Storogenko (Migration) - [2019] AATA 1385

Storogenko (Migration) [2019] AATA 1385 (8 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Vera Storogenko
VISA APPLICANTS:  Ms Iunna Iunna Vorobeva
Ms Liubov Vorobeva
Ms Polina Ufimtseva
CASE NUMBER:  1616578
DIBP REFERENCE(S):  OSF2015038582
MEMBER:Kate Millar
DATE:8 April 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 116 (Carer) visa:
· cl.116.221 of Schedule 2 of the Regulations.

Statement made on 08 April 2019 at 10:50am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer – assistance required by review applicant – Tribunal bound by opinion of health care provider – assistance reasonably obtained from public health system – intimate hygiene procedures – constant overnight assistance from a female relative – assistance reasonably provided by other relatives – visa applicant’s willingness and ability to provide required assistance – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221
CASES
Anveel v Minister for Immigration and Border Protection [2013] FCCA 2181
Jajo v MIBP [2013]FCCA 1554
Lam v MIBP [2013] FCCA 1263
Sefesi v MIBP [2016] FCCA 975
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Ms Storogenko was injured in a serious workplace accident in which she lost her right hand. As a result, Ms Storogenko suffers significant impairment as well as post-traumatic stress disorder, and persistent lower back and knee pain. She also suffers from bilateral hearing loss.
Ms Storogenko wants her niece Ms Iunna Vorobeva and her family unit to come to Australia for Ms Vorobeva to care for her, and sponsored the family unit for Other Family (Migrant) (Class BO) visas. Ms Vorobeva’s family unit comprises Ms Vorobeva’s daughter, her mother Ms Liubov Vorobeva (Ms Storogenko’s sister) and, since the date of the application, Ms Vorobeva’s new partner and their newborn baby. The application was lodged on 17 February 2015. Their visa applications were refused by a delegate of the Minister for Immigration on 5 August 2016, as the delegate was not satisfied Ms Vorobeva met the definition of “carer” as required for the grant of the visa.
Ms Storogenko has applied for a review of the decision to refuse Ms Vorobeva and her family unit Class BO visas.
Ultimately, as the health service provider assistance states that the assistance required by Ms Storogenko includes overnight supervision and assistance with personal hygiene, and this need for assistance cannot reasonably be provided by another relative or obtained from other services in Australia, the Tribunal considers the matter should be remitted for reconsideration.
THE HEARING
At the hearing of 31 July 2018, it was not clear to the Tribunal whether all of the documents that Ms Storogenko intended to be before the Tribunal were before it. It was also apparent that Ms Storogenko has…

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 Storogenko (Migration)

Details

AGLC: Storogenko (Migration) [2019] AATA 1385
Case: [2019] AATA 1385
Decision Date: 8 April 2019

CaseChat Overview and Summary

This matter concerned an appeal by Ms. Storogenko against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her application for a Subclass 116 (Carer) visa. The visa was sought to allow her daughter to provide care and assistance to Ms. Storogenko, who claimed to require significant support due to various physical and mental health conditions.

The primary legal issues before the court were whether the Tribunal had erred in its assessment of Ms. Storogenko's care needs and whether the assistance she required was reasonably obtainable from the Australian public health system or from other relatives. Specifically, the court considered whether the Tribunal was bound by the opinion of a health care provider regarding the necessity of constant overnight assistance from a female relative for intimate hygiene procedures, and whether it had adequately considered the availability of assistance from other family members and the applicant's own preferences regarding the use of carer hours.

The court found that the Tribunal had not adequately considered all relevant evidence regarding Ms. Storogenko's care needs and the availability of alternative forms of assistance. While acknowledging the severity of Ms. Storogenko's impairments, the court noted that the Tribunal appeared to have placed undue weight on certain aspects of the evidence without fully exploring whether the required assistance could be reasonably provided by other relatives or through the public health system. The Tribunal's reasoning regarding the applicant's preferences for food preparation and her reluctance to utilise available services was also scrutinised, with the court indicating that these factors needed to be balanced against the genuine need for care.

Consequently, the court set aside the Tribunal's decision and remitted the matter back to the Tribunal for redetermination, with directions to reconsider the evidence in light of the legal principles discussed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Storogenko was the provided with a copy of the assessment and invited to comment on the assessment, as well as provide the Tribunal with a written submission if any of her circumstances had changed since the date of the hearing. Ms Storogenko provided a further statutory declaration which has been taken into account where relevant below. MS STOROGENKO’S EVIDENCE Ms Storogenko says her right hand was her dominant hand, but she is unable to use it. She now has problems with her left hand, and surgery is recommended for her left hand. She has problems with her shoulders, cannot lift her arms and has problems and pain with both elbows which also results in pain in her neck. This also gives her constant headaches. She said she falls due to dizziness and her knees are swollen due to recent falls. Because of the problems relating to her head she has a poor memory and bad co-ordination. She has pain in her ears and problems with her hearing. She said she becomes disorientated if she leaves her home and is not sure which way to go, which is distressing. She said her psychiatrist prescribes her tablets and changes the tablets, but nothing seems to help, and she is pretty much alone all the time. When she needs to contact others she cannot speak calmly and normally and gets into conflict with others and afterwards is embarrassed by her behaviour, but cannot control herself. She said she cannot travel to church or communicate with anyone and is always by herself. She said she only attends medical and physiotherapy appointments. She has pain in her back and has problems with two discs in her back. She said she was advised to have surgery at some point in the future. Ms Storogenko said she has a problem with the soles of her feet that will require surgery within the next two years. As she is incontinent, she uses pads which are difficult for her to change as she cannot bend or use her hands and it is difficult for her to wash adequately. She has gastritis and says she was advised to follow a certain diet and have 5 to 6 meals a day but she cannot manage her food requirements. She has high blood pressure, says her vision is not good and she has cataracts which will require surgery. Ms Storogenko said she suffers from PTSD and depression and has osteoporosis due to the medication and her teeth will need to be replaced. She said she has had a kidney removed and needs to follow a particular diet as she only has one kidney. Ms Storogenko has suffered a very serious injury that had has a major impact on all areas of her life and has resulted in physical and mental impairments. She suffers post-traumatic stress disorder and regularly sees a psychiatrist. As Ms Storogenko was injured at work, she receives a number of services through ReturnToWorkSA (RTWSA). She does not maximise her use of these services as she does not change appointment times to allow for increased carer hours, nor is she prepared to look at alternatives to best use these hours. For example, Ms Storogenko chooses to use a large number of carer hours on food preparation as she prefers hand minced meat and freshly prepared pasta and bread rather purchasing fresh pasta or bread. She does not want food prepared and stored for another meal at a later time or to access meal delivery services.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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