DAIGDIGAN (Migration)

[2018] AATA 4120

DAIGDIGAN (Migration) [2018] AATA 4120 (5 September 2018)

DECISION RECORD

DIVISION:DIVISION:        Migration & Refugee Division

REVIEW APPLICANT:  Mrs Rosa Daigdigan

VISA APPLICANTS

:  Mrs Cristina Flores

Mr Ely Flores, Miss Anne Flores

CASE NUMBER:  1720261

DIBP REFERENCE(S):  OSF2015/032419

MEMBER:Helena Claringbold

DATE:5 September 2018

PLACE OF DECISION:  Sydney

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

Statement made on 05 September 2018 at 9:32am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care provided by others in Australia – family’s financial commitments – combination of assistance from family – home care packages– no ACAT assessment – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 1.15AA, Schedule 2 cls 116.211, 116.221


CASES
Anveel v MIBP [2013] FCCA 2181
Jajov MIBP [2013] FCCA 1554

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.On 21 January 2015, Mrs Cristina Flores, the first named visa applicant, (the visa applicant) applied for an Other Family (Migrant) (Class BO) visa.  The application is based on Mrs Flores being the carer of her Australian citizen mother, Mrs Rosa Daigdigan, who is the sponsor and review applicant. Mr Ely Flores, thee second-named visa applicant, is the visa applicant’s partner and Miss Anne Flores, the third-named visa applicant, is the visa applicant’s daughter.

2.On 24 July 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant met subclause 1.15AA(1)(e) and cl.116.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3.At the time of application, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.

4.On 14 August 2018, the sponsor appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The Tribunal also received oral evidence from Ms Marilyn Daigdigan-Tangonan, Ms Emily Garcia and Ms Raquel Garcia. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.  Her registered migration agent represented the sponsor in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6.The issue in the present case is, whether assistance can be reasonably provided to Mrs Rosa Daigdigan, the sponsor, by family members who are living in Australia, or reasonably be obtained through welfare, hospital, nursing or community services in Australia.

Claims and findings

Has the visa applicant claimed to be a ‘carer’ of the sponsor?

7.Clause 116.211 of Schedule 2 to the Regulations requires that the visa applicant claim to be the carer of an Australian relative. In the present case, the visa applicant applied for the visa based on claiming to be the carer of her mother, who is an Australian citizen.

8.Therefore, at the time of application, the visa applicant satisfies the requirements of cl.116.211.

Are the requirements of r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) satisfied?

9.Regulation1.15AA provides that the assistance cannot reasonably be:

(e)(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

(e)(ii)      obtained from welfare, hospital, nursing or community services in Australia;

10.Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

11.Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

Can assistance reasonably be provided by another relative?

12.Prior to and at the Tribunal hearing the sponsor provided information as follows.

13.The sponsor was born on June 1932 in the Philippines. She is an Australian citizen. Her husband is deceased.  She has four adult daughters, Ms Marilyn Daigdigan-Tangonan (Marilyn), Ms Emily Garcia (Emily), Ms Mercy Daigdigan (Mercy) and Ms Raquel Garcia (Raquel), living in Australia. They are Australian citizens. She has four other adult children living in the Philippines. The sponsor currently lives in a three-bedroomed villa with Marilyn and her husband and son. The sponsor is the recipient of a government-aged pension.

14.In November 2013, Medibank Health Solutions (MHS) assessed the sponsor with an impairment rating of 30 and as needing assistance with hygiene, mobility, monitoring, medication and transport. MHS recorded her as suffering from medical conditions including poor stamina due to ischaemic heart disease and right hip osteoarthritis.

15.MHS recorded her as living with one of her daughters and of being alone from 6:30am until about 5 pm. It stated that she does not speak or read English and neither does she read her own language. It informed that her medication is pre-allocated by her daughter and the sponsor administers the medication.

16.A consultant physician and geriatrician in April 2016 stated that the sponsor the sponsor is suffering from multiple and complex permanent and disabling cognitive and medical conditions including the following, dementia mixed type, cerebral atrophy, chronic small vessel ischaemic disease of the brain, chronic atrial fibrillation, osteoporosis and multiple vertebral fractures. He stated that she needs 24-hour care and attention from her family members. Also recorded is that she is illiterate, cannot read or write, and is currently being cared for by her daughters. He stated that the sponsor is currently living with her daughter Emily who works fulltime and cannot care for her mother.  He also claimed that her other daughters in Sydney all have their work and family commitments and cannot provide care for their mother. He encouraged that Carer visas be granted to the applicants. Other medical letters relevant to the sponsor provide details of her medical conditions and medications and of her being able to part care for herself, however needing supervision in other areas such as showering. All are in favour of the Carer visas being granted to the applicants.

17.The sponsor told the Tribunal the following: she lives with Marilyn and her husband and son.  She is incontinent and wears protective underwear.  Marilyn assists her during the night-time, she helps the sponsor with showering.  She prepares a variety of food for the sponsor and leaves it for the sponsor to have during the day. Sometimes the sponsor cannot open the containers of food and at those times, will eat bread or biscuits. The sponsor does not prepare meals anymore because one time she burnt food. Marilyn also organises the sponsor’s medication and explains what she needs to take and when.  At other times, she is invited to stay with Emily and her husband. Emily takes the sponsor for her medical appointments. On 4 June 2016, the sponsor travelled to the Philippines and lived with her son, Frankie and his wife.  She returned to Australia on 24 June 2016. She said that she wants the visa applicant to provide her with care.

18.The visa applicant was born in 1969 in the Philippines. The second-named and third-named visa applicants were also born in the Philippines respectively in 1970 and 1990. She stated the following; she is willing to provide fulltime care and assistance for the sponsor.  She previously assisted and cared for her late sister Florence, who suffered from stage IV lung cancer.  Her husband will also provide assistance and care and he has completed a six- month caregiver course.

19.Mercy stated that she is unable to provide her mother with full-time care as she lives in Victoria and works full-time.

20.Raquel lives in Riverwood, NSW. She stated that she is unable to provide her mother with full-time care because she has two children aged 11 and 13 and they need the guidance and attention from a parent. Both she and her husband work full-time.  The best she has been able to contribute has been six to seven hours on a Sunday, once a month when her children do not have sport.

21.Emily lives in Padstow, NSW. She stated the following; she is unable to provide full-time care for her mother because she works full-time. The best she can do, when not working, is to take her mother home about once a fortnight. Emily and Marilyn alternate accompanying their mother for medical appointments. It has been increasingly difficult juggling their schedules to assist their mother and at sometimes she is left alone for several hours. During these times, Emily or Marilyn will speak with their mother by telephone. She cannot stop work because of financial commitments with home loans and credit cards. She suffers from gluteal pain. She is undergoing physiotherapy and this prevents her physically assisting her mother. 

22.Marilyn lives in Revesby, NSW. She stated the following; the sponsor has lived with her and her husband and son since 2009. She is unable to provide full-time care and assistance for her mother.  She works irregular and at times, additional hours. The care and assistance for the sponsor is increasingly falling on her husband and the time he is supposed to be relaxing he spends caring for the sponsor. The sponsor is embarrassed asking her son-in-law to assist with feminine hygiene. The care the sponsor currently receives does not meet her needs. Marilyn and her husband have substantial financial obligations such as their two home loans and she cannot stop working. Marilyn has medical conditions and feels fatigued and had three operations in 2011. A medical report dated August 2018 informs the Tribunal of the following, Marilyn told the practitioner she suffers back ache and threats this condition via massage. She is unable to assist her mother with heavy handling such as showering.  She works night shift and may not get enough sleep and this would likely be the cause of her feeling tired and fatigued. In 2017, she slipped in the bathroom.  In another incident, she lost balance while painting the house.  She has recovered from both incidents.

23.Ms Micah Garcia is the sponsor’s grandchild. She wrote that she is unable to provide assistance to her grandmother because she lives in Victoria and works full-time.

24.Mr Michael Tangonan is the sponsor’s grandchild.  He wrote that is unable to provide assistance to his grandmother because he is a fulltime student and works part-time to pay his university fees. Additionally, next year he will be continuing his studies in Germany. 

25.The Tribunal accepts that the sponsor suffers from the conditions as claimed. It also accepts that her daughters and their families are busy and have financial commitments. The Tribunal understands that the sponsor has been living with her daughter, Marilyn and her family and they have cared for her, with assistance from Emily, Mercy and Raquel.

26.After considering the evidence individually and as a whole, the Tribunal is not satisfied that assistance for the sponsor cannot reasonably be provided collectively by her family, or by a combination of assistance from her family and with the assistance of welfare, hospital, nursing or community services in Australia. This is discussed further below in this decision. 

27.The Tribunal considered the evidence, individually and as a whole and on the evidence, the Tribunal is not satisfied that assistance with hygiene, toileting, dressing, preparing food, with mobility and transport cannot reasonably be provided to the sponsor collectively by her family in Australia. Therefore, the visa applicant does not satisfy r.1.15AA(1)(e)(i).

Can the assistance be reasonably obtained from welfare, hospital, nursing or community services in Australia?

28.The sponsor told the Tribunal that she has not been assessed by an Aged Care Assessment Team (ACAT).  She stated that ’no one has come to us yet’.

29.Emily stated that enquiries to home care and to community centres resulted in her not being able to obtain full-time assistance and care for her mother. She stated that the aged care facilities she contacted stated that they could place the sponsor on a waiting list; or their facility did not have a vacancy, or cannot accommodate the sponsor because of the language barrier. She stated that her mother needs 24-hour-care and even the community care facilities cannot address her needs because they do not speak Tagalog and her mother cannot speak English so she constantly needs someone to interpret.  Ms Garcia has not provided any information from the organisations she contacted or any substantive information to support that her mother is on a waiting list or whether any assistance can be reasonably be obtained for the sponsor.

30.Marilyn stated that they have looked for help from a number of nursing and welfare agencies but have been unsuccessful. Marilyn has not provided any substantive information to support these claims.

31.There is no evidence that the sponsor has been assessed by an ACAT. Therefore, it has not been determined whether assistance for the sponsor may be reasonably obtained from services in Australia. An ACAT assessment may not be a requirement under the Regulations or in policy, however an ACAT assessment would determine the sponsor’s eligibility to obtain government subsidised aged care services including residential care, residential respite care and home care, including one of four levels of home care packages and determine the services reasonably obtainable to provide assistance for the sponsor. Information before the Tribunal is that home care packages provide a large range of home services to the person needing the care and includes, but is not limited to.

·Personal services: assistance with personal activities such as bathing, showering, toileting, dressing and undressing, mobility and communication.

·Nutrition, hydration, meal preparation and diet: assistance with preparing meals, including special diets for health, religious, cultural or other reasons; assistance with using eating utensils and assistance with feeding.

·Continence management: assistance in using continence aids and appliances such as disposable pads and absorbent aids, commode chairs, bedpans and urinals, catheter and urinary drainage appliances, and enemas.

·Mobility and dexterity: providing crutches, quadruped walkers, walking frames, walking sticks, mechanical devices for lifting, bed rails, slide sheets, sheepskins, tri-pillows, pressure-relieving mattresses and assistance with the use of these aids.

·Nursing, allied health and other clinical services: speech therapy, podiatry, occupational or physiotherapy services, hearing and vision services. Home care level 1 and 2 packages are not intended to provide comprehensive clinical or health services. Home care level 3 and 4 packages have a greater emphasis on delivering complex care in the home, including more clinical care where needed.

·Transport and personal assistance: assistance with shopping, visiting health practitioners and attending social activities.

·Management of skin integrity: assistance with bandages, dressings and skin emollients.

32.Other information is that there are services for older persons with cultural and linguistic backgrounds and aged care services can be obtained, including a Translating and Interpreting Service (TIS) support 24 hours a day seven days a week for the cost of a local call.

33.The Tribunal is not satisfied that assistance for the sponsor cannot be reasonably obtained   from welfare, hospital, nursing or community services in Australia, or, by a combination of these services and collective assistance from her family in Australia. The Tribunal has been provided a statement that services are not available for the sponsor, however it has not been provided any substantive information to support those claims, neither has the sponsor been assessed by ACAT to determine what services may be reasonably obtained from welfare, hospital, nursing or community services in Australia.

34.Having considered the evidence individually and as a whole, the Tribunal is not satisfied that the sponsor cannot reasonably obtain assistance from community services in Australia; therefore r.1.15AA(1)(e)(ii) is not satisfied.

35.As the Tribunal determined that, the criterion for the grant of the visa has not been satisfied the Tribunal has not considered the remaining criteria.

36.As the Tribunal is not satisfied that assistance cannot reasonably be provided to the sponsor by her family members or that the sponsor cannot reasonably obtain assistance from community services in Australia, so r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) are not met. As a result, the visa applicant does not satisfy cl.116.221 of Schedule 2 to the Regulations.

37.As the Tribunal has determined that cl.116.221 is not met it has not gone on to consider the other requirements for the grant of the visas.

38.It follows that as the visa applicant does not meet the requirements for the grant of the visa, the second and third named visa applicants do not meet the requirements for the grant of visas.

39.For the reasons above, the visa applicants do not meet the criteria for a Subclass 116 visa.

40.There are no claims or evidence before the Tribunal that the visa applicants satisfy the requirements of the other visa subclasses within Other Family (Migrant)(Class BO).

DECISION

41.The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Helena Claringbold
Member