Bui (Migration)

[2022] AATA 3495

Bui (Migration) [2022] AATA 3495 (6 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanh Long Bui

REPRESENTATIVE:  Mr Tam Nguyen (MARN: 0743595)

CASE NUMBER:  1919015

HOME AFFAIRS REFERENCE(S):          CLF2018/50480

MEMBER:Ann Duffield

DATE:6 July 2022

PLACE OF DECISION:  

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 06 July 2022 at 11:18am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance from relatives – applicant ‘s knowledge and understanding substantially lacking – sponsor’s sister – assistance from certain services – extent and cost of care provided through the sponsor’s NDIS plan – at least 20 hours of in-home care for the sponsor each week – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221

CASES
Biyiksiz v MIMIA [2004] FCA 814

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 Home Affairs on 2 July 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 May 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations).

3. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa as the carer of his brother, Mr Tang van Bui, his sponsor and an Australian citizen. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221.

4. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied that the care required by the sponsor cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore sub regulation 1.15AA(10)(E)(ii) was not met.

5. The applicant appeared before the Tribunal on 23 June 2022 via Teams to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister and past carer of the sponsor, Thi Hue Bui. The sponsor did not attend as he was indisposed. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case or whether the assistance required cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal also considered whether there are other members of the sponsor’s family who were able to provide the assistance required by the sponsor.

   Whether the applicant has claimed to be the ‘carer’

9. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s brother.

10. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

11. Clause 836.211 of Schedule 2 to the Regulations requires that at the time of application, the applicant claims to be the carer of an Australian relative.  In this case, at the time of application, the applicant claimed to be the carer of the sponsor, who is an Australian citizen and the applicant’s brother. The sponsor was born on 3 January 1956 and was granted Australian citizenship on 31 March 1993. A copy of the sponsor’s citizenship certificate is on the department’s file at Folio 40. Therefore, at the time of application the applicant meets cl.836.211 of Schedule 2 to the Regulations

    Carer Visa Report

12. The sponsor provided a Carer Visa Assessment Certificate (CVAC) dated 5 October 2021 recording a total impairment rating of 40 points. The applicant suffers from schizophrenia and Ischaemic cardiomyopathy. Noted on the CVAC are the following comments: the sponsor has medical conditions that may impact his capacity to self-care including cooking, bathing, dressing and eating. He needs regular prompting to take his daily medications for his diabetes, cardiomyopathy, hypertension as well as the schizophrenia. The sponsor has been hospitalised on several occasions with the most recent being between July and August 2021.

13. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

    Whether the assistance cannot otherwise be reasonably provided or obtained

14. Regulation 1.15AA(1)(e)(i) 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 that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulation 1.15AA(e)(ii).

    Whether 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

15. The applicant has declared a wife and child still living in Vietnam. They were not included on his original application and his attempts to include them by submitting a Form 1023 were unsuccessful at the Department. They were not included in the application for review to the Tribunal.

16. The applicant claims his parents are deceased. He has declared two sisters on his application Thi Hue Bui who is resident in Australia and Kim Vien Bui who is resident in Vietnam.

17. The applicant arrived in Australia on a visitor visa in March 2018. His wife and son remained in Vietnam.

    Statutory declarations

18. The applicant’s and sponsor’s sister, Ms Thi Hue Bui DOB 03/01/1956 resides in Salisbury, Queensland and states that she has provided the sponsor care since 2012 (Statutory declaration dated April 2019). . She states that over time her health has also suffered, and she can no longer provided the sponsor with the required level of care. Ms Bui has provided a letter from her attending physician stating that she has arthritis, poly arthritis, thyroid abnormality, partial thyroidectomy, high cholesterol, impaired glucose tolerance, gallbladder polyps, Hepatitis B, resolved and a past hysterectomy and haemorrhoidectomy. There is no indication in the letter abut the extent to which Ms Bui’s medical conditions impair her capacity to continue to provide the sponsor with the required level of care.

19. The applicant has provided a statutory declaration stating that he was encouraged to remain in Australia by his sister in order to provide ongoing care and assistance to the sponsor. He states that he and his sister have visited a few nursing homes and care organisations to enquire about the care of the sponsor. He sates that they received negative answers as the mental disease of the sponsor meant that they did not have means to provide suitable care.

    Whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

20. The sponsor and his family have sought service from several home care services in early 2021 in the surrounding area as follows: 

    a.Woolloongabba Community Mental Health Team

    b.Pine Lodge

    c.Blue Care – Sunny Bank Hills

    d.Anglicare Annerley

21. The sponsor receives ongoing care from the Woolloongabba Community Mental Health Team which includes regular 6 weekly doctor reviews and home visits to give medication as well as a review every two weeks. He is also visited daily by the Diabetic nurse to test his blood sugar levels.

22. Anglicare in Annerley provided a statement in July 2019 that the sponsor was receiving daily care for 5 days a week in relation to the monitoring of medication compliancy of his diabetic and psychiatric medications as well as ongoing monitoring of his heart condition.

23. There is no evidence that the sponsor or his brother have made applications (as opposed to casual inquiries) to the care facilities at Pine Lodge or Blue Care. Neither the applicant nor the sponsor have provided evidence of the family’s financial status or income.

    Information received by the Tribunal prior to the hearing

24. Prior to the hearing the applicant provided an updated statutory declaration as well as an updated letter from his attending psychiatrist. In his statutory declaration the applicant provided details of the daily care provided to the sponsor

    The Tribunal hearing

    Evidence from Ms Bui Thi Hue

25. The Tribunal questioned the sponsor’s sister (and sister of the applicant) Ms Bui, who provided care for the sponsor in the past. She told the Tribunal that she did not live with the sponsor as she had been working while caring for him for over 30 years since 1986. She and the sponsor arrived in Australia together in 1986 and he became ill a year or two after their arrival. Ms Bui told the Tribunal that the sponsor only worked in the first several years after their arrival and then only intermittently. He has been on a disability pension, Ms Bui cared for him for some time, and they shared accommodation until the sponsor was able to secure government housing. He has been living on his own for around ten years. Ms Bui receives a carers pension in relation to the sponsor.  

26. Ms Bui detailed the amount of care and support the sponsor receives through mental health services and case management services through the NDIS. She told the Tribunal that the sponsor receives regular 6 weekly doctor reviews and daily home visits for medication as well as a review every 2 weeks.

27. Ms Bui’s husband has died, and she has two children; a son who lives in Melbourne and a second son who is living with her. He is single and she is retired. She is financially supported by means of the Age Pension from centrelink – the house she lives in is owned by her and she has no mortgage. She told the Tribunal that she sometimes provides the applicant with financial support.

28. Later in the hearing Ms Bui also admitted to still being in receipt of the Carer’s Pension even though she claims she has not been caring for the sponsor since at least 2018 when the applicant arrived. She told the Tribunal that she has tried to have the payment cancelled but has shown no evidence of that. Ms Bui told the Tribunal that she technically still cares for the sponsor because she takes full responsibility of organising his appointments and other matters. The Tribunal noted that Ms Bui took the sponsor to his medical appointment to assess his impairment rating in October 2021.

29. Ms Bui told he Tribunal that she has several medical conditions including diabetes, high cholestoral, stomach issues, arthritis and it is difficult for her to walk. She claims that sometimes when she holds something, she drops it easily and she has kidney problems. She states that she is unable to look after the sponsor and he requires full time care.

30. The Tribunal put to Ms Bui that she continued to receive the carer pension and organise the sponsor’s medical appointments and other important matters. The Tribunal put to her that the sponsor also has an extensive network of carers, including daily care from a range of services funded by the NDIS. The Tribunal also put to her that she had provided no evidence that despite her medical issues she was no longer able to provide the necessary assistance to the sponsor. Furthermore, the Tribunal put to her, she has a grown son who can also provide assistance if necessary. The Tribunal asked Ms Bui why it was necessary to ask the applicant to come to Australia to take care of the sponsor. Ms Bui stated that she had been looking after the sponsor for a long time and was exhausted and that he lives separately and alone and can’t look after himself. She stated that someone needed to live with him so that all his needs are met properly and that she needs someone to care for her.

    Evidence from the Applicant Mr Thanh Long Bui

31. The applicant told the Tribunal that he came to Australia to visit his brother (the sponsor) because he had not seen him in some time. He said that when he arrived and saw his brother’s condition he decided to stay. He has a small business in Vietnam and his son works in construction. He told the Tribunal that they were financially comfortable. Asked what he thought would happen in the future the applicant claimed that if his brother’s condition improved, he would return home. He said, however, that no one was in a better position to care for his brother except him.

32. The Tribunal asked about his living arrangements and he said that he lives with his brother in his housing commission accommodation. He described it as a one-bedroom flat in a complex of six.  He claims they sleep in single beds in the same room.

33. When questioned about his financial situation in Australia, the applicant told the Tribunal that he brought around AUD$4,000 with him and he is using that money. He also receives some cash from his sisters. He told the Tribunal that his sister in Vietnam gives cash to some friends who are travelling to Australia to pass onto him. He first claimed, when questioned, that he didn’t have a bank account but later admitted that he opened one.

34. The Tribunal asked the applicant to provide it with the family’s financial records, including bank accounts putting to the applicant that without those records the Tribunal could not form a view as to whether the family could reasonably afford to provide any additional care from outside sources that the sponsor may require. The applicant undertook to provide the Tribunal with the records at a later date.

35. The applicant told the Tribunal that they had made inquiries of other agencies to provide care but had not made any applications because they could not afford it. The Tribunal put to the applicant that it would be difficult to form a view that the family could not afford additional care if no application had been made and if the Tribunal had no understanding of the family’s financial situation.

36. The applicant asked for and was granted a ten-minute adjournment.

37. Upon return from the adjournment the Tribunal asked the applicant about the level and type of care his brother received from external agencies, in particular the services provided through the NDIS. The applicant told the tribunal that from Monday to Friday between 7.30 to 8am a nurse comes and checks the sponsor’s weight, swollen feet, blood sugar and general health. He said that Sunnycare also provides regular assistance, for example, on Mondays and Thursday they come and take him and his brother out shopping and to liaise with his mental health team. He said that Sunnycare also provides an in-home physiotherapy service and home exercise program. The applicant also said that Sunnycare provides a service where they take out with others for social outings but they have not registered for that program. The applicant told the Tribunal that he does not have a driver’s licence.

38. The Tribunal asked the applicant how much those services cost and who paid for them. He said that he doesn’t know anything about that. The applicant’s sister told the Tribunal that the NDIS pays for everything. The Tribunal asked to be provided with a copy of the letter from the NDIS and others setting out the services provided to the sponsor.

39. The Tribunal asked the applicant to detail the extent of the care he provided to his brother. He said that he was very busy with day-to-day activities, for example, he cooks meals and organises food every day. He makes sure that his brother sleeps ok and washes himself; he turns on the TV for him and reminds him to do exercises. The applicant told the Tribunal that his brother is very weak and needs a walking frame and that he can only walk short distances. He claims that he must help his brother every time he goes out and that his brother has fallen about two times in the bathroom but at that time it wasn’t that bad.

40. Asked about his understanding of his brother’s mental health issues the applicant said that he had acquired some knowledge himself through newspaper and direct contact. He said that his brother was an introvert and doesn’t like to be social and that he also has limited English language skills.

41. Pressed to give details about how his understanding of schizophrenia and what actions he would take if his brother had an episode the applicant said that as he understood it, the person with this condition often hears voices and someone is telling him to do something. He said that the patient hallucinates and thinks that he is the leader of the country. Pressed as to how it manifested itself in relation to his brother specifically, the applicant said that when he was having an episode his brother would point his finger to the ground and get very angry. He said that in those moments he would talk to his brother very gently and turn the music on to relax and calm him down. He would also tell stories to him about his childhood in Vietnam.  The Tribunal put to the applicant that these matters were important since it needed to be satisfied that his presence and care were necessary to provide his brother that the care he needed.

42. The Tribunal asked the applicant if he had any discussions with his mental health providers about how he could help his brother and he said that whilst he hasn’t been able to meet with the psychologist, he had met with his brother’s psychiatrist. He told the Tribunal that he goes his brother to meet the psychiatrist at the hospital every three months and they normally ask him what he has observed in relation to his brother’s behaviour. The applicant said that after these meetings his brother is usually very upset with him. The Tribunal put to the applicant that the letter from his brother’s psychiatrist does not mention that he attends the appointments as well.

43. The Tribunal put to the applicant that on 21 October 2021 his sister went with his brother to the appointment for the carer visa report and asked why he didn’t go. The applicant said that it was during the pandemic, so his sister went.

44. The Tribunal put to the applicant that it appeared from the evidence that he was not really needed by the sponsor as his sister appeared to do most of the logistics and received the carers pension. The Tribunal put to the applicant that whilst his sister had some medical conditions there was no evidence that these conditions prevented her from providing the level of care the sponsor required. The Tribunal also noted that his sister was retired and lived with an adult son and suggested that they could provide the necessary assistance whilst the NDIS provided an extensive range of in-home services to the sponsor including monitoring his medication.

45. The Tribunal put to the applicant, his sister and the applicant’s representative that they needed to address these matters and provide the Tribunal with further evidence to support their claims including the family’s financial situation, evidence that they had applied for and received advice about other care alternatives, the extent of the services provided by the NDIS and anything else they considered relevant. The applicant’s representative asked for 10 days until 4 July 2022 to provide the information which was granted.

    Post-hearing submission

46. The applicant through his representative provided the Tribunal with a submission on 4 July 2022.

1. The applicant, in a statutory declaration dated 3 July 2022, set out further explanations addressing the Tribunal’s concerns. He states that when he attended the BUPA appointment with his brother and sister, he was not permitted to enter because of Covid restrictions. He claims he tried to insist on attending but he was not allowed to enter.

2. The applicant reiterated aspects of the sponsor’s medical and mental health conditions and the Tribunal accepts that the sponsor requires a high level of care. In particular the Tribunal notes that without the presence of family members it is likely that the sponsor would require nursing home level care and his mental health conditions is such that he would likely struggle in such an environment.

3. The applicants confirmed the extensive in-home and other care that the sponsor receives from outside services funded by the NDIS. They provided a copy of the sponsor’s approved NDIS plan which provides total funded support to the value of $166,194.99. That funding provides for at least 20 hours a week of in-home care each week.

4. The review applicant provided copies of his bank statements for the period February to June 2022. The account balance is $111.61 and has changed little since it opened in February with around $50. The transactions do not show that it is used for day-to-day expenses with the transactions appearing to relate to adjustments to the account of $1.35 frequently and refunds for overseas transactions for 0.04cents. If the applicant’s sister, Ms Bui, assists the applicant financially, those transactions do not go through his bank accounts. There is no evidence of payments for food, pharmaceuticals, fuel, for example, or for cash withdrawals which may support daily living expenses.

5. The applicant’s nephew and son of Ms Bui states that he cannot provide assistance or care to the sponsor because he is working full time and helps Ms Bui with general housework, cleaning and lawn/garden maintenance.

   REASONS AND FINDINGS

   Whether 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

6. The applicant was questioned about his knowledge of the sponsor’s condition and the extent of his understanding of schizophrenia. The Tribunal found that the applicant ‘s knowledge and understanding to be substantially lacking. Whilst in a written submission post hearing he recited information provided by the sponsor’s treating psychiatrist, the Tribunal is not satisfied that the applicant demonstrated the level of expertise or experience of the sponsor’s illness to be of much practical assistance. The applicant does not have a drivers’ licence and relies on his sister, Ms Bui, to provide transport and make other arrangements in relation to the care of the sponsor.

7. That being said, the Tribunal accepts that the applicant performs some domestic chores and provides companionship to the sponsor. The Tribunal also accepts that he ensures that the sponsor takes his medication, and this has been bagged into daily does to assist the applicant ensure that the sponsor receives the correct dosage at the correct time.

8. However, the evidence before the Tribunal is that the sponsor’s sister, Ms Bui also provides several hours each day of care to the sponsor. Combined with the extensive in-home medical and other assistance provided through the NDIS plan, the Tribunal has formed a view that whilst the applicant’s presence may be a comfort to the sponsor, it is not necessary.

9. The sponsor has a sister, Ms Bui, who has been his carer since around 1986. She has received and continues to receive a carers pension in relation to that role. She has also given evidence, confirmed by the applicant, that she continues to provide care and manages the logistics of the sponsor’s care needs including transport for several hours each day. She claims to provide financial assistance to the applicant but there is no evidence of this in the applicant’s bank statements.

10. Ms Bui is retired. She owns her own home some 7km from the sponsor and receives a carer’s pension and, she claims, also the aged pension. She has provided evidence of her medical conditions and a letter from her doctor stating that she “has a number of medical conditions and as such feels that she does not have the capacity to be a primary carer for her brother”. The Tribunal does not accept this statement as evidence that Ms Bui does not have the capacity to provide the required level of care, just that she “feels” she cannot.

11. Ms Bui also has an adult son who resides with her and is single. He states that he cannot assist in the provision of care to the sponsor as he helps his mother. He has not stated or indicated that his mother herself requires care such that she is unable to continue to provide care for the sponsor or what other activities would prevent him from assisting the sponsor. 

12. The Tribunal does not accept that it would be unreasonable for Ms Bui, with the assistance of her adult son, to continue to supplement the level of care required by the sponsor. The Tribunal is satisfied that the assistance can reasonably be provided by other relatives of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen, therefore subregulation 1.15AA(1)(e)(i) is not met.

    Whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

13. Relevantly, 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.

14. The Tribunal has little understanding at the time of decision and despite requests for evidence of the family’s financial circumstances and their capacity to provide for additional care for the sponsor.

15. However, the parties through their representative have provided evidence of the extent and cost of care provided through the sponsor’s NDIS plan. This provides for $166,194.00 worth of care annually and includes at least 20 hours of in-home care for the sponsor each week. The plan itself is intensive and designed to ensure that the applicant reaches his goal of achieving full independence.

16. The Tribunal is satisfied that the assistance is, and will continue to be, obtained and provided from welfare, hospital, nursing and community services in Australia, therefore sub regulation 1.15AA(1)(e)(ii) is not met.

    CONCLUDING PARAGRAPHS

17. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought

    DECISION

18. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Ann Duffield
    Senior Member