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1210307 [2013] MRTA  2133  (28 August 2013)

Last Updated: 18 September 2013

1210307  [2013] MRTA 2133  (28 August 2013)

DECISION RECORD

MRT CASE NUMBER: 1210307

DIAC REFERENCE: OSF2011/035256

TRIBUNAL MEMBER: Jennifer Ellis

DATE: 28 August 2013

PLACE OF DECISION: Melbourne

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 of Schedule 2 to the Regulations;
• cl.116.212 of Schedule 2 to the Regulations; and
• cl.116.221 of Schedule 2 to the Regulations.

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s.65 of the Migration Act 1958 (the Act).
2. The visa applicant applied to the Department of Immigration for the visa [in] March 2011. At the time the visa application was lodged, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.
3. The delegate refused to grant the visa [in] May 2012, on the basis that cl.116.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the visa applicant did not satisfy the definition of carer.
4. The review applicant was represented in relation to the review by her registered migration agent.
5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

APPLICANT CLAIMS TO BE CARER

6. Clause 116.211 of the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is the carer of the review applicant, who is the visa applicant’s mother.
7. 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 r.1.03 of the Regulations.
8. On the basis of a certified copy of the review applicant’s Certificate of Australian Citizenship, the Tribunal finds that the review applicant, is an Australian citizen, both at the date of the visa application and the date of the decision, and acquired that citizenship in 2003.
9. On the basis of the visa application the Tribunal finds at the time of the application that the visa applicant claimed to be a carer for her mother. The Tribunal finds, on the basis of documents submitted to the Department that the visa applicant is the daughter of the review applicant. Consequently, the Tribunal finds that the review applicant is an ‘Australian relative’ of the visa applicant for the purpose of the regulations.
10. The Tribunal finds that at the time of application the visa applicant claimed to be the carer of an Australian relative and therefore satisfies the requirements of cl.116.211.

SPONSORSHIP

11. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).
12. The Tribunal finds that at the date of the application the visa applicant was sponsored by the review applicant, the Australian relative and further finds that the Australian relative was born in [year] and therefore had turned 18 for the purpose of cl.116.212(a).
13. The Tribunal finds that at the time of application, the visa applicant was sponsored as required by the legislation and therefore satisfies cl.116.212.

APPLICANT IS THE CARER

14. Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer is defined in r.1.15AA of the Regulations, and is set out in the attachment to this Decision.

Applicant is a relative of the resident – r.1.15AA(1)(a)

15. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or ‘relative’). In the present case, the Australian relative is identified as the visa applicant’s mother.
16. Given its earlier findings on this issue, the Tribunal finds that the visa applicant is the daughter of the review applicant who is the Australian relative. Accordingly, it finds that the visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and therefore meets the requirements of r.1.15AA(1)(a).

Certification – r.1.15AA(1)(b)

17. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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 impairments of the ability of that person to attend to practical aspects of daily life; that the impairments 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.
18. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 07/013), or issued by a specified health provider in relation to a review of such an opinion.
19. The Tribunal finds on the basis of a certificate from Medibank Health Solutions (MHS) dated [in] November 2010 and an updated certificate [dated] August 2013 that the review applicant has a medical condition which is causing physical impairment of the ability of that person to attend to the practical aspects of daily life and has an impairment rating of 30.
20. The Tribunal is also satisfied that the certificates dated [in] November 2010 and 6 August 2013 from MHS meet the requirements of 1.15AA (2)(a) of the regulations.
21. On the basis of the details contained in the certificate from MHS dated [from] August 2013 and on the basis of the other medical evidence, which was consistent with the needs expressed in the certificate, the Tribunal finds that the review applicant has the following conditions and needs the following care and assistance:
    • She became ill in 2007 with [a medical condition];
    • She needs assistance with hygiene, toileting, dressing, eating and feeding. This care is required on an ongoing daily basis;
    • She requires assistance with transport; and
    • She requires constant supervision or monitoring.
22. On the basis of the certificate the Tribunal is further satisfied that the review applicant has a need for direct assistance in attending to the practical aspects of daily life because of the medical condition and because of the medical condition will continue for at least 2 years to have a need for direct assistance in attending to the practical aspects of daily life. Consequently the requirement of r.1.15AA (1)(b) is met.
23. 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.

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

24. 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.
25. In the present case, the person with the medical condition is the review applicant who is an Australian citizen. Accordingly, the Tribunal finds that the requirements of r.1.15AA(1)(ba) are met.

Impairment rating – r.1.15AA(1)(c)

26. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by Gazette Notice. The relevant Gazette notice for these purposes is IMMI 07/012.
27. In the present case, the impairment rating specified in both certificates is 30. The Tribunal finds that the rating equals the impairment rating specified by the relevant Gazette Notice of 30 and therefore meets the requirements of r.1.15AA(1)(c).

Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)

28. As the person to whom the certificate relates is the Australian relative (resident), this provision is not applicable.

Assistance cannot be reasonably obtained / provided – r.1.15AA(1)(e)

29. Regulation 1.15AA(1)(e)(i) 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.
30. The review applicant is married but her husband resides in Vietnam. Apart from the visa applicant, she has one other child in Vietnam and one child in Australia, namely her daughter. The review applicant actually came to Australia in to care for this daughter and there is medical evidence before the Tribunal to indicate that her daughter suffers from [a medical condition]. Her daughter is clearly not able to provide her mother with any care. The review applicant lives with her daughter, son in law and grandson and the delegate was of the view that she could be adequately cared for by her son in law with some additional help. However the Tribunal notes that a son in law is not a relative as defined under the regulations and her grandson was under 18 at the date of application.
31. On the basis of this information and the other evidence before it, the Tribunal accepts that the review applicant’s daughter in Australia is in less than optimal health and is unable to provide ongoing care to her mother in any way.
32. Given the nature and extent of the review applicant’s permanent need for assistance, the Tribunal is satisfied that the assistance cannot reasonably be provided to the review applicant by any other relative in Australia.

Assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia- r.1.15AA(1)(e)(ii)

33. Regulation 1.15AA(1)(e)(ii) requires the Tribunal to assess whether the assistance that is required by the review applicant, cannot reasonably be provided by welfare, hospital, nursing or community services in Australia.
34. The review applicant submitted evidence from a [social worker] who stated that the family was under enormous strain from the medical needs of both the review applicant and her daughter and already stretched Government resources would struggle to provide the care required and that it would be ideal to have access to an available family member. The application was also strongly supported by a letter from [a Member of Parliament] who stated that current services could not provide the degree or regularity of the care required.
35. Given the ongoing nature and extent of the assistance required, and the fact that the review applicant’s daughter also has significant medical needs of her own, the Tribunal finds that the assistance the review applicant requires could not be obtained from other sources, namely welfare, hospital, nursing or community services in Australia.
36. In conclusion, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are met.

Willing and able – r.1.15AA(1)(f)

37. 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 addressing this criterion, 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.
38. 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 r.1.03. 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.
39. The Tribunal is satisfied based on the evidence before it that the visa applicant is willing to provide to her mother the substantial and continuing assistance of the kind needed. When interviewed she was said to have demonstrated an understanding of her mother’s medical conditions and of her care needs.
40. However, 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. The visa applicant is a divorced woman [age] having been born in August [year] who does not have any children and is in good health. She submitted evidence that she is a nurse and has worked in a hospital [emergency ward]. The Tribunal finds based on the evidence before it that the visa applicant could provide the assistance required on an ongoing daily basis.
41. The Tribunal finds that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and therefore meets the requirements of r.1.15AA(1)(f).
42. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221. 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

43. 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 of Schedule 2 to the Regulations;
    • cl.116.212 of Schedule 2 to the Regulations; and
    • cl.116.221 of Schedule 2 to the Regulations.
      

Jennifer Ellis
Member

ATTACHMENT

Migration Regulations 1994

R.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, 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 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:

(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.

(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.