Hagley (Migration)

[2019] AATA 1669

Hagley (Migration) [2019] AATA 1669 (25 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Terence Norman Hagley

VISA APPLICANT:  Miss Rhea Domingo PELINGON

CASE NUMBER:  1722443

DIBP REFERENCE(S):  2015032753 OSF2015032753

MEMBER:Justin Owen

DATE:25 January 2019

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 25 January 2019 at 3:42pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa– Subclass 116 (Carer) – did not meet the definition of ‘relative’ – assistance can be provided by other relatives in Australia –assistance can be obtained from welfare, hospital, nursing or community services in Australia –– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 1, rr 1.03, 1.15AA(1)(e), item 1123AA, Schedule 2, cl 116.211
Social Security Act 1991

STATEMENT OF REVIEW DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 10 August 2017 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 applied for the visa on 18 September 2015. 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.116.211.

3. The delegate refused to grant the visa on the basis that cl.116.211 was not met because the visa applicant did not meet the definition of ‘relative’ as set out in Regulation 1.03.  The delegate was not satisfied that the visa applicant was the niece of the sponsor.  The delegate found therefore that as the visa applicant was not a carer of an Australian relative and failed to meet clause 116.211.  

4. The review applicant appeared before the Tribunal on 21 January 2019 to give evidence and present arguments. The Tribunal also received oral evidence at the hearing from the review applicant’s wife Mrs Teresita Donnelly and by telephone from the visa applicant in The Philippines.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

7. As stated in the delegate’s decision record provided by the review applicant to the Tribunal, when applying for this visa the review applicant was assigned a rating of 30 in his Carer Visa Assessment Certificate.   The review applicant was identified as suffering from a range of medical conditions including osteoarthritis, sciatica, peripheral vascular disease, generalised anxiety, rotator cuff repair, left shoulder pain and gastro-oesophageal reflux disease.  The applicant in oral evidence said that since that time he his condition had deteriorated, particularly in regards to sleep apnoea.  The Tribunal notes the various correspondence since this time the review applicant has supplied the Department and the Tribunal (T1, Folio.22-23) since the Assessment and accepts that the applicant’s physical condition and general health has deteriorated further since the Carer Visa Assessment in 2015.  

8. The Tribunal discussed with the review applicant the care he currently receives from his wife, Ms Teresita Donnelly, a 59-year-old woman he has lived with for well over seven years. 

9. The review applicant stated that Ms Donnelly currently looks after him for most aspects of his life.  He stated that she does all the cooking, washing, cleaning and looks after him with his health issues.  He said that she was of particular assistance with his sleep apnoea of which he claims to have suffered four separate serious incidents.

10. The review applicant said that she provides 24-hour support to him.  Mrs Donnelly in oral evidence reflected this claim.   The Tribunal asked the review applicant why she could not continue to provide this level of support to him.  He claimed that Mrs Donnelly is a diabetic, has a cough and has clots in her legs for which she was wearing pressure bandages.  He stated she also has some issues with cataracts.   Mrs Donnelly confirmed in oral evidence that she was looking at surgery for varicose veins in the future.  

11. The Tribunal enquired of any other family members that might reasonably provide assistance to the review applicant.  The review applicant said that he had a daughter (born in 1964) who lived in Kiama (104km north of the review applicant in Mollymook) who he had not seen for 12 to 14 years.  He said that she was an ‘evil woman’ who had caused problems in the family.  He said he had had to assist with the raising of her children.  Despite the lack of any corroborative evidence concerning the review applicant’s daughter, the Tribunal accepts the review applicant’s claim that she cannot provide him with assistance.   

12. The review applicant said he had two grandsons who reside in the Wollongong area.  He said they were committed to their own children and had jobs that took up a significant amount of time: one as Area Manager for Campbell College in Nowra; the other as a painter who spent most of his time in Sydney.  The review applicant said the grandsons would come and visit him from time to time and assist with work around the house such as painting or in the garden.  Mrs Donnelly in her own evidence said that they assisted with cleaning gutters and work in the garden.  They had also kept an eye on their grandfather the review applicant when she travelled overseas for a funeral last year.   The Tribunal accepts on the evidence before it that, whilst providing some assistance, they are limited to the amount of time and assistance they can provide their grandfather. 

13. The review applicant in oral evidence said he had never met the visa applicant and he had never visited The Philippines.  He said that she would nevertheless be of assistance to his wife Mrs Donnelly as a carer.  He said that the visa applicant and Mrs Donnelly had been close for over thirty years and were like sisters. 

14. The Tribunal asked what would be the particular assistance the visa applicant would provide.  The review applicant said the visa applicant could help his wife Mrs Donnelly with the assistance she was providing.  She would be able to assist with cooking and washing.  Mrs Donnelly said the visa applicant would be able to share the caring duties and assist with lifting up the review applicant, which was a challenge.  In oral evidence to the Tribunal the visa applicant said she could assist with hygiene, feeding and in transport.  

15. The Tribunal asked the review applicant his understanding as to his sponsorship obligations pertaining to the visa applicant.  He said that he thought she would receive some degree of government support via Centrelink.  Mrs Donnelly in oral evidence stated however that she and the review applicant would look after the visa applicant financially and with accommodation and therefore meet the sponsorship obligations.  

16. The Tribunal accepts that the review applicant has significant and growing needs in terms of care.  The Tribunal furthermore accepts that his wife Mrs Donnelly has a number of her own medical complaints.  The Tribunal nevertheless does not accept that the assistance needed by the review applicant cannot reasonably be provided by other relatives in Australia: 1.15AA(1)(e)(i), namely Mrs Donnelly.   On the evidence before it, the Tribunal is of the view that his wife Mrs Donnelly has been able to successfully care for the review applicant with the occasional assistance and support of the review applicant’s grandsons who have appeared willing to be of assistance to the review applicant.  Mrs Donnelly’s health complaints do not appear to have precluded her from providing the care and assistance the review applicant requires.  Her health complaints will not prevent her from doing so in the future.  The Tribunal furthermore notes that the review applicant and his carer and wife Mrs Donnelly in oral evidence specifically rejected the utilisation of any available assistance external bodies such as community and welfare groups.  The review applicant stated in oral evidence that his wife is independent and says that she will look after his care.  He submitted that she does a good job in doing so and he is not interested in any care provided from outside of the home.   

17. On the evidence before it, the Tribunal is not satisfied that the assistance required by the review applicant cannot be reasonably provided by a relevant relative: namely, his wife Mrs Donnelly with occasional assistance provided by his grandsons.  The review applicant does not meet 1.15AA(1)(e)(i).        

18. The Tribunal has also considered whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: 1.115AA(1)(e)(ii).

19. The Tribunal discussed with the review applicant whether the assistance (needed) cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.

20. The Tribunal noted that the applicant on 27 April 2016 was assessed by the Ms Audrey Saunders of the Illawarra/Shoalhaven ACAT Aged Care Assessment Team (ACAT).  The Delegate to the Secretary of the NSW Department of Health on 2 May 2016 approved the review applicant to receive residential respite care at a high level for up to 63 days a financial year, as well as the opportunity to apply for an ACAT for an extension of up to 21 days on multiple occasions (D1, Folio.50-54).  The Tribunal notes that the review applicant also received approval for respite care on 20 June 2013. 

21. The Tribunal asked the review applicant if he had utilised these services since this approval had been obtained.  He said nothing had happened.  He stated it was there if he needed it.  He said that he had not utilised any of the care that had been provided for him.  The Tribunal asked if he was receiving any welfare or community assistance.  The review applicant said he was not.  The Tribunal asked if he had made any applications for the provision of any community, welfare or other assistance to support himself.  He said no, he had not. 

22. The Tribunal asked the review applicant why a combination of external community, welfare and medical services in combination with the ongoing care of his wife could not provide and obtain the care he required.  The review applicant responded that this wife provides care and does the things that external providers would not do.  He said he had utilised some welfare services ‘years ago’ and was unimpressed. In response to the Tribunal’s questions, he said he has not applied for any of these external services from community, welfare and government for some years.   In relation to the provision of respite care, the review applicant referred to acquaintances that had taken up respite care and had ‘never come home.’  The review applicant expressed a very strong view that he did not wish to reside in a nursing home or similar establishment. 

23. The review applicant presented no other evidence that the assistance (needed) cannot be obtained from welfare, hospital, nursing or community services in Australia.  Notwithstanding any preference the review applicant might have in regards to who provides assistance, the evidence presented by the review applicant has not satisfied the Tribunal that the assistance sought cannot reasonably be obtained from welfare, hospital, nursing or community services.  The Tribunal notes that the review applicant undertook an ACAT assessment that found the review applicant was entitled to a significant amount of high-level respite care and assistance.  The review applicant and his carer and wife Mrs Donnelly in oral evidence both confirmed that the review applicant has not taken advantage of this care.  Mrs Donnelly in oral evidence stated that she looks after the review applicant instead. Both the review applicant and Mrs Donnelly confirmed that the review applicant has not made any applications to obtain any welfare, community or other external non-family assistance, the only exception being Mrs Donnelly’s claim the review applicant had utilised some community transport.       

24. Given the above, the Tribunal is not satisfied that the assistance (needed) cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met. 

25. 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 and therefore the requirements of r.1.15AA(1)(e) are not met.

26. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is not a carer of an Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.  For the reasons stated, the visa applicant does not meet the criteria for a Subclass 116 visa. 

27. In respect of other visa subclasses, there is no material that would permit a finding that the visa applicant meets prescribed criteria for the visa sought.  The visa applicant was 36 years of age at the time of application and 40 years of age at the time of decision.  An aged dependent is defined as someone who is old enough to be granted an aged pension under the Social Security Act 1991.  The visa applicant does not therefore meet the criterion for a Subclass 114 (Aged Dependent Relative) visa.  To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia.  In oral evidence to the Tribunal, the visa applicant said she lives in The Philippines with her brother.  The Tribunal is therefore not satisfied she meets the criterion for a Subclass 115 (Remaining Relative) visa.

28. Regulation 1.15AA(1)(a) requires the visa 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 uncle.   The Tribunal notes that the delegate refused the visa applicant’s application on the basis he was not satisfied the visa applicant met the definition of relative set out in Regulation 1.03 as he was not satisfied that the visa applicant was the niece of the review applicant’s wife Mrs Donnelly.  The Tribunal notes the evidence the review applicant has provided pertaining to the claimed relationship familial between the visa applicant and the review applicant’s wife Mrs Donnelly.  Given its findings concerning r.15AA(1)(e) the Tribunal is not required to make a finding on this particular matter.   

    DECISION

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

    Justin Owen

    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.