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

1. 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).

2. 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).

3. 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.

4. 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.

5. The review applicant applied to the Tribunal on 24 August 2017 seeking review of the delegate’s decision.

6. 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. The Tribunal offered the opportunity to contact the review applicant by telephone if requested. Mr Rosayro indicated that he was able to cover anything the review applicant would say.

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

   ISSUES

8. At the time the visa applicant applied for the visa, 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 Regulations.

9. The visa applicant seeks 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. The primary criteria include that at the time of this decision, the visa applicant meets cl.116.221 of Schedule 2 of the Regulations. This requires that he is a carer of the review applicant as that term is defined by r.1.15AA of the Regulations, which is set out in the attachment to these Reasons.

10. 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

11. 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.

12. 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

13. 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.

14. At hearing, Mr Rosayro told the Tribunal that his main concern with his mother is during the daytime if she has a fall or accident. He told the Tribunal that from 7.00 pm to 4.00 or 5.00 am, his mother is medicated and asleep, however, during the day she is by herself. She likes to garden and feed the birds and he is concerned that she may have a fall or accident during this time.

15. Mr Rosayro told the Tribunal that he has five sisters, one, Olga, who lives in Tewantin, two sisters, Olivia and Patricia, who live in Perth, a sister, Doris, who lives between Sri Lanka, the United Kingdom and Brisbane and Irene, the mother of the visa applicant, who lives in Sri Lanka.

16. Mr Rosayro lives in Gladstone. He told the Tribunal he was made redundant from his job as a safety officer in 2014, in part because of the demands of him travelling frequently to Tewantin to assist his mother. He lives with his son at his three bedroom home in Gladstone. His source of income is his superannuation and share trading however he is starting to struggle financially. He lives with his 30-year-old son who works full-time as an engineer. He travels back and forth between Gladstone and Tewantin[1] every two weeks, staying with his mother for a couple of days on each visit to Tewantin, to assist her. On occasion he stays with his mother for longer periods. On one occasion he stayed with her for four days and on another occasion he stayed for a two weeks. His wife and 22-year-old daughter live in Brisbane where his daughter attends university. His wife comes to Gladstone but does not want to leave their daughter on her own in Brisbane (for cultural reasons). He purchased a unit in Brisbane to encourage, and enable, his daughter to go to University in Brisbane. He has a big loan on that unit. His wife works part-time for an aged care home in Brisbane. His wife rarely visits his mother and does not provide any care for her. His wife and his mother do not get along.

    [1] A distance of over 400 kilometres

17. It is difficult for him to keep travelling between Gladstone and Tewantin to assist his mother, both financially and in terms of the toll that the long drive, and the gardening work he does for his mother, takes on him as he is ageing. When he is not visiting his mother in Tewantin he is in regular Skype contact with her throughout the day. He leaves Skype on during the day to keep an eye on her. When queried as to whether the possibility of his mother living with him in Gladstone has been considered, Mr Rosayro stated that his mother like her independence and wants to keep living in her own place. She is very stubborn. Further, even though his wife is usually resident in Brisbane at the unit with their daughter, his wife might also have an issue with his mother living with him at Gladstone.

18. Mr Rosayro told the Tribunal that his mother originally moved to the unit in the retirement village at Tewantin in 2012 because his sister Olga lived right next door. However, Olga has since purchased, and moved to, a home that is approximately six kilometres from his mother’s unit. Olga’s husband works in Brisbane and stays in a room provided by his employer there. Olga’s son also lives in Brisbane and is a very good cricket player. During cricket season, Olga goes to Brisbane to watch her son’s cricket. She works full-time and comes to Brisbane on her days off to watch her son during cricket season. When his mother first moved to Tewantin, Olga only worked part-time and lived right next door. However, now Olga works full-time and lives six kilometres away. Since Olga moved, the problems have started. A while ago Olga trialled taking their mother to her place every night however they disagreed a lot because his mother likes to play music and watch television at the same time and Olga did not have the patience for that. When queried as to whether his mother had tried to use earphones so as to not annoy Olga with the noise, he said that is not something that had been considered. He said that in any event his concern for his mother is not at night-time but rather during the day when Olga is working. He told the Tribunal that his mother and Olga disagreed on other things as well, for example, his mother likes to save water in the basin to use on the garden.

1. The Tribunal referred Mr Rosayro to a “Care” form provided to the Department, which he acknowledged he had signed, and in particular to the following parts of the form:

Activity you provide assistance for	Type of assistance you provide	Frequency of assistance and how long it takes	How long you have been providing this assistance
Assist to cook Sri Lankan Foods	Cutting vegetables and cooking	For half an hour every fortnight	For 5 years
Assist in shopping	Buying daily needs	For 1 hour every fortnight	For 5 years
Assist to clean	Cleaning the house and garden	For 2 hours every fortnight	For 5 years
Assist to go to the medical clinic	Assist to walk	For 1 hour every fortnight	For 5 years
Assist to contact a doctor during an accident	assistant to contact the doctor to explain what happened	For 1 hour every fortnight	For 5 years
Assist to walk	Assistant to walk for regular exercise and to pick up mail	For 15 minutes every fortnight	For 5 years
Assist to communicate	Assistance to communicate health issues and communicate about similar interests	For an hour every fortnight	For 5 years

1. Mr Rosayro confirmed that he and his sister Olga, had been assisting his mother, the review applicant, since 2016 and previously. He said that between him and Olga, they cook food and freeze it for their mother’s use. He stated that Olga now works full-time and takes the review applicant shopping once per week on one of her two days’ off work – this is usually on a Tuesday. She also helps out at other times if, for example, his mother rings her and tells her she needs milk or something like that Olga will get it because his mother’s unit is on the way for her (from home to work). He told the Tribunal that cleaning for the review applicant is only done when he visits, as Olga does not have time. His nephew, Mr Sampath Liyanage, now works in Mackay and visits the review applicant once per month helping with gardening and cleaning. They arrange it so they do not visit at the same time. His sister, Olga, takes his mother for medical appointments when necessary. The doctor visits the retirement village regularly, but if additional visits are needed, Olga arranges that on one of her days off. When queried, Mr Rosayro stated that the review applicant is able to walk by herself and uses her walker when needed. When queried, he confirmed that in an emergency the review applicant could contact him to call an ambulance, or could contact the retirement home managers. When queried, he stated that the retirement village has recently removed call buttons from the units, but when suggested to him he agreed he would look in to obtaining an alert button that his mother could wear which would automatically call for assistance when pressed. Mr Rosayro stated, however, that even with an alert button, he would still be concerned about his mother, because, as a previous safety officer, he would still have concerns about her safety during the day if she falls. He stated that his mother likes to feed the birds in the garden, and she could fall during her walk to the garden and he would prefer if someone was with her 24 hours a day. He stated that either he or Olga assist his mother in communicating with the doctor as she often forgets to raise issues.

2. When queried, Mr Rosayro told the Tribunal that his mother attends to her own personal hygiene and assistance, but has cut down on bathing because she had a fall in the shower on one occasion, which has caused her to be wary. When queried as to whether any enquiry had been made of an organisation such as Blue Care, which might be able to assist her with bathing on a few occasions per week, he said that no such enquiry had been made. The doctor’s nurse did come and do this for free, however, his mother was very resistant because she does not trust anyone. When queried as to whether Olga assists the review applicant with showering, he responded that during the last couple of weeks, Olga has attended on four nights to rub oil into his mother’s shoulder and to her assist her, and Olga has assisted like this from time to time as necessary.

3. The Tribunal discussed with Mr Rosayro the possibility of his mother living with either one of his two sisters in Perth or Olga in Tewantin. Mr Rosayro said that his sisters in Perth have indicated that they would be happy to have her but that she does not want to live with them. She wants to live in her own home. He said the problem with all of his sisters is that they do not have the patience because, for example, they fight or argue with his mother about various things, such as his sister Olga’s issue with his mother liking to listen to loud music and the television at the same time.

4. A statement dated 17 July 2017 from the managers of the retirement village in which the review applicant resides states as follows:

   ...

   [The review applicant] consistently requires additional support from family, the Managers and other residents at Riverlands for her daily well-being. She attends the Doctor who visits the Riverlands village on a regular basis.

   [The review applicant] uses the internet, especially Skype on a constant basis to keep in contact with her family. If [the review applicant] experiences problems with the internet she needs to seek assistance from the Mangers. The telephone and internet are a vital means of contact for [the review applicant]’s family to keep an eye on her and if it isn’t working causes great concerns for both [the review applicant] and her family. Recently Riverlands experience both Telephone and Internet problems for several weeks making it difficult for the family to ensure her continual well-being.

   Although [the review applicant] is a very independent lady she does have ongoing medical concerns and uses a walking frame when she leaves her property.

   Riverlands is an Over 50’s village and is “not” a Supported Living Facility so can only offer [the review applicant] limited assistance with minor issues.

   As On-site Manager [names intentionally deleted] can only lead [the review applicant] in the right direction for help as we are not able to facilitate on-going medical or home assistance.

5. Mr Rosayro told the Tribunal that his mother is reliant on Skype for staying connected to him and his other siblings. She had previously been experiencing internet difficulties but is now on NBN and is not having difficulties with connection. She does, however, still have problems sometimes with things like keeping the battery charged on the three iPads he has provided to her for music. Sometimes she has too many files on the iPads. She has had problems like this once or twice in the last three or four months. She just puts up with it when she has problems and he fixes it when he visits but she does get upset and this is difficult because of her dementia.

6. When queried as to whether there is any reason why the assistance that has been provided to his mother over the last few years (shared between him, Olga and Mr Sampath Liyanage with some minor assistance from the retirement village managers) cannot continue, Mr Rosayro stated that his financial situation is coming down so he will not be able to continue visiting every two weeks and he is thinking he will have to reduce his visits to every four weeks. He stated that he cannot ignore his own family. The Tribunal queried what his family requires from him given that his son is 30 years old and working full-time, and given that his wife and daughter live in Brisbane. Mr Rosayro responded that financially it is hard to constantly drive between Tewantin and Gladstone and as he is getting older, it is getting harder for him to do the gardening for his mother. His main concern is the 12 days he is not with his mother and she is exposed when she goes to feed the birds. If the visa is not granted, they will continue doing what they are doing, however, he is concerned that the risks are too high and it will lead to his mother dying. His wife would not be happy if his mother moved to live with him, and Olga and his mother disagree so they cannot live together and his mother does not want to live at Olga’s. Mr Rosayro also noted that when it is cricket season Olga is not able to assist his mother as much on the weekends because she likes to go to Brisbane to see her son play cricket.

7. The Tribunal discussed with Mr Rosayro whether his nephew, Mr Sampath Liyanage, could care for his mother. The Tribunal noted that Mr Sampath Liyanage had been granted a carer visa in 2009 to care for his grandmother. Mr Rosayro said that Mr Sampath Liyanage is now 32 years of age, is married and works as an engineer in Mackay.

8. Mr Rosayro told the Tribunal that his sister, Olivia, comes to visit from Perth occasionally and will visit his mother for a few hours but she stays with Olga, as she is Olga’s twin sister. He said his other sister, Patricia, cannot afford to visit. He told the Tribunal that there was an argument with his sister, Doris, when his mother moved to Tewantin as she disagreed with her moving to Tewantin, and Doris does not talk to him or his mother but might talk to the other sisters.

9. When queried, Mr Rosayro told the Tribunal that the visa applicant, his nephew, is 29 years of age and currently works as a car insurance assessor in Sri Lanka. He has confirmed that he is willing to come to Australia to live with the review applicant until such time as she needs high care. He has made a commitment to do that. The Tribunal noted that Mr Sampath Liyanage had come to Australia as the review applicant’s carer but has now moved on, and states that he is not in a position to care for the review applicant, other than by visiting once per month, and queried whether the visa applicant might act similarly. Mr Rosayro stated that it was different with the current visa applicant because he himself had told the current visa applicant of the responsibility to the review applicant and that he had to commit to caring for her, whereas he had not had that conversation with Mr Sampath Liyanage. Mr Rosayro stated that Mr Sampath Liyanage did care for his mother from 2009 until she moved to Tewantin in 2012, and he has since visited every month and he does cleaning and gardening when he visits.

10. When queried as to whether there were any further matters that he wished the Tribunal to take into account, Mr Rosayro stated that his mother can sometimes get her medications confused and then he or Olga have to help her sorting them out. On one occasion, she was taking more Panadol than she should and the doctor picked up on that issue. On another occasion, her medications were changed and she found that confusing. The Tribunal queried Mr Rosayro as to whether he had investigated the chemist providing blister packs (prepared medications packs) for his mother. Mr Rosayro indicated that he was familiar with that option but his mother did not like that. He said that the medication issues did not happen all the time. When it did he and Olga checked up on things and his mother now has that under control, but it took a long time.

11. When queried, Mr Rosayro confirmed that he had covered all matters and that it was not necessary to speak with his mother as he had covered everything she would say.

12. Mr Sampath Liyanage’s written statement dated 25 August 2017 provided to the Tribunal includes as follows:

    …

    I’m writing this letter to describe the care I provided and continue to provide to my grandmother, … I migrated to Australia in 2009 as my grandmother’s carer after she requested me to be her carer. Since my arrival in Australia in every 2009, I live with my grandmother until she decided to move to her current retirement village.

    During my time at grandmother’s home in Gladstone, I helped her with gardening, cooking and all the other work around home. My grandmother owned a big block and her garden was spread around the block. Before I started to live with grandma she had a few accidents while gardening and my main intention was to keep away from working around the home to avoid accidents. My parents, uncle and all aunties advised me to do the same to keep grandma accident free due to her age. However, it was very difficult to keep her away from gardening work and she always wanted to get involved in work around home.

    In 2011, she was talking about new retirement villages in Gladstone and Rockhampton after she saw a few advertisements on television. She stated that she would like to live in a retirement village. But she never wanted to leave home in Gladstone at the time. However, she went to Perth and Sunshine Coast QLD to check a few retirement villages after a few requests from my aunties and uncle. At the time, all grandma’s loved ones thought moving into a retirement village would be good for my grandma. Finally, grandma decided to move to the retirement village she is currently living in since mid-2012. Since my aunty (Olga Rosayro) lived 100m away from grandma’s unit in the retirement village, grandma was very happy with the place as she could walk to auntie‘s place. When grandma moved to her new unit in 2012, I stayed at her Gladstone home to look after the home and do improvements to the house before selling. Grandma borrowed a bridging loan to pay for her own unit until she sells her home in Gladstone. Therefore, I stayed in her Gladstone home and did all improvement to the house I could, until grandma sold the house. Grandma had my aunty (Olga Rosayro) close by to help when she needed and aunty also had a flexible working roster. Therefore, grandma was happy at the time. However, I visited grandma every two weeks and helped her around her new unit. I clean her unit and helped her to create a new small garden at her new unit.

    In mid-2013 after finishing grandma’s home repairs, I moved out of grandma’s home in Gladstone to put the house into market. I did not move to Sunshine Coast with grandma as she received assistance from Aunty who lived only 100m away and grandma did not require my assistance. Therefore, I moved to Mackay in mid-2013 and now I’m settled in Mackay.

    However, in early 2014 aunty moved out of the house she was renting near grandma’s home, when she bought a new home which is about 5kms away. Grandma started to feel a little bit uncomfortable after aunty moved out because she could not walk to auntie‘s house. But, auntie was able to visit grandma regularly and help her. Although my uncle (Venitious Rosayro) lives about 500kms away from my grandma and I regularly visited grandma and assisted her with her needs. Therefore, my grandma has not really had a problem or needing assistance from another person.

    Since 2015, the workload of my aunty (Olga Rosayro) increased and she had to work extended hours. By the end of 2015 she received a promotion at work. Therefore, Auntie’s work commitment increase. With grandma’s age, her condition has been deteriorating and she required an extra care. Therefore, Aunty, uncle and I could not provide that care collectively by the end of 2015.

13. Mr Sampath Liyanage told the Tribunal that he is currently working as an engineer in Mackay. He told the Tribunal that he came to Australia on a carer visa to care for his grandmother in 2009 and also worked and studied part-time, completing his engineering study in 2014. He became an Australian citizen in 2014. He said that he continued to look after his grandmother, the review applicant, until she moved to Tewantin in 2012. He then stayed on in her house in Gladstone until it was sold. When his grandmother first moved to Tewantin his aunt, Olga, was only working part-time and was living much closer to his grandmother. However, she is now working full-time and lives further away and that has made it more difficult for his grandmother. The Tribunal queried whether there was any reason that he could not provide more care for his grandmother as he used to do. Mr Sampath Liyanage said that he is now married and working full-time. When queried, he said that he regularly visits his grandmother with his wife, once per month, and does cleaning and gardening. When queried as to whether he and/or his wife could work in the area in which his grandmother now lives, in order to live with her or provide additional care to her, he responded that they have not been able to get jobs in that area. He said that his wife, who works for a large childcare centre, had been offered a job in Brisbane at the beginning of last year but that is still one to two hours' drive to where his grandmother lives. When queried, he said he and his wife had looked on SEEK for jobs near his grandmother but he was not able to provide any details of any specific job queries he had made local to the area where the review applicant lives. He said if he moved to the Sunshine Coast to assist his grandmother more, he would have to look at part-time work. He previously worked part-time when he lived with his grandmother but she provided full accommodation. He loved living with his grandmother and loves her very much but is now married. When his grandmother moved to Tewantin in mid-2012 (it took about three months all up to get her fully moved), she basically did not need care then because she moved from a large block to a small garden and she was able to manage it herself. However, she started to get worse. She started to forget to take her medications and also got dizzy walking and had to get a walking frame. There has also now been a diagnosis of dementia, which has changed things.

    Could not the assistance required by the review applicant be provided by any other relative of the review applicant who is an Australian citizen, permanent resident or an eligible New Zealand citizen, or obtained from welfare, hospital, nursing or community services in Australia?

14. Regulation 1.15AA(1)(e)(i) was considered by Judge Nicholls in Anveel v Minister for Immigration and Border Protection [2013] FCCA 2181, in which he said that this provision requires an examination of whether, from the perspective of the relative, they cannot provide the care, and requires a focus on the reasons the relatives cannot provide the care. Judge Nicholls remarked that it is important to note that the test is stated in the negative and said:

    It is not whether the care “can” be “provided”, it is whether it “cannot” be provided by relatives. The focus of the Tribunal therefore must be on the reasons as to why the relatives cannot provide the care.

15. In Jajo v MIBP [2013] FCCA 1554, Judge Emmett stated that on the facts of that case, where there were a number of children in Australia, it was open to the Tribunal to conclude that the assistance required by the person needing care can be provided by a number of relatives.

16. The Tribunal is satisfied on the evidence that the review applicant does require assistance in the nature of the assistance described in the care form referred to in paragraph 26 of these Reasons.

17. The review applicant has a son, Mr Rosayro, four daughters, Olga Rosayro, Olivia Hayward, Patricia Garland and Dors Rosayro and a grandson, Mr Sampath Liyanage, all of whom are either Australian citizens or permanent residents.

18. Mr Rosayro currently lives some distance, over 400 kilometres away from the review applicant, and his sister, Olga, who lives 6 kilometres away from the review applicant, is in full-time employment. Mr Sampath Liyanage lives over 900 kilometres away from the review applicant. Between them, Mr Rosayro, Olga and Mr Sampath Liyanage have been providing care for the review applicant since she moved to Tewantin in 2012. The visa application was lodged by the visa applicant on 22 September 2016 on the basis that this arrangement was unable to continue. The evidence is that in the eighteen months since September 2016, care has continued to be provided by Mr Rosayro, his sister, Olga, and Mr Sampath Liyanage.

19. Mr Rosayro told the Tribunal that continuing with the current care arrangement for the review applicant will be difficult including because of the financial and time/energy constraints upon him because of him, given than he lives over 400 kilometres away from the review applicant. Further, Mr Rosayro is concerned about the risk of the review applicant being alone during the day, particularly given her practice of feeding birds outside where an accident can occur if she falls. Mr Rosayro acknowledges that an alert button might assist in that regard but still has concerns as to the injury that might occur if someone is not with the review applicant at all times.

1. The Tribunal acknowledges the difficulties in caring for an ageing parent as their needs increase. Mr Rosayro’s commitment and care for his mother is apparent and it is understandable that fortnightly long-distance trips to assist her every fortnight take their toll both financially and otherwise. Further, the Tribunal acknowledges that Olga’s and Mr Sampath Liyanage’s current full-time employment status limits their ability to care for the review applicant. However, the Tribunal does not consider it unreasonable for joint care of the review applicant to continue as it has over the last several years notwithstanding these difficulties. It might not be the preference for care to continue in this way but the Tribunal considers it reasonable in the circumstances. It is understandable that Mr Rosayro has concerns about the risk of the review applicant having an accident if left alone. However, the Tribunal is not satisfied that the review applicant necessarily currently requires constant care. Mr Rosayro says that she does not need care during the night – only during the day. Mr Rosayro provides that care on the two nights per fortnight he visits. On the evidence, Olga spends one of her two days off per week, or part of that day, with the review applicant and Mr Sampath Liyanage spends another two days per month with the review applicant when he visits. When no-one else is with her, Mr Rosayro maintains a lengthy Skype connection with the review applicant, however, he is concerned about when the review applicant is outside feeding the birds. He agrees that an alert button might assist if an accident befalls the review applicant on those occasions, however, his concern is to prevent her succumbing to an accident, and thus he submits that she requires care during the day every day. The Tribunal does not consider it unreasonable that the family in Australia collectively make arrangements to provide that care. This could be achieved either by Mr Sampath Liyanage returning to live with his grandmother, as he did when he was granted a carer visa in 2009, or by the review applicant moving to live with one of her children.

2. The Tribunal acknowledges that Mr Sampath Liyanage’s circumstances have changed in that he is now married and that caring for his grandmother now would possibly entail him only being able to work part-time, as he did when he previously cared for her. However, the Tribunal does not consider that unreasonable in the circumstances, given that he was originally granted a carer visa to care for his grandmother and that he has no other caring responsibilities, such as his own children.

3. There is little evidence before the Tribunal as to the living circumstances of each of the review applicant’s daughters other than Mr Rosayro’s evidence that Patricia and Olivia (in Perth) and Olga (in Tewantin) would be prepared to have the review applicant live with them except for the personal differences that arise when living together. There is more detailed evidence before the Tribunal as to Mr Rosayro’s circumstances. Mr Rosayro does not work. His evidence was that he is connected by Skype to his mother for many hours of the day. He owns a three-bedroom home that he shares with his adult son. His wife usually resides in Brisbane. It is understandable that Mr Rosayro’s wife may not prefer for his mother to live in their home in Gladstone, and the Tribunal accepts that it is the review applicant’s preference to remain living in her home. Nonetheless, in the circumstances, the Tribunal does not consider it unreasonable for the review applicant, at the age of 87, to have to forego her preferences, nor unreasonable for Mr Rosayro’s wife to accommodate the review applicant in the Gladstone home, particularly when she spends most of her time in Brisbane. It is understandable that the review applicant would prefer to live in her own home and that tensions might exist if she lived with any of her children and the Tribunal has taken into account this preference, however, the Tribunal does not consider it unreasonable that at the age of 87, a person might have to give consideration to not being able to live independently.

4. Having taken into account all of these matters, the Tribunal is not satisfied that the assistance required by the review applicant cannot reasonably be provided by her son, daughters and grandson in Australia, either individually or collectively. Regulation 1.15AA(i)(e)(i) is therefore not met.

5. The elements of r.1.15AA are cumulative. Therefore, if one element is not satisfied, the requirement is not met. As the Tribunal has found that r.1.15AA(1)(e)(i) is not met, r.1.15AA is not met and it is not necessary to consider the other elements. Therefore cl.116.221 is not met.

   Conclusion

6. 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 that would permit a finding that the applicant meets prescribed criteria for the visa sought.

7. The Tribunal finds that the visa applicant is not entitled to the grant of the Subclass 114 (Aged Dependent Relative) visa as there is no evidence before the Tribunal that the visa applicant is dependent upon the review applicant as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore cl.114.211 is not met.

8. 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

9. The Tribunal affirms the decision not to grant the visa applicant an Other Family (Migrant) (Class BO) visa.

   Susan Trotter
   Member