Balmocena (Migration)

[2018] AATA 3533

Balmocena (Migration) [2018] AATA 3533 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Asuncion Balmocena

VISA APPLICANT:  Ms Ma Christine Devera

CASE NUMBER:  1609393

DIBP REFERENCE(S):  2013042631

MEMBER:Kira Raif

DATE:2 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

Statement made on 02 August 2018 at 2:43pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Whether the review applicant cannot reasonably be cared for by alternative arrangements - Review applicant did not attend hearing – Limited evidence before the Tribunal – Insufficient evidence for the Tribunal to conclude that care cannot reasonably be provided from alternative arrangements – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 379A
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cl 116.221

CASES
Azzi v MIMIA [2002] FCA 24

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 26 April 2016 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 is a national of the Philippines, born in December 1981. The visa applicant applied for the visa on 5 November 2013. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant was the carer of an Australian relative. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The Tribunal invited the review applicant to attend the hearing on 7 June 2018. The review applicant requested that the hearing be postponed because she did not have adequate time to prepare, her request was granted and the hearing was postponed to 10 July. The review applicant again requested that the hearing be postponed because her relative was not in the country. The Tribunal has considered the request but decided not to postpone the hearing as there was no indication that the review applicant herself was not available while her relative, who was also nominated as a representative, could give evidence by phone or in writing. However, the applicant did not attend the hearing and did not explain her absence and in these circumstances, the application was dismissed on 10 July 2018. On the following day the review applicant contacted the Tribunal and advised that she was unwell and unable to attend the hearing and she provided a medical certificate.  No explanation has been offered as to why the review applicant failed to make any contact with the Tribunal prior to the hearing to explain her circumstances and her claimed inability to attend. While the medical certificate indicates that the review applicant was recovering from an operation and unable to walk, there is no suggestion that she or any of her relatives, were incapable of using the telephone to inform the Tribunal of her inability to attend the hearing. Nevertheless, the Tribunal did reinstate the matter and again invited the review applicant to attend the hearing on 2 August 2018.

4. The invitation to attend the hearing, which was sent on 11 July 2018, stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the review applicant two SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. There is no evidence that the delivery of these failed.

5. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance withs.379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Relevant law

6. At the time the applicant was made, 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.

7. Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’).

   Whether the visa applicant is a ‘carer’

8. 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 other specified relation). In the present case, the Australian relative is identified as the visa applicant’s grandmother. The visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

9. 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.

10. 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.

11. The visa applicant provided with her application a Certificate issued by Bupa Medical Visa Services in September 2013 indicating that the sponsor met the requirements for a carer as she had an impairment rating of 55 points on the Impairment Rating Tables. It also attested to the fact that the sponsor had a medical condition that was causing physical impairment of the ability of the sponsor to attend to the practical aspects of daily life.

12. The Tribunal is satisfied that the certificate meets the requirements of r. 1.15AA(2). The Tribunal is satisfied that according to the Carer certificate, the sponsor has a medical condition causing impairments of her ability to attend to the practical aspects of daily life and as a result of such condition, which will continue for at least 2 years, there is a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate 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.

13. 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. In the present case, the person with the medical condition is the sponsor and there is evidence that the sponsor is an Australian permanent resident. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

14. 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. In the present case, the impairment rating specified in the certificate is 55. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

15. The Tribunal acknowledges a number of other medical reports that had been submitted with the application and to the Tribunal concerning the sponsor’s condition. The Tribunal accepts that the sponsor has medical needs that cause her to require assistance.

16. 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. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

17. 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. In making this assessment, the Tribunal has considered the nature of the sponsor’s condition and her needs arising from that condition, having regard to the Carer certificate and the various medical reports provided to the delegate and the Tribunal.

18. The visa applicant provided a statement with the application indicating that the sponsor has two children in Australia who are unable to take care of her due to family and work commitments. The visa applicant indicated that some organisations have been approached for help but no evidence of that has been submitted with the application. The review applicant provided additional materials to the Tribunal including a number of brochures for aged care facilities, updated medical records and other materials.  While the brochures may suggest that the review applicant has had contact with these organisations, these do not establish that adequate inquiries had been made or that these aged care facilities cannot offer the care required by the sponsor. Similarly, the review applicant provided to the Tribunal a schedule of fees and charges for home and community care but no evidence of her or the family’s capacity to meet these financial obligations and there is no evidence as to whether they sought any financial support from government agencies in order to meet the cost of aged care.

19. The Tribunal considers the presented evidence inadequate. There is little evidence about the present circumstances of the review applicant’s relatives in Australia, including her children and adult grandchildren. It is not sufficient to state that they have work, family or study commitments. There is little satisfactory evidence before the Tribunal as to what these commitments might be at present and whether alternative arrangements can be made for work and study and looking after family. Further, the applicant has not satisfied the Tribunal that the combination of relatives would be incapable of providing the required assistance, rather than any one relative. This may enable the relatives to continue with their various commitments while providing some degree of care to the review applicant. The Tribunal is mindful of the reasoning in Azzi v MIMIA [2002] FCA 24 at [89]-[90] indicating that the Tribunal’s inquiry is not limited to what assistance can be obtained from one relative.

20. The Tribunal has also considered whether assistance can be obtained from other sources. As noted above, there are some materials from various aged care facilities but there is little to show how, or whether, such facilities could be used in the review applicant’s circumstances. It is not enough to show that the review applicant had approached these organisations or made inquiries with these agencies and there is insufficient evidence to satisfy the Tribunal that assistance cannot be obtained from such organisations in the review applicant’s particular circumstances.

21. There is also little information as to whether the review applicant has had an Aged Care Assessment and whether she may be entitled to any government subsidised packages, either in her own home or in a residential care facility.

22. The Tribunal acknowledges that some evidence has been presented about the availability of care but the Tribunal considers such evidence inadequate. The Tribunal also acknowledges the report of the review applicant’s doctor which supports the present visa application but it fails to indicate whether alternative means of care had been explored.

23. On the limited evidence before it, the Tribunal is not satisfied that the assistance cannot be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services. The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. Therefore the requirements of r.1.15AA(1)(e) are not met.

24. Given these findings the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

25. The visa applicant is not old enough to be granted an aged pension and she does not meet the requirements for the grant of the Aged Dependent Relative visa. She stated on the application form that she has parents and siblings in the Philippines and as she has near relatives outside of Australia, the Tribunal is not satisfied she meets the requriements for the grant of the Remaining Relative visa.

    Conclusion

26. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

27. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

    Kira Raif
    Senior Member