Rosayro (Migration) - [2018] AATA 1934

Rosayro (Migration) [2018] AATA 1934 (8 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Gimara Bernadette Rosayro
VISA APPLICANT:  Mr Indrajith Howpe Liyanage
CASE NUMBER:  1719291
DIBP REFERENCE(S):  OSF2016/033502
MEMBER:Susan Trotter
DATE:8 May 2018
PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.
Statement made on 08 May 2018 at 3:00pm

CATCHWORDS
Migration – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Grandson granted a Carer visa in 2009 – No longer provides full time care – Several adult children in Australia – Visa applicant – Grandson of the Review applicant – Other family members able to provide care either individually or collectively – 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
CASES
Anveel v Minister for Immigration and Border Protection [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 (the Minister) on 27 June 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).
The visa applicant applied for the visa on 22 September 2016. 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 visa 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 which requires that the visa applicant is the carer within the meaning of r.1.15AA of the Australian relative at the time of decision.
The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant met the requirements of carer as regards his grandmother, the review applicant. In particular, the delegate was not satisfied that the review applicant could not reasonably obtain the care required from her family and/or relevant welfare agencies in Australia.
The review applicant applied to the Tribunal on 24 August 2017 seeking review of the delegate’s decision.
The review applicant’s son, Mr Venitious Anthony Gerard Rosayro (referred to as Mr Rosayro in these Reasons), and the review applicant’s grandson, Mr Sampath Howpe Liyanage attended the hearing in person and gave evidence. Mr Rosayro told the Tribunal that the review applicant was not able to attend the hearing due to a recent shoulder injury and that he was authorised as her representative and recipient to attend on her behalf.…

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 Rosayro (Migration)

Details

AGLC: Rosayro (Migration) [2018] AATA 1934
Case: [2018] AATA 1934
Decision Date: 8 May 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Rosayro against the decision of the Department of Immigration and Border Protection to refuse a Subclass 116 (Carer) visa for his mother. The visa applicant, Mr Rosayro's mother, is an 87-year-old woman residing in Australia who requires assistance with daily living due to Alzheimer's disease, cervical spondylosis, and osteoporosis. The core of the dispute revolved around whether the applicant's mother required the care of Mr Rosayro, who resides in Sri Lanka, and whether other family members in Australia were reasonably able to provide the necessary assistance.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a Subclass 116 (Carer) visa, specifically paragraph (e) of regulation 1.15AA(1). This paragraph requires that the necessary assistance cannot reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident, or eligible New Zealand citizen, nor obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal had to determine if the evidence established that no other relatives in Australia could reasonably provide the required care, either individually or collectively.

The Tribunal considered extensive evidence detailing the applicant's mother's deteriorating health, including her mobility issues, cognitive decline, and difficulties with personal care and medication management. It also examined the availability and capacity of her adult children residing in Australia to provide care. While several adult children live in Australia, including one in close proximity, the Tribunal noted that they had various commitments, including work and distance, which limited their ability to provide full-time care. Crucially, the Tribunal found that the evidence did not establish that other relatives were unable to provide the necessary assistance, nor that community services were unavailable or inadequate. The Tribunal also noted that the applicant's mother had several adult children in Australia, and the evidence did not demonstrate that these relatives, individually or collectively, could not provide the required care.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Subclass 116 (Carer) visa. The Tribunal concluded that the applicant had not satisfied the requirement that the necessary assistance could not reasonably be provided by other relatives in Australia or obtained from Australian welfare services.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 115 (Remaining Relative) visa as the Tribunal does not have evidence before it that the visa applicant’s near relatives, as defined in r.1.15(2), do not reside in the same country as the visa applicant. As such, the visa applicant is not a ‘remaining relative’ and therefore is unable to meet cl.115.211.DECISION The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.Susan TrotterMember

Ratio Decidendi

Legal Principle Established

One of the subparagraphs required to be satisfied for r.1.15AA(1) to be met is paragraph (e) which requires that:(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 …CONSIDERATION The evidence before the Tribunal shows that the review applicant is currently 87 years of age and that she lived in her own home in Gladstone from 1989 until 2012 when she moved into a unit at a retirement village at Tewantin. A BUPA medical report on the Department of Immigration and Border Protection ( the Department) file, which considered medical reports from Dr Lakemond, general practitioner, dated 27 October 2015 and Dr Harrington, geriatrician, concludes that the review applicant is impacted by Alzheimer’s disease, cervical spondylosis and osteoporosis, that she uses a walking aid at home, requires assistance with mobility and bathing/showering as she has a tendency to fall, needs to be reminded about medications, tends to forget things and requires transport assistance Mr Rosayro’s written statement dated 29 August 2017 provided to the Tribunal includes as follows:…In the last few years the health and wellbeing of my mother has been deteriorating. Disabilities, social exclusion, and age are contributors to this state of health. She is in her mid-eighties. She was diagnosed with early stages of Dementia disease last year …. Therefore, the time has come where she is in need of carer as her physical inability to attend to the practical aspects of daily life. It is my mother’s desire to live on her own and I know that the Australian government encourages the elderly to live freely.The major program concerning my mother is that after she has had an accident she becomes confused and refuses to call a doctor to let them know she has had an accident. She will just sit at home until someone eventually visits and by that time her condition has greatly worsened. My mother is having every increasing accidents around home. Quite recently she had gone to have a bath and fallen in the bathroom. She is now skipping her regular bath due to the shock she experience during the fall. Numerous times I have observed that she uses the laundry tap to wash her hair, face, and hands. Even with surgery for her accidents and arthritis, my mother is experiencing increasing difficulty using her hands. Her arthritic condition is not only present in her hands but in her elbows and knees, making it painful for her to walk at times. At the moment, she is using walking aid (4-wheel seat walker) when walking as one of her leg is abiotic. While she is walking one of the knees slips and she had to sit for a short time before starting to walk again. Once her knew is slipped she finds it difficult to sit on the seat of her walker. As a result, she has reduced her regular walks. Now she goes one a day (Monday to Friday) to pick up her mail from the mail box.Her doctors have advised her again walking distances. This makes in increasing difficulty to catch the bus (as she does not drive) and to shop. Because of the reduced mobility, my mother is not eating well because she is only buying item she can move herself and not replacing the types of food she can no longer handle i.e. she doesn’t’ buy any big items. It the past, she had to visit a dietician because she was extremely underweight and malnourished. Although the dietician has helped to encourage my mother to improve her diet, I have caught her skipping meals (or having insufficient amounts to eat) and returning to her former habits. My mum always wants to cook her own food in Sri Lankan style. Her normal diet includes finely chopped vegetables and meat. Since she is having trouble with her right arm she cannot cut vegetables or meat by herself. If she doesn’t have any vegetables or meat chopped the way she likes she doesn’t cook and just eats yoghurt, bread, or Weetabix for all three meals. Unfortunately, I don’t have the time to be there to shop, cut vegetables, cook, and make sure she eats as I live 450 km away from her. When she first moved to the current unit in Mid-2012, my sister was renting a house about 100m away from my mum’s unit. Therefore, mum used to walk to my sister’s place regularly and my sister helped mum with her day to day needs. As such mum did not need a full-time carer to be with her. The full-time carer (Sampath) stayed back in Mum’s house in Gladstone and fixed the house to sell it to repay the loan for the unit.Early 2014 my sister bought a house about 6 kilo meters away from my mum’s unit. Several months later my sister started to work 10 hours a day, 5 days a week. My sister’s work schedule makes it extremely hard for her to look after mum’s day to day to needs. But she takes mum to her home once or twice a week. My sister takes mum shopping on the day she is not working. I visit mum every fortnight to take her shopping, I spend a couple days with her at her unit.In addition to the mentioned problems she is also experiencing back pain and the doctors have arrange physiotherapy for her. She used to be a keen gardener and grew vegetables throughout the year. But since her accident, arthritis and back pain she is forced to give it up. My mother is socially excluded due to her ethnicity and mobility (increasingly difficulty in catching public transport). Her first language is Sinhalese and because there aren’t any Sri Lankans who are of her own age and with similar interests she spends most of her time alone. In addition, she gets very excited and confused when she visits the doctor and thus has had the inability to communicate her health issues. Her health and safety is also a concern for me. Several times I found her wandering around in a confused state. There are other times where she spent all night in the dark because she didn’t know what to do when the electricity went off at the main switch. Then there were times I found her lying on the floor all night. Apparently, she had fallen while trying to sit on the bed.As you can see from the above my mother’s health condition is causing her physical inability to attend to the practical aspects of daily life. I am so worried that it is affecting my health as well. The pressure of caring for her to make sure she eats properly. Then my mum and I seek the options available for us to find a carer that meets all of mum’s carer. In 2016 my mum decided she would like to have one of her grandsons, Indrajith Howpe Liyanage who resides in Sri Lanka as her care. The reason for her decision was the experience she had with his elder brother Sampath Howpe Liyanage as her carer in the past. Sampath came to Australia as her carer in 2009 and remained as her carer until 2013. Sampath is currently residing in Australia and about 900kms away from my mum. Due to physical location, it is hard for Sampath to provide the regular care that my mum requires currently. However, Sampath visits my mum whenever he gets an opportunity.My mum loves to listen to Jim Reeves music. She listens to it 24 hours of the day. She is used to watch TV and listen to the Jim Reeves music at the same time. She carried her Ipad when I take her shopping so that she can listen to Jim Reeves music. Listening to Jim Reeves songs reminds her what happened when she was with her husband 65 years ago. I live in Gladstone 450 KM away from my mum’s unit. While I am in Gladstone I keep in touch with mum nearly 5 hours a day vis Skype. While I talk to her on Skype I can hear the Jim Reeves songs being played on mum’s Ipad.My mum uses the internet a lot to listen to music and Skype. I have set up all applications she needs in two Ipads to make sure she can access them easily. When she loses either Jim Reeves music or Skype she gets confused and stressed. Recently she has lost internet and no one was around to assist her. After few attempts, I contacted the management of the retirement village to help my mum … The manager came over and fixed the internet. However, we cannot rely on the retirement village management to provide regular assistance to my mum as the retirement village has 150 plus units managed by husband and wife. Therefore, my mum needs someone who can assist her with day to day technological things as well. So she feels comfortable all the time. I believe that Indrajith is having sufficient skills to assist my mum with these kinds of issues.Currently my mum has 4 children living in Australia including me. Two of my sisters (Patrician Garland and Olivia Hayward) live in western Australia and the other (Olga Kongalage) lives as I mentioned above in Tewantin Queensland 6 KM away from my mum’s unit. Two of my sisters living in Western Australia are unable to provide care for mum due to the distance. Patricia Garland visited her sick daughter in Queensland in June 2017. During that time, she visited my mum. She spent a few hours with mum. When my sister (Patricia) arrived at the unit I was talking to mum on Skype. My sister did not want the TV and Jim Reeves songs being played at the same time. My sister is used to listen to one program at a time. My sister asked mum either to turn off the television and keep music on turn off the music and leave the TV on. My mum did not like that idea and started to argue. She is saying that listening to Jim Reeves songs brings her memory back with my dad. But my sister did not have enough patience to handle the situation. This is only a single example, but the other sisters are also having similar arrangements with mum. My sisters are trying to do the best things for mum, but mum does not like to change her life style.During the carer visa process the Department of Border Protection requested statements from all family members, care they Provide. Three (Patricia Olga and Olivia) my sisters refused to give statements saying that they cannot come to mum’s unit to look after her. They are worried that making such a statement may lead to mum think that her children could not help her when she needed during the last period of life. The sisters in Perth wants mum to leave the unit and go and stay with them. Mum does not want to leave the unit in fear of losing her independence.The other sister (Doris Duncan) did not agree when mum’s decision to relocate from Gladstone to Tewantin. Mum and Doris did not contact each other for the past two years. Doris spends her time in three different countries United Kingdom, Sri Lanka and Australia. This was one reason mentioned in the visa refusal letter. Even though four of my sisters residing in Australia cannot provide care for my mum, mainly due to their physical location they refused to give any statements. My sisters mentioned that if mum relocate to their home they will look after mum, which my mum refuses due to various reasons. One reason is she needs her independence to do what she loves specially listening to music.Mum visited Western Australian prior to relocating to current retirement village to see if she finds any place that she prefers close to my sisters in Western Australia. But she did not like the area and she decided to relocate to the current retirement village in Sunshine Coast QLD in 2012. At that time, my sister Olga lived 5 mins walking distance from the retirement village and mum liked the place because she could walk to Olga’s place any time of the day. Olga was renting at that place and a few years later they decided to buy a house 6 km away from mum’s unit. The house Olga bought was 10 mins drive and now it is not possible to my mum to visit Olga’s home by her own. With Olga’s new work arrangements, she finds it difficult to visit mum daily. I have discussed with Indrajith about his future plans, specially starting a family or if he has girlfriends. I needed to know that information to make sure that he can look after my mum without any distractions. He stated that he will be mum’s full-time carer until mum needs high care or pass away. Indrajith is also having a great amount of patience. My mum also likes to have Indrajith around her as she trusts her grandson. Therefore, I’m confident that Indrajith can provide the day to day supervision for my mum, which all our family members collectively cannot provide due to their personal commitment. Hence, I request you to reconsider the decision made by the Department of Border Protection to refuse the carer visa for Indrajith Howpe Liyanage. I’ll confirm that this will be our final request from the Australian Government to find a suitable care for my mother.This week by mum’s doctor … have told my sister Olga that mum takes too many Panadol Austia Tablet. My sister and mum made an appointment to see the doctor and found out mum was taking 2 tablets three times a day. The doctor has instructed mum to take two tablets twice a day.