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

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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DINH (Migration) [2021] AATA 3735
Case: [2021] AATA 3735
Decision Date: 8 September 2021

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for his Australian citizen father, the sponsor. The central dispute revolved around whether the necessary assistance for the sponsor could not reasonably be obtained from Australian welfare, hospital, nursing, or community services, and whether the applicant was willing and able to provide substantial and continuing assistance. The case was heard by Helena Claringbold.

The court was required to determine two primary legal issues. Firstly, whether the assistance required by the sponsor could not reasonably be provided or obtained from Australian welfare, hospital, nursing, or community services, as stipulated by Regulation 1.15AA(1)(e)(ii) of the Migration Regulations 1994. Secondly, the court had to assess whether the applicant was willing and able to provide substantial and continuing assistance to the sponsor, as required by Regulation 1.15AA(1)(f).

The court's reasoning focused on the sponsor's deteriorating health and the limitations of existing care arrangements. Evidence indicated that the sponsor's wife, the primary carer, suffered from chronic pain and cognitive decline, making her unable to provide adequate care. Statutory declarations from other relatives highlighted their own work commitments and the difficulties they faced in managing the sponsor's aggressive behaviour and complex medical needs. The applicant, however, demonstrated a willingness and ability to provide the necessary 24-hour care, having already been providing assistance and establishing a trusted relationship with the sponsor, who responded best to his care. The court found that the criteria under Regulation 1.15AA(1)(e)(i), (e)(ii), and (f) relating to clause 836.221 of Schedule 2 to the Regulations were met.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister. The direction was that the first visa applicant met the specified criteria for a Subclass 836 (Carer) visa, and that the other named visa applicants should be considered against the relevant criteria for the grant of their visas.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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. 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? 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 Regulation 1.03 provides that carer has the meaning as given in r.1.15AA. 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; orthat 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 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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 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 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. 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? 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 Regulation 1.03 provides that carer has the meaning as given in r.1.15AA. 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; orthat 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 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.

Decision

Reasons for decision

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 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 ClaringboldMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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 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. 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.