Ho (Migration)

[2023] AATA 320

Ho (Migration) [2023] AATA 320 (13 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ngoc Chien Ho
Ms Thi Hoai Mo Huynh

REPRESENTATIVE:  Ms Nhi (Michelle) Huynh (MARN: 1069190)

CASE NUMBER:  1801483

HOME AFFAIRS REFERENCE(S):          CLF2016/28514

MEMBER:David Crawshay

DATE:13 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 13 February 2023 at 9:12am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance cannot reasonably be provided by specified Australian relatives or obtained from service providers – physical impairment and dementia – required supervision constant but not physically onerous – not unreasonable for three relatives to provide some assistance –reasonable inquiries into service providers not made – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(e)(i), (f), Schedule 2, cl 836.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 January 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 28 April 2016. 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 applicants are 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 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied that the first-named applicant (hereafter referred to as the applicant) was the carer of the resident, who is the sponsor, the Australian relative and in this case the person with the medical condition. Specifically, the delegate was not satisfied that it had been demonstrated that it was unreasonable for the resident’s relatives in Australia to provide care to the resident. Furthermore, the delegate was not satisfied that the resident’s family had fully investigated the availability of aged care facilities, or a combination of family support and in-home assistance. The delegate found that r.1.15AA(1)(e)(i) and r.1.15AA(1)(e)(ii) were not met. A copy of the decision record was provided to the Tribunal by the applicant.

4. The applicants appeared before the Tribunal on 2 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the resident. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicants were represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the carer of the resident at the time of this decision.

   Is the applicant a carer of the resident?

8. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or “resident”). The term “carer” is defined in r.1.15AA of the Regulations which is set out in the attachment to this Decision.

9. 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.

   What assistance is required by the resident?

10. The Tribunal firstly turns to the task of assessing the level and particulars of the assistance required by the resident in order to assess whether this assistance cannot reasonably be provided by the appropriate relatives or obtained from the relevant services or a combination of both.

11. In a Carer Visa Assessment Certificate (CVAC) dated 6 January 2023, the resident was said to have the following medical conditions that may impact his capacity to self-care:

    ·Bilateral shoulder dysfunction; and

    ·Dementia.

12. In relation to the functional assessment, the assessing doctor made the following findings. The doctor found that conditions impacting upper limb function had a severe functional impact on the resident. Specifically, bilateral shoulder dysfunction has meant that he has been unable to drive, and is limited in being able to wash himself, put on and take off upper garments and eat with both hands. The doctor found there has been a moderate functional impairment on the resident’s brain function. Specifically, the applicant was found to be suffering from an impairment to all aspects of his mnemonic functioning, resulting in him forgetting to turn off the gas or shower and requiring the applicant to give and monitor his medications. He was assessed as a low-functioning and dependent man who was impaired in his capacity to exercise good judgment. This impairment was said to have likely resulted from early/gradual onset dementia.

13. The resident was found by the examining doctor to be partially dependent in relation to the activities of daily living. He was said to require assistance with bathing, showering and toileting, having limited strength and range of motion in his shoulder which limits areas he can wash and affects his hygiene; dressing and grooming, requiring assistance with upper body garments due to limited shoulder range; eating and feeding, where a weakness in his left hand limits his ability to eat with both hands; supervising medicine, where his forgetfulness can lead to under- or overdosing as well as missing meals and appointments; and transportation, where he is unable to drive due to weakness in his arms and worsening memory. The applicant was said to not require assistance with mobility, being able to mobilise independently and without aids and with a normal gait; and supervision for personal safety.

14. At hearing, the Tribunal discussed the contents of the CVAC with the applicant, and in particular the findings made by the examining doctor in relation to the assistance the resident was said to require. It asked him whether there was anything wrong with what had been found and he replied that it was correct.

15. The Tribunal has considered other information concerning the level of assistance provided to the resident. In a letter dated 10 May 2017, the resident relevantly stated as follows:

    My son helps me with things like he cooks for me, he makes me meals and feeds me. I am always in pain and have been taking pain medication. He helps me tidy up and cleans the house. I like the house to be tidy and clean. He takes me out to the market to buy food, he takes me out for a walk around the block. He takes me to the park and to the swimming pool. I like to get out of the house. He involves in activities with me and keeps me company. I am very lonely without him.

    …

    Chien is a very good son, he helps me shower, change and clean for me. He never complains or shows that I’m fussy. I feel comfortable with him helping me. He gets me my medications and watches me drink my medications. He always reminds me when it is time to take my medications. He drives me to my doctor appointments and he comes in with me to the doctor’s room and listens to the doctor talks about my medical condition and how he can help me managing my daily life.

16. Noting that this document was over five years old at the time of hearing, the Tribunal asked the applicant about the assistance that he provides to the resident. He replied that he cooks for the resident as it is not safe for him to do so. He said that he takes the resident outside to the back garden where they talk to each other while he is gardening. The applicant said that when he is not home, his wife (the secondary applicant) helps the resident to cook and wash the clothes. He said that his wife needs to keep an eye on the resident to ensure he is safe.

17. The applicant’s wife (the secondary applicant) was interviewed about the assistance she provides the resident. She answered that she cooks him Vietnamese foods. She said that she accompanies him to the garden where they talk. She said that she massages him when he gets tired and his arms or legs are sore.

18. The resident was asked about the assistance he receives, and he replied that the applicants had been helping him to cook and shower. He said that they support him when he goes for a walk or exercises. He said that his medical conditions mean that his mood is down and it was good for him to talk and to have family members around. He said that his son and daughter-in-law are very supportive and considerate.

19. At the end of the hearing, the applicants’ representative told the Tribunal that the resident had undergone an assessment by a psychologist.by the name of [Dr A] which diagnosed depression, but that the report from this assessment had not been provided to the Tribunal as it was not mentioned in the CVAC. She said that she had emailed [Dr A]’s report to Bupa but it did not find its way to the medical assessor. At this point, and having not seen the report, the Tribunal suggested that it might consider the evidence of [Dr A] as relayed by the representative but might then put more weight on what it considered to be the spontaneous evidence given by the applicants and the resident which suggested that the assistance required by the resident is not particularly onerous. The representative remarked that while the applicant did not specifically state that he did not supervise the resident, he did say that his wife keeps an eye on him when the applicant steps out.

20. The Tribunal has since been provided with a copy of the report of [Dr A]’s assessment dated 12 December 2022. At the outset, it notes that [Dr A] stated that the report was “not to be released for any other purpose other than stated in this report without permission of the author”. Nowhere in the report was it stated that its purpose was for the Tribunal’s assessment of the applicant’s carer visa application, or specifically for assessing the assistance that the resident requires; rather, the purpose appeared to be for seeking to satisfy Bupa’s medical advisor that the resident has a rating of 10 for a diagnosis of depression or dementia.

21. Owing to these limitations, and especially to the fact that [Dr A] did not undertake the assessment or generate the report for the purpose of assessing the assistance required by the resident, the Tribunal approaches it with caution. Nonetheless, it still accords some weight to the findings, which show that the resident is not able to live independently and requires ongoing daily assistance and assistance in maintaining his daily routine.

22. The Tribunal has considered the information in front of it relating to the resident’s conditions and the assistance he requires because of these conditions. It accepts and places weight on the findings of the CVAC, which show that the resident is partially dependent on others for activities of daily living, requiring assistance with bathing and showering, toileting, dressing and grooming, eating and feeding, supervising medication, and transportation. It accepts that the resident does not require assistance with mobility. It also accepts that, while the applicant requires some assistance with eating and feeding, this is because he cannot eat with both hands. Lastly, it finds that there is no information to show that he is limited in his ability to put on and take off his lower body garments.

23. The Tribunal deals lastly with the issue of whether or not the resident requires supervision for his personal safety. It accepts based on [Dr A]’s report that such supervision is likely preferable for a person with the resident’s health conditions.

24. The Tribunal finds that the resident is substantially, if not totally, dependent on others for his self-care, although it finds that much of this dependence is due to the need for supervision which, although constant, is not physically onerous.

    Assistance cannot reasonably be provided by Australian relatives – r.1.15AA(1)(e)(ii)

25. Turning now to the question of whether the assistance described above cannot reasonably be provided by eligible Australian relatives of the resident, the Tribunal has considered the information in front of it and makes the following findings based on that information. It accepts that the resident has divorced his ex-spouse, Ms Thi Thanh Ha Le, and therefore that she and her three children are no longer considered as “Australian relatives” for the purposes of r.1.15AA.[1]

    [1] These people had previously not been considered as they were not Australian citizens or permanent residents. They have since become permanent residents.

26. The Tribunal accepts that Ms Ngoc Han Ho, a niece of the resident, is unable to provide assistance owing to full-time employment at a location away from the resident. It accepts that a nephew, Mr Ngoc Huy Ho, is similarly unable to provide assistance due to full-time employment at a location away from the resident. The Tribunal accepts that another nephew, Mr Ngoc Hao Ho, is living with Down’s Syndrome and being cared for by his mother, and that he is unable to provide assistance. Lastly, it accepts that another niece, Ms Thi Hien Ho, is unable to provide assistance as she is full-time carer for her child who was born in May 2021.

27. The Tribunal has considered information relating to Ms Hong Ho, a last niece of the resident, including a medical document showing that she is pregnant and documents related to a lease she has over a commercial property in Clyde North. Furthermore, it has conducted a search of public source documents and accepts that she is the owner of a nail salon in Clyde North. Having considered this information, along with information previously submitted showing that she has a part-time job elsewhere, the Tribunal accepts that Ms Hong Ho would only be able to provide a very limited level of assistance to the resident owing to her existing employment and upcoming caring duties and that any assistance she is able to provide would likely not be regular.

28. The Tribunal has considered information relating to Mr Jason Ho, the resident’s son, including a statutory declaration dated 26 May 2017, a confirmation of promotion letter from his employer dated 17 June 2021, a joint statement with his sister, Ms Helen Ho dated 24 September 2022 and a further statutory declaration dated 2 February 2023. It accepts based on this information that he is employed full-time as a legal assistant with hours from 9:00am to 5:00pm or 5:30pm (the hours differ between his statement and the confirmation letter). Although there are questions around why it would take upwards of one-and-a-half hours to commute each way to his work given that it is located in Dandenong – less than five kilometres away from his house – the Tribunal accepts for present purposes his claim that he leaves home at 7:30am and arrives back at 6:30pm. It also accepts that he performs some caring duties for his mother alternatively with Helen. It accepts that he takes part in other activities and that these occur after his work. Although there is no substantiating evidence, it accepts that he has a partner with whom he spends time although he has not divulged where this person lives.

29. The Tribunal has considered information relating to Ms Helen Ho, the resident’s daughter, including a joint statement with Jason dated 24 September 2022, payslips from an employer from June-to-August 2021 and a statutory declaration dated 2 February 2023. It accepts based on this information that she is employed part-time with her main employer as a veterinary nurse (working between 50 and 69 hours-a-fortnight according to the payslips), although it notes that there is no evidence to substantiate that she takes “extra shifts” at a second employer. As with Jason, the Tribunal accepts that Helen performs some caring duties for her mother in conjunction with her brother. It accepts that she has a partner although she has not divulged where this partner lives.

30. The Tribunal has considered claims made by Jason and Helen about the reasonableness of providing the assistance to the resident. These claims are contained in their joint statement of 24 September 2022 and in their declarations of 2 February 2023. The claims essentially centre on the fact that Jason and Helen are limited in their time and skills. As to the claim about a lack of time, the Tribunal accepts that Jason and Helen would only be able to provide some of the assistance required by the resident. However, and as will be seen below, this assistance is not anticipated to be in isolation but would be provided in conjunction with assistance from other sources – such as assistance which is able to be provided by the resident’s brother, Mr Ngoc Mai Ho, and assistance which can be obtained from services within Australia. As to the claim about a lack of skills, neither Jason nor Helen has stated how they lack these skills or are not able to develop them over time.

31. The Tribunal has considered information relating to Mr Ngoc Mai Ho, the resident’s brother. It has considered the claim that he suffers from an eye condition and that this is the reason he receives a pension. In relation to the latter, it accepts based on a pension card submitted post-hearing that he receives such a pension. Moreover, it has seen an undated letter from an Ophthalmic Surgeon reporting that he has moderate cataracts bilaterally although it also reported that he had healthy maculae. While this letter substantiates that he is living with an eye condition, it does not by itself provide insight into whether or to what extent he would be affected in his ability to be able to provide assistance to the resident. There has otherwise been very little if any information put forward about why it would be unreasonable for Mai to provide the assistance. He has not provided a statutory declaration at either the visa or review stages, and a statement by him dated 7 December 2017 does not make any mention of why it would be unreasonable. In the absence of any such information, the Tribunal finds that it would not be unreasonable for Mai to provide some assistance to the resident.

    Assistance cannot reasonably be obtained from services in Australia – r.1.15AA(1)(e)(ii)

32. The Tribunal turns to the question of whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. In this regard, it has considered a report of an assessment by My Aged Care dated 11 November 2021 stating that the resident “does not wish to have any services at this stage and he will phone My Aged Care if his circumstances change”. The report stated that the assessment was conducted over the telephone due to the COVID-19 pandemic. This report was in addition to a further document from My Aged Care showing the estimated daily pricing for the various home care packages (Level 1 to Level 4) based on the resident’s yearly income, but the latter document is undated and only contains handwritten annotations showing the yearly costs. There is very little context to the document and specifically no explanation of what assistance can be obtained under those four levels of home care. Another document – a letter from the Southern Metro RAS dated 3 May 2021 – stated that the organisation had been unable to reach the resident regarding his My Aged Care referral.

1. At hearing, the Tribunal heard from the applicant that he initially enquired about council services in Dandenong but was redirected to the Springvale office, who told him that they would come to the resident’s house to do the assessment but did not end up coming. When asked about whether an appointment was booked with them, the applicant said that Helen was then called for the purpose of interviewing the resident over the telephone. He again said that they did not turn up to the house. He said that during the interview they asked about the resident’s children and then sent a letter. When the Tribunal suggested to the applicant that they did not feel the need to turn up and instead sent a letter, he agreed. When it was further suggested that Helen informed them that the resident did not require assistance, he said that he did not know. The Tribunal put to him that this may have been the same as the process that led to the My Aged Care assessment in November 2021. The applicant replied that he was not sure as he could not communicate in English.

2. The Tribunal has considered the applicant’s testimony and accepts that the process outlined in that testimony was almost certainly the same process that led to the My Aged Care assessment in November 2021. As such, it does not consider the applicant’s enquiry to be an additional enquiry.

3. When asked at hearing if any further enquiries were made, he replied that he went to the Vietnamese-Australian Women’s Association. He said that he went past the association by accident and that nothing resulted from that enquiry.

4. The Tribunal has considered the information in front of it, including the abovementioned documents and the applicant’s testimony at hearing. It finds that some initial enquiries were made with My Aged Care into what services were able to be obtained. In this way, it accepts that an assessment was begun into home services although there is very little information about this assessment beyond the price that the resident would be expected to pay for these services. It accepts that My Aged Care was later engaged for an assessment but that this assessment was eventually ceased by order of the Ho family before My Aged Care could conclude the assessment and provide information on what assistance was available.

5. Based on the above findings, the Tribunal is not satisfied that reasonable enquiries were made by or on behalf of the resident that would allow the Tribunal to assess whether the assistance could not reasonably be obtained from relevant services. This lack of enquiry is significant because a lack of enquiry formed one of the bases upon which the delegate made her decision. In this way, the resident and the applicant have been on notice of this being an issue in the review since at least 4 January 2018 when the delegate made her decision – or more than five years ago.

   INVITATION TO COMMENT OR RESPOND

6. On 5 August 2022, the Tribunal sent an invitation to comment on or respond to information that it considered would be the reason or a part of the reason for affirming the decision under review. This information suggested that other Australian relatives, and not the applicant, were caring for the resident in 2016. It was said to be relevant to the issue of whether the applicant was willing and able to provide the assistance under r.1.15AA(1)(f). However, through questioning the applicant, resident and others at hearing, it became apparent that the applicant hKanas in fact been looking after the resident and that the information from 2016 was not true or was no longer true. The Tribunal therefore accords no weight to this information.

   Conclusion

7. The Tribunal has considered the information in front of it in relation to the ability for the resident’s Australian relatives to provide the necessary assistance along with assistance obtained from the relevant services within Australia. For the reasons given above, it accepts that only three Australian relatives would be able to provide this assistance – being Mr Jason Ho, Ms Helen Ho and Mr Ngoc Mai Ho. Having considered the individual circumstances of these three relatives, including (where applicable) their employment, caring duties, medical conditions and other activities, the Tribunal finds that it would not be unreasonable for Jason, Helen and Mai to provide some assistance.

8. As above, the Tribunal is not satisfied that reasonable enquiries have been made about what assistance is able to be obtained from welfare, hospital, nursing or community services. The significance of this is two-fold. Firstly, and in the absence of information about the resident’s ability to obtain assistance through services, the Tribunal is not satisfied that the balance of the assistance required by him cannot be obtained from those services. Secondly, it is not able to consider the resident’s wishes about how he should be cared for or his family’s views about the suitability of alternative sources of assistance, and ultimately whether it would be unreasonable to obtain the relevant services.

9. The Tribunal is not satisfied that the assistance required by the resident cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.

10. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

11. There is no evidence that the applicant satisfies any other subclass. The evidence before the Tribunal is that the applicant was born in 1974. It finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as he is not old enough to be granted an age pension under the Social Security Act 1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of “aged dependent relative” in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

12. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as there are near relatives of the applicant, as defined in r.1.15(2), who reside in the same country as the applicant. In this case, the applicant provided information in his Form 47OF application form that he had two sisters, one brother and a daughter who, at the time of application, were not Australian citizens, Australian permanent residents or eligible New Zealand citizens. As such, the applicant was not a “remaining relative” at the time of application and therefore is unable to meet cl.835.212.

13. The Tribunal finds that the secondary applicant does not satisfy any of the primary or secondary criteria for the grant of any of the visas in Class BU.

    DECISION

14. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    David Crawshay
    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.