Isidoro (Migration)

[2024] AATA 940

Isidoro (Migration) [2024] AATA 940 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mary Grace Isidoro

VISA APPLICANTS:  Mrs Maria Criselda Castillo
Miss Beatrice Celine Castillo
Miss Betina Celine Castillo

CASE NUMBER:  2009851

HOME AFFAIRS REFERENCE(S):          OSF2018/045598

MEMBER:Kira Raif

DATE:24 April 2024

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 24 April 2024 at 1:53pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – person needing care member of family unit of sponsor – mother of sponsor and applicant suffering dementia and unable to meet sponsorship obligations – not specified relative of sponsor – regulation includes only spouse, child and dependant grandchild – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA(1)(b), Schedule 2, cl 116.221

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 Home Affairs on 7 April 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named visa applicant (the visa applicant) is a national of the Philippines, born in September 1975. She applied for the visa on 1 February 2018. The application includes her two children. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate was not satisfied the visa applicant was the carer of an Australian relative. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 24 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ronald Manila, Maria Elizabeth Allegro and Michaela Manila. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

4. At the time the application was made, 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 (Cth) (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.

5. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations. Regulation 1.15AA(1)(b) relevantly requires that a Carer certificate states that the Australian relative (resident) or a member of the family unit has a medical condition.

6. The term ‘member of the family unit’ is defined in r. 1.12 and includes a spouse or de facto partner of the family head, a child or step-child and a dependent child of a child.

   Is the applicant a carer of an Australian relative?

7. The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the visa applicant was sponsored by her sister Mary Grace Isidoro, who is an Australian citizen. The visa applicant stated that the person with the condition, and a person in relation to whom the Carer certificate was issued, is their mother Ms Joselita Manila.

8. The delegate noted that Ms Joselita Manila was not a spouse or a child of the family head and was not a member of the family unit of Ms Isidoro.

9. Ms Isidoro provided a statement to the Tribunal dated 11 June 2020. Ms Isidoro states that the person in need of care is her mother, who is 87 years of age, who is not a spouse or a child. Ms Isidoro states that the application could have succeeded if her mother sponsored her sister but at the time the application was made, her mother was already suffering from dementia and her health had rapidly deteriorated as a result of dementia and other conditions and she was not able to meet the sponsorship obligations. Ms Isidoro states that she made the decision to sponsor her sister to be a carer for their mother. Ms Isidoro states that it is difficult to comprehend that her mother, who is physically and intellectually incapacitated and is fully dependent on her children, is not considered a member of her family unit as she and her siblings continue to make joint decisions regarding their mother’s health and well-being in accordance with their mother’s will. Ms Isidoro states that her mother requires ongoing and substantial care and health professionals have expressed the need for a carer. Ms Isidoro provided with her submission to the Tribunal a copy of her mother’s will and medical evidence relating to her mother.

10. In oral evidence Ms Isidoro reiterated these claims. She told the Tribunal that she understands her mother may not be considered as a member of the family unit under the Migration law but that is hard for her to comprehend. Ms Isidoro states that her mother has always been dependent on her and other children and she has been diagnosed with dementia. Ms Isidoro states that her mother has always been part of her family and participates in all the family activities.

11. The Tribunal accepts that evidence and also acknowledges the medical evidence regarding Ms Manila’s care needs. However, the Tribunal is mindful that the definition of the ‘member of the family unit’ relates to the type of relationship, rather than the nature of interactions between family members. The fact that Ms Manila is related to the sponsor, is considered to be part of her family and participates in the family activities does not render her a ‘member of the family unit’ for the purpose of the Regulations.

12. The Tribunal finds that the visa applicant was sponsored by her sister Ms Isidoro. The Tribunal finds that the Australian relative is the applicant’s sister. The Carer certificate which accompanied the application relates to Ms Joselita Manila who is the mother of the visa applicant and the sponsor.

13. As the person in need of care is not the resident, she must therefore be a member of the family unit of the resident. However, r. 1.12 defines the term ‘member of the family unit’ and that definition does not include a parent. As Ms Joselita Manila is the parent of Ms Isidoro, she does not meet the definition of ‘member of the family unit’ of the resident.

14. The Tribunal is not satisfied that it is the Australian relative (resident) or a member of the family unit who has the relevant medical condition to which the certificate relates. The Tribunal is not satisfied the visa applicant meets the requirements of r. 1.15AA(1)(b). She is not a ‘carer’ as defined in r. 1.15AA for the purpose of cl. 116.221. The Tribunal is not satisfied the visa applicant meets that provision. The secondary applicants do not meet cl. 116.321.

15. The visa applicant is not old enough to be considered an Aged Dependent relative. She stated on the application form that one of her siblings resides in the Philippines. The Tribunal is not satisfied she meets the definition of the term ‘remaining relative’.

16. The review applicant provided a number of documents to the Tribunal on 15 and 16 April 2024. These include medical and other reports and other materials relating to her mother and several declarations from herself and other family members concerning their ability to care for Ms Manila. The Tribunal acknowledges that evidence and accepts the evidence about Ms Manila’s medical condition and incapacity. The Tribunal also acknowledges the evidence about the inability of other relatives to provide requisite care. However, the key issue here is the relationship between the sponsor and the person who needs care, rather than the availability of such care from other sources. Having found that the visa applicant does not meet one of the requirements for the grant of the visa, the Tribunal has no option but to affirm the decision under review. 

    Conclusion

17. 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

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

    Kira Raif
    Senior Member