DINH (Migration)

[2021] AATA 3735

DINH (Migration) [2021] AATA 3735 (8 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CONG CHINH DINH
Mrs THI THANH VAN NGUYEN
Mr DUC MINH DINH
Mr DUC VINH DINH
Mr XUAN THINH DINH

CASE NUMBER:  1823659

HOME AFFAIRS REFERENCE(S):          CLF2017/32893

MEMBER:Helena Claringbold

DATE:8 September 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 836 (Carer) visa are met:

·r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(f) as they relate to cl. 836.221 of Schedule 2 to the Regulations; and

·the second, third, fourth and fifth named visa applicants be considered against the relevant criteria for the grant of the visas.

Statement made on 8 September 2021 at 11:30 am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance reasonably obtained from welfare, hospital, nursing or community services in Australia – family commitments of other relatives – substantial and continuing assistance – Aged Care Assessment – language barriers – lengthy waiting lists for local aged care services – appointment of Enduring Guardian – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 836.211, 836.221, 836.321; rr 1.03, 1.15

CASES

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 28 April 2017, Mr Cong Chinh Dinh, the primary visa applicant, (the applicant) applied for the Other Family (Residence) (Class BU) visa. The application was made on the basis that he is the carer of his father, Mr Toi Viet Dinh, the resident and sponsor.  Mrs Thi Thanh Van Nguyen, Mr Duc Minh Dinh, Mr Duc Vinh Dinh and Mr Xuan Thinh Dinh are declared as the applicant’s partner and their three children. These are the second, third, fourth and fifth named visa applicants.

2. On 10 August 2018, a delegate of the Minister for Home Affairs refused to grant the visas. The delegate was not satisfied that the applicant met cl.836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) under the Migration Act 1958 (the Act). Therefore, the second, third, fourth and fifth named visa applicants did not meet cl.836.321 of Schedule 2 to the Regulations. On 17 August 2018, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

3. On 3 August 2021, the applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Nguyen, the second named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  At the beginning and at regular intervals throughout the Tribunal hearing the applicant and second named visa applicant confirmed that they understood the interpreter clearly. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor and whether the applicant is willing and able to provide to the sponsor substantial and continuing assistance to fulfill his needs.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1960 in Dong Nai, Vietnam. His parents, three sisters and two brothers live in Australia. He has one sister living in Vietnam. The applicant declared being in a married relationship with the second named visa applicant and that the third, fourth and fifth named visa applicants who were born in 1999, 2002 and 2007 are their children. On the form 80 completed by the applicant he declared the following: He holidayed in Australia in 2015, 2016 and 2017.  On 1 April 2017 he arrived in Australia and was living in Smithfield. From 2015 he has been an investor in a petrol company in Ho Chi Minh City.

8. The sponsor was born in 1933 in Vietnam.  He is in a married relationship Ms Thi Nhi Tran born 12 October 1934 in Vietnam. They have seven children. On 20 March 1991, the sponsor was granted a BF-K1B11 visa. On 22 September 1993, he became an Australian citizen by grant.

   Does the applicant claim to be the carer of an Australian relative?

9. 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 father. Therefore, at the time of application the applicant meets cl.836.211 of Schedule 2 to the Regulations.

   Whether the assistance cannot be reasonably provided or obtained

10. Regulation 1.03 provides that carer has the meaning as given in r.1.15AA.

11. 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

12. A My Aged Care support plan (the plan) generated on 27 June 2016 provides the following information: The sponsor is an 82-year-old Vietnamese speaking gentleman who lives with his wife and receives an aged pension. His wife is his primary carer. Family members roster themselves so someone is staying with his wife daily to help look after the sponsor in the home. Carer stress identified. The sponsor’s medical history includes dementia, oesophageal resection 1968, laparotomy plus primary repair of recto Sig mould perforation 2012, multi-presentations/admissions in the past for anaemia, diverticular achalasia, GORD, gastritis.

13. The plan recorded his functional assessment-Bartel index score 16/20. For personal hygiene he only uses a cloth to clean himself and refuses to shower. He requires assistance and prompting to shower. He requires assistance to change his clothes. He requires help putting food into a bowl. He is able to use utensils to feed himself. He is independent with toileting and continent with both bladder and bowel function. He takes one hour at a time on the toilet due to haemorrhoids. His wife monitors and administers treatment. Family report that the sponsor is a fit man and a fast walker and mobilises with no aids used. He is at risk of absconding and wandering out of the home daily and has found ways out of the home and gets lost. He wears a police ID bracelet. Outdoor mobility requires assistance and supervision from family. He can help a little with gardening and is able to wash dishes and sweep the backyard and is dependent upon his wife for all ADLS.

14. The plan stated that he has been diagnosed with dementia. His family report that he has reverted to his childhood in North Vietnam. He no longer remembers he is married or has children. He is unable to recognise family members, believing his wife is his mother or sister. He is at risk of absconding daily requiring regular supervision. Has wandered out of the home and got lost for two days until found by police. He becomes unhappy if not let out of the home which can result in verbal agitation and threats towards his wife, mostly at night. Family denied any physical aggression. He has climbed over the fence and onto the roof getting stuck in an attempt to leave the home. Family report they are unaware of anything that can distract him if he wants to go out. He sleeps through the night with medication and only gets up to use the toilet. He does not wander out of the home during the night. Family report that he experiences visual and auditory hallucinations as they have found him talking to himself, this does not appear to cause him any distress.

15. The Carer Visa Assessment Certificate (CVAC) dated 14 February 2017, recorded a total rating of 45 points including dementia 30; achalasia 5; bowel incontinence 5; severe degenerative disease 5 and iron deficiency nil. Noted on the CVAC are the following: the sponsor has medical conditions that may impact his capacity to self-care including dementia, achalasia, bowel incontinence, severe degenerative disease of thoracolumbar spine with osteoporosis, sinus bradycardia and iron deficiency anaemia. Due to these issues he requires assistance with mobility; bathing/showering; toileting; dressing/grooming; eating/feeding; supervising medication; supervision for personal safety and transportation and is overall fully dependent with activities of daily living. ‘Mr Dinh has been diagnosed to have dementia, mixed type three years ago. He has wandering behaviour as stated in Dr Tam’s report. They also submitted multiple police reports about him being lost a couple of times. His MMSE score during his visit to the geriatrician in January 2017 was 6/30.’ ‘His memory, attention span, planning, decision making and comprehension have all been affected by his dementia and thus created a functional impairment resulting from all these cognitive impairments. This was clearly evident during our examination today’.  CVAC also recorded that the sponsor lived with his 83-year-old wife in a rented four-bedroom flat and was receiving informal family support. The sponsor was supported in the assessment by his son Mr Tuan Quoc Dinh. His recorded address was Vineyard Avenue, Smithfield.

16. In 2017 and 2018, Dr T, consultant physician and geriatrician provided information including the following: The sponsor is suffering from multiple permanent medical conditions which includes the following: dementia, diagnosed three years ago presented with poor short-term memory nominal dysphasia. He cannot remember names and has wandering behaviour. He has been lost and found many times. He always wants to escape from home unaware of the danger. He has poor personal hygiene and does not like showers and just wipes himself. His last shower was reported about six months ago. He often refuses food, even when the food is put in front of him. He needs a carer on a 24-hour basis and support for activities of daily living. His MMSE score (2017) was 6/30 (orientation 0/10, attention 0/5, recall 0/3). His behavioural and psychological symptoms of dementia see him get agitated easily. He can be aggressive and bully people. His son’s presence calms him. He has cerebral atrophy, chronic small vessel isometric disease of the brain; balance and gait disorder; achalasia (1999); history of gastro-intestinal bleeding; iron deficiency; osteoporosis with vertebral fractures; severe degenerative disease of thoracolumbar spine; sinus bradycardia; bowel incontinence. He is suffering from dementia, and multiple-medical conditions requiring 24-hour care and the attention from his family members. He requires supervision for showering, dressing and feeding. He requires assistance with toileting. He walks unaided but with high falls risks. He needs assistance for outdoor mobility. He is housebound with frequent wandering out of the house and has bowel incontinence. He came to Australia in 1991. He is married with seven children. Three sons and three daughters live in Sydney. He is living with his wife. He is a Catholic, a non-smoker and non-drinker. He speaks Vietnamese and is of non-English-speaking background.

17. A New South Wales police report created on 15 May 2016 provides the following information: on 15 May 2016 at approximately 11 AM the sponsor left his home to go for a walk alone as usual. About 1 ½ hours later the sponsor’s son became concerned and began to conduct some patrols of the surrounding locations. The son first reported the incident to police some four hours later and various investigations were undertaken. On 17 May 2016 at 2:00 PM police were informed that the sponsor may have been located by police in the Normanhurst area. 

18. On 26 March 2018, Dr N stated that the sponsor’s wife is suffering from chronic low back pain due to lumbar stenosis. Early senile dementia and has poor memory, forgetfulness, poor concentration, poor cognitive function. This makes it very difficult for her to look after herself. She also has non-insulin-dependent diabetes mellitus and hypothyroidism causing her some weight loss, tremor and muscle weakness and has osteoporosis. She cannot do basic daily activities because of deterioration of her cognitive behaviour and limited mobility due to her lumbar spine problem. She needs constant ongoing care for her daily activities.

    Statutory declarations 

19. In 2018, Mr Tuan Quoc Dinh, the sponsor’s son who lives in Rooty Hill approximately 30 minutes from the sponsor, declared that he is working full time to support his family and is the only breadwinner. He cannot provide care to his parents as he works long hours. His parents need assistance and care in their daily living and their medical conditions requires full-time attention. The applicant is willing to stay in Australia to continue to look after his parents and willing to devote his time to 24-hour care for them. The applicant has been taking care of the sponsor and his wife since his arrival in Australia and his father needs him to care for him. In 2021, he provided further reasons why he and Ms Luu, his wife, cannot assist the sponsor and stated that the sponsor does not remember much about his family members. The sponsor acknowledges him but casual conversation sees the sponsor reverting to him scratching the table and tearing his shirt buttons. The family have tried taking turns to assist the sponsor. He describes the sponsor going missing for three days and being brought home by police and of him becoming aggressive when restricted. He stated that the applicant is the person the sponsor trusts and the applicant has demonstrated his willingness to care for the sponsor. In 2021, Ms Luu provided information about how she and other family members assisted the sponsor. However, as the sponsor became older with increased medical conditions, he requires care 24/7.  She explains that when she and her sister-in-law took the sponsor for walks, he would try and break away from their arms and threaten and curse at them affecting their safety. The applicant does not have any difficulty physically handling the sponsor. The sponsor will only listen to the applicant and there is a trust between them.  The sponsor does not want a female caring for his need and the applicant provides him care including managing toileting.

20. In 2018, Mr Hoang Trieu Dinh, the sponsor’s son who lives in Fairfield West, approximately five minutes from the sponsor, provides reasons why he cannot care for the sponsor. He explains the relationship between the sponsor and the applicant as the eldest son. It is a wish that came true when the applicant came to visit and became the fulltime carer of the sponsor. The sponsor’s health is not as good as it was before and he definitely needs a fulltime carer living with them. He needs someone who loves him and that he can trust and who is capable of taking care of him. The applicant is the most suitable person to provide that care. Ms Nguyen, Mr Dinh’s partner, provides reasons why she and Mr Dinh cannot provide assistance to the sponsor. She provided help previously however as the sponsor’s condition worsened this became harder because of the difficulty in controlling the sponsor. She didn’t want to stop caring for the sponsor. It was because he felt uncomfortable when a woman touched or helped him with his hygiene. She continues to go to the home twice a week to help with house cleaning and cooking. The applicant has come at the right time and is willing to take care of the sponsor. There was a period of time when the applicant returned to Vietnam to arrange his affairs. During that time the sponsor’s wife regularly called for assistance. The sponsor was recently admitted to Liverpool Hospital for a blood transfusion.

21. In 2018, Ms Thi Kim Chi Dinh, the sponsor’s daughter who lives in West Hoxton Park, which is approximately 30 minutes from the sponsor, provides reasons why she cannot care for the sponsor. She stated that she confirms she is not willing and able to provide care for her parents.  In 2021, she provides reasons why she and her husband cannot care for the sponsor. She feels lucky to have the applicant who is willing to care for the sponsor.  When her eldest son, who is in year 12, graduates from high school, she could have some time to care for the sponsor on weekends.

22. In 2018, Ms Thi Kim Phuong Dinh, the sponsor’s daughter who lives in St John’s Park approximately 11 minutes from the sponsor, gives reasons why she cannot care for the sponsor. She understands that the applicant is willing to stay in Australia to provide full-time care for her parents and that he is able to provide the required care for the sponsor. A letter dated March 2018 from Dr N provides the following information. He certifies that the sponsor’s daughter is suffering from sarcoidosis; hip necrosis; total loss of left eye vision and is receiving a disability support pension. He stated that she is unable to look after her father due to her own multiple medical conditions. In 2021, Ms Dinh provides reasons why she cannot care for the sponsor.

23. In 2021, Ms Thi Kim Dung Pham, the sponsor’s daughter who lives in Blacktown, which is approximately 20 minutes from the sponsor, provides reasons why she cannot care for the sponsor. She has often felt neglected by the sponsor and this has led to an estranged relationship. The sponsor can be socially awkward around strangers due to dementia. There were moments when she visited him and he thought she was a stranger. The applicant has a special bond with the sponsor which enables him to provide the extra level of care that is required for someone with the sponsor’s medical conditions. For the past four years the applicant has looked after the sponsor around the clock and has demonstrated the patient’s willingness and empathy required to handle difficult and onerous tasks.

24. In 2018, the applicant stated the following: The sponsor has been diagnosed with long-term medical issues including dementia, achalasia, bowel incontinence, severe degenerative disease of the fluoro, lumbar spine with osteoporosis, sinus bradycardia and iron deficiency anaemia and needs fulltime care. His mother cannot do basic daily activities because of the deterioration of her own cognitive behaviour and limited mobility. It is difficult for her to care for herself and the sponsor. His brothers and sisters cannot provide care to the sponsor. The family have lost contact with his other sister. He is willing to stay in Australia to care for the sponsor and his mother and to devote his time to their care. In 2021, he gives reasons why other family members cannot care for the sponsor. His mother is becoming older and weaker and has her own medical conditions. When he arrived in Australia in 2017, his father’s medical conditions were not as bad as they are now. However, on his last visit in 2017 the sponsor’s health had worsened leading the applicant to become his full-time carer. It’s not easy taking care of the sponsor. If he needs the bathroom, he will urinate in any corner he can find. It takes a lot of courage to love and look after him patiently, caring for him is the equivalent of looking after two babies. When it comes to eating his mother and his wife assist. His mother cooks braised pork and the applicant feeds the sponsor. The sponsor has trouble eating because of the condition of his teeth and the dentist could not treat him because he does not sit still. The dentist suggested that the family take the sponsor to Westmead Hospital to see the mental health department. The applicant is concerned that this would badly affect his health. Recently he was taken to Liverpool Hospital for blood transfusions. The doctor felt it was unusual to need a blood transfusion twice in six months and suggested an endoscopy for the sponsor. With the current COVID-19 pandemic situation in the Fairfield areas they are afraid of spreading the Delta variant. It is becoming harder to give the sponsor his medication and he follows a certain regime to ensure that he is taking his medication. As his eldest son he wants to be there for the sponsor and fulfil the duty of a son.

1. In a letter dated 26 July 2021, Fr B stated that the sponsor and his wife are Catholics.  Until recently a minister visited them weekly. He is aware that they need daily care and assistance from others including those of the social welfare system and the applicant has assumed a key caring role.

2. The CVAC dated 11 June 2021 assigns a total impairment rating of 55 points. It recorded that the sponsor has the following medical conditions that may impact on his capacity to self-care. Advanced dementia (mixed type). This was diagnosed in 2014. He has cerebral atrophy and chronic small vessel disease of the brain. His dementia is associated with behavioural and psychological symptoms. Therefore, he can be aggressive and bully people and he is on medication for that. Due to his advanced dementia, he cannot recognise his own family and calls everyone by his son’s name. He does not talk much and is not rational and family find it difficult to understand him. He has deteriorating memory, nocturnal confusion and disrupted sleep. He has wandering behaviour. This condition is slowly progressing but currently stable and his son is managing him well. He also has achalasia diagnosed in 1999, associated with frequent vomiting. This condition is thoroughly investigated and managed with medications and a special diet. He has a high risk of aspiration due to his dementia. Currently this is stable but permanent. He has lower backache which is due to osteoporosis with vertebral fractures, osteo arthritis and degenerative changes at L4, L5 and L5/S1 levels. He has been on medications for many years and is currently stable. He has suffered bowel and urinary incontinence since 2016, now needing to wear diapers always. This is managed by someone by taking him to the toilet at regular intervals. He is living with family in a rented single- storey house with four bedrooms and two bathrooms. He lives with his aged wife who has her own medical conditions, and his son and family. Altogether seven people live in this house. The care services engaged are informal/family support.

3. Various letters of exchange are between Dr T and Dr N. These provide information about the sponsors medical conditions and about his therapies and medication.

4. On 20 May 2021, Dr T, consultant physician and geriatrician provided information including the following: The sponsor continues to suffer from multiple and complex permanent and disabling cognitive and medical conditions which include severe chronic anaemia; dementia mixed type diagnosed in 2014; behavioural and psychological symptoms of dementia; cerebral atrophy, chronic small vessel isometric disease of the brain; balance and gait disorder; achalasia (1999); recurrent gastrointestinal bleeding; renal impairment; hyponatraemia; hypalbuminaemia; high serum ck, osteoporosis with vertebral fractures; degenerative disease of thoracolumbar spine, scoliosis, intermittent sinus bradycardia; bowel and urine incontinence. He needs a fulltime carer on a 24-hour basis. He is unable to attend to his daily activities of life. The sponsor has and will continue for at least two years to have a need for direct assistance in attending to the practical aspects of daily life. His medical conditions are stable but can deteriorate quickly if he does not receive appropriate 24-hour care from family members. The sponsor needs the applicant currently a fulltime dedicated carer on a 24-hour basis.  He cannot have the care provided on a sharing/contributory basis from his children in Sydney. They all have work, personal and family commitments and cannot care for the sponsor. The sponsor lives with his wife who is ageing. His children in Sydney cannot provide the needed care to their parents. Their son and daughter-in-law who are visiting from Vietnam are providing the needed care. Community service/aged care facilities are deemed to be inappropriate for the sponsor due to his cognitive and medical conditions as well as special cultural and psychological needs. Shared accommodation is not appropriate for the sponsor as this will bring confusion to his deteriorating cognitive condition. This will also be detrimental to his safety, mental and physical conditions. It is strongly recommended, that a carer visa be granted to the applicant allowing him to stay in Sydney to care for the sponsor. This would help sustain the sponsor’s morale and prognosis for the next two and many more years.

5. The Tribunal has been provided various other medical documents including hospital discharge notes; pathology reports; imaging reports and photographic evidence depicting the sponsor at different locations with other people. Some of the photographs show images of food and the sponsor in what appears to be a hospital bed. 

6. The applicant told the Tribunal the following. Since his last arrival in Australia in 2017, he has taken on the role of carer to his father. His father and mother and his own family live together. Although, his mother and family help with the sponsor he is the main carer for his father who requires care 24 hours a day. His brothers work full time and can only help on weekends and his sisters help with cleaning. His father is a Vietnamese war veteran who was imprisoned for many years and held in a dungeon. This has left him with an ongoing fear for his freedom and he constantly feels imprisoned in his home. He escapes from home and has gone missing several times to either be returned home by police or by family members. The longest time he has been missing was for two nights and three days with other times being for a number of hours. His father has multiple medical conditions. His dementia is severe and he has lost sensibility. The sponsor’s behaviour is unpredictable and can be concerning. He can be found washing his hands in the toilet instead of the handbasin without realisation of what he is doing. Recently he tied the string of a hat tightly around his neck and had to be encouraged to loosen the string. He is unaware of what he is doing and has difficulty communicating with strangers. He trusts the applicant and allows him to care for him during the day and night.  The applicant sleeps with the sponsor at night to ensure he does not leave the house and attends the bathroom. During his times of anguish, the applicant sits with the sponsor reading the bible and praying or singing songs with him.

7. Mrs Nguyen, the second named visa applicant told the Tribunal the following. The applicant is diligent in caring for his father who has no sense of day or night. The applicant does not complain even when having to clean the bathroom after the sponsor’s mishaps. He stays with the sponsor day and night. The sponsor is psychologically tortured daily thinking he is not a free man and is in prison. At night he tries different doors in order to escape but the applicant is with him consoling him. The applicant will care for the sponsor and she will help him by continuing to look after their family and supporting the applicant.

8. The Tribunal is satisfied from all the evidence that the applicant and his family live with the sponsor and his wife. The applicant has cared for the sponsor on a fulltime basis since his arrival in April 2017. It appears that he is the sponsor’s primary carer.

9. Other family members have their own medical conditions or are busy with family, employment and study commitments.  When other family members have tried caring for the sponsor, they found this difficult because of his behaviour. Specifically, the sponsor needs 24-hour care for everyday requirements, he constantly wants to escape his home believing that he is in prison and is disruptive. He has lost the capacity of realisation and is unable to control bowel movements and is incontinent.  Family members find this difficult to cope with.  They are seeking a familial solution to the sponsor’s needs that would permit the applicant to continue providing the sponsor with 24-hour care. The applicant is prepared to provide this care to the sponsor.

10. The Tribunal considered individually and completely the evidence about the 24-hour assistance the sponsor needs and whether it cannot reasonably be provided by any other relative of the sponsor. It pondered the evidence about the difficulties the other relatives of the sponsor have in providing him with care. The Tribunal is satisfied that the assistance cannot be reasonably provided by any other relative of the sponsor either individually or collectively.  Therefore, the applicant meets r.1.15AA(1)(e)(i).

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

11. 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. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

12. On the visa application form dated 24 April 2017, the applicant stated the following: that he lived in Smithfield NSW. Assistance for the sponsor had been sought from the Aged Care Assessment Team (ACAT). The medical conditions leading the sponsor needing the applicant’s assistance are Dementia, multiple medical conditions and that he needs extensive 24-hour care.

13. The My Aged Care support plan generated on 27 June 2016 provides the following information: Family have requested access to a home care package, residential respite care and residential care.

14. The ACAT assessor’s recommendations are that the sponsor would benefit from access to a Home Care Package (HCP) level 3 and 4. The concern is that the sponsors dementia is resulting in cognitive and functional decline and increased carer needs. The goal is for him to access aged care services, HCP, residential respite care and permanent residential care.  The recommended services and strategies are for HCP level 3 and 4, flexible respite (in-home day respite, in-home overnight respite), residential respite high care and residential permanent care.

15. A letter from ACAT addressed to the sponsor advised him that from 27 June 2016, with no time limit, he is approved for the following:

    ·Permanent residential care.

    ·Residential respite care at a high level. This allows him up to 63 days of subsidised residential respite care in a financial year. If he needs respite care for longer, he can apply to ACAT for an extension of up to 21 days more and more than one extension can be granted.

    ·HCP level 3 and 4 also means that he is eligible to receive the HCP level 1 and 2. DF44-47

16. On 20 May 2021, Dr T, consultant physician and geriatrician provided information including the following: Community service/aged care facilities are deemed to be inappropriate for the sponsor due to his cognitive and medical conditions as well as special cultural and psychological needs. Shared accommodation is not appropriate for the sponsor as this will bring confusion to his deteriorating cognitive condition. This will also be detrimental to his safety, mental and physical conditions.

17. In July 2021, the representative provided information about the sponsor’s medical conditions and reasons why his family members cannot provide him care. He provided other information including the following: The fact that several family members reside nearby does not mean that they are willing and able to provide full-time care for the sponsor.  In June 2016, the sponsor was assessed by the My Aged Care Assessment Service as eligible to receive permanent residential care at a high level and HCP level 3 and 4. These services are not suitable for the sponsor. The approval for permanent residential care only allows up to 63 days of subsidised residential respite care in a financial year and an extension of up to 21 days can be granted upon request.  Although the service providers might be well equipped to meet the medical needs of the sponsor, the care required by the sponsor goes beyond that. The sponsor is an elderly Vietnamese man who cannot communicate effectively in English.  He cannot overcome the language barrier for communication and is increasingly reverting to his native language. He is accustomed to Vietnamese food and cannot eat other types of food, including foods provided at the nursing homes. He likes eating simple Vietnamese dishes, such as soups, congee and boiled vegetables. The applicant has to crush food into small pieces and patiently feed the sponsor.  The representative argues that the approval of permanent residential care only allows 63 days with an extension of 21 days.  This reference by the representative is incorrect.  He is quoting the approved service for the sponsor in residential respite care as recorded on the letter advising the sponsor of his eligibility.

18. The representative continued and stated the following: The sponsor and his family have sought service from several home care services in the surrounding area as follows: 

    ·Wise Choice In-Home Care (no response from the Home Care service).  The applicant provided an email of dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor. 

    ·Core Community Services Aged and Disability Services (no response from the Home Care service).  The applicant provided an email of dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor. 

    ·Wesley Seniors Social Hub South West Sydney (no response from the Home Care service).  The applicant provided an email dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor. 

    ·Fairlea Aged Care at Rosehill (no response from the Home Care service) The applicant provided an email of dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor. 

    ·Estia Health Merrylands (great facility, however, lack of Vietnamese staff).  The applicant provided an email dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor. 

    ·Hardi Aged Care (no Vietnamese staff), Railway Terrace, Guildford. The applicant provided an email dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor. 

    ·St Vincent's Care Services Yennora (no Vietnamese staff). The applicant provided an email dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor.   A response dated 18 May 2021 at 3:24, advised that they do not offer 24/7 carer services.  A response dated 18 May 2021 at 4:14, asked whether there is a preference for home care or aged care. An email dated 21 May 2021 at 4:38 advised that the closest facility to the sponsor’s address is St Vincent’s, Yennora and that staff of St Vincent’s should make contact. A response dated 21 May 2021 at 4:45, advised that they would be happy to organise a tour of the Yennora facility.

    ·Summit Care Smithfield (no Vietnamese staff) The applicant provided an email dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor.  A response advised that they no longer do home care.

    ·Southern Cross Care Home Care Services (their response: Southern Cross Care ACT/NSW has no capacity to take on a new client at the moment, and their intake is closed).  The applicant provided an email dated 18 May 2021, to this provider seeking a ‘home care package’ for the sponsor.  A response dated 18 May 2021 at 4:18 is without content, another asked about the HCP level and where the sponsor is located. A response dated 20 May 2021 at 3:28 advised of no capacity and intake being closed.

    ·Garden View Nursing Home (they advertised that Vietnamese staff was available, but there was no response from them when we enquired), Merrylands West NSW 2160.

    ·HOME CARING (the staff are Vietnamese). They could provide some home caring service at home. No residential care was offered. The sponsor was offered home care levels 3 and 4. They could provide around 7 hours per week which is equivalent to 3 days a week, 2 hours a day. Emails relating to this provider are in a language other than English and cannot be read by the Tribunal.

    ·An email exchange between March 2021 and July 2021, between Australian Vietnamese Aged Care Services (AVACS) and the representative’s office is in a language other than English and cannot be read by the Tribunal. An application for residential aged care accommodation on behalf of the sponsor is dated 1 June 2021.     

19. The representative continued and stated the following: In March 2021, the sponsor and his family sought services from AVACS in Smithfield NSW 2164, where he would be able to communicate with the staff and other residents. However, the current waiting list for entry and care could take several years, which is an unreasonable wait time for someone of his age and with his medical conditions. The sponsor was refused entry due to the level of services and the number of residents at the facility. If the sponsor were to live in AVACS, he would be removed from the rest of his family, including his wife, children, and grandchildren. His level of loneliness and mental deterioration could constitute a severe enough circumstance to require substantial and continuing assistance. The sponsor is expected to obtain care from his children. In Vietnamese culture, the family is regarded as being responsible for the care of all its elderly members. The sponsor could request a nursing home service for a couple of hours a day, but he needs full-time care at home given by the applicant. These services are not adequate in meeting the requirements of the sponsor's need for care. The majority of nursing home staff are unvaccinated for Covid-19. It was reported that the Summit Care Nursing home in Sydney's Baulkham Hills had three residents and two staff members who tested positive for Covid-19. The sponsor was admitted to Liverpool Hospital for blood transfusions but was discharged for home care by the applicant.

20. The representative continued and stated the following: The applicant's care has comforted the sponsor during difficult periods. The sponsor cannot obtain the required level of assistance from community services in Australia. Government and local community services are inadequate for the sponsor due to his cultural background, physical condition, and psychological needs. The applicant has been caring for the sponsor ‘24/07’ since he arrived in Australia in April 2017. The sponsor wants to have the applicant care for him and is used to the care and support the applicant provides. The applicant is aware of the sponsor's needs and provided the care with love that could not easily be replaced by an alternative service.  The applicant is the only full-time carer the sponsor needs. His other relatives are unable to provide the required level of care and assistance. Although the sponsor could receive nursing care at home, it has been inadequate and un-matched with the applicant's fulltime care.

21. In 2021, Ms Luu declared that in 2016, My Aged Care sent a person to help with cleaning the house.  However, the sponsor and his wife didn’t like the way they did the work and they didn’t use the service.  In an additional declaration Ms Luu altered the information provided in her other statutory declaration of 2021.  She declared that no one came to service the house. The assessor from My Aged Care came to interview the sponsor and her at the home to assess the sponsor’s level of aged care requirements. The sponsor and his wife do not speak English and were uncomfortable letting a stranger into the house. Since the sponsor’s dementia worsened, he has become aggressive, making it difficult for non-relatives to assist him. This is why ‘I thought it better to leave them alone and decide what they wanted to do until they asked for help’. During her search for nursing homes in 2016, she took the sponsor and his wife to two nursing homes. Fairfield Nursing Home, they did not like because of hygiene issues and Minchinbury Manor Aged Care, but there were no rooms available to meet his needs and no Vietnamese-speaking staff. The applicant told the Tribunal that Ms Luu misunderstood and though that a service had been provided.  However, they conferred and she realised that this is not the case as it was an assessment.  

1. The applicant told the Tribunal the following: They have contacted nursing homes and facilities to see what is available for the sponsor but most places did not return the contact and others didn’t have Vietnamese-speaking staff. They often made contact over the telephone with no evidence to provide. AVACS is not the right place for the sponsor as one person needs to look after a number of residents. The care is not one on one and would not focus on the sponsor 24-hours a day and there is no Vietnamese speaker. The sponsor needs direction all of the time. In addition, there are no cameras in the residents’ rooms. The sponsor would not be able to understand the call button and anything could happen and staff would not be notified. The Tribunal told the applicant that the representative stated that AVACS was suited to the sponsor and had Vietnamese speakers. The applicant stated that he believed they have applied for the sponsor and he is on a waiting list and they will be contacted when a place becomes available.  However, a place may not become available for many years. Previously his brother took the sponsor and his wife to view facilities but they did not meet their expectations and didn’t have Vietnamese speakers.

2. The applicant continued and stated the following: they had not engaged or used any service for the sponsor. The sponsor feels locked up and in prison and needs cared 24-hours daily and this cannot be provided by My Aged Care. The sponsor’s HCP is $52,000 per annum. He is waiting for information from HOME CARE but they may only provide two hours daily. Additionally, there is the cost of incontinence wear.

3. In post hearing submissions the applicant provided further comment and information about the assistance for the sponsor and the difficulties in reasonably obtaining those services.  These included that care for the sponsor will be provided to Level 4 $52,000 per annum. This funding related to the provision of services for one to two hours daily to assist him to remain at home with family support.

4. The Tribunal considered that the sponsor has been ACAT assessed as being eligible to receive high-level permanent residential care and residential respite care, in addition to a home care package.  The Tribunal, on the evidence, is satisfied that the at-home service assistance offered to the sponsor would not be for 24 hours daily, which he needs. The Tribunal is satisfied that a nursing home place is not available to the sponsor and may not be available to him for some years.  Having considered the evidence individually and completely the Tribunal is satisfied that the assistance for the sponsor cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant meets r.1.15AA(1)(e)(ii).

   Is the applicant willing and able to provide the assistance?

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

6. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicia l 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.

7. The Tribunal has been provided detailed information about the assistance the applicant has provided the sponsor since 2017. The Tribunal is satisfied that the applicant is willing and able to provide the sponsor substantial and continuing assistance of the kind needed. There is no evidence before the Tribunal that the applicant is physically or psychologically unable to provide the assistance. On the evidence, he appears to understand the assistance the sponsor needs and has the ability to provide the necessary assistance and therefore meets the requirements of r.1.15AA(1)(f).

   Other considerations

8. In an ‘Appointment of Enduring Guardian’ dated 11 November 2015, the sponsor appoints Tuan Quoc Dinh (his other son) to decide where he lives; what health care he receives; what other kind of personal services he receives and the carrying out of medical or dental treatment. Another document titled ‘Enduring Power of Attorney’ dated 21 September 2016, recorded that the sponsor appointed Tuan Quoc Dinh.

9. In a letter dated 11 April 2017, Dr N stated that the sponsor had been his patient since 1992.  He confirms that ‘Mr Dinh’ fully understood the purpose of the power of attorney at the time it was made. He confirms he understood that he is sponsoring the applicant and his family on a carer visa. 

10. On 20 May 2021, Dr T, consultant physician and geriatrician provided information including the following: As part of the carer visa application process the sponsor had to demonstrate the understanding of the obligations and undertaking of the sponsorship including giving the applicant (and the family members where relevant) support, accommodation and financial assistance as required, before proceeding with the comprehensive medical assessment.  The sponsor appointed his other son, Mr Tuan Quoc Dinh, on 21 September 2016. Mr Tuan Quoc Dinh confirmed his understanding of the sponsorship obligations for the carer visa application.

11. The Tribunal discussed with the applicant the first ‘Appointment of Enduring Guardian’ dated 11 November 2015. In particular it noted that the document is only related to decisions about where the sponsor lives, the health care and personal services and medical or dental treatment he receives.  The Tribunal discussed with the applicant the second ‘Appointment of Enduring Guardian’ dated 21 September 2016.  It noted that this document had not been signed or initialled by the sponsor. The Tribunal told the applicant that while the information in the ‘Appointment of Enduring Guardian’ documents may be relevant to sponsorship; it would not be considering or making a finding on the sponsorship requirements.

12. The Tribunal is satisfied that the applicant meets r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(f) as they relate to cl.836.221 of Schedule 2 to the Regulations.

13. Given the above findings, the Tribunal directs that the second, third, fourth and fifth named visa applicants be considered against the relevant criteria for the grant of the visas.

14. 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 836 visa.

    DECISION

15. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:

    ·r.1.15AA(1)(e)(i), r.1.15AA(1)(e)(ii) and r.1.15AA(1)(f) as they relate to cl. 836.221 of Schedule 2 to the Regulations; and

    ·the second, third, fourth and fifth named visa applicants be considered against the relevant criteria for the grant of the visas.

    Helena Claringbold
    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.