIA [2004] FCA 606 (Branson J, 13 May 2004) held that the proper test requires a consideration of whether any relatives wish to provide assistance and not whether any relatives can reasonably provide it. The Tribunal accepts the evidence, including the statement from Mr Virk himself, indicating that he has his own family. The Tribunal is satisfied that Mrs Heir’s brother in Australia has his own commitments and does not wish to provide the review applicant with the amount of assistance in caring for Mrs Heir that is required.
  5. Given the level and constancy of care that Mrs Heir needs, the Tribunal accepts that the review applicant cannot reasonably obtain the required assistance from welfare, hospital, nursing or community services in Australia. It is probable that some HACC services would be available to Mrs Heir. However, the Tribunal notes that the letter from the Blind Association indicates that full-time care would be available only at a cost. It accepts that paying for such care would be prohibitively expensive. The Tribunal notes the advice of Dr Johns that that Mrs Heir’s condition has had “a devastating impact on her ability to live independently”. It was apparent to the Tribunal at the hearing that she was not at all comfortable moving around without assistance. She requires assistance with a broad range of daily activities. The letter from Dr Hazelton indicates that her care needs are very high in that she requires supervision 24 hours a day, seven days a week for her own safety. The Tribunal accepts on the evidence before it that her care needs are high and fairly constant. In these circumstances, the Tribunal is satisfied that the assistance required by the review applicant in providing his wife with direct assistance in attending to the practical aspects of daily life cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. It is satisfied that the requirements of r.1.15AA(1)(e) are met.
  6. In making this finding, the Tribunal has also had regard to the fact that the term “community services” is defined in r.1.03 to include an Australian social security benefit, allowance or pension. Both carer payment and disability support pension are social security pensions within the terms of s.23 of the Social Security Act 1991. The correspondence from the Blind Association suggests to the review applicant that he might be eligible for a “Carers Pension” and that Mrs Heir might be eligible for a disability support pension. The review applicant has indicated that his wife is in fact receiving a disability support pension. The Tribunal accepts that the money received from this is limited and that the required assistance cannot reasonably be obtained through this pension. It might well be that the review applicant could qualify for carer payment if he were to provide constant care for his wife. However, the review applicant is a young man with limited family support in Australia He also has the responsibility of caring for his young son and providing for him financially. The review applicant is working in two jobs in order to provide for the needs of his wife and son. The Tribunal does not consider that it would be reasonable in all the circumstances to require the review applicant to give up his employment in order to provide the assistance for his wife personally and qualify for carer payment.
  7. The visa applicant gave evidence that she is willing and able to provide the review applicant with substantial and continuing assistance in looking after the review applicant’s wife. The review applicant, the visa applicant and Mrs Heir all gave evidence to the effect that the visa applicant has cared for Mrs Heir in the past, in both India and Australia. The Tribunal accepts that this is the case. It follows that the Tribunal accepts that the visa applicant has a sound understanding, from her practical experience, of the type and degree of assistance required. The Tribunal considers that the visa applicant’s age is a relevant factor. It notes the observations of the Departmental officer to the effect that the visa applicant appeared to have mobility difficulties. However, it attaches little weight to this as there is nothing to indicate that the officer has any expertise in this area. The Tribunal has been provided with a medical certificate indicating that the visa applicant’s health is sound. It accepts that the visa applicant has, in the recent past, provided Mrs Heir with the assistance she requires across various aspects of her daily activities. While the Tribunal considers that this assistance would be time-consuming, it is of the view that it would not be particularly physically demanding in the sense of requiring heavy lifting. The assistance relates to supporting Mrs Heir with day-to-day tasks such as food preparation. It does not require any particular expertise. The Tribunal accepts that the visa applicant has demonstrated a willingness and ability to provide assistance of the kind needed. It accepts that the visa applicant and her husband would be accommodated and supported by the review applicant, who could increase his working hours. The Tribunal is satisfied that, in spite of her age, the visa applicant would be willing and able to provide the review applicant with substantial and continuing assistance of the kind needed.
  8. As the Tribunal is satisfied that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed, she meets the requirements of r.1.15AA(1)(f).
  9. As the visa applicant meets all the requirements of regulation 1.15AA, she is a carer within the meaning of the Regulations. As she is the carer of an Australian relative, the review applicant, she meets the requirements of cl.116.221.

CONCLUSIONS

  1. For the reasons given above the Tribunal finds that the first named visa applicant satisfies the requirements of cl.116.211, 116.212 and 116.221. The appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for the visa. If the first named visa applicant is found to meet the remaining criteria, then she is entitled to the grant of a subclass 116 visa.

DECISION

  1. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 116 (Carer) visa:

Don Smyth
Member


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