Quijano (Migration)

[2021] AATA 4268

Quijano (Migration) [2021] AATA 4268 (19 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Ethelind Quijano

VISA APPLICANTS:  Mr Samuel Jr Ramiterre
Mrs Maricel Ramiterre
Ms Clarisse Ramiterre
Ms Charisse Ramiterre

CASE NUMBER:  1721571

HOME AFFAIRS REFERENCE(S):          2014040047

MEMBER:John Longo

DATE:19 October 2021

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 19 October 2021 at 10:51am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– assistance can reasonably be provided by the other relatives of the sponsor – review applicant has not explored any options –decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 116.211, 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 Immigration and Border Protection on 13 July 2017 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 visa applicants applied for the visa on 16 December 2014. At that time, Class BO contained three subclasses, being 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.

3. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate was not satisfied that the assistance could not reasonably be provided by any other relative of the resident (reg 1.15AA(1)(e)(i)) and also that care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(ii)). The sponsor (the review applicant) seeks review of the delegate’s decision.

4. The review applicant appeared before the Tribunal on 5 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the primary applicant, Mr Samuel Jr Ramiterre. The Tribunal exercised its discretion to hold the hearing by video hearing. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the assistance could not reasonably be provided by any other relative of the resident and also whether the care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(ii)).

   Whether the visa applicant is a ‘carer’

7. 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, which is set out in the attachment to this Decision.

8. Regulation 1.15AA(1)(a) requires that the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 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 niece. Evidence of the relationship has been provided and the Tribunal is satisfied that the primary visa applicant (the visa applicant) is the uncle of the ‘close relative’, who is a member of the family unit of the sponsor, the visa applicant’s sister, who is an Australian permanent resident requiring assistance to care for her daughter. Therefore, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

9. Therefore, as the visa applicant is the uncle of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

   Certification – reg 1.15AA(1)(b)

10. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; the impairment has a rating (under the impairment tables) that is specified in the certificate; and because of the condition, the person has and will continue, for at least two years, to have a need for direct assistance in attending to the practical aspects of daily life.

11. For a certificate to meet reg 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 14/085), or issued by a specified health provider in relation to a review of such an opinion. The Tribunal has considered the Bupa Medical Visa Services Carer Visa Assessment Certificate dated 15 May 2014.

12. The care recipient is diagnosed with autism spectrum disorder requiring support for deficits in social communication, and restricted, repetitive behaviours. The care recipient’s condition was considered permanent and likely to affect activities of daily living and future schooling and employment. The certificate indicated that the care recipient engages in speech pathology, occupational therapy and paediatric review. A speech language assessment report, dated 23 July 2020, provided to the Tribunal indicates that speech- language pathology appointments are continuing and the review applicant confirmed at the hearing that these are continuing on a fortnightly basis.

13. The certificate indicated that the care recipient was partially independent with activities of daily living at the time. The review applicant stated at hearing that the care recipient is currently able to independently manage her activities of daily living – eating, dressing, personal hygiene and toileting.

14. The Tribunal is cognisant of the fact the certificate was prepared approximately six years ago, however, there is no evidence before the Tribunal that indicates the medical conditions of the care recipient, Ms Brianna Ramiterre Quijano, have improved, and the Tribunal accepts the certificate as still applicable.

15. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

16. 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 reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

17. 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 30. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Assistance cannot be reasonably obtained/provided – reg 1.15AA(1)(e)

18. 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.

19. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 (Anveel) at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: Anveel at [61]. Relevantly, the Federal Court has also 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. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, 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].

20. The Tribunal has considered the evidence provided in the form of submissions, medical documents, the oral evidence provided at hearing and documents that were provided to the Department and the Tribunal pre and post hearing. The review applicant’s evidence was that her daughter, Ms Brianna Quijano, is independent in her daily activities. She stated that her daughter attends the local Catholic primary school, which is within walking distance from the home. The review applicant also stated that the care recipient was undertaking swimming lessons, which have stopped during the COVID-19 pandemic. The review applicant stated that she requires someone to be able to provide care to her daughter but also to drive her to high school, when she starts, and to drive her to medical appointments.

21. The review applicant stated that she is a full-time employee, working from approximately 7am until around 3.30 to 5pm, depending on work requirements. She stated that she occasionally works on Saturday but not often. The review applicant stated that her husband is also a full-time employee, working shift work. She stated that he works 2-3 days, working a 12-hour shift, then has two days off. She stated that he often works overtime. The Tribunal accepts that the review applicant and her husband work full-time but there is no expectation that either would be a full-time carer, given that their daughter attends school every weekday. The Tribunal is not satisfied that they cannot contribute to the provision of care to the care recipient.

22. The review applicant stated that her mother, Mrs Vi Ramiterre, lives with the family. The review applicant stated that her mother presently drops Brianna at school and collects her each day (when she is attending), as the school is in walking distance. The review applicant explained to the Tribunal that her mother was diagnosed with vertigo and hypertension and is on medication for these conditions. The review applicant stated that her mother is unable to drive. A medical certificate from Dr Josefina Puno, dated 17 July 2017, stated that Mrs Vi Ramiterre is unable to care for the care recipient, her granddaughter, as she gets dizzy on most days. It is unclear why this would necessarily preclude her from providing some degree of care to her granddaughter, which Mrs Ramiterre has done for a number of years, in taking her to and from school, notwithstanding these conditions. The Tribunal accepts that her capacity to help would be limited as a result of her medical condition. However, the Tribunal does not accept that her medical condition necessarily precludes her ability to provide a degree of care to the care recipient.

23. The review applicant stated that her eldest daughter, who is 19 years of age, is currently studying at university and works part-time. The review applicant stated that her eldest daughter has a driver’s licence. There is no evidence before the Tribunal that the review applicant’s eldest daughter cannot contribute to the care of Brianna.

24. The sponsor’s sister Bernadeth provided a statutory declaration which referred to her full-time employment as a senior dental nurse and her family commitments. The Tribunal notes that her two children are both over 18. The Tribunal accepts that the sponsor’s sister has family commitments and that her capacity to help would be limited due to her work and family commitments. However, the Tribunal does not accept that these commitments necessarily preclude the provision of some degree of assistance.

25. The Tribunal also discussed with the review applicant whether she had approached any organisations for help. The review applicant stated that the care recipient has had occasional care through AMAZE but this has been limited because her mother has more recently been around. The review applicant stated that her daughter receives speech therapy every fortnight. She stated that her daughter is not receiving any occupational therapy presently, to allow her to concentrate on her speech therapy. The review applicant stated that some funding has been provided, which assists with costs for her speech therapy, swimming lessons and some personal equipment (the purchase of an iPad). The review applicant confirmed that Brianna does not attend before or after school care but that she did attend prior to her mother (the care recipient’s grandmother) residing in Australia.

26. Overall, the Tribunal is not satisfied that the review applicant’s eldest daughter and mother in Australia cannot at least contribute to the requisite care. The Tribunal also finds there is no evidence that the review applicant has explored any options relating to welfare, hospital, nursing or community services in Australia. In the Tribunal’s view, the combination of such care would be sufficient to meet the sponsor’s needs.

27. The Tribunal is therefore not satisfied, based on the evidence discussed above, 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 reg 1.15AA(1)(e) are not met. Therefore cl 116.211 is not met.

28. In relation to the secondary applicants, the Tribunal finds that, as the primary visa applicant does not meet cl 116.211 and accordingly, does not meet the criteria for a Subclass 116 visa, the secondary applicants each cannot meet the criteria for a Subclass 116 visa as a member of the family unit of a person who has satisfied the primary criteria. Further, no claims have been made, and no evidence provided, that any of the secondary applicants meet the primary criteria for a Subclass 116 visa.

29. 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.

30. The evidence before the Tribunal is that the visa applicant was born on 24 December 1976. The Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. As such, the visa applicant is not an ‘aged dependent relative’ as defined in reg 1.03 for cl 114.211 of Schedule 2 to the Regulations.

31. The Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 115 (Remaining Relative) visa because they have relatives who reside in the same country (Philippines) as the visa applicant, according to the visa application, which includes his wife’s mother and brothers. This information indicates that the applicant is not, therefore, a ‘remaining relative’ of the ‘Australian Relative’ and, therefore is unable to meet cl 115.211.

    DECISION

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

    John Longo
    Member