Esguerra (Migration)

[2018] AATA 2985

Esguerra (Migration) [2018] AATA 2985 (12 June 2018)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Divina Esguerra

VISA APPLICANTS:  Ms Lolita Olivarez
Mr Oscar Olivarez
Ms Ashlyne Joyce Olivarez
Mr Arron Jandy Olivarez
Mr Adrian Jandy Olivarez

CASE NUMBER:  1611966

DIBP REFERENCE(S):  OSF2015/032420

MEMBER:John Billings

DATE:12 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2018 at 4:53pm

CATCHWORDS
Migration – Oher Family (Migrant)(Class BO) visa – Subclass 116 (Carer) – Assistance from others – Complete dependency – Severe and permanent disability – Capacity of siblings to care – Additional assistance could reasonably be obtained – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15AA, Schedule 2 cl 116.221

CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajov MIBP [2013] FCCA 1554
Lam v MIBP [2013] FCCA 1263

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 or about 29 July 2016[1] to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act). 

   [1] The review applicant provided to the Tribunal what appears to be a copy of the primary decision although the date that appears on the document is 3 August 2016, whereas 29 July 2016 is the date recorded on the copy of the primary decision that is held on the Department’s file. 

2. The visa applicants, Ms Olivarez, her husband, aged 51, and children, aged 19, 16 and 15 respectively, applied for the visas on 21 January 2015.

3. Ms Olivarez and her husband and children are nationals of the Philippines. 

4. At the time the application was made for the visas, 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, Ms Olivarez 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 include cl.116.221.

5. The delegate refused to grant the visas on the basis that cl.116.221 was not met. In particular, the delegate noted that the Department wrote to Ms Olivarez on 8 December 2015 requesting her to submit evidence in the support of the application. Ms Olivarez responded, but she did not submit evidence that would enable the delegate to determine that assistance for the person requiring assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The delegate was therefore not satisfied that Ms Olivarez was a carer of the person.

6. The review applicant, Ms Esguerra, is Ms Olivarez’s sister.  Ms Esguerra’s 14 year-old son, Ken Esguerra (“Ken”), is the person who requires assistance.  Ms Esguerra applied for review on 3 August 2016. 

7. Ms Esguerra appeared before the Tribunal via video link from Perth on 17 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Esguerra’s husband, Mr Sandy Esguerra, and her daughter, Ms Karen Esguerra (“Karen”), and, by telephone, from Ms Olivarez.  The Tribunal conducted the hearing with the assistance of an interpreter in the Tagalog and English languages.

8. Ms Esguerra is aged 49 years.  Her husband is aged 51 years.  Karen is aged 22.  Another son, Kim, is aged 17 years.  At the time the decision was made to refuse the visas, Ms Esguerra and her husband and children were Australian permanent residents but the Tribunal was told that they are now Australian citizens.  Ms Esguerra and the older two children came to Australia in 2010.  Mr Esguerra was already here.  Ken came to Australia in 2013.  Between 2010 and 2013 he was cared for in the Philippines.  One of Ms Esguerra’s sisters, Leonila, looked after him during the week and Ms Olivarez looked after him on weekends. 

9. Ms Esguerra and her family live in a northern suburb of Perth.  Ms Esguerra has had a permanent part time job in the city since 2011.  She works as a cleaner.  Mr Esguerra has been working full time as a mechanic or technician since 2008.  Karen obtained a full time position in the city with a car company at the beginning of this year.  Kim is a secondary school student, in year 12.  

10. Ken has a severe and permanent disability.  According to the Carer Visa Assessment Certificate made in December 2014, held on the Department’s file, Ken has spastic quadriplegia – cerebral palsy, intellectual disability, cortical visual impairment, sensory neural hearing loss, epilepsy and a dislocated hip.  Ken was diagnosed at the age of one year.  He is completely dependent.  He is wheelchair bound and must be lifted by two persons or by hoist.  Feeding is via a PEG that was inserted in 2013.  The visa application stated that long-term assistance could be obtained from Burbidge School, Princess Margaret Hospital, and “The Centre for Cerebral Palsy”. 

11. By the time of the Tribunal hearing Ken had moved to a new school: Butler College.  The connection with Princess Margaret Hospital has been maintained: Ken has most recently had (orthopaedic) surgery there in March 2018.  Concerning “The Centre for Cerebral Palsy”, it appears that the reference in the visa application to that organisation was really a reference to Ability Centre Australasia.  (An undated letter on behalf of the Ability Centre, describing Ken’s needs, and the physiotherapy and occupational therapy and other services provided to him, was among the material submitted to the Department).

12. Ken attends school every weekday during term time.  Physiotherapy, hydrotherapy and other programs are available for him there.  Ken wakes early – at about 5.00 am.  The school bus arrives at 7.00 am.  Ken returns home at 3.45 pm.  Ms Esguerra told the Tribunal that she is the one who looks after Ken before he goes to school but she confirmed that everyone is home at that time.  Work or school occupies all the family members from Monday to Friday.  Mr Esguerra works 30-60 minutes’ travel from home – usually from 8.00 am to 4.00 pm or, if there is work to be completed, to 5.00 pm.  Karen works more than 30 minutes from home – usually from 8.30 am to 5.30 pm.  Kim’s school is 15-20 minutes from home.  He returns from school at about 4.00 pm.  Ms Esguerra works 30-60 minutes from home, usually from 6.00 – 10.00 pm.  

13. Regarding the assistance that Karen and Kim can provide, Ms Esguerra said that sometimes they are present when help is required and sometimes they are not.  In an email to the Tribunal dated 13 February 2018 Ms Esguerra said that now that Karen is employed she cannot help as much as she could before.  She further said that Kim temporarily stopped looking for a job he wanted to have after school so that he can help. 

14. Ms Esguerra and Mr Esguerra are concerned that as Ken grows he is becoming heavier.  Ms Esguerra and Mr Esguerra told the Tribunal that they suffer back strain.  They have to lift Ken together; otherwise Ms Esguerra has to use the hoist.  In a letter dated 6 November 2016, Ms Esguerra said that it would surely help Ken for Ms Olivarez and her family to be to Australia: the more people around him, the more love he would feel, she said.  In an email to the Tribunal dated 4 September 2017 Ms Esguerra said that Ms Olivarez and her family could provide not only practical assistance but also moral support. 

15. The Department’s file includes medical, hospital and school reports concerning Ken.  The material submitted to the Tribunal includes further medical and hospital reports concerning Ken and statements in support of the application. 

16. After the hearing Ms Esguerra submitted a letter dated 21 May 2018 by Mr Rob McKrill, senior social worker, Princess Margaret Hospital: see further below. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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.

19. For Ms Olivarez to be a carer, among other things r.1.15AA(1)(e) must be met. Regulation 1.15AA(1)(e) requires that the assistance the visa applicant’s Australian relative requires 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.

20. It is most important to note before proceeding that it is for an applicant to show that relevant assistance cannot reasonably be provided or obtained: see, for instance, Lam v MIBP [2013] FCCA at [50]. As the Tribunal has mentioned, in December 2015 the Department invited Ms Olivarez to submit evidence relevant to this issue. Her response did not include evidence that would have enabled the decision-maker to determine that assistance for Ken cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. On 19 April 2018 the Tribunal wrote to Ms Esguerra to invite her to the hearing. In its letter, the Tribunal specifically asked Ms Esguerra to provide the evidence no later than 10 May. Ms Esguerra has not done so.

21. The Tribunal inquired at the hearing about the parties’ understanding of the precise reason for the decision to refuse the visas.  Ms Esguerra confirms that she can read English.  She said that she did not read the primary decision but she did read the hearing invitation.  Karen said she read the decision, though not recently.  She did not read the hearing invitation.  Mr Esguerra said he could not understand what further information had to be provided in support of the application.  Ms Olivarez said that she was not clear about what further information had to be provided. 

22. In response to further questions by the Tribunal, Ms Esguerra said that she had heard about the NDIS (National Disability Insurance Scheme) though she also said that it would be “rolled out” (in Western Australia) later this year.  She did not know details about the scheme.  Ms Esguerra said she had heard about the possibility of respite care, and that professional carers would be able to take Ken out from time to time.  She said that the family had never accepted this kind of help.  Karen told the Tribunal that the Ability Centre had offered such help but Ms Esguerra preferred to look after Ken herself.  Mr Esguerra said that he thought that the only help available would be temporary.  Ms Olivarez said that she knows there are “institutions” that can help look after Ken, but she also said in effect that Ken would feel “true attention” if he received it from his family.     

23. Dr Gavin Hutana, a paediatrician working at Princess Margaret Hospital, wrote a letter of support dated 10 April 2017.  Dr Hutana stated that Ms Esguerra relies on the other children to provide the care Ken requires.  He said that the demands would increase as Ken becomes older and heavier.  Dr Hutana made this specific remark: “Filipino culture is characterised by close connection with their relatives and family caring for those family members in need – the elderly and disabled”. 

24. The letter by Mr McKrill, the senior social worker at Princess Margaret Hospital, includes information about Ken’s condition, essential needs, and “regular” treatment at the hospital. Mr McKrill stated that given that Ken’s older siblings “are both now entering the full-time work force, they are no[t] able to assist with care for Ken”.  He further stated that the family had “limited” social supports in Perth and “currently” they “do not receive adequate carer support from the disability sector and are financially unable to access care from the private sector”.  Mr McKrill said that Ms Esguerra and her husband were finding their role “increasingly demanding and stressful”.  Ken is growing into adulthood and is becoming heavier and more difficult to care for.  Mr McKrill said that the hospital strongly supported the visa application, and acknowledged that the family is a “significant risk of carer burn out” and requires “any extra help that is available to them”. 

25. The Tribunal accepts that Ken’s need for care places very great demands especially on Ms Esguerra and Mr Esguerra.  While there was no medical evidence submitted concerning them, the Tribunal accepts the oral evidence that they have suffered back strain that can make it even more difficult to look after Ken - whether that condition has been brought about by having to lift Ken or by one or more other factors.  There is no claim that Karen or Kim have any health problems that would prevent them helping when they are home.  Ken is cared for at school on weekdays during term time.  Everyone is usually at home before he leaves for school and at least Kim is at home with Ms Esguerra at or very soon after the time Ken returns home from school.  To the extent that Ken is cared for at school, assistance is obtained from welfare or community services.

26. The Tribunal accepts that the difficulty of caring for Ken has increased over the years and will likely continue to increase as he and Ms Esguerra and Mr Esguerra grow older.  The Tribunal also accepts that the capacity especially for Karen to assist has reduced this year and is somewhat limited.  On the other hand, the statement by Mr McKrill that Kim (as well as Karen) is entering the full-time work force is not supported by the oral evidence.    

27. It is relevant to note in this context that the courts recognise that 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.

28. At present there is assistance provided to Ken in combination by his relatives in Australia, and obtained from relevant welfare, hospital, nursing or community services here.  On the evidence that is before the Tribunal, the Tribunal is not satisfied that - to the degree that further assistance may be required – that assistance cannot reasonably be provided by Karen and Kim or obtained from welfare, hospital, nursing or community services in Australia.

29. It is relevant also to note that the Federal Court has held that “reasonably obtained” in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. Cultural factors can be relevant to determining whether the relevant care is reasonably obtainable, but 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]. The Tribunal is mindful of Dr Hutana’s remark about Filipino culture. It is not claimed however that there is a cultural reason why assistance from welfare, hospital, nursing or community services in Australia cannot reasonably be obtained. Rather, understandable as it may be for Ms Esguerra to prefer that she and her family provide care, that is Ms Esguerra’s preference.

30. As the Tribunal has noted, it is for an applicant to show that relevant assistance cannot be provided or obtained.  The Tribunal is mindful of the difficulty for the applicants where, among other things, English is not their first language.  Nevertheless, despite the opportunities given to them, the applicants have not provided the required evidence – whether in relation to what Mr Krill describes as the “disability sector” or in relation to the “private sector”.  On the other hand, the oral evidence actually tends to show - at least - that some additional assistance could reasonably be obtained from welfare, hospital, nursing or community services in Australia. 

31. The assistance required is very substantial, for the medical evidence indicates that Ken is completely dependent.  However, on the basis of all the other evidence that has been submitted, the Tribunal is not satisfied that the assistance required cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. 

32. Therefore the requirements of r.1.15AA(1)(e) are not met.

33. Given these findings, the Tribunal concludes that at the time of decision the Ms Olivarez is not a carer of the relevant Australian relative and therefore does not satisfy cl.116.221.

34. For the reasons above, Ms Olivarez does not meet the criteria for a Subclass 116 visa.

35. In respect of the other visa subclasses there is no material which would permit a finding that Ms Olivarez meets prescribed criteria for the visa sought.

36. The other visa applicants are not members of the family unit of a person who satisfies the primary criteria for any subclass of Class BO and so they do not meet the relevant secondary criteria. 

    DECISION

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

    John Billings
    Senior Member

    
    

    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 (within the meaning of subsection 23(1) of the Social Security Act 1991), 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.