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

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).
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Robosa (Migration)

Details

AGLC: Robosa (Migration) [2019] AATA 1526
Case: [2019] AATA 1526
Decision Date: 1 March 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by the review applicant concerning the refusal of an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The dispute centred on whether the review applicant met the criteria for providing care to an Australian resident, as required for the visa subclass.

The primary legal issue before the Tribunal was to determine if the review applicant could be considered a "carer" under regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the assistance the review applicant proposed to provide could not reasonably be obtained from other relatives who were Australian citizens, permanent residents, or eligible New Zealand citizens, or from welfare, hospital, nursing, or community services available in Australia.

The Tribunal acknowledged evidence indicating the review applicant suffered from various medical conditions, including angina, lumbar back pain, osteoarthritis, and hypertension, which had deteriorated since a 2013 assessment. While accepting the review applicant required significant care, the Tribunal found that the review applicant's daughter, Mrs Robosa De Vera, was working full-time, as was her husband. Their four children were either engaged in tertiary studies, travelling, or attending primary school, and therefore unable to provide the necessary substantial and ongoing care. Consequently, the Tribunal concluded that the assistance the review applicant needed could reasonably be obtained from other sources in Australia.

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

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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. 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.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Justin OwenSenior MemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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