Robosa (Migration)

[2019] AATA 1526

Robosa (Migration) [2019] AATA 1526 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Genaro Robosa

VISA APPLICANTS:  Ms Imelda Tandoc
Miss Ma Angelica Grace Robosa

CASE NUMBER:  1722383

HOME AFFAIRS REFERENCE(S):           2014040031 OSF2014040031

MEMBER:Justin Owen

DATE:1 March 2019

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 01 March 2019 at 10:47am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) visa – assistance for review applicant can reasonably be obtained – review applicant has a significant amount of family support in Sydney – community, welfare and nursing services available to elderly citizens – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15AA, Schedule 1, item 1123A, Schedule 2, cl 116.221

Social Security Act 1991

CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554

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 12 July 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 24 November 2014. 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.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met.  The delegate was not satisfied that the care the review applicant required could not be provided by a combination of welfare, hospital, nursing or community service in Australia and a relative of the review applicant being a relative who is an Australian citizen.  The delegate found that the visa applicant therefore did not meet 1.15AA(1)(e) and failed to satisfy cl.116.221. 

4. The review applicant is a 93-year-old man who since 2018 has been residing at S.Antonio Da Padova Nursing Home in Ryde.  The review applicant’s daughter Mrs Maria Genaro Robosa De Vera appeared before the Tribunal on 13 February 2019 on the review applicant’s behalf to give evidence and present arguments.  The review applicant resided with Mrs Robosa De Vera between 2014 and last year after he became unwell.  Mrs Robosa De Vera informed the Tribunal that she has power of attorney over her father’s affairs since 2018 given his age and infirmity.  Mrs Robosa De Vera offered to provide evidence of her power of attorney.  The Tribunal was satisfied Mrs Robosa De Vera was appearing on her father’s behalf and is satisfied she has been granted power of attorney by her father.  The Tribunal also received oral evidence from the visa applicant Ms Imelda Tandoc.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 r.1.15AA of the Regulations, which is set out in the attachment to this Decision.

7. 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.

8. As stated in the delegate’s decision record provided by the review applicant to the Tribunal, the review applicant completed a Medibank Health Care Solutions carer visa assessment on 28 November 2013 and was assigned a rating of 35 in his Carer Visa Assessment Certificate.   The review applicant was identified as suffering from a range of medical conditions including angina and lumbar back pain with intermittent sciatic radiation which interferes with his walking and transferring from the bed and chairs.  The assessment also stated according to the decision record that the review applicant required care as he had osteoarthritis affecting his knees and hips.  The review applicant is recorded as having trochanteric bursitis of the hip and also suffers from occasional urinary incontinence.  At the hearing Mrs Robosa De Vera stated that the review applicant’s health had declined since this time which the Tribunal accepts.  She said that the review applicant had issues with hypertension, cholesterol, his heart and osteoarthritis.  She said he was suffering from dizziness and vertigo.  She expressed concern about the review applicant falling over.    Post-hearing the Tribunal received a copy of a letter from Dr Chumki Majumder, a GP at the North Ryde Medical Centre dated 25 August 2017 (T1, Folio.27).  Dr Majmunder wrote briefly about the review applicant’s medical condition and states he needs a full-time carer.  Whilst the Tribunal notes the paucity of more substantial medical evidence concerning the review applicant’s condition, the Tribunal nevertheless accepts that the review applicant’s physical condition and general health has deteriorated further since the Carer Visa Assessment in 2013 and he is in need of a significant degree of care and assistance.  

9. Mrs Robosa De Vera stated that when the review applicant lived at her residence she was only working part-time.  She stated that she is now working full-time in the finance section of the Department of Education.  Mrs Robosa De Vera is working five days a week, full-time.  She stated that her husband who also lives at her residence is working in IT at Allianz full-time.  She stated that she also has four children who reside with her aged 23, 21, 18 and 11 years of age.  The Tribunal asked if they are able to provide any assistance with the care of her father and their grandfather the review applicant.  She responded that the two eldest children were busy with their tertiary studies whilst the 18yo is currently on a gap year in Ireland.  The 11yo is currently in Year Six at primary school. 

10. The Tribunal asked Mrs Robosa De Vera about her brother Mr Ramsay Robosa and any care he could provide to his father the review applicant.  The review applicant has previously resided with her brother.  Mrs Robosa De Vera said she was appearing before the Tribunal on his behalf as he was very busy with work.  She said Mr Robosa her brother is already busy with his own building business.  She said he is married with five of his own children with three of those still living with him at his home in North Ryde.  The Tribunal asked about his children and what assistance they might be able to provide their grandfather.  Mrs Robosa De Vera said that her three nieces living with her brother were all studying at university: Dentistry, Pharmacy and Medical Science respectively.  She stated the grandchildren only help if they can and intimated their existing responsibilities made the provision of any further care to their grandfather too onerous.  

11. Mrs Robosa De Vera said ultimately the responsibility for caring for her father the review applicant fell back onto herself.  Whilst she had carried this out previously, the fact she was now working full-time made this particularly onerous and extremely difficult to fulfil, particularly given her father’s care needs were increasing as he aged.   The Tribunal asked Mrs Robosa De Vera who looked after the review applicant when she was working part-time.  She said the review applicant was there by himself but sometimes one of her children was there.  She claimed this could no longer be done due to her father’s ageing. 

12. Mrs Robosa De Vera explained to the Tribunal the visa applicant’s background with the review applicant.  She stated that she had grown up with the review applicant’s family and was like a daughter to her father the review applicant.  Mrs Robosa De Vera presented a number of photographs illustrating her link to the review applicant.  She said that the visa applicant’s father is the brother of the review applicant.  The Tribunal accepts the family link between the visa applicant and the review applicant.  Mrs Robosa De Vera explained to the Tribunal that the visa applicant currently works in a clerical job and is aged in her early 60s. 

13. The Tribunal asked Mrs Robosa De Vera what would be the particular assistance the visa applicant Ms Tandoc would provide the review applicant.  She stated that the visa applicant completed four years of nursing studies and had previous experience as a carer for both her grandparents.  Mrs Robosa De Vera said that the visa applicant would ‘look after’ the review applicant.  In her written submission, she stated that she and her brother would provide the funds to support the ‘living at home’ arrangement for their father the review applicant.  She explained that there is an extra room in her house for the visa applicant.  She said her father would be happier at her home with the visa applicant as there is safety, privacy and he will have his own bathroom.

14. Mrs Robosa De Vera said the visa applicant and the secondary applicant would both live with her.  She said her home has seven bedrooms.  Mrs Robosa De Vera said the secondary applicant is 18yo and would go to school.  She said she would fully support both the visa applicants.  She said both were in good health. 

15. The Tribunal spoke to the visa applicant Ms Tandoc.  In oral evidence, she spoke about her family relationship with the review applicant and Mrs Robosa De Vera.  She talked about the care she would provide to the review applicant and stated that she had studied nursing for four years and graduated in 1986.  Ms Tandoc exhibited a general and superficial knowledge of the review applicant’s needs and stated that he is like her father.  The Tribunal found Ms Tandoc’s evidence vague but draws no adverse inferences from her responses.  The Tribunal has noted the correspondence provided post-hearing from Dr Simon Brown attesting to Ms Tadoc’s experience as a carer of 78-year-old Ms Sylvia T. Urbano (T1, Folio.28).  The Tribunal has also had regard to Mrs Robosa De Vera’s written submission concerning the oral testimony of Ms Tandoc (T1, Folio 28-29).  The Tribunal appreciates the clarifications and draws no adverse inferences from Ms Tadoc’s oral evidence.   The Tribunal accepts Ms Tadoc has experience as a carer and has experience in aged care. 

16. The Tribunal notes that the review applicant has a significant amount of family support in Sydney.  The Tribunal accepts from the oral testimony of Mrs Robosa De Vera that this is a family that is close-knit, loyal and supportive of each other.

17. Post-hearing Mrs Robosa De Vera wrote to the Tribunal and outlined the review applicant’s history in Australia.  She writes that since arriving in Australia in 1991 at the age of 65 he lived with her brother Mr Ramsay Robosa for most of his life in Australia: up in fact until 2014 when he moved to Mrs Robosa De Vera’s home.  She states he has had minimal exposure outside the family home and was a ‘live-in’ grandfather to his grandchildren.  She writes that the grandchildren revere the review applicant.  She writes that he is ‘always looking forward to having one of his children look after him’ (T1, Folio.28-29).    

18. The Tribunal notes from oral evidence that there are a range of adult grandchildren of the review applicant that either live at Mrs Robosa De Vera’s home – the previous residence of the review applicant and his planned future residence if the visa applicants are successful – or nearby in North Ryde at with the review applicant’s son.  The Tribunal accepts that these five individuals are all studying and have their own active lives.  The Tribunal nevertheless considers it plausible that the grandchildren are able to provide occasional care to their grandfather as necessary.    Whilst the Tribunal accepts they have their own lives, the Tribunal considers these grandchildren of the review applicant are also able to provide a level of assistance and care in conjunction with other family members. 

19. The Tribunal accepts the evidence that the review applicant’s son Mr Ramsay Robosa is busy with his own business and family.  The Tribunal notes however that he has previously provided care and support for his father – albeit between 1991 and 2014 when the review applicant was of a younger age.  There is nothing however before the Tribunal to suggest that the review applicant’s son is incapable of providing a degree of support or there has been any relationship break down that would make such actions difficult or impossible in conjunction with other support both from family and/or from external support. 

20. The Tribunal also obviously notes the ability of Mrs Robosa De Vera to provide care to her father.  The Tribunal found Mrs Robosa De Vera to be an admirable woman that has clearly provided a significant amount of care, support and love to her father.  She was his carer between 2014 and 2018 whilst he lived at her residence and has clearly made an enormous effort in caring for her father as he grows older and his needs increase.  The Tribunal notes that she did so without the receipt of a Carer’s pension.  The Tribunal accepts her claim that now she is working full-time – and with an 11-year-old child – her ability to provide such support has diminished.  The Tribunal does not however consider she does not retain the ability to provide a reasonable level of care and support to her father if he were to return to her home.    

21. The Tribunal notes that Mrs Robosa De Vera conceded that the review applicant remained at her residence when she went to work part-time and was supported by her children or was alone.  Mrs Robosa De Vera pointed out in her testimony that a significant amount of care the review applicant required was in the evening an overnight.  The Tribunal notes that Mrs Robosa De Vera and her husband would be home from work in the evenings and on weekends.  Her children studying at university will also be there in all likelihood.  The Tribunal considers that the family members in residence will be able to provide any overnight care the review applicant requires when necessary.     

22. 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 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: at [61].

23. The Tribunal notes that care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. The Tribunal is not satisfied that the review applicant’s daughter, son and grandchildren are unable to provide at least some degree of support and assistance to their father on a needs basis.

24. 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 the review applicant’s daughter Mrs Robosa De Vera with support from the review applicant’s grandchildren – two who reside at the residence -  as well as support from the review applicant’s son.  Mrs Robosa De Vera claimed her husband is too busy to provide any care due to his full-time job in North Sydney in IT at Allianz.  The Tribunal accepts that he might be busy but notes he too resides at Mrs Robosa De Vera’s residence and is also capable of providing a degree of care to his father in law the review applicant, notwithstanding his own employment demands.   The applicant does not meet 1.15AA(1)(e)(i). 

25. The Tribunal nevertheless has noted Mrs Robosa De Vera’s claims concerning the challenges her family face in providing care to her father the review applicant due to their busy lives.  The Tribunal notes that there are community, welfare and nursing services available to elderly citizens to assist with a wide range of in-the-home requirements.       

26. The Tribunal has considered whether the assistance required by the review applicant cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: 1.15AA(1)(e)(ii). The Tribunal discussed this matter with Mrs Robosa De Vera.

27. The Tribunal asked Mrs Robosa De Vera what care her father the review applicant receives from any external providers such as welfare, nursing or community services.  The Tribunal mentioned Home Care and the Commonwealth Home Support Programme as examples.   

28. Mrs Robosa De Vera said the review applicant utilised Meals on Wheels but she does everything else.  She stated that external services were expensive and her father needed 24/7 care.  She said the visa applicant would be able to reside with her father at her home and provide care.

29. The Tribunal asked about previous efforts had been made to procure external assistance for the review applicant given his care needs.  The Tribunal asked about any evidence of such efforts that were undertaken.  Mrs Robosa De Vera said she ‘made a few phone calls’.  She said ‘Home Care’ was very expensive and the needs her father had overnight could not be fulfilled by their agencies. The Tribunal asked when this contact to these external providers had been made. Mrs Robosa De Vera said she thought she had contacted Home Care a few years ago. 

30. The Tribunal noted from the decision record the review applicant provided the Tribunal that the review applicant was assessed by an Aged Care Assessment Team (ACAT) over five years ago – in August 2013 – and approved for residential care at a high level.  Mrs Robosa De Vera said this was correct.  The Tribunal asked Mrs Robosa De Vera if, after receiving notification from NSW Health in August 2013 about her father’s eligibility to receive residential care at a high level, the family had taken up the offer at all.  She agreed that this care had not been taken up until recently.  She said that she had been avoiding taking up this care.  She believed he was currently receiving high care. 

31. Mrs Robosa De Vera was asked if the review applicant had ever utilised the 63 days of subsidised residential respite care each financial year that he had been approved for.  Mrs Robosa De Vera said that it had not been utilised.

32. Mrs Robosa De Vera agreed that, as outlined in the delegate’s decision record, she did apply for housing from Housing NSW for her father in 2013.  She said that nothing happened and the family had not followed up. 

33. Mrs Robosa De Vera said S.Antonio Da Padova Nursing Home was the first aged care residential provider the review applicant had attended.  Mrs Robosa De Vera expressed to the Tribunal a range of concerns about the review applicant’s treatment at the facility.  In her post-hearing submission Mrs Robosa De Vera made further criticisms of the care at the review applicant’s nursing home including the slow service, understaffing and alleged lack of care in the facility. 

34. The Tribunal notes that her father is not compelled to remain at this particular facility.  The Tribunal at the hearing asked Mrs Robosa De Vera if it were possible for her father to return to her home and be cared for by a combination of herself, her family and external service providers of in the home care.  The Tribunal notes the review applicant undertook an ACAT over half a decade ago and has been eligible for a range of care packages now for some years.  She replied that this was not because she wanted a family member to look after her father.  She said that she worked full-time and her children ‘were always out’.  The Tribunal noted this and asked about the utilisation of external services during the day.  Mrs Robosa De Vera dismissed the notion and stated she wanted a family member to look after her father.

1. The Tribunal asked Mrs Robosa De Vera if her submission was that her father the review applicant was only interested in care provided from her family.  She confirmed there was no interest in any in-home care provided by any external provider.  There is no desire for residential care.  She said that the review applicant was more comfortable living with family members such as the visa applicant Ms Tandoc.  She submitted that staying at home was a much happier, safer and more comfortable environment.   The Tribunal notes the claims in her post-hearing submission that the review applicant is used to living in a Filipino household, prefers Filipino foods and is feeling indignant, lonely and disrespected currently whilst living in care (T1, Folio.29).  The Tribunal has taken into account cultural factors in assessing whether the assistance the review applicant requires cannot reasonably be obtained from  welfare, hospital, nursing or community groups.   In Hon Anh Vuong v MIAC the Court confirmed the authority in Biyiksiz v MIMIA  and Lin v MIMIA  that cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable.  The review applicant’s preference for Filipino foods and his greater comfort in living in a Filipino household with his family the Tribunal considers are indicative of the review applicant’s personal preference rather than a cultural reason. 

2. The Tribunal asked Mrs Robosa De Vera why it appeared she held a view that there were only two choices when it came to the provision of on-going care to her father.  The Tribunal stated that these appeared to be either the review applicant remains in full-time residential care at the nursing home or he returns to Mrs Robosa De Vera’s home to live only if the visa applicants are granted their Carer visas to provide him with care.  The Tribunal stated that it appeared that there was no expectation being given to any care provided by the other family members living under the same roof.  The Tribunal stated there appeared to be no interest at all in the provision of any care or support from any external providers of in-home care that might support the family.  Mrs Robosa De Vera said that if she had to make a choice, a family member was much better than an external third party.   

3. No further corroborative evidence of any attempts to obtain welfare, hospital, nursing or community services were submitted to the Tribunal. 

4. The Tribunal considers on the evidence before it that the attempts that have been made to obtain welfare, hospital, nursing or community services for the care of the review applicant have been extremely limited. There is little evidence of any genuine attempts in recent times that have been made to procure such services beyond Wheels On Meals (which the Tribunal accepts) and his current care at S.Antonio Da Padova Nursing Home in Ryde. The Tribunal notes that the review applicant can avail himself of the Commonwealth Home Support Program (CHSP) that provides specific services in the home at a basic level of care with much more affordable fees. The Tribunal has noted the review applicant and Mrs Robosa De Vera’s reticence in utilising residential care. On the basis however of such little corroborative and supportive evidence concerning attempts to access in the home care since undertaking an ACAT in August 2013, 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.

5. The Tribunal furthermore is not satisfied that a combination of care provided jointly by the review applicant’s daughter, son and grandchildren cannot provide the assistance the review applicant requires, especially in conjunction with any available external assistance from welfare, government, hospital, nursing or community services. 

6. 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.

7. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is not a carer of the 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. 

8. 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 58 years of age at the time of application and 63 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.

9. 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.  Her daughter, the secondary applicant, also resides in The Philippines.  Ms Tadoc stated her daughter is currently both working and studying.  The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.

10. Secondary criteria need to be met by the visa applicant’s dependent Miss Ma Angelica Grace Robosa in order to be granted a visa.  As Ms Tadoc des not satisfy the primary criteria for the visa, her dependent Miss Robosa also fails to satisfy the criteria.  

    DECISION

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

    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.