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1305059 [2014] MRTA  1296  (6 May 2014)

Last Updated: 29 May 2014

1305059  [2014] MRTA 1296  (6 May 2014)

DECISION RECORD

MRT CASE NUMBER: 1305059

DIBP REFERENCE(S): OSF2012/004147; OSF2013/015250

TRIBUNAL MEMBER: Margret Holmes

DATE: 6 May 2014

PLACE OF DECISION: Melbourne

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

• 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 and Border Protection (the Minister) [in] February 2013 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 for the visa [in] March 2012. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the first named visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221 which requires that an applicant be the carer of an Australian relative.
3. After the visa applicant was interviewed [in] January 2013, the delegate refused to grant the visas on the basis that cl.116.221 was not met. A copy of the delegate’s decision was provided with the review application.
4. The review applicant appeared before the Tribunal on 6 January 2014 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by phone and from her [mother] and her sister [Sister A] who attended the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
5. The issue in the present case is whether the applicant is the carer of the review applicant within the meaning of r.1.15AA of the Regulations.

BACKGROUND TO THE VISA APPLICATIONS

6. The first named visa applicant (who will be referred to from now as the visa applicant) is the 27 year old sister of the review applicant. She is a citizen of Iraq who states that she is separated. She said at the interview [in] January 2013 that she was divorced in [2012] and at the hearing the Tribunal was told that the visa applicant had remarried in June 2013.
7. The visa applicant’s four children are the secondary applicants for the visa. The second named visa applicant is a boy who is aged [age]; the third named visa applicant is a girl who is [age]; the fourth named visa applicant is a boy who is [age]; and the fifth named visa applicant is a girl who is [age].
8. The review applicant is a 20 year old woman who came to Australia in 2005, after the death of her father, when she was 12 and who is an Australian citizen. At the time of this decision, she lives with her mother and her mother’s husband in a three bedroom house.
9. The review applicant has cerebral palsy with associated hip displacement and no effective use of her right arm. She has reasonable left arm and hand function and uses a powered wheelchair although requires assistance with transfers; ‘severe functional impact on activities using lower limbs’ is noted by the doctor who completed the Carer Visa Assessment Certificate. Medical documents on the Department’s file indicate that she also suffers from epilepsy. The review applicant’s voice is significantly affected by her condition.
10. The review applicant has had surgery on her hip and knee in 2007, 2011 and 2012 and notes on the Department’s file about her discharge from hospital [in] July 2008 record that she had less mobility and frequent falls since the operation. At the hearing the review applicant, and her mother, told of her disappointment that the operations had not delivered the improved mobility everyone had hoped would follow. The visa applicant apparently now suffers from depression, apparently on account of her medical conditions.
11. Despite her disability, the review applicant has been to school, is undergoing vocational training at TAFE where she goes by taxi, and wants to get a job. She can get around her local area by herself on her scooter. She has travelled back to Iraq three times accompanied by her mother, her sister [Sister A] or her brother [Brother B]. Notes on the Department’s record that a high school teacher described her as gregarious and it was the Tribunal’s observation that she is a resilient and optimistic person well able to understand and interpret all that is going on and have, and express, a view about it.

CONSIDERATION

12. 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, which is set out in the attachment to this decision. The following sets out the evidence and the Tribunal’s conclusions in respect of each element of that definition, that is r.1.15AA(1) to (f).
13. 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 sister. A copy of a translation of the visa applicant’s Iraqi birth certificate is on the Department’s file and shows her mother as [the review applicant’s mother], whose name is given as [a name variation] in a personal particulars form completed by the visa applicant and which is on the Department’s file.
14. The Tribunal finds that the visa applicant is the sister of the Australian relative. Accordingly, 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).
15. 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 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.
16. For a certificate to meet r.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 or issued by a specified health provider in relation to a review of such an opinion.
17. A Carer Visa Assessment Certificate dated [in] February 2012 was submitted in support of the visa application and is at ff 9 – 13 of the Department’s file OSF2012/004147. It is from Medibank Health Solutions, the successor organisation to Health Services Australia which is the provider specified by the Minister in Instrument IMMI07/013 of 16 April 2007.
18. The certificate states that the review applicant has a medical condition causing impairment of her ability to attend to the practical aspects of daily life; that she has a need for direct assistance in attending to the practical aspects of daily life because of that medical condition; and the medical condition will continue for at least 2 years as will a need for direct assistance in attending to the practical aspects of daily life.
19. The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). It addresses each of the matters mentioned in r.1.15AA(1)(b)(i) - (iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
20. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
21. In the present case, the person with the medical condition, the review applicant, is an Australian citizen. A copy of the biographical page of her Australian passport is at f 0 of the Department’s file OSF2012/004147. Accordingly, the Tribunal finds that the requirements of r.1.15AA(1)(ba) are met.
22. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI07/012 dated 23 April 2007 and it specified that the impairment rating is 30.
23. In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
24. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.
25. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.
26. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
27. It is useful here to set out just what assistance the review applicant requires. Documents before the Tribunal indicate that she needs help on a daily basis with washing; toileting; dressing; and mobility including getting in and out of bed and transport. Although the review applicant has been able to maintain a degree of independence, these practical matters are things with which she needs help every day.
28. Reasonableness must be assessed in light of the circumstances of the applicant with a focus on the ability of the person requiring the care to access the assistance they need: Naidu v MIMIA [2004] FCA 1692; (2004) 140 FCR 284 at [22]. Whilst the personal circumstances of the relative may be relevant to the question of whether services can reasonably be obtained from them, the mere fact that there may be some practical difficulties for family members in providing care does not compel a conclusion that the services cannot be reasonably obtained from them: Lam v MIBP [2013] FCCA 1263 at [44] – [47]. Further, while cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].
29. The review applicant lives with her [mother] whose [partner] came to Australia in 2008. The review applicant has a brother [Brother B] who is now [age] and her sister [Sister A] who is [age].
30. [The review applicant’s mother] is only 46 but appears, and appears to feel, rather older. She is said to have back pain, diabetes and high blood pressure; the visa applicant said at the interview [in] January 2013 that her mother was tired. At the hearing the review applicant said that sometimes her mother could help her move by lifting her but not all the time because of her mother’s physical limitations. [Her mother] generally helps her daughter dress. In her evidence at the hearing, [her mother] said sometimes the review applicant tries to move herself from her chair and falls; this had happened just before their most recent departure for Iraq when [the mother] had been ill. Photos of a deep cut sustained to the review applicant’s chin as a result of the fall were submitted.
31. After the hearing the Tribunal was provided with a letter from a person associated with [a welfare agency]. It states that [the review applicant’s mother] had a hysterectomy in 2013 and that [she] has difficulty caring for the review applicant. [The mother] said at the hearing that she had continuing medical problems after this surgery.
32. The Tribunal was told by the review applicant that [her mother’s] [husband] is older and cannot do very much to help her (the review applicant) although he had done so in the past. He had no capacity to lift her. At the hearing the review applicant said that she had returned from one trip to Iraq, in 2012, a couple of weeks before her mother and had been at home just with [her stepfather] and [Sister A]. She said that they had managed and that her mother had left food frozen for them. [Sister A] had travelled back to Australia with the review applicant and had helped her with bathing and dressing and so on at this time.
33. [Brother B] was living at home with his mother and sisters at the time of the visa application but later moved out when he married. He has one child. The review applicant said she had visited his home once, that he was busy with his work and he did not visit his mother or the review applicant very often.
34. [Sister A] was also living at home at the time of the visa application but moved out to live with her husband when she married which was [in] April 2013. A copy of her marriage certificate was submitted to the Tribunal. She now lives in [Town A], about an hour by car from where the review applicant lives, and she is having a baby. At the hearing the review applicant told of [Sister A] often coming to help her dress or put her to bed although said she would see [Sister A] less than once a week. [Sister A] said that she had noticed a deterioration in the review applicant when she ([Sister A]) left the family home after marrying and the Tribunal notes that the medical certificate about the diagnosis of depression and [Sister A’s] marriage happened around the same time. After [Sister A] left, the review applicant was at home just with her mother and her mother’s [husband].
35. The Tribunal has come to the view that there are limitations on [the review applicant’s mother’s] capacity to provide, on a continuing basis, her daughter the review applicant with the assistance she needs for washing; toileting; dressing; and mobility including getting in and out of bed and transport. In all likelihood [her mother’s] capacity to help with anything involving lifting, as much of the review applicant’s care requires, will lessen in future. The Tribunal does not consider that [her] [husband] can reasonably provide assistance with the review applicant’s personal care and considers that the review applicant’s siblings [Brother B] and [Sister A] are not in a position to assist their sister with the practical aspects of daily life on a daily, regular or frequent basis because they live apart with their spouses and each have a young child. It is not practical for them to go to the review applicant regularly at particular times to help care for her when [their mother] is unable to help.
36. The Tribunal finds that the assistance required by the review applicant cannot reasonably be provided by any other relative of the review applicant who is an Australian citizen or permanent resident.
37. The Tribunal has considered whether the assistance required for the review applicant can reasonably be obtained from welfare, hospital, nursing or community services here in Australia. It was this aspect of the case which has caused the Tribunal some concern.
38. Information was submitted to the Department which shows that the family, in particular the review applicant and her [mother], have had considerable and coordinated medical, welfare and psychological support from community services from at least 2006. Notes from that time indicate that [the mother] was feeling overwhelmed with caring for the review applicant. These also show that [the mother] was shown how to deal with the practical aspects of her daughter’s care, including her seizures.
39. At the hearing the review applicant said that she did not like someone touching her if she did not know them. She said that as a Muslim she could not be exposed to strangers and it was not allowed in her religion. She referred to people who cared for her after surgery who she plainly found wanting and she said she had complained about the nurses, about not having her own room and about having to share a ward with men. Asked whether she had ever talked with anyone about what help might be available, the review applicant said she had not and that the council had never been approached about her needs.
40. [The welfare agency], in the letter provided after the hearing, states that the help available form Home and Community Care is not enough for the review applicant who needs someone present all the time. It is stated that the review applicant has refused to have a stranger help with her personal care.
41. Also provided after the hearing was a letter from a [Department of Human Services Case Manager] who had assisted the family in 2007. [The Case Manager] writes of the cultural factors which mean that ‘only a female family member can assist with meeting personal support needs’. [She] reports on a number of complaints the review applicant and her mother had with the treatment at [a] Medical Centre.
42. The Tribunal was told by [the review applicant’s mother] that a person had come once to clean and had not done it properly; then [she] said that she had tried a few times with a cleaner and it was not good, and then they charged her for the work which she plainly found unacceptable.
43. Given the extensive support the family has had for a long time, the Tribunal was surprised by [the mother’s] assertion that no one had ever knocked on their door to offer help and she said that she had asked. She complained that no one trained her to use equipment installed to help the review applicant. The Tribunal pointed out that there had been a dedicated case manager coordinating a number of agencies’ assistance and [the mother] said that that person was not only for her but had other clients to look after as well. She said that services would be available for two hours a day and asked what about the rest of the time.
44. The Tribunal accepts that sharing a ward in hospital with men would be very uncomfortable for most women and that this is common in orthopaedics. Apart from that complaint, the Tribunal observes that other complaints by the review applicant and [her mother] seem to be, at best, very unreasonable especially having regard to the sustained, coordinated and practical assistance which the family has received from a number of health professionals over many years.
45. The Tribunal also rejects the claim, supported in the letter from [the Case Manager], that only a female family member can assist with personal care. The Tribunal considers it reasonable that the review applicant would not want a male carer to assist her: such a preference is not confined to Muslims. The Tribunal is of the view that it is not more than the applicant’s preference that such help be provided by a female relative, that is her mother or one of her sisters as is the visa applicant. Publicly funded community care services are not expensive for people of limited means and the carers who attend are trained. Providers have quality review and evaluation measures, and complaint handling procedures, to ensure that a good standard of care is maintained appropriate to the actual needs of clients.
46. In assessing whether the review applicant can reasonably obtain the assistance she needs from welfare, hospital, nursing or community services, the Tribunal has had in mind the review applicant’s particular circumstances including her need for help on daily basis with washing; toileting; dressing; and mobility including getting in and out of bed and transport. At least two visits a day, every day, by a carer would be required in order for the review applicant to get ready for her day and go to bed at night. While the Tribunal considers that two visits a day could be accommodated, in light of the heavy demand for such services it considers it very unlikely that such services would be able to always reliably arrive at the same time, or within a small window, every day. The implications of a late arrival for the review applicant are profound: she could miss or be very late for her classes or her work once she gets a job, or required to go to bed at hours not consistent with her needs. Such interruptions to the pattern of care would, in the review applicant’s circumstances, significantly and adversely affect her capacity to engage in activities outside the home and her ability to maintain and develop further her independence and so affect her quality of life. These matters are important to her and she has shown considerable spirit and commitment in doing as well as she can despite her significant disability.
47. The Tribunal has some reservations about the degree to which the family has tried to access community services to assist with the care of the review applicant and again notes the striking and unreasonable criticisms levelled against professionals who have worked so consistently to help the family. However, in the end the Tribunal is satisfied that the assistance required by the review applicant 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.
48. 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.
49. 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.
50. In the visa application, the visa applicant states that she will help the review applicant with walking, showering, eating, getting dressed and undressed, going to the toilet and getting into bed, taking her for a walk and giving her medications. At the interview [in] January 2013, the visa applicant described the review applicant’s conditions and referred to her sister not being able to talk very well. The visa applicant was aware that her sister can do some things for herself, eating or brushing her hair, but that she needs help with many things.
51. It is of concern that when the visa applicant was asked at the interview [in] January 2013 about where she and her children would live if they came to Australia, she said she did not know and they would decide when they arrive. It is hard to see that the visa applicant could think that she could live other than with the review applicant if her wish to come to Australia as her sister’s carer is genuine.
52. At the hearing, the review applicant said that she and the visa applicant would share her room and that the four children would have the other bedroom; this proposed arrangement was confirmed by the review applicant’s mother who also said that a sitting area could be made into a fourth bedroom, perhaps in anticipation that the visa applicant’s new husband will join her so making impractical the plan that the visa applicant and the review applicant share a room. The review applicant said that the children are all in one room now at their home in Iraq. The Tribunal asked if the review applicant had spoken with the Office of Housing about a bigger house and she said she had not. [Her mother] said that she could apply for a bigger house if the visa applicant’s husband later came to Australia and she reminded the Tribunal that she had the right to do so once the visa applicants’ applications to come to Australia were approved.
53. The visa applicant said at the interview that she would be looking after her four children; it was the delegate’s assessment that this responsibility would limit the ability of the visa applicant to care for the review applicant. At the hearing and in response to this issue, the review applicant said that the children were at school and were not babies.
54. At the hearing the review applicant explained that she had just returned from Iraq a few days before. She had travelled with her mother. While in Iraq, she had mainly stayed with the visa applicant, as she had on previous trips, and the visa applicant had looked after her. The review applicant’s mother had stayed with her mother, the review applicant’s grandmother. The visa applicant’s evidence about who had stayed in which rooms on the review applicant’s recent visit was inconsistent and in the Tribunal’s assessment somewhat evasive.
55. The Tribunal nevertheless accepts that the visa applicant knows the extent of her sister’s disabilities and has a reasonable appreciation of the aspects of her sister’s daily life with which her sister needs help. The Tribunal accepts that the visa applicant is willing to help with the daily care of the review applicant and has the ability to do so.
56. 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).
57. Given these findings that each element of r.1.15AA(1) is met, 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.
58. The appropriate course now is to remit the application for the visa to the Minister to consider whether the visa applicant meets the remaining criteria for a Subclass 116 visa and to consider whether the visa applicant’s children meet the secondary criteria.

DECISION

59. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criterion for a Subclass 116 (Carer) visa are met by the first named visa applicant:
    • cl.116.221 of Schedule 2 to the Regulations.

ATTACHMENT

Migration Regulations 1994

1.15AA Carer

1.15AA (1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

(a) the applicant is a relative of the resident; and

(b) according to a certificate that meets the requirements of subregulation (2):

(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and

(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

(iii) the impairment has, under the Impairment Tables, 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.

(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.