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

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).
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.
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…

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 Hoang (Migration)

Details

AGLC: Hoang (Migration) [2022] AATA 302
Case: [2022] AATA 302
Decision Date: 8 February 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer), made by the first applicant, who sought to care for her Australian resident mother. The second applicant, the first applicant's daughter, was also included in the application. The core dispute revolved around whether the applicants met the criteria for the visa, particularly the requirement that assistance could not be reasonably provided by other specified relatives or obtained from service providers, and that the applicant was a "carer" as defined by the regulations.

The Tribunal was required to determine if the first applicant qualified as a "carer" under regulation 1.15AA, which involved assessing whether she was a relative of the Australian resident, whether a valid certificate demonstrated the Australian resident's medical condition and need for care, and whether the applicant was willing and able to provide substantial and continuing assistance. Additionally, the Tribunal had to consider the eligibility of the second applicant as a member of the family unit, specifically whether she met the definition of a dependent child at the time of application.

The Tribunal found that the first applicant was a relative of the Australian resident, her mother, and that the sponsor was an Australian resident. While a Carer Visa Assessment Certificate from 2016 was considered, the Tribunal also relied on a more recent medical report from the sponsor's treating doctor, which confirmed her ongoing need for direct assistance. Based on this, the Tribunal was satisfied that the first applicant met the definition of a carer. Regarding the second applicant, the Tribunal noted that she was over 18 at the time of application and did not meet the definition of a dependent child under regulation 1.03(b)(ii) due to a lack of evidence of incapacity for work. The Tribunal also considered whether she was dependent under regulation 1.05A.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration. This was because the Tribunal could not make a definitive finding that the first applicant would be granted the Subclass 836 visa, which was a prerequisite for assessing the second applicant's eligibility under clause 836.321. The Tribunal indicated it would consider alternative criteria for the second applicant under clause 836.311.

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 EVIDENCEWhether the applicant is a carer 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) 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. 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. 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. 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) 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. 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. 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.

Decision

Reasons for decision

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 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 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. 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. 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. 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.

Ratio Decidendi

Legal Principle Established

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