Eugenio (Migration) - [2017] AATA 2626

Eugenio (Migration) [2017] AATA 2626 (7 December 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Anita Eugenio
VISA APPLICANTS:  Mr Rodrigo Eugenio
Mrs Marissa Eugenio
Mr Mark Dham Eugenio
Ms Winslet Marie Eugenio
Ms Irma Eugenio
CASE NUMBER:  1700459
DIBP REFERENCE(S):  CLF2016/93584
MEMBER:Margie Bourke
DATE:7 December 2017
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 07 December 2017 at 11:11am
CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Requires constant supervision and 24 hour care and assistance – Applicant’s subjective preference – Linguistic or cultural factors
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15A, Schedule 2, cl 116.221
CASES
Nguyen v MIBP [2017] FCCA 339
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 21 December 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 17 October 2013. At that time, 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. Relevantly to this matter, the primary criteria to be met include cl.116.221 which requires that the primary visa applicant is the carer within the meaning of r.1.15AA of the Australian relative at the time of decision.
The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the primary visa applicant met the requirements of carer.
The review applicant appeared before the tribunal on 18 September 2017 to give evidence and present arguments. The tribunal also received oral evidence from the review applicant’s two daughters who reside in Australia, Arsenia Eugenio and Leny Eugenio, and the primary visa applicant gave evidence via telephone. The tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issue in the present case is whether the primary visa applicant meets the requirements of carer as defined in r.1.15AA.
APPLICANT IS THE CARER
Whether the visa applicant is a ‘carer’
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.
Applicant is a relative of the resident – r.1.15AA(1)(a)
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 primary visa applicant’s mother. Based on the primary visa applicant’s birth certificate which records his parents’ names, I am satisfied that the primary visa applicant is the biological son of the review applicant, and a close relative within the meaning of r.1.03.
Based on the evidence before me, I am satisfied the review applicant came to Australia in 1987, and based on her certificate of Australian citizenship, I accept she became an Australian citizen on 8 November 1995. I am satisfied that the review applicant has resided with her daughter for many years. I accept that the review applicant is usually resident in Australia.
Therefore, as the primary visa applicant is the son of the Australian relative, the primary 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).
Certification – r.1.15AA(1)(b)
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.
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 (see Legislative Instrument IMMI 14/085 or issued by a specified health provider in relation to a review of such an opinion.
I have considered the certificate dated 4 July 2013, and I am satisfied it 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.
Residency status of person with medical condition – r.1.15AA(1)(ba)
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 an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.
Impairment rating – r.1.15AA(1)(c)
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. The relevant instrument for these purposes is IMMI 07/012.
In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)
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.
Assistance cannot be reasonably obtained / provided – r.1.15AA(1)(e)
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.
Based on the evidence before me, I am satisfied that the review applicant has five relatives who are Australian citizens, Australian permanent residents or eligible New Zealand citizens. These relatives are the two daughters, the adult grandson, and the two minor grandchildren of the review applicant. I am satisfied that the review applicant’s husband is deceased and all her other children and their families reside in the Philippines.
Based on the carer certificate report, I am satisfied that the review applicant requires assistance with hygiene, toileting, dressing, eating and food preparation, mobility, giving and supervision of medication, and general supervision. I am satisfied the review applicant requires almost constant assistance.
I am satisfied that the review applicant resides with her daughter Arsenia. I am satisfied Arsenia owns the home, and cares for her mother when she can, but also works two part time jobs to provide financially for herself and her mother. I am satisfied Arsenia cannot reasonably provide the assistance the review applicant requires.
I am satisfied the review applicant’s other daughter Leny is married, with two young children, is studying and is required to undertake ‘placements’ as part of her training which are sometimes interstate or in rural locations. I am satisfied that Leny’s husband is employed, and assists in the care of their children when Leny is away. I am satisfied that the young children cannot be involved in the care of their grandmother because of their age. I am satisfied that the review applicant sometimes stays at Leny’s home for respite for Arsenia but it is difficult for Leny’s family to provide any long term assistance as her home has stairs. I am satisfied Leny cannot reasonably provide the assistance the review applicant requires because of her commitments to her family and her study and future employment prospects.
I am satisfied based on a statutory declaration from Arsenia’s adult son that due to financial and practical commitments to his partner and baby he cannot reasonably provide the assistance the review applicant requires.
I am satisfied that the review applicant’s daughters have tried to provide the assistance the review applicant requires, but cannot do so. I accept that the review applicant is left at home on her own, and all appliances (including heating) have to be left off when no one is at home with the review applicant. I accept the review applicant has experienced a fall at night when Arsenia is in the home with her, and has experienced a fall when she is home by herself. I am satisfied the review applicant stays in bed when she is left alone.
Based on the documented evidence in the carer assessment certificate and report, and the written evidence in the medical reports, and the oral evidence of the review applicant and the review applicant’s daughters at the hearing, I am satisfied that the review applicant requires constant supervision, and the review applicant requires 24 hour care and assistance.
Based on all the evidence before me, I am satisfied that the review applicant currently receives some of the assistance she requires from her two daughters, particularly from Arsenia. I am satisfied that the Australian relatives of the review applicant who can provide some assistance cannot reasonably provide all the assistance that the review applicant requires.
Based on the evidence before me, I am satisfied that the assistance the review applicant requires cannot reasonably be provided by her relatives who are Australian citizens or permanent residents, or eligible New Zealand citizens. Therefore the review applicant meets the requirements of r.1.15AA(e)(i).
The judgment in Nguyen v MIBP [2017] FCCA 339 indicates a visa applicant can meet the requirements of r.1.15AA(e) through a combination of care provided by Australian relatives and Australian health care services. I am satisfied that the review applicant wishes to continue to reside at her daughter Arsenia’s home, and that her daughter Arsenia can reasonably provide some the required care for her mother at the home outside of her work hours. I am satisfied the review applicant’s daughter cannot reasonably provide regular care for her mother.
The review applicant provided the Department with an ACAS assessment report outcome dated 18 December 2013. The ACAS report advised the review applicant was approved for home care package level 1 & 2 and low level residential care (respite) both with ongoing approval, and low level residential care (permanent) for which approval would lapse in twelve months on 18 December 2014.
A letter from the review applicant’s doctor dated 9 March 2017 stated the review applicant was incapacitated due to degenerative disease of the spine and knees as well as a problem with her right shoulder. The doctor recorded the review applicant required “physical help most of the day” to cope, and was in constant and persisting pain. As stated above, I am satisfied based on the documented evidence of the carer assessment certificate and report, the medical report and the oral evidence at the hearing, that the review applicant requires constant supervision and 24 hour care and assistance.
I am satisfied that the care the review applicant requires cannot reasonably be provided by her relatives, and she is home alone, confined to bed, with no access to food, heat, assistance to move, or hygiene for the hours that her daughter Arsenia is out at work at her two part time jobs. The issue is whether the assistance the review applicant requires can be obtained from Australian hospital, nursing, welfare or community services.
The review applicant provided the tribunal with information about services she had obtained. I was provided with a letter from the local council dated 10 October 2017 that advised the review applicant had provided three services. (1) home modification to install a shower rail on 20 September 2017; (2) occupational therapy assessment on 12 September 2017; and (3) personal care service for 45 minutes twice weekly from 17 March 2017 until 17 April 2017 which was ceased upon request from the family.
The review applicant told me at the hearing that she did not want to go into care. She stated she did not want to go into care even for respite for her daughter. She stated she did not know where they would take her. The review applicant stated she wanted to sleep in her own home. I asked the review applicant why she would not consider having more assistance in her home if she was determined not to go into care. I discussed with her looking at alternatives, in obtaining services from Australian agencies. The review applicant stated her son and his wife could care for her.
The review applicant provided a statutory declaration after the hearing dated 15 October 2017 in which she declares that she requires substantial or 24 hours assistance. She declared that after the ACAS assessment she was referred to the local council, who would provide the assistance. She declared that she instructed her daughter to cancel the personal assistance which included assistance with bathing or showering as she had difficulty understanding the service provider and was not comfortable with the service. She declared she needs a person she can talk to or interact with in her language or it becomes a problem for her.
After reading the review applicant’s statutory declaration the tribunal wrote a letter inviting her to provide further information. The tribunal invited the review applicant to provide information on cultural or linguistic factors that are relevant to whether the care she requires cannot reasonably be obtained from Australian services, particularly in relation to services that have been offered to the review applicant.
The review applicant provided the tribunal with a letter from the local council dated 25 October 2017 which stated that the review applicant had been reassessed for personal care services, and that the council would endeavour to meet her specific needs but could not guarantee to provide a female language specific support worker to provide the services requested. The representative submitted in writing that he had been advised that there was no specific female support worker for the review applicant.
I have had to assess whether the review applicant can obtain the services she requires from welfare, hospital, nursing or community services in Australia. The residential (respite and permanent) services were offered to the review applicant, and were able to be obtained by the review applicant at the time of the ACAS assessment (6 December 2013). The residential respite services were subject to ongoing approval. The permanent residential care is not subject to ongoing approval and lapsed on 18 December 2014. The review applicant has not obtained the residential care offered in any form.
The home care package assistance that can be obtained by the review applicant, was obtained by the review applicant for a four week period commencing 17 March 2017 (and appears has been reassessed and obtained by the review applicant in October 2017). I am satisfied that the personal home care package is of benefit but not sufficient to provide the amount of care the review applicant requires. I accept the personal home care package consists of two sessions of 45 minutes per week. I accept that the review applicant requires almost constant supervision, or “physical help most of the day” as her doctor advises. I am satisfied that the review applicant requires constant supervision, and 24 hour care and assistance. I am satisfied that the review applicant is at home alone for extensive periods of time while her daughter Arsenia is at work. The home care package of two 45 minute sessions to assist with bathing or showering and some cleaning services is not sufficient care for the review applicant. The assistance the review applicant can obtain from a combination of assistance from her Australian relatives and the Australian health care services does not provide her with constant supervision and 24 hour care and assistance if she stays in her daughter’s home.
The review applicant was offered residential care, both respite and permanent residential care. The review applicant can obtain both respite and permanent residential care from Australian services. The tribunal needs to consider that the permanent residential care is not subject to current approval. The tribunal has considered the review applicant’s stated preference not to accept assistance in any form of residential care. The question for me is whether the review applicant’s choice to be cared for in her daughter’s own home by a relative is a cultural factor or a mere preference. I have considered the judgments of Hon Anh Vuong v MIAC [2013] FCCA 274, and Nguyen v MIBP [2017] FCCA 339 and Lam v MIBP [2013] FCCA 1263. I have applied the principles espoused in Lam v MIBP and have had regard to the evidence that the review applicant has declined respite residential care and permanent residential care when considering whether or not those services could be obtained by the review applicant.
There is no evidence before me that the review applicant could not obtain approval for permanent residential care. I accept the assessment for permanent residential care in 2013 has lapsed. There is nothing to indicate that if the review applicant was re-assessed she would not be assessed and approved for permanent residential care. I am satisfied that the evidence before me is that the review applicant’s condition and circumstances are similar to what they were in 2013 when the ACAS assessment was undertaken. I am satisfied that if the review applicant was assessed at the time of this decision, she would again be assessed as approved for residential respite and permanent care.
The tribunal understands the categories of low and high level residential care relate to the type of facility care required by a resident, which is dependent upon medical diagnosis. I accept that the review applicant is assessed as a low level residential care person in the ACAS assessment. I accept that there is no evidence before me that indicates the review applicant is in need of a different level of facility care at the time of decision.
The difficulty with the evidence before me is that it is clear the review applicant strongly wishes not to go into a nursing home. I have considered whether there are any cultural or linguistic factors that are relevant to her subjective preferences to be cared for in her daughter’s home. I accept, based on the decision in Nguyen v MIBP, that I am required to give proper consideration to her subjective preferences. Ideally, the tribunal should consider whether the review applicant’s linguistic, or cultural needs could be provided for if she obtained the residential care that was approved and offered in her ACAS assessment. I am compelled to state that it is not for the tribunal to research potential placements for the review applicant, or to research residential facilities. I have considered the review applicant’s blanket refusal to consider the option of residential care. I am restricted in making an assessment of the evidence as far as it includes cultural, and linguistic factors in relation to residential care in this review as that evidence has not been provided to me.

I accept that cultural, and linguistic factors are relevant to a determination of whether relevant care is reasonably obtainable. I have considered the evidence provided by the review applicant in this matter, and I am satisfied that the evidence is the review applicant has a preference to be cared for by her relatives in her daughter’s home. Based on the evidence before me, I am not satisfied there is evidence that her preference is based on a cultural reason.
I accept that the review applicant declared in the post hearing statutory declaration that she felt uncomfortable with the council carers who had assisted her for one month with personal care services including bathing or showering, and declared she had difficulty understanding the carers. The review applicant did not state in her evidence in the hearing that linguistics or possible isolation because of language issues was a reason that she did not wish to go into residential care, but I have considered the possibility that this may have been an issue for her. However, there is no evidence before me as to the availability of Tagalog speaking carers or workers or residents at any nursing or residential care placements. As stated above, it is not for the tribunal to research potential placements for the review applicant or to engage in an assessment of the residential facilities available.
After the hearing, and after the tribunal had received the review applicant’s statutory declaration in which she referred to her discomfiture due to language barriers, the tribunal invited the review applicant to provide further information as to whether there are cultural or linguistic factors that are relevant to whether the required care cannot reasonably be obtained from Australian services, especially services that have been offered to the review applicant. The response received by the tribunal was limited to the issue about the female Tagalog speaking council support worker availability with the home care package who attended the home to provide personal care assistance. The tribunal did not receive any information in relation to cultural or linguistic factors relevant to respite or permanent residential care.
I am satisfied that the review applicant has a preference to be cared for by relatives in her daughter’s home. I accept that linguistic factors are relevant to a determination as to whether relevant care is reasonably obtainable. Based on the evidence before me, I am not satisfied linguistic factors are the reason for the review applicant’s preference to be cared for by relatives in her daughter’s home. Based on the evidence before me, I am not satisfied that the linguistic factors are the reason the assistance cannot reasonably be obtained from Australian services.
I am not satisfied that the review applicant cannot reasonably obtain the care she requires through residential care. I am satisfied the review applicant requires constant supervision and 24 care and assistance. Based on the evidence before me, I am not satisfied that the review applicant cannot be re-assessed and approved for permanent residential care services. I am satisfied based on the evidence before me, that this care can be reasonably obtained through Australian hospital, nursing, welfare or community services.
For these reasons I am not satisfied that the care required by the review applicant cannot be obtained from welfare, community, hospital or nursing services.
For these reasons, I am not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met.
As I am not satisfied that the primary visa applicant meets the requirements of r.1.15AA(e), it follows that I am not satisfied that the primary visa applicant does not meet the requirements for carer at the time of decision.
Given these findings the tribunal concludes that at the time of decision the primary visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.
Secondary Visa Applicants
Clause 116.321 requires that the secondary visa applicants continue to be members of the family unit of the primary visa applicant who is the holder of a Subclass 116 visa at the time of decision. As the primary visa applicant does not meet the time of decision criteria, it follows that the he is not the holder of a Subclass 116 visa. Therefore the secondary visa applicants do not meet the secondary criteria.
The tribunal finds that the secondary visa applicants do not meet the requirements of cl.116.321 at the time of decision.
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
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Margie Bourke
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.