Hoang (Migration)

[2022] AATA 302

Hoang (Migration) [2022] AATA 302 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Hang Hoang
Miss Thi Ngoc Huyen Le

REPRESENTATIVE:  Ms Lan Oanh (Caitlin) Huynh (MARN: 1683792)

CASE NUMBER:  1802994

HOME AFFAIRS REFERENCE(S):          CLF2016/49042

MEMBER:Margie Bourke

DATE:8 February 2022

PLACE OF DECISION:  Melbourne

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

·cl 836.221of Schedule 2 to the Regulations; and

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

·          Cl.836.311(a) of Schedule 2 to the Regulations.

Statement made on 08 February 2022 at 3:38pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance cannot be reasonably provided by other specified relatives or obtained from service providers – other relatives’ employment, education and family circumstances – current home care assistance not sufficient to meet sponsor and husband’s needs – location and linguistic and cultural requirements for nursing home care – sponsor’s anxiety and panic attacks – applicant has provided care for more than 5 years and second applicant also provides some care – member of family unit – dependent child turned 18 – study and part-time work – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03(b)(i), 1.05A, 1.12(1)(b), 1.15AA(1)(e)(i), (ii), Schedule 2, cls 836.221, 836.311(a)

CASES
Al Naqi v MIAC [2007] FMCA 874
Xiang v MIMIA [2004] FCAFC 64

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 19 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 16 August 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, which requires that at the time of decision the primary visa applicant is a carer of the person to whom the primary visa applicant claimed to be the carer of the time of application.

3. The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied that the first named applicant had provided sufficient evidence to meet the requirements as defined in r.1.15AA(1) for carer.

4. The review was constituted to another member before being reconstituted before myself. I had regard to the circumstances of the review applicants and the nature of the review. I had regard to the length of time since the application for review was made, and the restrictions on availability of in-person hearings due to the pandemic. I had regard to the Tribunal’s objectives to provide a mechanism for review that is fair, just, economical, informal and quick. I had regard to the nature of the review that did not involve a large quantity of documents to be put to the applicants during the hearing. I decided conducting the hearing by video would allow the applicants the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and allow the Tribunal to assess the evidence before it. I had regard to the desirability of avoiding any further delay in this review. For all the above reasons, the applicants were invited to attend hearing by video.

5. The applicants appeared before the Tribunal by video on 3 February 2022 to give evidence and present arguments. The sponsor and her spouse also attended by video with the applicants. A daughter and granddaughter of the sponsor also attended on separate devices to give evidence in the hearing by video. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicants were represented in relation to the review, and the representative attended by video.

7. It became clear that the sponsor and her husband had difficulty understanding the interpreter at the time of making their affirmations. It also became clear that the applicants were distracted in their efforts to try and assist the sponsor and her husband to communicate with the Tribunal. Due to the age and ill-health of the sponsor and her husband, the difficulties with communication were causing these elderly  witnesses some distress. The representative explained that the sponsor and her husband spoke a Vietnamese dialect from a remote and southern area in Vietnam, and coupled with health issues resulting from deafness and the sponsor’s husband’s recent strokes they were experiencing problems understanding the interpreter. The representative indicated that the family often experienced difficulties obtaining an interpreter in the required dialect to assist the sponsor and/or her husband. The representative suggested that the sponsor and her husband not give evidence at the hearing.

8. The Tribunal decided to postpone the hearing to the following Monday, and to make an attempt to obtain an interpreter in the Vietnamese dialect spoken by the sponsor and her spouse.  I invited the witness, the daughter of the sponsor, Thi Kim Yen Hoang, to attend the hearing on Monday with her parents, to assist them attend by video and with any other support they required. I requested the applicants attend on a separate device so they were not distracted by the sponsor and her husband when giving their evidence. All parties agreed to this proposal, and the matter was accordingly adjourned to 7 February 2022.  I indicated that the hearing was not meant to be an ordeal, and the Tribunal would try and accommodate the linguistic requirements to assist the witnesses to give evidence. The Tribunal further indicated that the evidence of the sponsor was relevant, and if possible would be heard.

9. The applicants appeared before the Tribunal by video on 7 February 2022 to give evidence and present arguments. The witnesses also attended by video as discussed at the previous hearing. The representative attended by video in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. This interpreter spoke the Vietnamese dialect of the two elderly witnesses, and they were able to participate in the hearing to a limited extent.

10. The capacity of the two elderly witnesses to participate in the hearing was limited by their age, health and some deafness issues. The Tribunal permitted the daughter Thi Kim Yen Hoang who was with her parents, to repeat the interpreter’s words loudly into the ear of the elderly witnesses, and the interpreter verified the exact words had been repeated by the daughter. The two elderly witnesses managed to give their affirmation, and answer limited questions.

11. Prior to the commencement of the hearing on 7 February 2022, the representative had made a request of the Tribunal that the interpreter who spoke the dialect of the two elderly witnesses, attend the home of the review applicant to assist the two elderly witnesses in-person. The Tribunal refused this request on the basis that the video hearing was conducted to ensure the safety and reduce the risk to all participants including the interpreter during the time of the covid-19 pandemic. The Tribunal is satisfied that it made all reasonable and appropriate efforts to allow the two elderly witnesses to participate in the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the applicant is a carer

13. 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 reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

14. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother.

15. Based on the birth certificate of the first named applicant which records her parents as the sponsor and her husband, I am satisfied that the first named applicant is the biological daughter of the sponsor, and therefore a relative of the sponsor within the meaning of r.1.03.

16. Based on the certificate of Australian citizenship granted to the sponsor on 30 November 1993, I am satisfied that she is an Australian citizen. I am therefore satisfied that the sponsor is an Australian relative of the applicants. I accept that in recent years the sponsor spends most of her time at home except for attending medical appointments, and has not travelled out of Australia.  Based on the evidence before me I am satisfied that the sponsor is usually resident in Australia, and therefore an Australian resident and relative of the first named applicant.

17. Therefore, as the first named applicant is the daughter of the Australian relative, the first named applicant a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

18. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

19. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085)  or issued by a specified health provider in relation to a review of such an opinion.

20. The Tribunal has considered the Carer Visa Assessment Certificate dated 13 May 2016, which was based on an assessment made 5 ½ years ago. The Tribunal invited the applicants to obtain a current Carer Visa Assessment Certificate, but the applicants declined, indicating that the sponsor who is the person requiring care, Thi Dieu Le’s health condition had not changed significantly since 2016 and there was no merit in obtaining a further certificate. At the Tribunal’s request the applicants provided the Tribunal with a current medical report from Thi Dieu Le’s treating doctor dated 16 January 2021. In this report the treating doctor confirms he has referred to the certificate dated 13 May 2016, he outlines Mrs Le’s current health conditions, and opines that her physical and mental health status remain stable with no real deterioration. The treating doctor confirms the sponsor continues to require direct assistance in attending to the practical aspects of daily life because of her ongoing existing medical conditions. In these circumstances the Tribunal will rely on the Carer Visa Assessment Certificate dated 13 May 2016, in conjunction with the current report dated 16 January 2021.

21. The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

22. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

23. In the present case, as stated above, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

24. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.

25. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

26. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

27. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

28. 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.

29. The applicants provided the Tribunal with submissions, statements from family members, documents in support of the statements from family members and a family tree of the sponsor Thi Dieu Le and her husband. The Tribunal is satisfied that the sponsor has an Australian citizen spouse, five living children, one of whom lives in Vietnam, and three who are Australian citizens and reside in Australia, and one of whom is currently married. The fifth child is the first named applicant.  The Tribunal is satisfied that the sponsor also has nine grandchildren, six of whom are adults, and of the six adult grandchildren, four adult grandchildren are Australian citizens who reside in Australia, one adult grandchild resides in Vietnam, and one adult grandchild is the second named applicant. The Tribunal accepts the sponsor also has two minor Australian citizen great-grandchildren.

30. The Tribunal has considered whether the sponsor’s husband, three adult Australian citizen children and four adult Australian citizen grandchildren and their relevant spouses can reasonably provide the care required.

31. The Tribunal is satisfied that the sponsor’s husband is an Australian citizen, who is elderly and frail, and suffered a stroke in 2021. The Tribunal is satisfied that the sponsor’s husband cannot reasonably provide the care the sponsor requires due to his age and ill-health.

32. The Tribunal is satisfied that the sponsor’s eldest son Cong Van Hoang is an Australian citizen, and is married but separated, and in full-time employment. The Tribunal accepts this Australian relative of the sponsor has provided evidence of his employment and his mortgage commitment.  The Tribunal is satisfied that his only child Patrick is an adult who has just completed a law degree and is not employed but is looking for work. Whilst the Tribunal acknowledges that Patrick currently has time available to assist in providing care for his grandmother, the Tribunal accepts that Patrick does not speak the language of his grandmother and is also actively looking for work and has his career ahead of him. The Tribunal accepts that neither Cong Van Hoang nor Patrick can reasonably provide full-time care for the sponsor.

33. The Tribunal is satisfied that the sponsor’s second son, Hung Minh Hoang is an Australian citizen and is employed full-time, and cares for his three-year-old daughter on the weekends and is separated from the child’s mother. The Tribunal accepts this Australian relative of the sponsor has provided a current statement together with evidence of his employment and mortgage commitment. The Tribunal accepts that Hung Minh Hoang cannot reasonably provide full-time care for the sponsor.

34. The sponsors youngest daughter Thi Yen Kim Hoang attended the hearing and gave evidence. The Tribunal is satisfied that the sponsor’s youngest daughter Thi Yen Kim Hoang is an Australian citizen, who is married, and is employed 32 hours per week as a nurse and nursing coordinator on rotating rosters and on-call. The Tribunal is satisfied that her husband had a car accident and suffered a back injury and has ongoing physical limitations, but currently works full-time. The Tribunal accepts that Thi Yen Kim Hoang and her husband have provided a current statement, evidence of their employment and mortgage commitment. I am satisfied that they have three children, two school-aged and one starting at university. I accept that the 19-year-old is a full-time student in her second year of full-time study at university who works as a part-time tutor on the weekends. The Tribunal accepts that Thi Yen Kim Hoang, and her husband and adult daughter cannot reasonably provide full-time care for the sponsor.

35. The Tribunal is satisfied that the first named applicant has a daughter, Ngoc Thi Hieu Le, who is therefore a granddaughter of the sponsor, who is an Australian citizen and is employed full-time and resides in Western Australia. The Tribunal accepts that this Australian relative of the sponsor cannot reasonably provide care to her grandmother due to the fact she resides in another part of Australia.

36. The Tribunal is satisfied that the sponsor has a daughter who resides in Vietnam, but whose daughter, My Linh Van is an Australian citizen. This granddaughter of the sponsor attended the hearing and gave evidence. The video connection for this witness was not functioning at the hearing on 7 February 2022, but the witness gave evidence by audio connection. The Tribunal is satisfied that My Linh Van resided with her grandparents until 2017 when she moved out with her husband and first child, and that she resided with her grandparents when the two applicants arrived in June and November 2015. The Tribunal accepts the sponsor has a granddaughter who is an Australian citizen, who is an adult, works full-time as an accountant, is married and her husband also works full-time as an accountant, and they have two young children aged six and three years. The Tribunal is satisfied this Australian relative of the sponsor has provided evidence of her and her husband’s employment, and family commitments. The Tribunal accepts that My Van Linh cannot reasonably provide full-time care for the sponsor.

37. The Tribunal is satisfied that the Australian relatives of the sponsor include her husband, her two sons, her daughter and son-in-law, three single adult grandchildren and a married granddaughter and her spouse. The Tribunal accepts that all these Australian relatives of the sponsor have commitments and cannot reasonably provide full-time care to the sponsor. Excluding Patrick, all have employment commitments, or study commitments and I accept that Patrick has just completed his course and is attempting to find employment.

1. The care that the sponsor requires as set out in the Carer Visa Assessment Certificate include assistance with all aspects of daily living, including mobility, bathing and showering, toileting, dressing and grooming, eating and preparing meals, supervising medication, supervision for personal safety and transportation. The applicant was assessed as being fully dependent for assistance with her activities of daily living. The conclusion of the certificate was that the sponsor was dependent on others and requires close supervision for her self-care and safety. She depends on others for support to help her transfer or to stand up and is unable to prepare food and needed to be prompted for meals. She is at risk of self neglect if she is alone.

2. Further the sponsor had been assessed by the aged care assessment team from the Department of Health and Ageing as eligible to receive permanent residential care at a high level, with an approval that would not lapse, and residential respite care at a high level with an approval that would not lapse. This assessment was dated 31 March 2014.

3. I have considered whether the care that the sponsor requires could reasonably be provided by a combination of assistance from all the Australian relatives. I have considered that this would not be feasible as all the Australian relatives are working or studying full-time (or at least 32 hours a week in the case of Thi Yen Kim Hoang) except for Patrick, who does not speak the language of the sponsor. The care that the sponsor requires could not be provided by this one grandson who could not communicate with her, for 32 - 40 hours per week when the other Australian relatives of the sponsor are working or studying, until such time as he obtained employment.

4. For these reasons I am satisfied that the assistance cannot reasonably be 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 citizens, and therefore the requirements of r.1.15AA(1)(e)(i) are met.

5. The Tribunal is satisfied based on the evidence provided that the applicants have arranged assistance within the home to assist them provide the care for the sponsor up to 14 hours a week. The Tribunal accepts that this current home care package, a level IV Home Care Package is not sufficient to meet the sponsor’s needs, but does provide assistance to the sponsor and the persons caring for her at the present time. The Tribunal accepts that the care required by Thi Dieu Le is constant supervision and support for 24 hours a day, seven days a week.

6. The Tribunal is satisfied that the applicants have investigated whether Thi Dieu Le could successfully obtain assistance through a nursing home in Australia. The Tribunal is satisfied based on the aged care assessment, that the sponsor has been approved for respite or permanent residential care in a nursing home since 2014. The Tribunal is satisfied that there are spaces available in nursing homes in Springvale, but these homes do not guarantee staff will always be rostered that speak Vietnamese, and there will not always be Vietnamese cuisine provided. They Tribunal accepts that specific linguistic and cultural considerations are important for a person moving into a nursing home.

7. The Tribunal is satisfied that there are spaces available in the Vietnamese nursing home in Keilor East. The Tribunal accepts that this nursing home is a significant distance from the home where the sponsor currently lives with her husband, and the geographical distance is an important factor if the sponsor was placed in this Vietnamese most nursing homes and separated from her husband of 60 years. However given the linguistic and cultural considerations this would appear to be the preferable nursing home for the sponsor.

8. The Tribunal is satisfied that the applicants and other family members have taken the sponsor to visit nursing homes. I accept that the sponsor has suffered anxiety and panic attacks, and refused to get out of the vehicle when visiting the nursing homes and become extremely distressed. I accept the sponsor, Thi Dieu Le, has become frightened because a friend went into a nursing home and died in the nursing home, and this has become a source of terror for her. I have considered the psychiatric report of Dr Sagarika dated 17 September 2021. I note that the psychiatrist concludes that Thi Dieu Le presents with panic disorder and complicated grief and opines that it is unclear if she has a post-traumatic stress disorder. The psychiatrist recommends that because of the severity of her panic disorder and heightened anxiety when exposed to the world outside of her home and other people, it is recommended that she is exposed to minimal triggers for her conditions. The psychiatrist states it is most likely that her mental state would deteriorate if she was admitted to a nursing home or cared for by a person outside of her family.

9. I accept the evidence of the first named applicant that the family investigated the possibility of the sponsor moving into a nursing home after the refusal of the first named applicant’s application for a carer visa. I accept that the sponsor’s husband considers that once a person is admitted into a nursing home they never come out. I accept the sponsor has a similar fear in relation to going into a nursing home after the death of her friend. I accept the sponsor gave evidence that she is happy her daughter loves her and cares for her and that nothing can compare with the care a family member can provide. I am satisfied that the sponsor has a significant fear of being placed into a nursing home, and I am satisfied based on the psychiatric report that if the sponsor was admitted to a nursing home her mental health would deteriorate.

10. The Tribunal accepts that the assistance the sponsor requires cannot reasonably be obtained through residential care in a nursing home because of the impact that would have on her mental health, the separation from her husband of 60 years and the linguistic and cultural considerations discussed above.

11. The Tribunal also considered the impact on the health and mortality of residents in nursing homes in the current circumstances of the pandemic in reaching this conclusion.

12. The Tribunal is satisfied based on the evidence before it that the sponsor has obtained assistance from hospital, welfare nursing and community services in Australia, including medical assistance as required, and assessments for assistance through welfare and community services. The Tribunal accepts that the applicants and family members of the sponsor have made realistic and genuine enquiries in relation to obtaining further assistance, and made efforts to assist the sponsor to visit with the possibility of a transfer to a nursing home that have not been successful. The Tribunal is satisfied that the assistance the sponsor requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, and therefore the requirements of r.1.15AA(1)(e)(ii) are met.

13. For the reasons set out above, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

    Willing and able – reg 1.15AA(1)(f)

14. 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.

15. 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.

16. I am satisfied based on the evidence before me that the first named applicant has been providing the assistance that her mother requires with the activities of daily life since 2016. I accept the applicants reside with the sponsor and a husband. I accept the first named applicant assists her mother with personal hygiene, showering, pad changing and toileting, dressing and grooming, preparing food and eating, supervising medication and transport to medical appointments. I am satisfied based on the evidence before me, including the medical report that states the condition of the sponsor’s physical and mental health has remained stable over recent years due to the dedicated care of the first named applicant. I am satisfied that the first named applicant is both willing and able to provide her mother with substantial assistance that she requires. I accept the evidence of the first named applicant that she will continue to provide the assistance that is needed as long as it is required.

17. I am satisfied based on the evidence at the hearing that the first named applicant, with the assistance of the second named applicant has been providing care for the sponsor, and in fact for both her parents, for over six years. I am satisfied that the first named applicant has a routine for providing the care to her mother which includes washing her, changing her nappy, preparing her food and supervising her meals, taking her outside for fresh air, assisting her mother to rest and have exercise, and repeating this routine in the afternoon. I am satisfied the first named applicant supervises the medication her mother requires in the morning and afternoon, and gives her additional pain relief if required in the night. I am satisfied that the first named applicant and the second named applicant take the sponsor to medical appointments if required, and the second named applicant does the shopping for the household. I accept that the first named applicant’s sister or brothers visit on the weekend to care for their parents and give the first named applicant some respite for an hour or two.

18. I accept the evidence of the first named applicant that she is prepared to continue to care for her mother for as long as she is permitted to do so. I am satisfied that the first named applicant has provided to care for her mother, the sponsor, with commitment and dedication on a daily basis over six years. I accept the evidence before me that she is willing and able to provide the continuing and substantial assistance the sponsor requires, and the kind needed as identified in the Carer Visa Assessment Certificate and medical reports.

19. Therefore, the first named applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

    Conclusion on ‘Carer’ criterion

20. For these reasons I am satisfied that the first named applicant is a carer within the meaning of  r.1.15AA.  Given these findings, at the time of decision the first named applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

    Secondary criteria

21. In the Department’s decision record dated 19 January 2018 the delegate found the secondary visa applicant, Thi Ngoc Huyen Le, did not meet the requirements of cl.836.321. This clause requires that at the time of decision the secondary visa applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria is the holder of a Subclass 836 visa. There is no finding in this review that the first named applicant satisfies all the primary criteria, or that the first named visa applicant is the holder of a Subclass 836 visa. The Tribunal, cannot make a finding that the first named visa applicant is the holder of a subclass 836 visa, as the visa has not been granted to the first named visa applicant by the Department at the time of the Tribunal’s decision. The Tribunal will consider alternative time of application criteria in this review in relation to the second named visa applicant, namely the criteria in cl.836.311.

22. Clause 836.311 requires that the secondary visa applicant is a member of the family unit of a person who (a) has applied for and Other Family (Residence) (Class BU ) visa. The Tribunal has considered the application forms and is satisfied that the first and second named visa applicants applied for an Other Family (Residence) (Class BU) visa. The Tribunal has considered the birth certificate of the second named visa applicant which records that the first named applicant is her mother. The Tribunal is satisfied that the second named visa applicant is the biological child of the first named visa applicant. The Tribunal is satisfied that the second named visa applicant was born in 1988, and at the time of application, namely 16 August 2016, the second named visa applicant was aged 27 years.

23. The Tribunal is satisfied that the definition of member of a family unit in r.1.12 applies in this review that was prior to the changes of that definition which came into force in 19 November 2016. The Tribunal has considered whether the second named visa applicant was a member of the family unit of the first named visa applicant within the meaning of r.1.12(1)(b) at the time of application, namely the dependent child of the first named visa applicant within the meaning of r.1.03.

24. The Tribunal is satisfied based on the written and oral evidence before it, that the second named visa applicant at the time of application was the child of the first named visa applicant, and was not engaged to be married and did not have a spouse or de facto partner. As the second named visa applicant has turned 18 at the time of application, she must meet the definition of dependent child in r.1.03(b). There is no evidence before the Tribunal that the second named visa applicant is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions, and therefore she does not meet the definition of dependent child who has turned 18 in r.1.03(b)(ii). The Tribunal has considered whether the second named visa applicant is dependent on the first named visa applicant for the purposes of r.1.03(b)(i) as defined in r.1.05A.

25. At the time of application, the second named applicant had arrived in Australia in June 2015. Based on the Vietnamese curriculum vitae and other identification documents, I am satisfied that prior to departing Vietnam the second named applicant was a student, and was financially supported by her mother. I accept the second named applicant was studying full time prior to departing Vietnam. I accept that after the second named applicant arrived in Australia she resided at her maternal grandparents’ home, that is, the home of the sponsor and her husband.

26. I am satisfied based on the academic certificates and transcripts provided to the Tribunal that the second named applicant studied an English course the second semester of 2015, followed by Certificate III in accounting for the first semester of 2016, Certificate IV in accounting for the second semester of 2016, and completed a diploma in accounting June 2017 at Holmesglen Institute. I am satisfied the applicant subsequently completed a three-year Bachelor of Business degree in June 2020.

27. I am satisfied that from November 2015 to June 2016 the second named applicant had a part-time job at Diamond Nails working 10 to 15 hours per week. I accept the evidence of the second named applicant that she used this money to contribute towards her transport costs and to save towards her tuition fees.

28. I am satisfied based on the evidence before me that the first named applicant came to Australia from Vietnam in November 2015. For the period June 2015 to November 2015, I am satisfied that the first named applicant was financially supporting her daughter the second named applicant.

29. I am satisfied that the second named applicant did not pay board to her grandparents while she was studying. I am satisfied that her accommodation costs were provided by her grandparents.

30. I am satisfied that the first named applicant came to Australia in November 2015, and resided at her parents home with her daughter. I accept that the first named applicant did not have an income but provided care for her parents. I am satisfied that the first named applicant has been the carer for her mother and father since November 2015, this has been a full time responsibility, and the first named applicant does not receive any financial reward for caring for her parents. I am satisfied that while the first named applicant, assisted by the second named applicant, cared for her parents, they received free board and support from the first named applicant’s parents. I am satisfied that the second named applicant’s grandparents have continued to provide the costs of the home in which they all live, during the time that the second named applicant has resided there.

31. I am satisfied that the second named applicant’s grandparents would not have been able to remain in the home without the care provided by the first named applicant. I am satisfied that this applies not only to the sponsor but also to her husband as the first named applicant was providing care and support for both her parents at the time of application and at the time of this decision. The second named applicant is identified as a person who did the shopping, and assisted her mother take her grandparents to appointments. I am satisfied based on the information provided that the first named applicant’s parents receive a Commonwealth government pension.

32. I accept that the second named applicant’s grandparents provided the home which is the shelter for the second named applicant since she arrived in Australia in June 2015.  I am satisfied that the second named applicant’s grandparents provided the financial support for the second named applicant’s basic needs for food, clothing and shelter after her mother’s her arrival in Australia in November 2015, and at the time of application. I have considered whether the second named applicant meets the requirements for being dependent upon the first named applicant for the purposes of r.1.05A to meet the requirements of dependent child the purposes of being a member of the family unit within the meaning of r.1.12(1)(b).

33. I am satisfied that it is appropriate to consider a period of 12 months prior to the time of application when considering a substantial period as required to assess whether a person meets the definition in r.1.05A. When considering whether the second named applicant was the dependent child of the first named applicant and a member of the family unit of the first named applicant, to meet the requirements of cl.836.311(a), the Tribunal will consider a period of 12 months immediately prior to the time of application on 16 August 2016.

34. I am satisfied that the second named applicant was in Australia residing with her grandparents on 16 August 2015. I am satisfied that the second named applicant has been provided shelter by her grandparents for the 12 month period 16 August 2015 to 16 August 2016. I am satisfied that the second named applicant has been provided financial support from the first named applicant to meet her basic needs of food and clothing to the three-month period of 16 August 2015 to November 2015 prior to her mother arriving in Australia. I am satisfied that after November 2015, the financial support to meet the second named applicant’s basic needs of food and clothing were substantially provided by her grandparents, with some additional financial support provided by her sister who resides in Western Australia.

1. I am satisfied that the second named applicant’s cousin My Linh Van, resided in the sponsor’s home with her husband until 2017, and her first child was born in September 2015. I am satisfied that due to her pregnancy, and her own and her husband’s work commitments and then the newborn child, that My Linh Van and her husband did not contribute substantially to the care of her grandparents, and did not contribute to the financial support of the second named applicant.

2. I have considered the judgement of the Federal Magistrates Court of Australia in Al Naqi v MIAC [2007] FMCA 874, and have applied the principals espoused in that decision. In the judgement paragraph 13 it is stated that, “in determining the meaning of the word ‘dependent’ in reg.1.05A it is not necessary that the person providing support be the only source of support the person receives. Rather, a broad practical judgement is required in the circumstances of the particular case as to what is encompassed by the notions of dependence and support.” And in paragraph 14 the judgement identifies that to “make a determination on a ‘broad practical basis’ about who is providing support it will sometimes be necessary to identify the underlying source of the support and reasons for the provision of that support.” Later in the judgement it was identified that on a broad practical financial level support from a person’s spouse can be considered support by the person, if the spousal relationship is an essential and substantial part of the reason for the support being provided.

3. Applying these principles to the circumstances in the current review, the Tribunal has applied a broad practical approach to the situation where the second named applicant resides with her mother, from November 2015 in the house with her mother’s parents. The second named applicant’s mother is unable to earn an income or receive any financial support whilst residing in Australia without a substantive visa but is responsible for providing the full-time care and support for her mother. The second named applicant’s grandparents would not have been able to continue to reside in the home without the care provided by the second named applicant’s mother. The Tribunal has identified that the underlying source of support and reasons for the provision of that financial support for the second named applicant by her grandparents is to enable the first named applicant to reside in their home and care for them so they can remain in their home. I am satisfied that in this complex arrangement within the household that the financial support provided by the second named applicant’s grandparents from December 2015 to August 2016 to meet the basic needs of the second named applicant was an essential and substantial part of the arrangement for the first named applicant to reside in the home without any financial income or source of financial support. Therefore, the financial support to meet the basic needs of the second named applicant is provided by the first named applicant through her parents on the basis that she is providing care for her parents to enable them to stay together and in their home. I am satisfied that when the circumstances are viewed from this approach, the second named applicant was reliant upon the first named applicant rather than her grandparents for the financial support to meet her basic needs. I am satisfied, applying this broad practical approach as espoused in the decision of Al Naqi v MIAC that the second named applicant was wholly or substantially reliant on the first named applicant rather than her grandparents or her sister for financial support to meet her basic needs.

4. Therefore, the Tribunal finds that the second named applicant at the time of application, 16 August 2016, and for a substantial period, namely 12 months, immediately before that time, was wholly or substantially reliant on the first named applicant for financial support to meet her basic needs for food, clothing and shelter. Further I am satisfied that the second named applicant’s reliance on the first named applicant was greater than any reliance by the second named applicant on any other person, or source of support, for financial support to meet her basic needs for food, clothing and shelter. For these reasons I am satisfied that the second named applicant was dependent upon the first named applicant within the meaning of r.1.05A at the time of application.

5. I am satisfied that the second named applicant is the child of the first named applicant, and was not engaged to be married and did not have a spouse or partner, had turned 18 and was dependent on the first named applicant at the time of application. I am therefore satisfied that the second named applicant is the dependent child of the first named applicant within the meaning of r.1.03(b)(i).  Accordingly I am satisfied that the second named applicant is a member of the family unit of the first named applicant at the time of application and meets the requirements of r.1.12(1)(b).

6. For the above reasons I am satisfied that the second named applicant is a member of the family unit of the first person who has applied for and Other Family (Residence) (Class BU) Visa and therefore meets the requirements of cl.836.311(a) at the time of application.

7. 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

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

   ·cl 836.221 of Schedule 2 to the Regulations; and

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

   ·cl.836.311(a) of Schedule 2 to the Regulations.

   Margie Bourke
   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.