Dang (Migration)

[2019] AATA 2669

Dang (Migration) [2019] AATA 2669 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Phuong Dang

VISA APPLICANTS:  Ms Thi Tuyet Ngoc Dang
Mr Gia Huy Vuong
Miss Gia My Vuong

CASE NUMBER:  1726945

HOME AFFAIRS REFERENCE(S):           OSF2013028107

MEMBER:Justin Owen

DATE:26 June 2019

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 of Schedule 2 to the Regulations;

·cl.116.221 of Schedule 2 to the Regulations;

·cl.116.311 of Schedule 2 to the Regulations;

·cl.116.321 of Schedule 2 to the Regulations.

Statement made on 26 June 2019 at 4:29pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer visa) – valid Carer Visa Assessment Certificate – visa applicant’s son is permanently disabled – assistance for caree cannot be reasonably obtained – visa applicant is a carer of the Australian relative – decision under review remitted

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 1, Schedule 2, cls 116.211, 116.221, 116.311, 116.321

CASES
Perera v MIMIA [2005] FCA 1120
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 28 August 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 November 2013. 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.116.221.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied that the visa applicant was able to provide substantial and continuing care to the review applicant and that Regulation 1.15AA(1)(f) was met.  The delegate found therefore that as the visa applicant was not a carer of an Australian relative and failed to meet clause 116.221. 

4. The review applicant appeared before the Tribunal on 14 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Thi Tuyet Ngoc Dang.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Clause 116.221 requires that at the time of decision, the visa 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.

8. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed.

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

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

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.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

11. The visa applicant claimed to be the carer of another person – her sister the review applicant’s son and subsequently her nephew Mr Duc Anh Trinh at the time of application.  In providing care to her nephew the visa applicant is also intending to provide support to her sister the review applicant who claims to require increasing assistance to continue looking after her profoundly disabled son.

12. Both the review applicant and her son requiring care Mr Duc Anh Trinh are Australian citizens. The visa applicant has provided certified copies of the review applicant’s and the career’s Australian citizenship papers (D1, Folio.50 & 56). The Tribunal is therefore satisfied that the visa applicant is the carer of an ‘Australian relative’ as defined in r.1.03.

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

14. Clause 116.212 of the Regulations requires that the visa applicant is sponsored by the Australian relative mentioned in clause 116.211 – her sister in this matter – if that relative has turned 18.  The visa applicant’s sister- the sponsor and review applicant - was born on 25 October 1977 (D1, Folio.56) and was therefore 36 years of age at the time of application.     

15. Therefore, at the time of application the visa applicant meets cl.116.212.

    Whether the visa applicant is a ‘carer’

16. Clause 116.221 requires that at the time of decision, the visa 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.

17. Regulation 1.15AA(1)(a) requires the applicant is 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 visa applicant’s nephew

18. The Australian relative requiring care is a relative of the review applicant being her nephew.  The Australian resident requiring care was diagnosed with dystonic quadriplegic cerebral palsy amongst other serious medical conditions that require significant assistance.  He has lived in Australia since he was six months old.  He is currently at school and is due to complete his schooling at the end of 2019.    The Tribunal is satisfied that the visa applicant’s relative is ‘usually resident’ in Australia.   

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

20. Regulation 1.15AA(1)(b) requires that a certificate, which meets 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.

21. 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 07/013), or issued by a specified health provider in relation to a review of such an opinion.

22. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate was issued (D1, Folio.40) on 3 June 2013. The Tribunal is satisfied that the Certificate meets the requirements of r.1.15AA(2). The Tribunal is satisfied that according to the Certificate the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the impairment has an impairment rating (of 70) specified in the Certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life.

23. The Tribunal finds that the certificate provided does meet 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.

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 an Australian citizen. The Tribunal notes the certified copy of the citizenship certificate (dated 23 May 2009) of the person with the medical condition: the visa applicant’s nephew (D1, Folio.50). Accordingly, the requirements of r.1.15AA(1)(ba) are met.

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 07/012.

27. In the present case, the impairment rating specified in the certificate is 70. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

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 as a result 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.

30. The Tribunal notes the visa applicant’s claim that she will also be providing significant support and care to her sister the review applicant who is finding it increasingly difficult , as discussed elsewhere in this decision, to care for her son, the visa applicant’s nephew, 24/7. The Tribunal notes that where the person to whom the Carer Visa Assessment 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). The review applicant has claimed to have a permanent or long-term need for assistance in providing the direct assistance needed in attending to the practical aspects of her son’s (the visa applicant’s nephew) daily life for at least 2 years as a result of the medical condition. The Tribunal notes the considerable medical evidence before it that the visa applicant’s son is permanently and profoundly disabled. He has an impairment rating of 70 and his condition will not improve. Whilst the Tribunal has found that r.1.15AA(1)(d) does not apply in this particular review, the Tribunal wishes to record that it considers the visa applicant would have met r.1.15AA(1)(d) on the basis the review applicant has a permanent or long-term need for assistance in providing the direct assistance her son requires: r.1.15AA(1)(b)(iv).

31. 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 NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

32. The review applicant, the mother of the caree and sister of the visa applicant, spoke in some detail about the considerable and growing challenges she faces in caring for her son. 

33. Her son requires 24-hour care, seven days a week and will do so for the entire life.  He suffers from the condition Cerebral Palsy (Dystonic Quadriplegic) which is permanent.  The Tribunal notes from the vast medical evidence before it that he also faces a number of other complex medical conditions including Inflammatory Bowel Disease, abdominal pain, and diarrhoea and vomiting.  He also has a past history of epilepsy. 

34. The Tribunal notes the review applicant’s indefatigable support and care she has provided to her son the caree, since his birth in 2001. The review applicant’s son attended the Tribunal hearing and it was obvious to the Tribunal over a number of hours the constant attention and support the review applicant is required to provide the caree. 

35. The review applicant after 18 years of caring for her disabled son is feeling the strain both physically and emotionally.  The review applicant said that she is suffering from straining her back and shoulders due to looking after and lifting her son.  The Tribunal notes the evidence she has supplied concerning her chiropractic and physiotherapy treatment the last few years (T1, Folio.95-96) and notes that she now faces constant sharp pain that becomes aggravated from carrying, lifting and holding her son who is now reaching adulthood.

36. The Tribunal also notes the treatment she has been receiving for a number of years for her mental health (T1, Folio.94).  At the hearing the review applicant stated she was suffering from depression due to the relentlessness of the care demands she faced from her son.  The review applicant claims her anxiety was also impacted by the diagnosis of her husband with cancer, which the Tribunal accepts.  The Tribunal accepts that the demands of being a carer have physically and emotionally drained the review applicant.    

37. The Tribunal notes the fact that the visa applicant’s nephew is in frequent contact with medical specialists and health professionals to manage his numerous medical conditions (T1, Folio.89-90).  The ongoing requirements in organising and attending these appointments on top of the 24/7 provision of care by the review applicant in the home has left the visa applicant exhausted.               

38. The Tribunal enquired as to the ability of her husband to provide the requisite care needed to the caree.  The review applicant pointed out that her husband had been diagnosed with renal cancer and had undergone a range of treatment (T1, Folio.93).  The review applicant’s husband is working part-time since his treatment and assists with some light duties.  The Tribunal accepts that the review applicant’s husband – the visa applicant’s brother-in-law – is limited in terms of the assistance he can provide the caree.

39. The Tribunal enquired about other family members that may be able to provide assistance in caring for the visa applicant’s nephew.  The review applicant said that she has no siblings in Australia.  The Tribunal on the evidence accepts this claim.  The Tribunal asked about the review applicant’s husband’s brother and sister that reside in Australia.  The review applicant said that her husband had lost contact with his brother and his sister who lived in Liverpool only visited once a year.   The review applicant pointed out her husband’s sister had her own children to look after.  The review applicant stated she has no other family in Australia that can assist in looking after and caring for her son.  The Tribunal accepts the review applicant’s evidence on this matter.   

40. On the evidence before it, the Tribunal is satisfied that the assistance required by the resident cannot be reasonably provided by a relevant relative.   The applicant meets 1.15AA(1)(e)(i).       

41. The Tribunal has also considered whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: 1.115AA(1)(e)(ii).

42. The Tribunal discussed with the applicant whether the assistance could not be reasonably obtained from welfare, hospital, nursing or community services in Australia.

43. The review applicant has sought assistance and receives 17 hours of support a week for her son via the National Disability Insurance Scheme (NDIS).  The review applicant talked about the care and assistance the NDIS provides: 17 hours a week made up of one hour’s care in the morning and two hours care in the afternoon six days a week.  This has been in place the last two years.  The review applicant said the NDIS staff helps with changing her son and his washing and toileting.  The Tribunal notes that the NDIS is providing important support to the review applicant in meeting her care responsibilities to her son.  The Tribunal notes however that her son requires 24/7 care.  The Tribunal notes the correspondence of the Senior Staff Paediatrician at Liverpool Hospital Dr PCW Chay who wrote on 15 August 2018 that the visa applicant’s nephew ‘…is totally dependent on his carer for all basic needs as he is incapable of feeding himself, dressing and bathing.  He wears a nappy and requires cleaning up.  He is physically incapable, and needed to be moved from bed to wheelchair.  He requires care 24/7, including constant observation for any possible illnesses such as choking episodes, recurrent seizure and pain.  He is wheelchair dependent.  Feeding is provided through a gastronomy tube, which goes directly into his stomach and small intestine 4 to 5 times a day to maintain nutrition.  He is at risk of aspiration from vomiting.’ (T1, Folio.73).  The Tribunal places a high value on Dr Chay’s evidence and consider sit outlines the extent of the caring needs of the visa applicant’s nephew.  The Tribunal considers the considerable medical evidence before it is indicative of the fact that the assistance required cannot reasonably be obtained by a welfare, hospital, nursing or community service.  The Tribunal notes that the review applicant has sought assistance from such providers – which is supplied 17 hours a week.  The assistance however required cannot reasonably be obtained by these services when the visa applicant’s son is profoundly disabled and requiring 24/7 care.      

44. On the evidence before it, the Tribunal is satisfied that the assistance required by the resident cannot be obtained from welfare, hospital, nursing or community services.  The applicant meets 1.15AA(1)(e)(ii).       

45. 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.

46. 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.

47. 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.

1. The Tribunal notes that the delegate refused to visa applicant’s application on the basis that he was not satisfied the visa applicant was able to provide substantial and continuing assistance to her nephew.  The delegate found that the visa applicant, based on information provided in an interview on 13 February 2017, was neither prepared nor well informed about any potential or existing arrangements that were available to help her nephew.  The delegate found that the visa applicant failed to give insights into her nephew’s medical conditions or that she had sufficient understanding and knowledge needed to provide appropriate care for him. 

2. At the Tribunal hearing, the visa applicant was able to provide a solid, detailed and consistent of her nephew’s daily programme, his care needs and his current medical treatment.  The visa applicant claims she talks to the review applicant and her nephew almost every day.  The visa applicant expressed her concerns about her sister the review applicant’s ability to continue maintaining her 24/7 care of her nephew, a view the Tribunal on the evidence before it has some sympathy for.  The Tribunal accepts on the facts before it that the visa applicant is motivated both by a desire to assist her nephew as well as to assist her sister the review applicant.   The Tribunal accepts the review applicant is finding it more and more difficult to provide for the high-care needs of her son due to the declining health of both her husband and herself both on a physical and mental health basis.      

3. The Tribunal found the visa applicant was consistent and illustrated a sound insight into how her nephew required assistance when questioned as to the needs of her nephew and what and how she would provide care and assistance to him. 

4. Before the Tribunal was a considerable amount of evidence of the visa applicant’s efforts over the last few years in improving her level of knowledge and experience in the provision of care.  The Tribunal notes that in 2018 the visa applicant spent some time working as a volunteer for the Thien Phuoc Foster Centre for Disabled Children in Saigon (T1, Folio.87-88).  The Tribunal notes the visa applicant has also qualified in the provision of First Aid via the Red Cross in Saigon (T1, Folio.88-89).  The Tribunal notes that the visa applicant is also currently caring for her ageing parents in Vietnam.

5. The Tribunal noted at the time of the delegate’s decision the visa applicant did not drive nor did she speak English.  The visa applicant said that she had been studying for three months an English language course consisting of three sessions for 4.5 hours a week.  She claimed that she would learn how to drive. 

6. The Tribunal notes the significant improvement in the visa applicant’s knowledge of her nephew’s condition, his care needs, treatment and his daily programme since the time of the delegate’s refusal over two years ago.  The Tribunal notes the visa applicant has attempted to improve her knowledge and experience externally as well through the Foster Centre for Disabled Children and her Red Cross study.  The Tribunal had some concerns that the visa applicant’s responses to its questions pertaining to the care required by her nephew and his treatment may have been rote learned.  The Tribunal however found the visa applicant’s responses consistent and accepts her knowledge and ability to provide care have improved markedly over the last few years. 

7. The Tribunal notes that much of the care the visa applicant’s nephew appears to need in the home 24/7 is supervision.  The Tribunal notes that the visa applicant’s nephew concludes his schooling later in 2019 and he will be spending considerably more time in the family home, meaning that the need for care and assistance in the home will increase.  The Tribunal accepts that the visa applicant’s sister has worked tirelessly in providing the care needed but agrees she personally is in need of further support in the home after so many years and the decline of the health of both herself and her husband.   The Tribunal is satisfied on the evidence before it that the visa applicant is both willing and able to provide the substantial and continuing assistance required.        

8. Therefore, the visa applicant 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).

9. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221.

10. There are two secondary applicants included in this application: the visa applicant’s children Mr Gia Huy Vuong and Miss Gia My Vuong.  The Tribunal notes that for the secondary applicants to be granted a subclass 116 visa they must meet the secondary criteria which includes cl.116.311 and cl.116.321.

11. The Tribunal has found that the primary applicant meets cl.116.21.  The Tribunal therefore finds that the secondary applicants are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivision 116.21.  The secondary applicants therefore meet cl.116.311.

12. The Tribunal finds that the secondary applicants continue to be a member of the family unit of a person who is the holder of a Subclass 116 visa.  On the evidence before the Tribunal the visa applicant’s son and daughter continue to be members of the family unit of their mother the visa applicant.  The secondary applicants meet cl.116.321.  

13. 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

14. 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 of Schedule 2 to the Regulations;

    ·cl.116.221 of Schedule 2 to the Regulations;

    ·cl.116.311 of Schedule 2 to the Regulations;

    ·cl.116.321 of Schedule 2 to the Regulations..

    Justin Owen
    Senior 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.