Valencia (Migration)

[2020] AATA 4756

Valencia (Migration) [2020] AATA 4756 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Lourdes Valencia

VISA APPLICANTS:  Ms Lorna Guerrero
Miss Donnalyn Guerrero
Mr Fernando Tonio
Mr Felangelo Tonio
Mr Carl Jonahsen Guerrero
Miss Angel Guerrero

CASE NUMBER:  1910948

HOME AFFAIRS REFERENCE(S):          OSF2012/041808

MEMBER:Moira Brophy

DATE:1 September 2020

PLACE OF DECISION:  Sydney

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.116.211 and cl.116.221 of Schedule 2 to the Regulations;

With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:

·cl.116.312 of Schedule 2 to the Regulations.

Statement made on 01 September 2020 at 1:45pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Federal Circuit Court remittal – relative of an Australian relative – care provided by community health care providers – available care from Australian relatives – culturally appropriate care required in the family home – limited support from community services – 24-hour assistance required – substantial and continuing assistance – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 116.211, 116.221, 116.311, 116.312; rr 1.03, 1.15

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Lin v MIMIA [2004] FCA 606
Perera v MIMIA [2005] FCA 1120
Rafiq v MIMIA [2004] FCA 564
Xiang v MIMIA [2004] FCAFC 64

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 on 12 March 2013 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958.

2. The visa applicants applied for the visa on 30 April 2012. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the 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.116.211, cl.116.221 and cl.116.311.

3. The delegate refused to grant the visas on the basis that cl.116.311 was not met because the delegate was not satisfied on the material provided that assistance to meet the sponsor’s needs could not be reasonably provided by community health care providers in Australia.

4. On 23 June 2014 the Tribunal (differently constituted) affirmed the decision under review. On 21 November 2016 the matter was remitted by order of the Federal Circuit Court of Australia. On 17 January 2017 the Tribunal (differently constituted) affirmed the decision under review. On 3 May 2017 the Federal Circuit Court dismissed the application. An application was made to Federal Court of Australia and on 22 March 2019 the appeal was allowed and the matter was remitted back to the Tribunal for determination.

5. The review applicant, Mrs Lourdes Valencia appeared before the Tribunal on 5 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the review applicant Mrs Ailene Valencia-Lim and from the son of the review applicant Mr Albert Allan Valencia. The Tribunal was assisted by an interpreter in the Tagalog language.

6. The review applicant was represented in relation to the review by her registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the carer of the sponsor as defined in r.1.15A and whether the sponsor’s needs could not be reasonably provided by community health care providers in Australia.

9. The elements of r.1.15AA are cumulative. If the applicant does not meet an element, then the applicant cannot meet the Regulation overall.

10. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 20 August 2020 provided at the request of the Tribunal following the hearing.

    Whether the visa applicant has claimed to be a ‘carer’

11. Clause 116.211 of the Regulations requires that the applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is a carer of the review applicant, who is the applicant’s mother.

12. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

13. There is a copy of the Carer visa application made by Ms Lorna Guerrero

    
    

    and her mother on the Department file. On that application Ms Lorna Guerrero claims to be the carer of her mother who is the sponsor, Mrs Valencia (the caree). The caree is an Australian citizen, as evidenced by the copy of the citizenship certificate provided.

14. Therefore, at the time of application the applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl.116.211.

    Whether Ms Lorna Guerrero is a ‘carer’

15. Clause 116.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision.

    Whether Ms Lorna Guerrero is a relative of the resident – r.1.15AA(1)(a)

16. Regulation 1.15AA(1)(a) requires the applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother.

17. The Department file contains identity documents of Ms Lorna Guerrero and her mother. The Tribunal is satisfied on the evidence before it that Mrs Valencia is the mother of Ms Lorna Guerrero and meets the definition of close relative. The Tribunal is also satisfied that Mrs Valencia is an Australian citizen and is ‘usually resident’ in Australia.

18. Therefore, as the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03 and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

19. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of r.1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

20. For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 17/126), or issued by a specified health provider in relation to a review of such an opinion.

21. At the time of hearing the Tribunal requested Mrs Valencia’s migration agent provide an updated Carer Visa Assessment Certificate from Bupa Medical Visa Services as the one currently held on file was dated 2012. Following the hearing a Certificate dated 20 August 2020 was provided. The Tribunal is satisfied the certificate meets the requirements of r.1.15AA(2).

22. The certificate states that Mrs Valencia has medical conditions, which are causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life. The impairment has an impairment rating specified in the certificate and Mrs Valencia will continue for at least 2 years to have a need for direct assistance in attending to the practical aspects of daily life. Mrs Valencia is suffering from chronic inflammatory demyelinating polyneuropathy, epilepsy, depression, hypertension and gout. Mrs Valencia has an impairment rating of 50 and requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating and feeding, supervising of medication, supervision for personal safety and transport. Her overall level of dependence was assessed as ‘fully dependent.’

23. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)–(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

    Residency status of person with medical condition – r.1.15AA(1)(ba)

24. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

25. In the present case, the person with the medical condition is Mrs Valencia who according to documents on file is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

26. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.

27. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)

28. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in r.1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years because of the medical condition.

29. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

    Assistance cannot be reasonably obtained / provided – r.1.15AA(1)(e)

30. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia. In determining whether the assistance cannot reasonably be obtained for the purposes of r.1.15AA(1)(e), the Federal Court has held that the question is whether the Australian relative can reasonably obtain assistance from the person or services; not whether that person is able to reasonably provide the required assistance, or those services are reasonably available: Lin v MIMIA [2004] FCA 606, Rafiq v MIMIA [2004] FCA 564 and Biyiksiz v MIMIA [2004] FCA 814.

31. The medical reports previously provided to the Department and the Tribunal indicate that Mrs Valencia is suffering from a variety of serious medical conditions including epilepsy, which results in ongoing issues with balance, ataxic sensory neuropathy, chronic diabetes melltitus, severe depression and chronic lower back pain.

32. Her most current BUPA assessment dated 20 August 2020 indicated Mrs Valencia had the following medical conditions: chronic inflammatory demyelinating polyneuropathy, epilepsy, depression, hypertension and gout.

33. There was consistent oral evidence at the hearing regarding the arrangements for Mrs Valencia’s care. Mrs Valencia currently lives with her daughter Mrs  Valencia-Lim and her family. Mrs Valencia-Lim has two pre-school aged children. She works part time and her husband works full time. Mrs Valencia and her husband moved to their daughter’s in October 2018 because the house they lived in with their son at Granville was being demolished and rebuilt.  At that time Mr Valencia was the main carer of his wife. Mr Valencia passed away on 11 July 2019.  The family lives in a three-bedroom house at Blacktown. Mrs Valencia receives an age pension from Centrelink, she uses that to pay for her medication and other needs. Her daughter and son-in-law meet her housing and food costs. Mrs  Valencia-Lim gave oral evidence that her mother requires assistance with many activities of daily living, including moving around her home and toileting. She said their biggest issue is providing care in the night time. There needs to be someone with her mother to tend to her needs during the night. Since her husband’s death she frequently has nightmares and if she needs to go to the toilet, they worry about her falling.  The sponsor’s son Mr Alan Valencia sleeps in the room with his mother so he can assist during the night. However, he works away from home on average five nights a month.  The Tribunal accepts that Mrs  Valencia-Lim is reluctant to leave Mrs Valencia alone due to concerns for her safety and, as a consequence, she is constantly trying to balance her caring responsibilities to her mother with her need to work and care for her other family members.

34. The Tribunal accepts that Mrs Valencia has significant care needs given her multiple medical diagnoses. She requires supervision and assistance with many activities of daily living and cannot be left alone due to the risk of falls.

35. The Tribunal took oral evidence at the hearing from two of Mrs Valencia’s children. Mrs Valencia also has a brother and sister living in Australia. Her brother lives with his wife who is not in good health and they have four adult children. He visits his sister each month and will bring a meal when he visits. He is working full time. He had previously stated he was not able to provide any assistance in the care of his sister because of his work and family responsibilities. Mrs Valencia’s sister, Mrs Amelia Bongon lived at Kellyville and was in poor health as she suffered from gout and hypertension. She had to retire from work because of her health. Mrs Valencia last saw her when her husband died. She could not recall when she had last seen her sister’s four children.  Because of her own declining health, it was envisaged her own needs would prevent her from providing care to her sister for the foreseeable future.   

36. The Tribunal is mindful that Mrs Valencia’s two children living in Australia told the Tribunal at the hearing that it is culturally appropriate to continue to provide care to Mrs Valencia in her own home rather than residential care, but no family member has the capacity to provide the required assistance to enable her to remain at her home.

37. The Tribunal accepts that Mrs  Valencia-Lim has limited capacity to provide care over and above what she is presently providing. She has a husband who assists her in the care of her mother when his work schedule permits. They have two pre-school aged children and are paying off a mortgage.  Since her parents gifted their home to her brother and he decided to demolish and rebuild they have provided accommodation and food to both their parents and her brother. Mrs Valencia-Lim is dealing with her own grief since her father died and is heavily impacted by the caring needs of her mother. She is carrying a cultural expectation of her role in providing care while at the same time she has two very young children and a mortgage that must be serviced.  The Tribunal considered she had no more capacity to provide to the needs of her mother and was concerned she was disproportionally bearing the burden. The Tribunal acknowledges that Mrs Valencia requires assistance with personal care tasks such as showering and toileting and would not feel comfortable having these tasks performed by a person other than one of her daughters. While members of the extended family such as her brother and sister’s children along with her own would undoubtedly be able to organise a roster to ensure her needs are met, the Tribunal accepts that constantly changing caregivers may be unsettling for her. No relative is prepared to make a full-time commitment to Mrs Valencia because they are caring for their immediate family members, working and/or have their own health problems. As Finn J stated in Rafiz v MIAC [2004] FCA 564, what a relative is capable of doing and what that person is willing to do are not necessarily the same. Despite having significant concerns about the evidence presented to support this application in terms of the capacity of other family members, the Tribunal has concluded that none of Mrs Valencia’s relatives in Australia is willing to provide her with the care that she requires.

38. For the above reasons, the Tribunal is satisfied that the assistance required by Mrs Valencia cannot reasonably be obtained from her Australian relatives.

39. The Tribunal has also considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

40. The Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

41. The Tribunal discussed welfare, hospital, nursing or community services, including a residential care option, with Mrs Valencia’s daughter. Mrs Valencia-Lim gave oral evidence that her mother would not be comfortable with strangers in her home. She prefers to receive care from those with whom she has a close personal relationship, in particular her daughters now that her primary carer Mr Valencia has passed away. Mrs Valencia-Lim said that her mother does not want to go into residential care. It would also be inconsistent with their culture to place her mother in respite or full-time residential care and Mrs Valencia-Lim considered it would be detrimental to Mrs Valencia’s mental health. The Tribunal accepts that Mrs Valencia requires 24-hour care because she needs constant supervision because of her lack of balance and tendency to fall, her inability to tend to her showering and personal grooming and her need for assistance with toileting at night. It also accepts that Mrs Valencia strongly prefers to remain in her own home.

42. The NSW and Australian Governments provide various services to assist elderly people to continue to reside in their homes. Mr Valencia had previously been assessed as eligible to receive a home care package, and that provided them with assistance in their home by way of meal delivery, two hours cleaning per fortnight and lawn mowing. That assistance ceased when both Mr Valencia and Mrs Valencia moved to live with their daughter. The Tribunal accepts that there would be no obtainable welfare or community services that could provide 24-hour assistance to Mrs Valencia. While some community assistance may be accessed for Mrs Valencia, the Tribunal is not satisfied that such services are sufficient to meet Mrs Valencia’s needs, which includes overnight care.

1. Based on the evidence before it, the Tribunal is satisfied that the assistance required by Mrs Valencia cannot reasonably be obtained from welfare, hospital, nursing or community services.

2. The Tribunal is satisfied that the assistance cannot reasonably be obtained from a relevant relative or service in Australia and therefore the requirements of r.1.15AA(1)(e) are met.

   Willing and able – r.1.15AA(1)(f)

3. Regulation 1.15AA(1)(f) requires that Ms Guerrero 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 Ms Guerrero’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether Ms Guerrero is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

4. 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.

5. The Tribunal is satisfied that Ms Guerrero is aware of and familiar with her mother’s medical conditions and care needs. Ms Guerrero stayed with her mother when she visited after her father died. She also cared for her mother when her mother last visited the Philippines. While there is no doubt Mrs Valeria’s medical needs are higher now than they previously were the Tribunal accepts Ms Guerrero is aware of her mother’s needs. The evidence was that Mrs Valencia has high care needs due to poor mobility and complicated medical problems and the BUPA Assessment confirms this. Without her daughter’s care, she would be required to enter a high care bed in a nursing home.

6. Ms Guerrero is not currently in the paid workforce and understands that in order to provide the care her mother needs she will be required to prepare all her mother’s meals and do her washing, shopping and pay her bills. She will be required to assist her mother with showering, assist her with toileting and ensure she gets to medical appointments. The Tribunal is satisfied that Ms Guerrero is able to provide care to her mother despite being a mother to four children, one of whom is still of school age. The Tribunal accepts this evidence and concludes therefore that Ms Guerrero is willing and able to provide to her mother substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

7. Given these findings, at the time of decision Ms Guerrero is a carer of the Australian relative, being Mrs Valencia, and therefore satisfies cl.116.221.

8. Therefore, Ms Guerrero is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of r.1.15AA(1)(f).

   Conclusion on ‘carer’ criterion

9. Given these findings, at the time of decision Ms Guerrero is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.116.221.

10. 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.

    Secondary applicants

11. The secondary applicants are Ms Guerrero’s husband and four children. The Tribunal is satisfied that the sponsorship mentioned in cl.116.213 of the person who satisfies the primary criteria includes sponsorship of the family members. Consequently, the secondary applicants meet cl.116.312.

12. 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.

    DECISION

13. 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.116.211 and cl.116.221 of Schedule 2 to the Regulations;

    With the direction that the secondary applicants meet the following criteria for a Subclass 116 (Carer) visa:

    ·            cl.116.312 of Schedule 2 to the Regulations.

    Moira Brophy
    Member