Assistance Reasonably Obtainable
What assistance is reasonably obtainable is very much a qualitative thing and is much dependent on the individual circumstances of the person seeking care. This is exemplified by recent MRT case of Soo 071349162, 18.2.08. The relevant requirement is Reg 1.15AA(1)(e) which reads:
(e) the assistance cannot reasonably be obtained:
(i) from any other relative of the resident, being a relative who is an Australian citizen, anAustralian permanent resident or an eligible New Zealand citizen; or
(ii) from welfare, hospital, nursing or community services in Australia;
There is some significant case law on this issue, namely Lin v MIMIA [2004] FCA 606 (13.5.04),Issa v MIMA [2000] FCA 128 & Naidu v MIMIA [2004] FCA 1692 (21.12.04)
In Lin (supra) Crennan J (as she then was, now Justice of the High Court), observed, in relation to whether nursing home care could reasonably be obtained by the disabled relative:
33 I do not consider that it is to bring an excessively critical eye to the Tribunal’s reasons for decision to conclude, as I do, that in considering the possibility of residential nursing home care being available to Mr Guo, the Tribunal proceeded on the basis that Mr Guo’s ‘preference in terms of remaining with his wife, and in relation to food’ were irrelevant considerations (see [37] of the Tribunal’s reasons for decision which is set out in [25] above). It is therefore necessary to determine whether, within the meaning of reg 1.15AA, factors of a kind that might broadly be described as cultural may impact on whether assistance from a particular source or sources may be reasonably obtained.
34 The certificate issued by Health Services Australia, as required by subreg 1.15AA(2), indicated that Mr Guo needed direct assistance in respect of, amongst other things, the preparation of meals.
35 ‘Reasonably’ is a word of broad meaning. The Oxford English Dictionary 2nd Edition includes the following meanings:
‘1. According to reason, with good reason, justly, properly.
…
3. Sufficiently, suitably, fairly.’
The Macquarie Dictionary 2nd Edition suggests similar meanings.
36 The Regulations are intended to impact particularly on non-citizens of Australia. In the context which they provide, in the absence of an indication to the contrary, an assessment of what is reasonable in particular circumstances will, in my view, involve, amongst other considerations, consideration of cultural suitability.
37 The evidence before the Tribunal revealed that the availability of Chinese food was an issue of apparent significance to Mr Guo. In her letter of 11 July 2003 addressed to the Tribunal, Mrs Lin had referred to her husband being sent home from hospital ‘so that he can experience once again the warmth of family care the meals he liked’. In the same letter Mrs Lin referred to having ‘to prepare all the meals and tea’ for her husband herself after the homecare worker has left, and to the applicant knowing Chinese cooking. Mr Guo’s evidence to the Tribunal was that he did not contemplate long-term nursing home care because ‘the nursing home does not provide Chinese food’. There was also evidence before the Tribunal that suggested that Mr Guo, and to a greater extent Mrs Lin, did not speak English fluently.
In Lin, Crennan J also endorsed what Madgwick J said in Issa v MIMA [2000] FCA 128 at [12]. There Madgwick J observed:
It occurred to me that the Tribunal member may have misdirected herself by focusing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children. The bare language used by the Tribunal member is suggestive that she confused these 2 concepts.
Then in Lin, Crennan J went on to apply the observations of Madgwick J:
30 In my view, the language used by the Tribunal in this case supports Mr Karp’s contention that the Tribunal misinterpreted and misapplied the criterion in subpara 1.15AA(1)(e)(i). The findings of the Tribunal at [30]-[34] indicate that the Tribunal member did not recognise the distinction identified by Madgwick J in Issa v MIMIA. The Tribunal asked whether Mr Guo’s relatives ‘cannot reasonably provide some assistance’ rather than whether Mr Guo cannot reasonably obtain assistance from them. I agree with Madgwick J that the distinction is not merely semantic. The failure to make the distinction led the Tribunal to misapprehend the significance of the criterion in the light of the evidence before it. The Tribunal did not consider whether, and if so how, Mr Guo can reasonably obtain assistance from relatives in Australiawho are apparently not minded to provide him with assistance.
In Naidu v MIMIA [2004] FCA 1692 (21.12.04), Ryan J reviewed the authorities and in particularLin and Issa and concluded:
21 With respect, I consider that the line of authorities discussed above correctly identifies that, in assessing whether subreg 1.15AA(1)(e) of the Regulations has been satisfied, a real conceptual distinction has to be drawn between whether the assistance can reasonably be obtained from relatives and whether it can reasonably be provided by relatives. Whether something can be provided is a notion that is addressed from the perspective of the provider. Conversely, whether something can be obtained is addressed from the perspective of the person requiring what is to be obtained. The language of subreg 1.15AA(1)(e) uses the word ‘obtained’ and therefore, in my view, it requires the question to be directed to the point of view of the person who needs the assistance.
22 The significance of the distinction becomes apparent when one applies the concept of “reasonableness”, as subreg 1.15AA(1)(e) requires. The structure of the paragraph entails that reasonableness must be assessed in light of the circumstances of the applicant, not of the relatives who might be proposed as being expected to provide the care. It may be a reasonable expectation that members of a resident’s family will provide care in a particular case. If, contrary to that expectation, a resident’s children refuse to provide the requisite care, that refusal may be unreasonable when viewed from the standpoint of the children. A refusal by the available children to provide the care, even if unreasonable from that standpoint, cannot detract from the conclusion, from the standpoint of the resident, that he or she cannot reasonably obtain the care.
23 In my view, the Tribunal has misdirected itself in the present case as to the appropriate test for the application of subreg 1.15AA(1)(e). Specifically, the Tribunal has failed to draw the distinction between whether assistance can reasonably be provided and whether it can reasonably be obtained. This is apparent from a reading of pars 42 and 43 of the Tribunal’s reason… where the Tribunal has clearly focused on whether it is reasonable to expect the members of the applicant’s family in Australia to continue to provide the care which he needs. This is illustrated by observations like “There are no special impediments that would prevent the families from helping, simply a preference to attend to their own family life and business affairs” and “It is reasonable to think that children, even when they have their own personal obligations and problems should readjust work and personal schedules and even place of residence, to assist their parents.” I have not selected these examples in an over-zealous desire to detect error (as cautioned against in MIMIA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, at 271-272). Rather, the Tribunal’s remarks clearly indicate that the Tribunal focused, when considering the evidence before it, on whether it was reasonable to expect the family already inAustralia to provide the care required by the resident father. On the other hand, I have not been able to discern in the Tribunal’s reasons an assessment of whether, from the father’s standpoint, it was reasonable for him to obtain the assistance of his relatives who were not minded or willing to provide it.
All of the above cases were applied in the MRT matter of 061004676 [2007] MRTA 322(20.7.07) (review applicant Santoro) to determine that the carer criteria was met.
Distilling the above cases, it is clear that if the relatives are unable, even for subjective reasons not to be able to provide the necessary care then the relative is not able to obtain the care from those relatives, hence Reg 1.15AA(1)(e)(i) is not applicable. Then if the nursing home facilities are not suitable from a linguistic or cultural perspective then similarly Reg 1.15AA(1)(e)(ii) is not applicable. Soo concerned a mother with serious dementia requiring 24 hour care which just couldn’t be provided by the 3 siblings in Australia because or work commitments and there was no Chinese language nursing care available. A sister in Singapore however could come to Australia to do the ‘day shift’ so the other siblings could work. The alternative was leaving the mother at home alone for a big part of the day. The carer visa was granted.