Diec (Migration)

Diec (Migration) [2022] AATA 4341 (19 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Anh Diec
VISA APPLICANTS:  Mr Dung Giai Luu
Mrs Ngoc Manh Huynh
Master Quan Lan Luu
Master Quan Hao Luu
REPRESENTATIVE:  Mrs Pauline Lam (MARN: 9476142)
CASE NUMBER:  2008552
HOME AFFAIRS REFERENCE(S):          OSF2017/019825
MEMBER:Meena Sripathy
DATE:19 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 19 September 2022 at 5:15pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – 97-year-old, elderly, and frail woman – wheelchair bound – assistance from relatives – review applicant’s daughter’s health issues – contributions from the grandchildren – assistance from certain services – Level 2 home care package – temporary visitor visa more appropriate – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 May 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 1 March 2017. 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 (Cth) (the Regulations). In the present case, the first named visa applicant is seeking to satisfy the primary criteria for the grant of a Subclass 116 visa. The remaining visa applicants are members of his family unit and seek to satisfy the secondary criteria. 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.
The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate was not satisfied on the evidence provided, that the requirements of r.1.15AA(1)(e)(i) and(ii) were met, as the delegate was not satisfied that the assistance required by the primary visa applicant’s Australian relative cannot reasonably be provided, collectively, by other Australian relatives or cannot be obtained by community, welfare or nursing services. The delegate was also not satisfied that sufficient evidence was provided to establish that the visa applicant was willing and able to assist the resident and found that r.1.15AA(1)(f) was not met.
Following the application for review being lodged, the review applicant provided further supporting evidence and an updated Carer Visa Assessment Certificate to the Tribunal in November 2021 and April 2022.
The review applicant appeared before the Tribunal by video link on 12 July 2022 to give evidence and present arguments. The Tribunal received oral evidence from Ms Tu Linh Ly, the review applicant’s daughter and Mr Thang Luong Luu, the review applicant’s grandson. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.
The review applicant was represented in relation to the review, however her representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background and evidence before the Department
The primary visa applicant is a male Vietnamese national, born in 1980. He is presently 42 years old. He is married, and his wife and two children, born in 2010 and 2012, are included in the application as secondary visa applicants. He has a father and one brother in Vietnam and his mother and two siblings, a brother and a sister, reside in Australia. The visa applicant applied for the visa to provide care for Ms Diec Anh, his grandmother. She was born in 1925 and is presently aged 97 years. In addition to the visa applicant’s relatives mentioned above, his grandmother has another son in Australia.
The application is sponsored by the primary visa applicant’s grandmother, Ms Diec whom he seeks to provide care for. The sponsorship form indicates that she is married to Ly Vinh, born in 1926, and has two children, Ly Tu Linh and Ly Quoc Kien. She lives in a two bedroom unit with her child and spouse.
The visa applicant provided documents to support his family composition and relationship with the sponsor, including birth and marriage certificates and other ID documents. Medical documentation relating to the sponsor’s health conditions was also submitted, including Geriatrician Reports dated 20 October 2012 and 6 October 2016 from Dr Ernest Tam, a Carer Visa Assessment Certificate issued by Medibank dated 15 November 2012 relating to Ms Diec, indicating an impairment rating of 45, another Carer Visa Assessment Certificate issued by BUPA dated 27 October 2016 indicating an impairment rating of 30 and other hospital records and discharge summaries.
The following Statements were provided in support of the application:
·Statement dated 10 February 2017 by the primary visa applicant setting out his family circumstances and willingness and ability to care for his grandmother.
·Statutory Declaration of Tu Linh LY dated 23 December 2016. She lives with her mother and father and currently provides care to them. She is unable to properly look after her mother because her conditions are deteriorating and she is also providing full time care for her father and has medical conditions of her own. She attaches a health summary from her treating GP, Dr Albert Nguyen dated 9 November 2016. She and her children have tried to put her mother into a nursing home but she rejects this, and has attempted to take her own life in response.
·Statutory Declaration of Vinh LY dated 23 December 2016, husband of the sponsor. He supports the application for his grandson to come to Australia to care for his wife. He is 90 years of age and is unable to look after her daily care needs.
·Statutory Declaration of Thang Luong Luu dated 23 December 2016. He is the grandson of the sponsor. He is unable to care for his grandmother because he lives separately from her and works full time as a butcher. Evidence of his employment is attached.
On 14 February 2020 the Department requested further information from the visa applicant addressing, among others, details of the sponsor’s family composition, updated information about the sponsor’s health conditions, evidence why the assistance required cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia, evidence why other relatives in Australia cannot reasonably provide the assistance and evidence that the applicant is willing and able to provide the assistance required. Evidence of the spousal relationship between the visa applicant and his wife was also requested.
On 21 March 2020 a response was received including numerous documents, listed in the delegate’s decision record. Relevantly for the present review, it included Statutory Declarations dated 6, 7 and 9 March 2020 respectively from Buu Dinh Luu, granddaughter of sponsor and sister of visa applicant, Tu Linh Ly, daughter of Sponsor and mother of visa applicant and Thang Luong Luu, grandson of sponsor and brother of visa applicant, together with supporting evidence; death certificate for Vinh Ly, spouse of the sponsor; court order 6714/2004 between Vinh Ly and Quoc Kien Ly and letter from Dr Tuan Kiet Nguyen dated 25 February 2020 relating to the medical conditions of the sponsor and Centrelink Income Statement dated 19 February 2020 for Tu Linh Ly indicating that she receives Carer Payment and Allowance. The Tribunal observes that, although listed in the decision record, none of these documents were included in Department file OSF2017/109825 provided to the Tribunal.
Included among the electronic file notes in the Department file provided to the Tribunal (OSF2017/109825) are case notes relating to the refusal of an earlier Carer visa (Subclass 116) application made on 17 December 2012 by the visa applicant to provide care for the same relative, his grandmother.
Evidence before the Tribunal
Before the Tribunal the following further information and documents have been provided:
·Letters from Dr Ernest Tam dated 28 January 2021, relating to his patients Ms Tu Linh Ly and her mother Ms Anh Diec and their respective health conditions. Dr Tam requests early approval of the Carer visa application on the basis that Ms Ly’s health conditions make her unable to provide care to her mother, Ms Anh Diec.
·Updated letter from Dr Ernest Tam dated 14 October 2021 relating to Ms Anh Diec.
·Letter from Dr Tuan Kiet Nguyen dated 14 December 2021, health summary for Ms Anh Diec.
·BUPA Carer Visa Assessment Certificate dated 21 December 2021 for Ms Anh Diec, indicating impairment rating of 60
·Appointment of Enduring Guardian by review applicant dated 9 November 2020, appointing her daughter, Ms Tu Linh Ly, and grandson, Thang Luong Luu
·Appointment of Enduring Power of Attorney by review applicant appointing her grandson Thang Luong Luu and granddaughter Buu Dinh Luu.
·Statutory Declaration by Buu Dinh Luu of Cabramatta dated 4 June 2022 stating that she is unable to care for her grandmother, the review applicant, because she does not live with her and is currently employed full time. Her younger brother has his own business to run, and her uncle is estranged from the family since 2008 and his whereabouts are unknown.
·Statutory Declaration by Thang Luong Luu, of Campbelltown dated 5 June 2022 stating he is unable to care for his grandmother, the review applicant, because he does not live with her and he has his own business and works 6 days a week.
·Statutory Declaration by Tu Linh Ly of Bankstown dated 4 June 2022 stating that she currently resides with her mother, the review applicant, and has been caring for her. She is unable to continue to provide proper care because of her own health conditions. She and her children have tried to put her mother into a nursing home but she refuses and has attempted self harm in the past. She does not know where her younger brother is, he has not had any contact with the family since a family dispute in 2008.
·Letter dated 21 April 2022 from My Aged Care advising of assignment of a Level 2 home care package to the review applicant. She is required to enter into an agreement with a home care provider by 22 June 2022 or the package will be withdrawn.
Tribunal hearing 12 July 2022
At the hearing, held by video conference, the review applicant was present with her daughter, Ms Tu Linh Ly and grandson, Mr Thang Luong Luu. Having regard to the documentation provided regarding her deteriorating health conditions, including poor hearing and vision, and deteriorating mental cognition, the Tribunal did not take evidence from her.
Oral evidence was taken from her daughter and grandson and the visa applicant, who appeared by video link from Vietnam. All witnesses gave evidence through a Cantonese interpreter. A summary of the evidence they gave is provided below.
Evidence from Tu Linh LY
Ms Ly lives with the review applicant and has lived with her since she came to Australia in 2012. She confirmed that only the two of them reside there at this time. She came to Australia in 2012 to provide care for her father, who lived at this same address with the review applicant until he passed away in 2017. She was sponsored by her younger brother, Quoc Kien Ly. There are no other siblings. Ms Ly came to Australia with two of her children, Luu Thang Luong and Luu Buu Dinh. She has two other sons who remain in Vietnam, the visa applicant and Luu Dong Luong. Luu Dong Luong is not married and has no children. He works with computers. Her children who migrated with her were in their early 20’s at that time. They live separately and have lived separately since soon after they arrived here. When asked by the Tribunal why they moved out, she said that the unit only has two bedrooms and there was no room for them. Also they did not want to live with all the elderly people.
The Tribunal asked what her children in Australia do. She said they work in a garment business. Her son owns his business. Her son lives in Campbelltown, and her daughter lives in Cabramatta. Neither are married or have children.
She explained that her parents had a falling out with her brother, Quoc Kien many years ago, before she arrived here. She understands that it was about a dispute between them and him over their pension income and trying to put them in an aged care home. Since then there has been no contact with him and they do not know where he lives. He has children but she and the review applicant have no contact with them.
Since her arrival in Australia she lived with her parents and cared for her father until he passed away in 2017. She received a Carer Payment for this purpose. Since then, she remained living with her mother, the review applicant and cares for her. She is still in receipt of the Carer Payment from Centrelink for this purpose.
The Tribunal asked the witness about her mother’s health conditions and the care she provides for her. She said she has kidney stones, poor vision, poor hearing. She is depressed and cries a lot. She suffers from mental issues, has weak legs and stomach issues. She mostly relies on a wheelchair. She uses pads most of the time for toileting, but sometimes can use the toilet. In a usual day, the witness described that she wakes up around 7 or 8 in the morning. She helps her to wash her face brush her teeth and prepares and gives her breakfast. She cooks her three meals a day. After breakfast she may take her to the garden for a stroll or, if she does not feel like it, she will go for a sleep. Then she has lunch, prepared by Ms Ly. In the afternoon she takes a nap. When she wakes up, she has dinner and goes to bed around 8pm. The Tribunal asked whether she has needs during the night. She said she often calls out for her at night. She may ask for tea or she wants to go to the toilet or needs a change of pad. Ms Ly said as a result she does not sleep well and she herself is very tired during the day.
The Tribunal asked if the review applicant has regular appointments and who takes her for these. She said she sees her GP when she is unwell. She will take her in a taxi. The Tribunal asked what if any assistance her children provide. She said they are busy with their work and lives and don’t really help at all. Her son sometimes helps by buying heavy items and bringing them over. She said she does not really ask her children for help because she thinks they are tired after their work day.
The Tribunal asked, given she has been caring for her mother to date, why she cannot continue to do so. She said she has her own health issues, including pain in her arms and hands and knees. Her doctor has told her she is not well. The Tribunal asked if her children are aware of her health issues and why they do not offer her any assistance. She said they are aware. The Tribunal asked how her own health conditions affect her ability to provide assistance to her mother. She said the pain in her legs and feet make it difficult for her to walk. She also has difficulty sleeping. She cares for her mother but it is with difficulty.
The Tribunal asked Ms Ly about the home care package that was offered to the review applicant, as indicated in the documents provided to the Tribunal. She said she is aware of this. The package offered was insufficient for her needs. It is only several hours a week and she requires 24 hours a day care. The review applicant also does not want strangers in her house as she is fearful. For these reasons they have not accessed this package. The Tribunal asked why she would not use the hours offered to help her to care for her mother, noting that it can be used in any way that the review applicant needs, such as cleaning, shopping or transport to appointments. In response she repeated that the review applicant is fearful of strangers. She said that they don’t need cleaning help or help with cooking as she can do those things. The Tribunal asked her why her care, together with some assistance from her children and services from the home care package would not be sufficient to meet the review applicant’s care needs. She said that the review applicant is not comfortable with a person she does not know.
The Tribunal asked the witness when the review applicant last saw the visa applicant. She said it has been a long time, the last time she returned to Vietnam was in 2018. Her son took her there. The Tribunal asked if she would still remember him, given her declining conditions and time that has passed. She said she still asks about him. She stayed with him when she last went to Vietnam. The Tribunal put to her, given the nature of the personal hygiene care the review applicant needs, whether the visa applicant as a male relative would be appropriate to provide it. She said that because she is an elderly person it would not matter. The Tribunal asked about the visa applicant’s circumstances in Vietnam. She said he has a printing business, which he and his wife work in. They have two young children. The Tribunal put to her that given his family obligations it may have a concern he may not provide the care to the review applicant, particularly given that her other two children here are not assisting despite having no other obligations to dependents. She said that he was brought up by the review applicant and has a special relationship with her and he has offered to be the carer so he would. The other two children do not have the same relationship with the review applicant.
Evidence from Luu Thang Luong
The witness confirmed that he lives in Campbelltown, is single and has no children. He has lived separately from his mother and the review applicant for a long time. He originally came to Australia in 2006 as a student and lived with his grandparents, but moved out because of problems with his uncle. His uncle had a falling out with his parents, over money and putting them in an aged care home. The matter ended up in court, over 10 years ago. The witness said he and the review applicant have had no contact with his uncle or his family since then.
The witness has his own garment vendor business in Bankstown. It is about 10 minutes away from the review applicant’s home. He works 6 days a week from around 8am to 6pm. He employs his sister in the business. She also works there, full time, 6 days a week. The Tribunal asked the witness whether he provides any assistance to his mother or grandmother. He said sometimes if she needs to go to the doctor, or if they need to buy products or medication he may assist. The Tribunal asked the witness why his mother, together with himself and his sister, cannot provide the care his grandmother needs. He said his mother is getting old and her own health is deteriorating, and her stress sometimes makes her forgetful. When asked if he had any examples of this, he said sometimes she will ask him to buy something which he has done, and then he would ask her again for the same thing. When asked what assistance his sister gives, he said she does not do much. He said neither of them have much in common with the review applicant so they have nothing to talk about.
The Tribunal asked the witness about the Level 2 home care package recently offered to the review applicant. He said he was aware of this, but the services offered was not sufficient for what she needs. She needs someone to care for her at night. He confirmed they have not engaged any provider to access the package. He said the review applicant is afraid of strangers coming into her home and so they have not had the courage to obtain services. The witness said he knows from past experience of living with the review applicant that she is genuinely phobic about strangers and suspicious when there are people in her home she does not know. The Tribunal put to him that given her dementia condition, she may not be as aware of who is coming and going now. The witness acknowledged this but said she remains aware of his elder brother and recognises him and she would want him to care for her.

The Tribunal asked the witness about the visa applicant’s circumstances and his suitability to be the carer, given his gender and the nature of the personal care she requires and also his family obligations. The witness said that the visa applicant has volunteered to be the carer because of his special relationship with the review applicant, who brought him up when he was young. Regarding the hygiene tasks, this should not be a problem because the review applicant is his family member. In hospitals there are often male workers who help female patients. Regarding his family obligations, he has a wife who will look after the children and also cook for them all. The witness said the visa applicant has also done a course about looking after elderly people.
The Tribunal put to him that its concern was, given the reluctance of himself and his sister to provide care assistance, why would the visa applicant do it. In response he said he and his sister do not have the same kind of relationship with their grandmother that the visa applicant has. He has chosen to take up this responsibility and he will do it.
Evidence from visa applicant
The visa applicant confirmed that he lives in Ho Chi Minh city with his wife and two children. He has a printing business which he runs with his wife and also has several employees. He has also previously worked in the garment industry. When asked if he has any previous experience or skills caring for elderly people, he said he cared for his father in the past who has high blood pressure. He said he lived with him some years ago. He then said he presently lives with him. When queried as to why he did not mention this earlier, he clarified that he does not presently live with him, but close by. He said he has attended to his care needs including special diet, administering his medication and measuring his blood pressure. If he comes to Australia, his brother in Vietnam will continue to look after their father.
The Tribunal asked the visa applicant what he knows of the review applicant’s health conditions. He said she is hard of hearing, has poor vision, takes medication daily for mild mental health problems. She cannot do many things for herself. He confirmed he last saw her in person in 2018 when she stayed with him, but he sees her by video more often. When asked what he understands are her daily care needs, he said she needs her breakfast prepared and given to her in the mornings, help to take her medication. He would then take her out for a walk for some sunshine. At night he would prepare and give her meals, medication and shower her. He understood she needs assistance with toileting and that she sometimes soils herself and needs to be cleaned.
The visa applicant was aware his mother presently cares for her. He believes she cannot continue to do this because of her own health issues including foot/leg pain, back pain. She is ageing herself and not strong enough to support the review applicant. The Tribunal asked why his siblings in Australia cannot assist. He responded that they need to work. When asked why he wouldn’t need to do the same, particularly given he has a family to support, he said he would come here to look after the review applicant, his wife would care for their children. If granted a visa, he will sell his home in Vietnam and bring the money here to support them. The Tribunal asked about the proposed living arrangements, noting that the review applicant lives in a 2 bedroom unit. He said he would sleep with the review applicant in her room and his wife and children would stay in the second room. His mother would live with one of his other siblings.
The Tribunal asked the visa applicant if he has considered coming to Australia for a visit to see his grandmother. He said he tried to apply in the past when his grandfather passed away in 2017 but was refused. He was advised that he would be unlikely to be successful in a visitor visa application because of this application.
On 15 August 2022, the Tribunal wrote to the applicant to invite comment or response to information which, subject to her response or comments, would be the reason or part of the reason for affirming the decision under review. The particulars of the information contained in the invitation related to oral evidence provided by the witnesses, Ms Tu Linh Ly and Mr Luu Thang Luong at the hearing. The invitation set out the particulars of the information and explanation of its relevance to the review and consequence of the Tribunal relying on it.
Following a request for an extension of time to provide a response, the Tribunal received the following documents and information on 9 September 2022:
·Submission from the representative in response to the invitation to comment letter.
·Statement and translation from the visa applicant, Mr Luu Dung Giai
·Statutory Declaration by Thang Luong Luu dated 22 August 2022
·Statutory Declaration by Buu Dinh Luu dated 8 September 2022.
The Tribunal has considered this information in its assessment below.
FINDINGS AND REASONS
Whether the visa applicant is a ‘carer’
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 reg 1.15AA of the Regulations, which is set out in the attachment to this decision.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 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 grandmother.
The Tribunal is satisfied, on the birth certificate evidence before it, that the visa applicant is the grandson of the Australian relative, and therefore the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 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.
The Tribunal has before it a certificate dated 21 December 2021 that relates to a medical assessment carried out on behalf of Bupa Medical visa Services and is signed by a medical advisor who carried it out. The certificate states that the Australian relative (resident) has various medical conditions which cause physical, intellectual or sensory impairments of the ability of that person to attend to practical aspects of daily life, a total impairment rating of 60 under the impairment tables has been assigned, and because of the conditions, 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. The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv).Accordingly, the requirements of reg 1.15AA(1)(b) are met.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
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.
In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
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 which specifies the impairment rating for this purpose as 30.
In the present case, the impairment rating specified in the certificate is 60. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 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 reg 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.
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
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.
The requirement in relation to Australian relatives of the resident (r.1.15AA(1)(e)(i)) was amended with effect from 9 November 2009, so that the relevant enquiry is whether the ‘assistance cannot reasonably be provided by any other relative of the resident’ (emphasis added).[1] The purpose of the amendment was to allow decision-makers to reach a conclusion that assistance could reasonably be provided even where relatives in Australia claim to be unwilling or unable to provide assistance.[2] Therefore, whether any relatives can reasonably provide the assistance and what a relative is capable of doing are matters for consideration by the Tribunal in determining whether assistance cannot reasonably be provided.
[1] Amended by Migration Amendment Regulations 2009 (No.13) (SLI2009, No.289) Schedule 3, items [1]-[3] to apply to visa applications made on or after 9 November 2009 (r.5(2)).
[2] The Explanatory Statement accompanying Migration Amendment Regulations 2009 (No. 13) (SLI2009, No.289).
As mentioned above, the delegate refused the visa on the basis of this criteria and therefore this is the critical issue in dispute in this matter. The delegate was not satisfied, on the information and evidence provided, that the required level of care could not continue to be given to the resident by her daughter or why it could not be accessed from welfare, hospital, nursing or community services.
The Tribunal has carefully considered all of the documentary and oral evidence before it, including the response to the invitation to comment, and makes the following findings and assessment.
Direct assistance with practical aspects of daily life
The Tribunal accepts the review applicant is a 97 year old, elderly and frail woman with multiple health and aged related conditions. The most recent CVAC of 21 December 2021 indicates she is fully wheelchair bound, needs assistance with showering and dressing, has dual incontinence most of the time and soils herself multiple times a day. She needs assistance with feeding, requires her food to be pureed, and requires supervision for medication and personal safety. The Tribunal accepts that the review applicant has the above mentioned needs for direct assistance in attending to the practical aspects of daily life.
The Tribunal took oral evidence from the review applicant’s daughter and grandson about the care arrangements currently in place. The evidence from each of them was generally consistent. On the basis of this evidence the Tribunal finds that the review applicant lives with her daughter who is, and has been, her primary carer since the daughter arrived in Australia in 2012 on a Carer visa herself. Her daughter provided care to the review applicant’s husband until he passed away in 2017. The Tribunal accepts the evidence of the daughter about the daily routine she and the review applicant have. She does most of this herself, without assistance from her son or daughter who live separately and work full time in her son’s garment business. The Tribunal accepts on the daughter’s evidence that they take taxis to doctor appointments, but generally do not have other outside activities. The Tribunal accepts her evidence that her son sometimes helps with shopping. The Tribunal finds that she has been receiving Carer Payment and Carer Allowance in the past to care for her father and continues to receive these payments to care for the review applicant.
The Tribunal discussed with the witnesses why the care assistance presently provided by the daughter cannot reasonably continue, and/or be supplemented by assistance from one or both of her children. In response the witnesses gave evidence about Ms Ly’s own health issues and her son and daughter’s work responsibilities.
The Tribunal provided a further opportunity to respond to this information in a post hearing invitation. In response, the review applicant’s grandchildren in Australia each provided further Statutory Declarations, and the visa applicant gave a statement which the Tribunal has considered.
Having considered all of the evidence and submissions addressing this issue, the Tribunal finds as follows. It accepts on the evidence of Dr Tam dated 28 January 2021, that Ms Ly suffers from the following health conditions: osteoarthritis affecting her knees, back and toes, shoulder and back pain and that she struggles with feelings of weakness and tiredness. It accepts that she has been a carer for her elderly parents for many years and it is not surprising that this has taken a significant toll on her own mental and physical health. While the evidence she gave of the current daily routine suggests that the review applicant’s activities are now significantly limited by her advanced age and frailty, the Tribunal accepts that her care and supervision needs are still full time and not insubstantial and is prepared to accept, given Ms Ly’s own deteriorating health and exhaustion, that she would benefit from, and it is reasonable for her to have, some assistance to provide the required care.
The review applicant has other relatives residing in Australia. She has a son in addition to the daughter who is living with her, as well as the two children of her daughter. The evidence before the Tribunal is that the review applicant’s son has been estranged from her for many years and neither she nor her daughter know of his whereabouts. Despite the limited evidence about this, the Tribunal is prepared to accept it given the consistent evidence provided by the witnesses and the absence of any other contradictory information to suggest he is in contact with the review applicant. Having accepted that the review applicant’s son is estranged from the review applicant, it accepts that assistance cannot reasonably be provided by him or any adult children of his.
However, the same cannot be said of the children of the review applicant’s daughter. The Tribunal finds that the grandson, who gave evidence at the hearing and who has been, jointly with his sister, appointed power of attorney for the review applicant, is in regular contact with his mother and grandmother. It accepts that both the grandson and granddaughter live separately from the review applicant, but not that far away. The grandchildren provided further information about their circumstances and reasons why they cannot provide assistance in their recent Statutory Declarations in response to the invitation to comment letter. Thang Luong Luu explained the impact the expectation on him to assist has on his own personal social life and relationships. Buu Dihn Luu provided information that she commenced a new relationship some months ago and has plans to travel to Malaysia with her boyfriend. She also indicated that she has full time work, does not drive and that she is of small build and is personally not strong to provide care assistance, and these are reasons she cannot provide assistance to her mother to care for her grandmother.
The Tribunal understands and is not unsympathetic to the toll and burden that caring imposes on family members. However, in the particular circumstances of the present matter, taking into consideration the review applicant’s very advanced age, current limited activities, and her daughter’s history and experience of being her primary caregiver over many years, the contributions necessary from the grandchildren to assist her to continue to provide this care assistance are not that great. The Tribunal is not convinced by the reasons put forward by the two Australian resident grandchildren for not being able to provide any care assistance.
On the evidence before it, the Tribunal finds that the two grandchildren work in a family business in Bankstown, close to the review applicant’s residence. The granddaughter lives in a neighbouring suburb. At this point in time neither have any dependents. The Tribunal does not accept that providing limited assistance to their mother to assist her to care for their grandmother is an unreasonable burden or prevents them from having their own social or personal life. Given their circumstances, the Tribunal is not satisfied that they cannot provide a level of assistance to their mother to help her care for their grandmother.
Additionally, evidence is before the Tribunal that the review applicant was offered a home care package by the Australian Government in April 2022. The documentation provided indicates that the Level 2 package offered would have provided an amount of up to $15,877.50 towards the cost of care which would be paid to a home care provider of her choice. She was invited to enter into a home care agreement with a provider by 22 June 2022. This was discussed with the witnesses at hearing, who acknowledged the offer was made but was not taken up for the reasons that it was an insufficient level of care and the review applicant’s phobia and reluctance to have strangers come to the home. Further information was provided by Thang Luong Luu in his August 2022 Statutory Declaration of other efforts made to get external assistance for his grandmother and her rejection of these efforts. The Tribunal has considered these explanations, but does not accept, in the context of the review applicant’s present mental and cognitive state, and the presence and familiarity of her daughter in her home, that some assistance cannot reasonably be obtained from external services to assist in her care. The Tribunal has considered the evidence of the offer of a Level 2 home care package and reasons why it was not taken up. It accepts that a Level 2 package is limited assistance. However, it could have assisted the review applicant’s daughter and grandchildren to provide the care assistance the review applicant requires.
In light of the review applicant’s diminishing cognitive capacity, vision and hearing loss and the significant rest periods she has during the day, the Tribunal is of the view that at least some part of the assistance the review applicant requires can reasonably be obtained from home care aged services. Having had an offer of such a home care package made recently, it is open to the relatives to seek to re-engage with MyAged Care to see if the offer remains open or can be re issued.
For these reasons, in the particular circumstances of this case the Tribunal is not satisfied that the care assistance required by the review applicant cannot reasonably be provided by one or more relevant relative(s), or be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are not met.
Willing and able – reg 1.15AA(1)(f)

In light of the finding above, it is strictly unnecessary for the Tribunal to address this requirement. The Tribunal acknowledges the oral evidence of the visa applicant and further statement and information contained in the Statutory Declarations by his siblings in Australia regarding the visa applicant’s statements of willingness to care for his grandmother. It is also, however, mindful of the visa applicant’s family circumstances and the expressions of unwillingness to provide assistance made by his unencumbered siblings in Australia. Given this, together with the period since the visa applicant has seen his grandmother and her current state of dementia, the Tribunal is not certain it can be confident that he would in fact be willing, or able in the sense of ‘suitable’, to provide to the resident substantial and continuing assistance of the kind required. But, as it is not necessary in this case, the Tribunal does not make a determinative finding on this issue.
At the time of decision the primary visa applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.
For the reasons above, the primary visa 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 any of the visa applicants meet prescribed criteria for the visa sought. Specifically, none of the applicants are old enough to be eligible to meet the criteria for a Subclass 838 Aged Dependent Relative visa. There is no evidence before the Tribunal to suggest any of the visa applicants meet the requirements for a Subclass 835 Remaining Relative visa.
Recommendation for consideration for a Tourist visa to visit his grandmother
Notwithstanding the above findings and conclusions relating to the criteria in respect of this application for a permanent Carer visa, the Tribunal acknowledges and accepts that the visa applicant wants to see and spend time with his grandmother and to visit and offer some respite to his mother. The Tribunal considers that a temporary visitor visa may be more appropriate in the present case. It observes that Departmental policy[3] contemplates a Subclass 600 visa in the Tourist stream may be appropriate for applicants intending a short visit to Australia to provide domestic support to family members.
[3] [Sch2Visa600] Subclass 600 (Visitor) visa (immi.gov.au)
Noting the review applicant’s advanced age, frailty and inability to travel, the visa applicant may wish to consider again making an application to visit on a Tourist visa, and in the event that he does, the Tribunal urges the Department to give careful and fair consideration to any such application the visa applicant may make.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Meena Sripathy
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.

[2022] AATA 4341

19 September 2022

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