Duong (Migration) - [2023] AATA 1864

Duong (Migration) [2023] AATA 1864 (9 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr The Truong Duong
REPRESENTATIVE:  Ms To Quyen (Tina) Tran (MARN: 1466142)
CASE NUMBER:  2013114
HOME AFFAIRS REFERENCE(S):          CLF2018/190890
MEMBER:Justin Meyer
DATE:9 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations

Statement made on 09 June 2023 at 5:17pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably obtained from any other relative or service providers – specified relatives’ study, work or family commitments, or loss of contact – sponsor’s physical and mental health and cultural considerations – language, food and remaining with family – local Vietnamese-speaking nursing home has waiting list – unable to pay for nurse or carer – applicant’s consistent and straightforward evidence and current care for sponsor – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(e), Schedule 2, cl 836.221

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 20 August 2020 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 10 August 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because per subregulation 1.15AA (1) (e) (ii) the delegate was not satisfied that the assistance the resident requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia
The applicant appeared before the Tribunal on 2 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in…

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.

Continue reading Duong (Migration)

Details

AGLC: Duong (Migration) [2023] AATA 1864
Case: [2023] AATA 1864
Decision Date: 9 June 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered 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 Ms Nam Thi Tran, an Australian citizen. The central dispute revolved around whether the assistance Ms Tran required could reasonably be obtained from other relatives or from Australian welfare, hospital, nursing, or community services.

The Tribunal was required to determine if the applicant met the criteria for a Subclass 836 visa, particularly concerning the definition of a "carer" and the availability of alternative assistance. This involved assessing whether Ms Tran had a medical condition causing significant impairment requiring direct assistance, whether this need for assistance was ongoing, and crucially, whether such assistance could not reasonably be provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, or obtained from Australian community services. The Tribunal also needed to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal found that the applicant had provided consistent and straightforward evidence of their current care for Ms Tran, and that Ms Tran's circumstances, including her need for care, language, food, and desire to remain with family, were relevant. It noted that a local Vietnamese-speaking nursing home had a waiting list and that Ms Tran was unable to afford a private nurse or carer. While the specific details of the sponsorship requirements and the medical certificate criteria were not fully elaborated in the provided text, the Tribunal concluded that the matter should be remitted for reconsideration.

Consequently, the Tribunal remitted the application for the Subclass 836 (Carer) visa for reconsideration, with a direction that certain criteria, specifically clause 836.221 of Schedule 2 to the Migration Regulations 1994, were met.

Orders

Orders of the court

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Background

Background to the litigation

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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 issue in the present case is whether the assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in Australia.Whether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the sponsor. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.Whether the applicant has claimed to be the ‘carer’ Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant will provide assistance to Ms Nam Thi Tran. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. The applicant claimed to be the carer of another person (‘caree’) at the time of application; and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen. Ms Nam Thi Tran is an Australian citizen. For the purposes of this application, I find that the ‘resident’ referred to within the definition of Carer at Regulation 1.15AA is Ms Nam Thi Tran. Documents supplied to support this application demonstrate that the applicant is the grandson of Ms Nam Thi Tran.Are the sponsorship requirements met? Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

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 application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:·cl 836.221 of Schedule 2 to the RegulationsJustin MeyerMemberATTACHMENTMigration 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

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