Smoker (Migration)

Smoker (Migration) [2022] AATA 1099 (1 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Zenaida Smoker
VISA APPLICANTS:  Mrs Jerilyn Gerochi
Mr Glenn Gerochi
Ms Krystal Mae Genovatin
Mr Jerick Justin Gerochi
Ms Larzendel Anne Gerochi
Master Antonio Lazaro Gerochi
REPRESENTATIVE:  Ms Cyril Gabito (MARN: 1383988)
CASE NUMBER:  1919641
HOME AFFAIRS REFERENCE(S):          OSF2015/032546 OSF2016/073568
MEMBER:Steven Griffiths
DATE:1 February 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.221 of Schedule 2 to the Regulations.

Statement made on 01 February 2022 at 4:46pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– cultural issues – applicant is a carer of the Australian relative – assistance cannot be provided by or obtained from welfare, hospital, nursing or community services in Australia – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.03, 1.15AA, Schedule 1, Schedule 2, cls 116.212, 116.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 Home Affairs on 13 May 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 27 March 2015 on the basis of their relationship with the sponsor. 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 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.221.
The delegate refused to grant the visas on the basis that cl.116.221 was not met as it was assessed that the requirements of Regulation 1.15AA, Carer, had not been met.
The Sponsor, Mrs. Zenaida Smoker, is 82 years of age, has lived in Australia from 1996 and suffers from severe asthma, severe osteoarthritis, urinary incontinence, frequent urinary tract infections, osteoporosis in her knees and spine, cognitive impairment, subacromial bursitis in her left shoulder, depression, pulmonary hypertension and cataract issues.
The Applicant, Mrs. Jerilyn Gerochi is 52 years of age, lives in the Philippines and seeks to come to Australia, with her husband, Mr. Glenn GEROCHI, aged 53, and children Ms. Krystal Mae Genovatin, aged 25, Mr. Jerick Justin Gerochi, aged 21, Ms. Larzendel Anne Gerochi, aged 18, and Master Antonio Lazaro Gerochi, aged 15.
The parties were assisted by their legal practitioner, Ms. Cyril Gabito, of Gabito Lawyers.
The applicant and sponsor were invited to appear before the Tribunal on 31January 2022 but following a detailed review of the submission and associated information received from the parties prior to this intended hearing, the Tribunal determined that a decision could be made on the information provided without the requirement to hold a hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the applicants prior to what had been an intended hearing.
ISSUE
The issue in the present case is whether the applicant was is the applicant is to be the carer, as assessed against the requirements of Regulation 1.15AA, Carer.
BACKGOUND OF THE EVIDENCE
Primary applicant Mrs. Gerochi was born in the Philippines in 1969. Her father is deceased, with her mother, the sponsor, born in 1939 and living in Australia. She has a brother, born 1967, living in the Philippines. She married in 10/2001, with her husband a secondary applicant, as are her 4 children, born 1996, 2001, 2003 & 2006. She travelled to Australia 6/7/16 to 4/10/16 and 31/12/16 to 26/11/17 to be with and care for the sponsor.
The secondary applicant husband of the primary applicant was born in the Philippines in 1968. His father is deceased, with his mother, born 1933, and 4 sisters and 2 brothers, born between 1959 and 1973, all living in the Philippines.
The secondary applicant children of the primary applicant were born in the Philippines in 1996, 2001, 2003 and 2006 with the eldest child the stepdaughter of the husband of the primary applicant.
The sponsor Mrs. Smoker was born in the Philippines in 1939. She has a daughter, the primary applicant, and a son, who lives in the Philippines. She married an Australian citizen in 12/1994, arrived in Australia 13/12/96, having been granted a Partner 100 Visa on 22/10/96, and became an Australian citizen by grant from 27/7/99.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision, the parties have provided further information to the Tribunal including:-
Review application, 19/7/19
BUPA Medical Visa Services letter to sponsor, confirming future review actions, 24/8/21
Dr. Harpal Gill, Northwest Medical Centre, repost on sponsor and support of visa application, 16/8/21
BUPA Medical Visa Services, report on sponsor, 31/8/21
Hearing Invitation, 7/1/22
Sponsor Movement Record, 19/1/22
Primary applicant Movement Record, 19/1/22
Migration Agent submission, 24/1/22
SA Care – brochure of support areas
ECH – website details of support areas
Applicant – certificate of completion of a caregivers 6-month course, January 2005
Applicant Statement, 21/1/22
Report on Filipino Cultural Profile of older people
Dr. Harpal Gill, Northwest Medical Centre, repost on sponsor and support of visa application, 19/1/22
Australian Migrant Resource Centre, Home Care Agreement for the sponsor, confirming Level 4 care of 15 hours per week
CONSIDERATION OF CLAIMS AND EVIDENCE
In this case, Mrs. Gerochi is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Mrs. Gerochi must meet the primary criteria in Part 116 to be granted the visa, and her husband and 4 children need only meet the secondary criteria.
The primary criteria to be met include cl.116.221 which requires that Mrs. Gerochi is to be the carer of the Australian relative. The term “carer” is defined in r.1.15AA
As Mrs. Smoker is an Australian citizen, and Mrs. Gerochi is her daughter, the Tribunal accepts that Regulation 1.15AA(1)(a) is met.
The Tribunal accepts that Mrs. Smoker has the required health provider assessment that specifies that she has a medical condition that causes impairment of her ability to attend to the practical aspects of daily life, she has the required number of impairment points and she has a need for direct assistance in attending to the practical aspects of daily life for at least two years. As a result, the requirements of r.1.15AA (b) and (c) are met.
In issue in this matter is whether r.1.15AA(1)(e) and (f) of the definition are met at the time of this decision.
Regulation 1.15(1)(e) – can the assistance be reasonably provided by certain relatives or obtained from certain services?
The definition of ‘carer’ in r.1.15AA includes at r.1.15AA(1)(e) 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
As it applies to Mrs. Smoker, r.1.15AA(1)(e)(i) requires a consideration of the assistance she requires, the reasons put forward by her relatives for being unable to provide her with this assistance, and whether these reasons are reasonable.
Regulation 1.15AA(1)(e)(ii) involves a consideration of whether the assistance Mrs. Smoker needs cannot be obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal can look at whether the assistance Mrs. Smoker requires can be met by a combination of assistance from his family together with welfare, hospital, nursing or community services in Australia. This approach was adopted without comment in Lam v MIBP.³
What assistance does Mrs. Smoker require?
In looking at the type of assistance required, the Tribunal is not required to turn its mind to the nature and scope of the assistance required, and is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider.
The Tribunal has regard to, and accepts, the statement by Dr. Harpal Gill, Northwest Medical Centre, of 16/8/21 and again on 19/1/22, noting she has been the General Practitioner to Mrs. Smoker for a lengthy period and she has severe asthma, severe osteoarthritis, urinary incontinence, frequent urinary tract infections, osteoporosis in her knees and spine, cognitive impairment, subacromial bursitis in her left shoulder, depression, pulmonary hypertension and cataract issues.
This report identifies that Mrs. Smoker lives alone, has difficulty managing her multiple medications and her nebuliser 3 times a day for asthma, is not medically stable and requires frequent hospital admissions for her asthma exacerbations.
This report states Mrs. Smoker spent a week in hospital in November 2021due to a severe asthma attack.
The report identifies that Mrs. Smoker requires personal assistance to attend her many medical appointments with her GP and medical specialists, with the assistance required due to her physical disability, pain and shortness of breath.
The report identifies that Mrs. Smoker cannot manage her cooking, meals and shopping, leading to an unhealthy diet, resulting in weight gain and obesity which is aggravating he medical condition.
The report identifies that Mrs. Smoker suffers from depression, is often weepy due to her current situation, has cognitive impairment and forgetful, which creates a risk of fire hazard when she attempts to cook.
The report identifies that Mrs. Smoker has severe osteoarthritis and shoulder bursitis, uses a walking frame is in constant pain but cannot have strong analgesia because of risk of respiratory depression.
The report identifies that Mrs. Smoker cannot get to the toilet at night and wets herself due to urinary incontinence, resulting in frequent changing of clothes which is difficult for her to manage at night as she is at high risk of falls and sustaining a fracture due to her osteoarthritis, bursitis and osteoporosis.
The report identifies that Mrs Smoker receives 15 hours help per week as part of a paid service, but this is quite inadequate for her circumstances and medical problems, leaving her distressed and unable to cope.
The report identifies that Mrs. Smoker needs a 24-hour live-in carer urgently and that it is best if the caregiver if a familiar person such as a family member, and strongly supports her daughter being given permission to come to Australia and provide the level of care she needs.
The Tribunal has regard to, and accepts, the Home Care Agreement in place between Mrs. Smoker and the Australian Migrant Resourced Centre for the provision of 15 hours per week of Level 4, being High Care, services at her home.
Cannot reasonably be provided by certain other relatives
Regulation 1.15AA(1)(e) requires identification of those relatives of Mrs. Smoker who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.
The term “relative” is defined in r.1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. A close relative is a spouse, de-facto partner, child, parent, brother or sister or a step-child, step-brother or step sister.
Regulation 1.15AA(1)(e)(i) was considered by Judge Nicholls in Anveel v Minister for Immigration and Border Protection,⁵ in which he said that this provision requires an examination of whether, from the perspective of the relative, they cannot provide the care,⁶ and requires a focus on the reasons the relatives cannot provide the care.⁷ 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 the reasons as to why the relatives cannot provide the care.
In Jajo v MIBP,⁹ 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 a number of relatives can provide the assistance required by the person needing care.
As this applies to Mrs. Smoker, the Tribunal accepts that at the time of the application and refusal decision of the delegate, she had 2 grandsons, the children of her son who lives in the Philippines, staying with her while the grandchildren were in Australia studying, but they have left Australia and at the time of this decision she has no relatives living in Australia.
The Tribunal determines the assistance that Mrs. Smoker requires cannot be provided by relatives who are Australian citizen, Australian permanent residents or New Zealand citizens and meets Regulation 1.15AA(1)(e).
Cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia
Regulation 1.15AA(1)(e)(ii) requires that the assistance Mrs. Smoker needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal must look to Mrs. Smoker’s particular circumstances in deciding whether the assistance cannot reasonably be obtained, as this is more than whether the services are merely available to her.
The Tribunal accepts the documented evidence of the efforts made by Mrs. Smoker to determine if the level of care provided by organisations including SA Care Home Services, ECH Care Services and ACH Group, but they did not provide the services required by her overall physical and mental conditions.
The Tribunal accepts the documented evidence of while Mrs. Smoker has been funded for 15 hours per week home assistance through the Australian Migrant Resources Centre, at Level 4, this is very limited and inadequate for her needs.
The Tribunal accepts the documented evidence of the dietary needs of Mrs. Smoker, who has lived in Australia since 1996, requires foods of a Filipino cultural basis and that other options are not acceptable to her.
The Tribunal accepts that Mrs. Smoker is the recipient of a pension, owns her home which has the capacity for the applicant and secondary applicants to live with her to ensure that care is available and provided 24 hours per day.
The Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia either individually or cumulatively, and therefore the requirements of r.1.15AA(1)(e) are met.
Regulation 1.15AA(1)(f) - is the applicant willing and able to provide assistance of the kind required?
Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120
, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.
The Tribunal accepts the documented evidence that Mrs. Smoker firmly believes her daughter can provide care and will be assisted by her husband and 4 children when required.
The Tribunal accepts the documented evidence that the applicant completed, in the Philippines in 2004, a 6-month certificate recognised Caregiver course and has practical experience as a caregiver.
The Tribunal notes the Movement Record of the applicant indicates that she was in Australia from 6/7/16 to 4/10/16, being 3 months, and 31/12/16 to 26/11/17, being 11 months, and accepts that during this time the applicant was living with her mother and providing her with 24-hour care and support.
The Tribunal accepts the documented evidence of the applicant dated 21/1/22 that she is in regular contact with her mother and is aware of the range of health conditions she has.
The Tribunal accepts the documented evidence of the applicant dated 21/1/22 that she, her husband and 4 children remain committed to moving to Australia to enable her to be the carer for her mother.
The Tribunal accepts the documented evidence that the applicant and secondary applicants will live with the sponsor to ensure that full-time care can be provided to the sponsor.
The Tribunal accepts the documented evidence that the sponsor and applicant are close and that they are in contact nearly every day.
The Tribunal notes the documented evidence provided by the parties of the Filipino culture of families taking care of their parents, in part reflected by a report stating “The dedication to family caregiving is evident in Filipino culture, and it is a part of the very fabric of Philippine society. Caregiving in Filipino households is so commonplace that failure to provide care or resources to family members in need is seen as shameful”.
The Tribunal accepts the documented evidence of the parties that the sponsor has this expectation of care from her family, as does the applicant and secondary applicants on the need to provide it and to expect to receive it themselves in the future.
The Tribunal is satisfied that the visa applicant is willing and able to provide substantial and continuing assistance of the kind required by Mrs. Smoker, and therefore meets the requirements of r.1.15AA(1)(f).
Are the sponsorship requirements met?
Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).
The Tribunal determines the visa applicant is sponsored by an Australian relative, with the sponsor over 18 years of age.

Therefore, at the time of application, the visa applicant was sponsored as required by the legislation and satisfies cl.116.212.
Given these findings the Tribunal concludes that at the time of decision the first named visa applicant is to become the carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.
As the applicant Mrs. Gerochi meets this criterion, her husband and 4 children meet the secondary criteria for the grant of the visa, and it is appropriate to remit the visa application of the second named applicants for reconsideration.
DECISION
The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl 116.221 of Schedule 2 to the Regulations.
Steven Griffiths
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.

[2022] AATA 1099

1 February 2022

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

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