Storogenko (Migration)

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 difficulty with her hearing. As a result, the hearing was adjourned to allow her representative to provide a complete set of documents and to reschedule to a room with a hearing loop.
The hearing loop equipment was available to Ms Storogenko for the hearing on 29 August 2018, which was also listed for a longer period than is generally the case to allow Ms Storogenko ample time to present her case. The Tribunal also heard from Ms Vorobeva, Ms Nadia Galutva and Ms Nadiya Lada. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages. Ms Storogenko was represented in relation to the review by her registered migration agent.
Due to the severity of Ms Storogenko’s various conditions and the need to have accurate information about her current health and care needs, further time was provided for her to obtain a new health assessment from a health service provider. This took considerable time as Ms Storogenko wanted to obtain new reports from each of her specialists before undertaking a further health assessment and sought extensions of time to obtain the assessment, which were granted.
On the receipt of the health assessment, the Department expressed concern about whether this was a genuine document, and sought time to verify the document. Surprisingly, they chose to do this through seeking advice from their forensic document examination unit rather than calling their own health provider to confirm the assessment provided was the assessment issued. The Department ultimately advised it was a genuine document.
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.
In her evidence, Ms Storogenko consistently understated the support she receives. Her perception, which I do not doubt is a real perception, is that she is always alone and is denied the opportunity to socialise with others. She reported to the health services provider in the most recent assessment hat she lives alone. Ms Storogenko has appointments most days. Her son currently lives with her, although the relationship is strained. She has been provided with opportunities to access social groups through RTWSA such as the Spinners and Weavers Group, but states that she no longer does so. She does not attend church because she does not want to pay for the transport. There is nothing before me that would show she is unable to pay for the transport should she choose to do so. It is not correct to state she lives alone, is always alone, or is denied opportunities to socialise with others. It is accepted that the activities and the engagement with the community she seeks are more difficult for Ms Storogenko to access because of her mental health.
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time the applicants 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 Migration Regulations 1994 (the Regulations).
The applicants are 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.
The primary criteria for the grant of the visa include that at the time of the decision, Ms Vorobeva meets cl.116.221 of Schedule 2 of the Regulations. This requires that she is a carer of Ms Storogenko as defined by r.1.15AA of the Regulations. The term ‘carer’ as defined in r.1.15AA contains a number of elements, all of which must be met for Ms Vorobeva to satisfy the definition. The definition is set out in the attachment to this decision.
Ms Storogenko is an Australian citizen, Ms Vorobeva is her niece, and r.r.1.15AA(1)(a) is met. Ms Storogenko 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. These require that the assistance cannot be reasonably provided by certain relatives of Ms Storogenko or obtained from welfare, hospital, nursing or community services in Australia and that Ms Vorobeva is willing and able to provide the substantial and continuing assistance of the kind required.
The assistance cannot be reasonably provide by certain relatives or obtained from welfare, hospital, nursing or community services in Australia
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
…
The Tribunal considers that, as it applies to Ms Storogenko, 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 Ms Storogenko needs cannot be obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal can look at whether the assistance Ms Storogenko requires can be met by a combination of assistance from her family together with welfare, hospital, nursing or community services in Australia. This approach was adopted without comment in Lam v MIBP.[1]
[1] [2013] FCCA 1263
It follows that the task for the Tribunal is to determine the assistance Ms Storogenko requires and then look to whether this assistance can reasonably be provided by a relative be who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen, or obtained from welfare, hospital, nursing or community services in Australia.
What assistance does Ms Storogenko 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.[2]
[2] r.1.15AA(3), Sefesi v MIBP [2016] FCCA 975
This is subject to the certificate meeting the requirements of r.1.15AA(2) which requires that the assessment was carried out on behalf of a health service provider specified by the Minister and is signed by the medical practitioner who carried it out. These two requirements are met in this case, and the Tribunal must take the opinion in the certificate to be correct for the purposes of deciding if the applicant satisfies a criterion that the applicant is a carer.
The assessment of the medical practitioner of the health service provider dated 23 January 2019 is that Ms Storogenko requires assistance with:
·     Mobility – walks slowly with walker for short distance only
·     Bathing/showering – needs assistance to get in and out of the bathroom
·     Dressing/grooming – needs assistance with dressing and undressing herself and grooming
·     Eating/feeding – needs assistance preparing food. Able to feed herself. Has difficulty swallowing food and can only eat small amounts of food
·     Supervising medication – needs preparation and supervision for medication
·     Supervision for personal safety – needs supervision day and night for personal safety due to fall risk and the need to go to the toilet including at night
·     Transportation – unable to drive or use public transport. Relies on taxi.
The health service provider assesses her overall level of independence with activities of disability living as fully dependent and comments that she need considerable practical assistance for the most part of the day and all night. It states she needs assistance from a female relative due to the intimate hygiene procedures that are required.
The very broad scope of the assessment of the medical practitioner, in particular that Ms Storogenko requires all night assistance from a female relative, effectively rules out other forms of service provision. While the Tribunal has some concern about the basis for this conclusion and the report given Ms Storogenko reported she lives alone when she does not, the Tribunal is bound by the opinion in the certificate.
Cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia
Ms Storogenko was injured at work, and her injuries are compensable injuries. In South Australia, this includes income support to retirement age, financial support for reasonable and necessary medical treatment, and lump sum payments. Workers compensation is delivered through ReturnToWorkSA (RTWSA). As Ms Storogenko receives considerable services through ReturnToWorkSA (RTWSA) it is convenient to first consider which, if any, of her needs for assistance are met through services funded and arranged by the workers compensation scheme and which, if any, cannot reasonable be obtained from welfare, hospital, nursing or community services in Australia.
Ms Storogenko was asked for a list of services provide by RTWSA. A recent comprehensive list was not available, and the following information was obtained through oral evidence from Ms Storogenko, and the various reports she provided. As this is the only information available to the Tribunal, it has relied on these documents although with some caution as the most recent summary is form 2016.
The most recent comprehensive report on Ms Storogenko is an occupational therapy report dated 22 December 2016. This states Ms Storogenko receives approximately 31 hours of assistance per week. This consists of:
·     One hour per day for bathing and dressing and undressing,
·     Four to four and a half hours cleaning a week
·     Window cleaning twice a year
·     Curtain cleaning once a year
·     Five hours shopping per week
·     Ten and a half hours per week meal preparation, with an extra two and a half hours taken from garden maintenance taking this to a total thirteen hours per week
·     Three hours per week garden maintenance, however this is generally used inside for assistance with cooking
·     One hour per week laundry
·     One hour per week indoor maintenance
·     Five hours per week swimming pool and gym sessions
·     Eight hours per week English and computer lessons
The occupational therapist states in her report that it would be beneficial for Ms Storogenko to have cleaning once a fortnight rather than once a week. The occupational therapist recommends that instead of cleaning services for four and a half hours a week this could be fortnightly and that there would be increased efficiency if professional cleaners were used rather than Ms Storogenko sourcing her own support workers. The occupational therapist notes that while Russian speaking carers are suitable for tasks such a meal preparation, personal care, shopping and other similar tasks, tasks such as cleaning and garden maintenance and window cleaning do not require communication in Russian.
The report notes that Ms Storogenko’s preference for fresh and traditional foods and that she prefers freshly made pasta and bread and hand minced meat. It is reported she is not receptive to options such as preparing meals for more than one day at a time to reheat, pre-prepared foods and home meal services, pre-cut or frozen vegetables, pre-made bread and fresh pasta from the supermarket, or meat minced by a butcher. It is recommended that Ms Storogenko see a dietician to develop a meal plan for her digestive issues and to make recommendations for meals that do not require complex preparation.
It is noted that Ms Storogenko reported dizziness while using her scooter and a safety assessment was recommended. It was recommended an alternative to using her scooter is being driven by a support worker who is female and can also assist with changing after swimming when she attends hydrotherapy sessions. It is stated Ms Storogenko sources and employs her own support workers who generally speak Russian. A safety assessment by her physiotherapist shows an increased risk of falling due to dizziness and the physiotherapist stated the use of her scooter was a safety risk.
The occupational therapist states Ms Storogenko was assisted to research and obtain spinners equipment and to join the Spinner and Weavers Group but requires some additional equipment. The occupational therapist states that if Ms Storogenko were interested, other community groups such as the Russian Women’s Groups could be explored.
The occupational therapist recommends an aged care assessment to determine her eligibility for additional support need relating to ageing, which are not compensable. Ms Storogenko has not has an assessment from an Aged Care Assessment Team (ACAT).
An undated client recipient summary from Uniting Communities, who provide personal care services for Ms Storogenko, records that Ms Storogenko receives one hour per day for personal care, ten and a half hours per week for meal preparation, two and a half hours per week shopping and one and a half hours per week assistance with laundry. As Uniting Communities is personal care provider, this does not include other services she receives for as cleaning, maintenance, and swimming pool and gym sessions. A roster for 2017/2018 cleaning services includes a weekly cleaning allocation of four and a half hours in addition to additional annual and quarterly cleaning services.

Ms Storogenko was asked why she is not willing to have food prepared by carers for the following day or purchase fresh pasta and bread from the supermarket and pre-cut vegetables. Ms Storogenko said she did see a dietician as recommended. She said tomatoes were fine if prepared on the same day but were not good to eat the next day. She said she tried home delivered meals but needs to eat five to six times a day, the meals were too cheap and she is opposed to low cost food.
Ms Storogenko says she receives 14 – 16 hours per week from a carer, predominantly for showering, shopping and cooking. She provided carer rosters from 9 April 2018 to 17 June 2018 showing 17 to 27.5 carer hours per fortnight. She also later said the maximum number of hours is 21 hours per week. This is also what was reported to the medical practitioner.
Ms Storogenko was asked why the carer hours vary. She said she has asked the same question to RTWSA, who said they may not have enough carers but also said she cried and was rude to them but keeps asking why. She said a reason the amount of time provided by carers varies is because she has three to five appointments per week and they will not adjust the roster for the carers to match her appointment times. Ms Storogenko said that she usually has free time in the mornings before 10 and after 12.30, and would like more carer hours between 1.30 and 6pm but this is not met by RTWSA and they tell her to adjust her appointments according to the hours of care that are available. She said she cannot take the maximum number of hours after 12:30pm.
Ms Storogenko said she cannot change her appointments, as her appointment times are sent to her. I do not accept this is the case. Ms Storogenko is a private patient, and the cost of her appointments and the taxis for her to attend appointments are met by RTWSA. Ms Storogenko has a large number of regular appointments, for example she sees a physiotherapist three times a week, and could change the regular time of these appointments. She acknowledged that there are occasions where she has telephoned about, for example, physiotherapy appointments and chooses a time for a range offered to her. Ms Storogenko’s children currently assist with telephone calls and the carer roster and could reasonably assist her to change appointment times if this is difficult for her to do.
As such, she could reasonably obtain further services from personal carers if she were willing to change her routine and some appointments. Ms Storogenko said that even if she received the maximum number of 21 hours this would not be enough to meet her needs for showering, cleaning and cooking. Ms Storogenko also said that she cannot attend hydrotherapy as she needs a person to assist her to dress and undress, but she does attend the gymnasium sessions.
There is no other information before me to show that the funding or the number of hours approved and paid for by RTWSA has changed. The amount of hours for personal care and other services can be accessed and therefore obtained by Ms Storogenko if she changes her routine. If the maximum is 21 hours per week, with the other 10 hours being made up of other services, this is a considerable amount of assistance, albeit at time that may be inconvenient for Ms Storogenko. I find it is reasonable to do so, and that some of her needs in the areas of hygiene, dressing/undressing, preparing food, mobility and special exercising or therapy can reasonably be obtained from welfare, hospital, nursing or community services in Australia. Ms Storogenko may also be eligible for additional services once assessed by ACAT. This will not include overnight care, and the assessment of the health service providers is that she requires constant overnight care from a female relative. This cannot be provided from the RTWSA services.
The other alternative is to enter residential care. There is a nursing home for people of Croatian and Ukrainian background but which does not have vacancies for people other than those with dementia.[3]
[3] >
Ms Storogenko said she wants to attend church. She said catching a taxi, which she does to attend various appointments, is too expensive for her as she is on a pension. On being asked if she had received compensation from RTWSA she initially said she had not, but then said she had used her compensation payment to pay off her previous home and build a new house to be close to the shopping centre and public transport. She said she currently has approximately $3,000 in the bank and receives $420 per week from Centrelink. In her application to the Tribunal for a fee reduction on 5 October 2016 she declared she had $58,000 in her bank account. Ms Storogenko said her expenses were the same and she still requires money to complete her house. I do not accept that she is unable to afford a taxi if she wishes to attend church. She said she requires a person to assist her to use public transport when RTWSA does not pay for taxis.
Ms Storogenko said she becomes disoriented easily including in her own home if she gets up at night and needs help at night to go to the bathroom. The health assessment states she requires assistance to get in and out of the bathroom. Ms Storogenko says managing her urinary incontinence is an ongoing problem for her. She uses incontinent pads but as she cannot use her right hand, these are difficult for her to change. She states in her statutory declaration these should be changed every two to three hours but as the carers are not available this frequently, she is left wet and uncomfortable. Ms Storogenko said that if she goes to the bathroom she can change her pads, as she did during the course of the hearing, but has difficulty placing them in the correct position and if they are out of place she gets wet. Her daughter said that she has difficulty correctly positioning her pads and this means it is difficult for her to go to the swimming pool for therapy.
Ms Storogenko has an emergency alarm which she wears around her neck and can use to call for an ambulance should she fall over at home. She said she has had to use this once, but the ambulance was cancelled as her neighbour’s children came to help her
Ms Storogenko said she has problems with her memory and forgets to take her medication. On being asked if the RTWSA funds packaging her medication to assist her, she said they do, but that sometimes she drops the tablets as she cannot use her right hand. The health service provider report states she requires assistance with preparation and supervision of medication.
Ms Storogenko said she wants someone to walk outside with her at least once a day. She said she wants to live a normal life but she is always alone and wants companionship and a person to take her on social outings. This would not necessarily be an outcome even with assistance. Ms Storogenko was previously assisted to access groups such as the Spinner and Weavers Group, but no longer attends. She gave evidence that when she needs to be in contact with people she cannot speak calmly and normally and conflicts with others. She said afterwards she is embarrassed by her behaviour, but cannot control herself.
Of the needs for assistance advised by the health service provider, a need that is not met is the need for constant overnight assistance from a female relative.
Cannot reasonably be provided by certain other relatives
Regulation 1.15AA(1)(e)(i) was considered by Judge Nicholls in Anveel v Minister for Immigration and Border Protection,[4] in which he said that this provision requires an examination of whether, from the perspective of the relative, they cannot provide the care,[5] and requires a focus on the reasons the relatives cannot provide the care.[6] 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.[7]
[4] [2013] FCCA 2181
[5] At [61]
[6] At [62]
[7] At [62]
In Jajo v MIBP,[8] 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.[9]
[8] [2013]FCCA 1554
[9] At [57]
Ms Storogenko’s daughter Ms Nadia Galutva and her son Mr Alexander Markin live in South Australia.
Ms Galutva has two adult children, one of whom lives in Queensland and the other is studying full time. Ms Galutva’s children cannot reasonably provide the assistance she requires
Mr Markin currently lives with Ms Storogenko, although Ms Storogenko submits their relationship is strained and he will leave as soon as he can. Mr Markin receives carer payments for his care of Ms Storogenko. On being asked what assistance he provides to her, Ms Storogenko said if someone calls he will answer the telephone and translate for her, he will translate letters and he will sometimes assist with shopping. He has helped her up once when she fell, and he sometimes asks her how she is. He helps with outside duties. She said she will put shopping away and she asks him to prepare food but their relationship is bad. He has agreed to help from March or April of this year.
Mr Markin did not attend the Tribunal to give evidence as requested by the Tribunal. The Tribunal attempted to contact Mr Markin by telephone on two occasions by telephone, but he did not answer his telephone. His statutory declaration dated 27 July 2018 states he assists with supervising Ms Storogenko’s medication, preparation and serving of meals, shopping for food, clothes and footwear, gardening, laundry, cleaning, dishes, changing bed linen, translating correspondence and writing replies, making and rescheduling appointments, and going for walks with her in the evening as well as general supervision with her mobility around the house. At the time of this decision Mr Markin is meeting some of Mrs Storogenko’s needs fort assistance needs including supervision at home, food preparation, shopping, cleaning and laundry, and contact with health professionals. The Tribunal finds that Mr Markin is providing the assistance Ms Storogenko requires in these areas.
Ms Galutva will translate letters for Ms Storogenko and assist her with the carer roster. Ms Storogenko uses email to manage her carer roster. She said she speaks to her daughter once or twice a week but does not often see her in person. She said her daughter helps her to pay bills, and will assist if she does not understand bills. Ms Galutva says she will sometimes translate for her mother and type emails to help with RTWSA and sometimes assists with shopping.
Ms Storogenko previously sponsored another niece, Ms Nadia Lada, and her family unit to provide care for her. Ms Lada, Ms Storogenko’s sister Ms Maria Shavlygina and one of Ms Lada’s children arrived in Australia on 22 December 2010. Ms Lada left Australian and returned to the Ukraine on 19 February 2011 to care for her daughter-in-law who was pregnant. After the birth of the baby, she says she remained in the Ukraine to assist her daughter-in-law with her rehabilitation and with a second difficult pregnancy.
Ms Shavlygina remained in Australia, but did not provide care for Ms Storogenko and instead took up work as a paid carer to another person.
On Ms Shavlygina being diagnosed with cancer in 2013, Ms Lada returned to Australia to care for Ms Shavlygina. Since returning to Australia, Ms Lada has been in an accident in which she broke her arm in three places. Ms Lada told the Tribunal that due to her arm, and her caring responsibilities for her mother, she is unable to provide care for Ms Strokogenko. On being asked why she could not provide supervision for Ms Storogenko, Ms Lada said she and her mother live on the other side of the city and are not willing to leave the house provided by public housing, or the support and services they receive through the church and the Ukrainian community.
Information from Ms Lada’s oral evidence was put to Ms Storogenko under s.359AA of the Act, in particular that on Ms Lada leaving Australia some weeks after she arrived, Ms Shavlygina did not provide care for her but instead went to work as a paid carer for another person. Ms Storogenko said that Ms Lada had planned to live in Australia on the proceeds of the sale of her apartment in the Ukraine, but as she had returned to the Ukraine and was living in the apartment, she was unable to support Ms Shavlygina and Ms Shavlygina had to find a source of income. Ms Shavlygina found a source of income in becoming a paid live-in carer for another person.
Ms Lada acted as Ms Storogenko’s carer for only a very short time after being granted this visa. Her mother did not provide care when Ms Lada left, and instead provided care to another person on a paid basis. Ms Lada only returned when her mother became ill. As a result of these factors, the Tribunal had significant concerns about whether the purpose of this visa application was to achieve a migration outcome for another family unit. This was put to Ms Storogenko who denies this is the case. On balance, the Tribunal is satisfied that Ms Storogenko is genuinely seeking a carer as she seeks companionship and overnight care.
The main reason provided by Ms Lada for not providing care was that she lives on the other side of town and they do not want to give up their public housing and the support services that exist in their current location. Ms Lada receives a carer pension for caring for her mother and does not have work commitments in her current location. Given Ms Lada and her other were granted carer visas but did not in fact provide care their continued eligibility for a visa, if they continue to hold this visa, is open to question.
Nevertheless Ms Lada does provide care for her own mother and the Tribunal accepts she is not able to reasonably provide overnight care for Ms Storogenko. Ms Shavlygina is herself unwell and it is not reasonable for her to provide overnight care for Ms Storogenko.
The assistance that can reasonably be provided by Mrs Strogenko’s relatives in Australia who are Australian citizens or permanent residents and the assistance provided through welfare, hospital or community services in Australia does not include all night care by a female to assist with toileting and hygiene. As this is the assistance specified by the health service provider as required by Ms Storogenko, it follows that the assistance cannot reasonably be provided by any other relative of Ms Storogenko who is an Australian citizen or Australian permanent resident, and cannot reasonably be obtained from welfare, hospital, nursing or community services.
As 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 and therefore the requirements of r.1.15AA(1)(e) are met.
Is Ms Vorobeva willing and able to provide substantial and continuing 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.
Ms Storogenko says she has travelled to Russia several time and has lived with Mrs Vorobeva for periods of approximately three months. She said she has been each year between 2011 and 2015. In that time Mrs Vorobeva showered her, cooked, cleaned and took her for a walk and generally did what Ms Storogenko asked of her. On being asked if Mrs Vorobeva could cope with Ms Storogenko being rude to her, as she reported she was with others, Ms Storogenko said she is not rude to carers and she did not think this would occur with Mrs Vorobeva.
Mrs Vorobeva gave evidence to the Tribunal. She was able to specify the type of assistance Ms Storogenko requires including assistance with toileting every two hours and with pulling up her underwear. She said that when Ms Storogenko stayed with her she would watch her when she got up and needed to go to the bathroom as she was not well orientated at night and would go to the wrong door.
Mrs Vorobeva said she did not have training in caring for a person with physical or mental illnesses. She was aware that Ms Storogenko suffers from PTSD and depression, and said the effect on Ms Storogenko was that when she first arrived she would be irritable but she became calmer the longer she stayed with Mrs Vorobeva. She said she has the skills to manage when Ms Storogenko becomes irritable or depressed as they have a wonderful relationship.
On being asked if she was prepared to sleep in the same room as Ms Storogenko at night, as Mrs Storogenko says she requires, Ms Vorobeva said she was.
Mrs Vorobeva has a newborn child who is now approximately nine months old. She said if she comes to Australia her mother, who is a secondary visa applicant, will help with the baby
Mrs Vorobeva said she did not have any problems with her health and would be physically able to provide care. She has a current driver’s license. She has studied English at a university level, but has not completed an English test.
The delegate was concerned about Ms Vorbeva financially supporting herself. Mrs Storogenko submitted plans for a knitting business she said they would start. Ms Vorobeva said she would sell her property to support them. They will live with Mrs Storogenko was has a house which has been adapted to meet her needs, and will not have to meet housing expenses. Ms Vorobeva now has a partner who is a member of her family unit, and she said she plans for her partner to work in Australia.
Having considered the information before it and on the basis of the oral evidence of Mrs Vorobeva, the Tribunal finds she is willing and able to provide substantial and continuing care of the kind required and r.1.15AA(1)(f) is met.
Given these findings the Tribunal concludes that at the time of decision Ms Vorobeva is the carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221. As she meets this clause, the remaining visa applicants may meet the secondary criteria.
Given these findings, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 116 visa for all of the visa applicants.

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 to the Regulations.
Kate Millar
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.

[2019] AATA 1385

8 April 2019

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Immigration

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