Atienza (Migration)

[2018] AATA 1541

Atienza (Migration) [2018] AATA 1541 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Aline Marie Atienza

CASE NUMBER:  1610596

DIBP REFERENCE(S):  CLF2015/60782

MEMBER:John Billings

DATE:14 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) Subclass 836 visa.

Statement made on 14 May 2018 at 4:23pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Relative receiving care deceased – Decision affirmed

Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Application for ministerial intervention – Significant compelling circumstances – Strong ties to Australian community – Detriment of removal to Australian residents – Reasonable prospects of success in alternate visa applications – Where strict operation of legislation would lead to unfair results – Matter referred for ministerial intervention

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 360(2)(b)
Migration Regulations 1994 (Cth), r 1.15AA(1)(e), Schedule 2

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 on 27 June 2016 to refuse to grant the visa applicant an Other Family (Residence) (Class BU) Subclass 836 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Ms Atienza, applied for the visa on 29 September 2015 on the basis that she was the carer of an Australian relative, her husband, Mr Joseph Carranceja. The delegate refused to grant the visa. The delegate considered that Ms Atienza had not provided sufficient evidence for the delegate to determine that the assistance required by Mr Carranceja could not reasonably be provided by any other relatives, or reasonably obtained from welfare, hospital, nursing or community services in Australia. The delegate concluded that Ms Atienza did not satisfy r.1.15AA(1)(e)(i) and (ii) of the Regulations. Ms Atienza applied to the Tribunal for review on 13 July 2016.

3. Ms Atienza was represented in relation to the review by her registered migration agent. She appointed the agent in September 2017. 

4. Ms Atienza and Mr Carranceja were married in Australia on 15 September 2015. 

5. Mr Carranceja, a legally blind victim of stroke, died on 7 August 2017 at the age of 55 years.  He left two sons from previous relationships, Jose Francisco Carranceja, aged 21, and Jose Antonio Carranceja (“Anton”), aged 14. 

6. There was no hearing. Ms Atienza has consented to the Tribunal deciding the review without her appearing before it: see s.360(2)(b).

7. It is requested on Ms Atienza’s behalf that the Tribunal refer her case to the Minister. 

8. Ms Atienza is a 56 year old national of the Philippines.  Her parents are deceased.  She has some siblings in the Philippines.  She does not have any biological children.  Ms Atienza lives in regional Victoria where Mr Carranceja had been living.  Ms Atienza first entered Australia on 23 January 2015 holding a Class FA Subclass 600 Visitor visa.  Before that visa ceased she was granted a Bridging A visa and on 31 March 2015 she was granted a further Visitor visa.  Before that visa ceased she was granted the first of a series of further bridging visas.  She has held Bridging B visas since 3 February 2016.  Ms Atienza has departed and re-entered Australia since she arrived in early 2015.  When she departed Australia on 24 April 2016 and re-entered on 20 April 2016 she was accompanied by Mr Carranceja.  (Ms Atienza wrote to the Department about the proposed trip at the beginning of 2016.  It was funded by an organisation in the Philippines to which Mr Carranceja belonged so that the organisation could bestow an award upon him).    

9. According to a statutory declaration made on 4 May 2018, Ms Atienza met Mr Carranceja in 1989 when they were both aged 16 years.  He became her first boyfriend.  The relationship lasted for four years but they drifted apart and lost contact until 2012 when they made contact via FaceBook.  After that they made regular contact online and fell in love again.  Mr Carranceja had lived alone since 2006 but on weekends his sons came from Melbourne (where each lived with his mother) to his house in regional Victoria.  The sons developed a relationship with Ms Atienza.  Mr Carranceja had some health issues at the time but he was “still up and about”.  In March 2013 Mr Carranceja and Ms Atienza discussed marriage.  Ms Atienza wanted them to live in Manilla.  They became engaged in Manilla in September 2013 when Mr Carranceja went there to see her.  They planned a wedding in Manilla in December 2014 when Mr Carranceja would bring his sons with him.  Mr Carranceja unfortunately suffered strokes in November and December 2014.  He was hospitalised but the couple maintained contact by phone.  He asked Ms Atienza to come to Australia because he felt alone and there was no one to care for him.  In the Philippines, before her mother died, Ms Atienza had cared for her and developed a commitment to caring for others.  When Ms Atienza arrived in Australia at the beginning of 2015 she went straight to the hospital where Mr Carranceja was.  Among other things, Mr Carranceja had lost a lot of weight, had problems with balance and swallowing, and until mid-2016 he needed to be fed via a PEG.  Even after the PEG was removed he had to be supervised when taking food orally because of the risk of choking.  Ms Atienza said that she knew her place was with him in Australia.  Ms Atienza described in detail the comprehensive care she gave Mr Carranceja including bathing, dressing and feeding him, managing his medications and arranging his appointments.  (In a statutory declaration dated 30 May 2016 she provided more details about the care she gave Mr Carranceja).  The couple suffered financial and emotional stress.  (Mr Carranceja was a disability support pensioner).  Ms Atienza’s love for Mr Carranceja and his sons grew.  She said she became wife to Mr Carranceja and mother to his sons.  She realised Mr Carranceja could not go to the Philippines to live with her.  They decided to make their home in Australia.  Ms Atienza said that things could have been simpler had she applied for a Partner visa but financial hardship led her to apply instead for a Carer visa.  They could not afford migration advice and thought that the better option.  They did their best for Mr Carranceja’s sons.  Mr Carranceja asked her to stand in his place in relation to his sons if he did not survive.  In spite of everything the four of them spent time together as a family.  Mr Carranceja’s death was sudden.  Ms Atienza attended to the funeral arrangements, involving Jose Francisco to a substantial degree.  She had to try to provide for Mr Carranceja’s sons because Centrelink advised that his pension ceased and payments could not be made to her.  Ms Atienza said that she prayed to give Mr Carranceja his desire – that she stay in Australia and care for his sons.  Since Mr Carranceja’s death Ms Atienza has obtained taxi driver accreditation and worked in various jobs.  She has been undertaking a course with a view to working in Aged Care.  She has also been involved in local community activities including co-presenting a Filipino program on regional radio, volunteering for the Red Cross, and – as its elected secretary - volunteering for a non-profit organisation that promotes “brotherhood amongst people”. 

10. Ms Atienza’s representative provided written submissions to the Tribunal dated 7 May 2018.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. As Mr Carranceja is deceased he has no carer.  Therefore, Ms Atienza cannot meet the time of decision criterion in cl.836.221 that she be a carer of an Australian relative. 

    REFERRAL TO THE MINISTER

13. The request for the Tribunal to refer Ms Atienza’s case to the Minister is made on a number of grounds. 

14. Section 351 of the Act provides that if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s.351 the Tribunal has had regard to the President’s Direction Conducting Migration and Refugee Reviews, especially at paragraphs 16.1 – 16.7 concerning referrals for ministerial intervention and the Minister’s Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) available in the Procedures Advice Manual 3 (“the Minister’s Guidelines”).

15. The Tribunal notes that Ms Atienza is in the community and that she holds a bridging visa.  There is nothing before the Tribunal to indicate that there is any compliance or other concern about her.

16. Among other things, the Minister’s Guidelines state that the Minister may consider exercising his discretion in cases that exhibit one or more “unique or exceptional circumstances”.  The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. 

17. Before continuing, the Tribunal notes that there is considerable support for Ms Atienza’s statements in material submitted to the Department and to the Tribunal.  For instance there are numerous personal references and letters of support that refer in particular to her character and community involvement. 

18. The statements that Ms Atienza has made about the need Mr Carranceja had for care and the care she provided to him are supported by letters and statements of health care professionals and other persons.  For instance, Dr Tom Jablonski, who was Mr Carranceja’s GP for over 10 years, wrote on 6 May 2018 describing Ms Atienza as “a dedicated and loyal carer” for Mr Carranceja.  Dr Jablonski went on to say that Ms Atienza’s “many valuable personal attributes” include “generosity, selflessness, caring, honesty, frankness [and] loyalty”.  In August 2015 speech pathologist Mr Jamie Vourgaslis wrote a letter in which he described Mr Carranceja’s condition and confirmed the need for Ms Atienza to supervise his oral intake.  Sociologist, Mr Edward Kamanyi, and physiotherapist, Ms Karyn Thomas, writing at about the same time, confirmed the range of tasks performed by Ms Atienza as primary carer.  Mr Carranceja made a statement at the time in which he spoke of the physical security provided by Ms Atienza and the emotional bond between them that gave him the will to improve his situation. 

19. It is submitted for Ms Atienza that the application for a Carer visa, and the application for review of the decision to refuse the Carer visa, were made “in good faith” but that Ms Atienza would have been entitled to a Partner visa had she applied instead for a Partner visa. 

20. It is further submitted in effect that there are unique or exceptional circumstances” in this case - compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to Australian citizens (Mr Carranceja’s sons) or an Australian family unit; compassionate circumstances regarding Ms Atienza’s psychological state that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to her; exceptional economic, scientific, cultural or other benefit that would result from Ms Atienza being permitted to remain in Australia; and circumstances not anticipated by legislation, or clearly unintended consequences of legislation, or circumstances in which the application of legislation would lead to unfair or unreasonable results. 

21. In a letter dated 20 April 2018 Mr Carranceja’s older son, Jose Francisco, described the close and loving relationship he and Anton developed with Ms Atienza.  He said she was “irreplaceable” in his and Anton’s lives.  Jose Francisco described the care she gave his father that Jose Francisco was unable to give, being a student in Melbourne who relied on family support.  He said Ms Atienza was quickly and easily established as a permanent member of the family.  After his father died the relationship between Ms Atienza and him and Anton grew closer.  She gives them love and support.  Jose Francisco and Anton visit her and regularly correspond with her.  Jose Francisco said that her absence from their lives “would be nothing but detrimental for the mental health and wellbeing of” him and his brother.  He said Ms Atienza has been an “emotional shoulder” for him and that removing Ms Atienza would be removing “one of the few positive people present in [Anton’s] life and would be a loss akin to losing another parent”.  If she were able to remain in Australia Ms Atienza would continue to instil the values that Mr Carranceja taught his sons, Jose Francisco said.  Ms Atienza’s friend, Ms Nina Farrell, wrote on 21 March 2018 that the bond between Ms Atienza and Mr Carranceja’s sons was unusual and that Ms Atienza loved them as her own.   

22. A psychological report by Mr E. Kleynhans dated 3 May 2018 was submitted to the Tribunal.  Mr Kleynhans saw Ms Atienza in March and April this year.  He expressed the opinion that Ms Atienza suffers from Generalised Anxiety Disorder, anxious that she may not be able to remain in Australia, look after Mr Carranceja’s sons, and participate in community activities here.   Mr Kleynhans predicted a “negative prognosis if [Ms Atienza] fails to remain in Australia as the role model to her stepsons”. 

23. Mr Kleynhans evidently read personal references that have been submitted.  He referred specifically to the remarks of Jose Francisco and said that Ms Atienza was “playing an essential role in the formative development of Anton”.  Mr Kleynhans went on to say that Anton “could develop a fear of abandonment should Ms Atienza be asked to leave Australia, which he already experienced with the passing of his father … He would be extremely lonely should [Ms Atienza] be asked to leave, as he would have no sense of purpose or belonging”.   

24. There is evidence that Ms Atienza has substantially integrated into the community that that she has been very active in the community, including providing support to persons in need in the ways mentioned above. 

25. In the written submission dated 7 May 2018 it is submitted that in this case there are circumstances not anticipated by legislation, or that there are clearly unintended consequences of legislation, or that the application of legislation leads to unfair or unreasonable results.  Ms Atienza’s representative submitted that the primary decision was affected by error.  In particular, it was submitted that the decision to refuse the Carer visa was made before relevant evidence from welfare, hospital, nursing or community services in Australia was considered; and that no, or no proper, consideration was given to the evidence about the capacity of Mr Carranceja’s relatives to provide care for him.  It was submitted that had there not been the errors that were said to exist, Ms Atienza would have been granted a Carer visa while Mr Carranceja was alive.

26. Considering the currently available evidence, and viewing the above matters individually, some of the matters appear to have greater significance than others.  

27. No application was made for a Partner visa.  Had an application been made for a Partner visa it is to be expected that evidence regarding the relationship would have been submitted beyond what is before the Tribunal: there is the marriage certificate, photographs, statutory declarations and statements.  On the face of it, Ms Atienza would have had strong claims to a Partner visa.  Concerning the application for a Carer visa, it is effectively conceded that Ms Atienza is not now eligible.  The Tribunal has not been required to examine the evidence in support of the Carer visa application in detail.  Nevertheless, on the face of it, had Mr Carranceja survived, Ms Atienza had reasonable prospects for success on review.  To that extent at least, the application of legislation in circumstances where Ms Atienza’s husband died before Ms Atienza’s review application could be determined, would lead to unfair or unreasonable results, in the Tribunal’s view. 

28. The submissions for Ms Atienza require the decision-maker to consider whether there are circumstances that may bring Australia’s obligations as a party to ICCPR (International Covenant on the Civil and Political Rights) into consideration; or whether there are circumstances that may bring Australia’s obligations as a party to CROC (Convention on the Rights of the Child) into consideration.  For instance, ICCPR Article 23.1 provides: “The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State”.  CROC Article 3 provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.  The close relationship that has evidently developed between Ms Atienza and Mr Carranceja’s young sons has understandably been said to have taken on special importance since their father’s death.  While there is evidence before the Tribunal about the relationship, there is very limited evidence about Mr Carranceja’s sons’ broader family and other circumstances.  And Mr Kleynhans expressed the opinion noted above apparently without having seen Mr Carranceja’s sons or considered more than Ms Atienza’s statements and some written material.  There may be compassionate circumstances in this regard, but further evidence would be required to say that if not recognised those circumstances would result in serious, ongoing and irreversible harm and continuing hardship to Mr Carranceja’s sons or an Australian family unit.

29. There may also be compassionate circumstances regarding Ms Atienza’s psychological state, but further evidence would be required to say that if not recognised they would result in serious, ongoing and irreversible harm and continuing hardship to her.

30. As confirmed by Dr Jablonski and others, Ms Atienza was for years a dedicated carer for Mr Carranceja whose care needs were very high.  Ms Atienza’s general record of employment and community involvement is also impressive.  Views may differ as to whether there would be an “exceptional economic, scientific, cultural or other benefit” that would result from Ms Atienza being permitted to remain in Australia.  Giving the word “exceptional” its common meaning of “unusual” (being something far less than “unique”), there would appear to be unusual benefit that would result from Ms Atienza being permitted to remain in Australia. 

31. Further inquiries by the Department – especially about Mr Carranceja’s sons’ circumstances – may be warranted.  But, considering the above factors cumulatively, if not individually, the Tribunal concludes that this is a case where it would be appropriate to make a referral to the Minister. 

    DECISION

32. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) Subclass 836 visa.

    John Billings
    Senior Member