Esguerra (Migration) - [2018] AATA 2985

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

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.
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.
Ms Olivarez and her husband and children are nationals of the Philippines.
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.
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.
The review applicant, Ms Esguerra, is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Esguerra (Migration)

Details

AGLC: Esguerra (Migration) [2018] AATA 2985
Case: [2018] AATA 2985
Decision Date: 12 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Esguerra against a decision of the Tribunal to affirm the refusal of Other Family (Migrant) (Class BO) visas, specifically Subclass 116 (Carer) visas, for herself and other applicants. The core of the dispute revolved around whether the Australian relative, Ken, required assistance that could not reasonably be provided by other relatives or obtained from Australian welfare, hospital, nursing, or community services.

The legal issue before the Tribunal was whether the visa applicants had satisfied the requirements of regulation 1.15AA(1)(e) of the Migration Regulations 1994. This regulation stipulates that for an applicant to be considered a "carer," the assistance required by the Australian relative must not be reasonably able to be provided by another eligible relative or obtained from Australian community services. The Tribunal was required to determine if the applicants had discharged their onus of proving that such assistance could not reasonably be obtained.

The Tribunal reasoned that the applicants had failed to provide sufficient evidence to demonstrate that Ken's care needs could not be met by alternative means. Despite invitations to submit relevant documentation, including specific requests in a hearing invitation, the applicants did not provide evidence regarding the availability or limitations of welfare, hospital, nursing, or community services in Australia, such as the National Disability Insurance Scheme or respite care. The Tribunal noted that the applicants' stated preference for family care and their lack of detailed knowledge about available services did not negate the possibility of obtaining assistance from these sources. Consequently, the Tribunal concluded that the applicants had not met the criterion under regulation 1.15AA(1)(e).

The Tribunal affirmed the decision not to grant the visa applicants the Other Family (Migrant) (Class BO) visas, finding that they did not meet the relevant secondary criteria as they had not established that the required assistance could not reasonably be obtained from other sources.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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. 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. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.John BillingsSenior MemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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