Huynh (Migration)

[2021] AATA 886

Huynh (Migration) [2021] AATA 886 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tan Hiep Huynh

CASE NUMBER:  1818445

HOME AFFAIRS REFERENCE(S):          CLF2017/4768

MEMBER:Steven Griffiths

DATE:31 March 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl.836.211 of Schedule 2 to the Regulations; and

·cl.836.213 of Schedule 2 to the Regulations; and

·cl.836.221 of Schedule 2 to the Regulations

Statement made on 31 March 2021 at 3:55pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably provided by Australian citizen or resident relative or obtained from service providers – care previously provided by other relatives, who are now unable due to commitments – efforts to locate home care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e), Schedule 2, cls 836.111, 836.211, 836.212, 836.213, 836.221

CASES
Perera v MIMIA [2005] FCA 1120
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 6 June 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 January 2017. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.836.221.

3. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the applicant and sponsor did not meet, as detailed in Regulation 1.15AA(e)(i) 03, that assistance cannot reasonably be provided by any other relative, or Regulation 1.15AA(e)(ii), that assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.  

4. The applicant was assisted by his registered Migration Agent, Mr. Peter Matthews.

5. The applicant appeared before the Tribunal by telephone on 29 March 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence, by telephone, from the sponsor who was with the applicant and the daughter of the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The migration agent, who is in Vietnam and advised he does not have a reliable telephone service, did not taken part in the hearing.  

7. During the hearing, it was identified that evidence provided in a submission to the Tribunal on 2/12/19 did not include all the pages, with the Tribunal requesting that the information be provided by close of business 1/4/21.

8. The Tribunal notes that the requested information was provided on 30/3/21.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs, the Tribunal file, the information provided by the applicant prior the hearing, the oral evidence from the Tribunal hearing and the documented information provided following the hearing.

    ISSUE

11. The issue in the present case is if the sponsor is able to reasonably to have his care requirements met by other relatives and if his care needs are able to be reasonably obtained from welfare, hospital, nursing or community services in Australia.   

    BACKGROUND OF THE EVIDENCE

12. Applicant Mr. Tan Hiep Huynh was born in Vietnam in 1960. His father, a resident of Australia, was born in 1933 and is the sponsor. He has 6 brothers and 1 sister, born between 1958 & 1983, with 1 brother living in Vietnam and the other 6 siblings in Australia.  He was married, divorcing in 2010 and has 4 children, born 2000, 2002, 2006 & 2010, who are not part of the visa application. He arrived in Australia in 1/11/08 on a Sponsored Family 679 Visa, granted 26/8/08 and to cease 30/1/09, when he left. He arrived in Australia on 14/3/10 after being granted another Sponsored Family 679 Visa on 22/2/10 and to cease 12/6/10, when he left. He arrived again on 1/10/14 after being granted a Visitor 600 visa on 30/8/14 and to cease 31/12/14, when he left.  He arrived again on 29/10/16 after being granted a Visitor 600 visa on 30/8/16 and to cease 29/1/17 and was on a Bridging Visa WA-010 from 3/1/17 and a Bridging Visa WB-020 from 30/4/18.  

13. Sponsor Mr. Luom Huynh was born in Vietnam in 1933. He arrived in Australia on 13/3/91 and is an Australian citizen by grant on 14/7/93. He has been separated from his wife for approximately 20 years, with his wife continuing to live in Australia. He has 8 children, 1 living in Vietnam and all others in Australia, including the applicant.  

    INFORMATION TO THE TRIBUNAL

14. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Australian Government, MyAgedCare assessment summary, 26/6/19, with 1 page of a 3 page report provided

    Statutory Declaration by Can Tran and Huynh Van Hue, former neighbours of sponsor, stating the children / relatives of sponsor were not able to help him, 18/6/19

    Whether the applicant has claimed to be the ‘carer’

15. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s father and has been since late 2016.

16. The Tribunal accepts the documented evidence, provided as part of the visa application,  which states the sponsor is the father of the applicant, with the sponsor having 8 children, of who the applicant and 6 of the siblings are living in Australia.

17. The Tribunal accepts the oral evidence of the applicant, his sister and the sponsor of the culture of family relationships that the children should take care of their parents, and for this reason the applicant, who has always been the closest to the sponsor of all 8 children, should be his carer.

18. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.

19. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.

    Whether the applicant is a carer

20. 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.

21. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s father and has provided documented evidence in support, which the Tribunal accepts.  

22. The Tribunal accepts the documented evidence of the sponsor becoming an Australian citizen by grant on 14/7/93.

23. The Tribunal accepts the documented evidence of the sponsor first arriving in Australia on 13/3/91 and that while he has travelled from Australia 22 times for periods of between a month and 8 months, for the majority of time he is a resident in Australia and has not left since last returning on 24/6/18. 

24. Therefore, as the applicant is the son of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

25. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

26. For a certificate to meet r.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) or issued by a specified health provider in relation to a review of such an opinion.

27. The Tribunal accepts the documented evidence of a BUPA Medical Visa Services certificate, dated 19/1/17, for the sponsor with the Carer Visa Assessment Certificate created pursuant to and in accordance with the provisions of r.1.15AA(2).

28. The Tribunal accepts that the Certificate dated 19/1/17 confirms the sponsor, because of the medical conditions, will need direct assistance in attending to the daily aspects of life for at least 2 years.

29. The Tribunal accepts the document evidence of a MyAgedCare assessment undertaken on the sponsor, with the report dated 26/6/19, indicating the sponsor has Parkinson’s Disease, vision loss, deafness and considerable physical and medical needs, with the care provided by the applicant is significant and without this care would require a home support package

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

31. 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.

32. In the present case, the person with the medical condition is an Australian citizen by grant. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

33. 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.

34. The Tribunal accepts that the relevant instrument for these purposes is a rating of 30, with a BUPA Medical Visa Services dated 191/1/17 given the sponsor a rating of 40, with the sponsor having a variety of medical conditions causing impairments of the sponsors ability to attend to the practical aspects of daily life.

35. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

36. 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.

37. The Tribunal notes the previous provision by 16 adult relatives of the sponsor, who are Australian residents, of their inability to provide the care requirement of the sponsor due to their own work, business, debt, childcare and education commitments.

38. The Tribunal accepts the oral evidence of the daughter of the sponsor that the pressures on she, and all other adult family members, has increased in recent times and it is not possible for these family members, even via some form of roster system, to provide the required 24 hours per day, 7 days per week level of care that her brother is providing to the sponsor.

39. The Tribunal accepts the oral evidence of the parties that the sponsor only speaks Vietnamese, and will only eat Vietnamese food, and with his age and increasing difficulties due to his long standing medical conditions, all efforts to locate a care option for him of the type and length  required has demonstrated that an option does not exist in any existing care facility of any in home care option.    

40. 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 r.1.15AA(1)(e) are met.

41. 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.

42. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial 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.

43. The Tribunal accepts that the applicant is a 60 year old man, identified as the closest of his 8 siblings to their father, has experience with providing care for older relatives in Vietnam, with the children from his previous marriage remaining in Vietnam, and has the physical capacity and desire to live with his father and provide the necessary 24 hour per day, 7 days per week care he requires.

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

45. Given these findings, at the time of decision the applicant is the carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.

46. 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

47. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl.836.211 of Schedule 2 to the Regulations; and

    ·cl.836.213 of Schedule 2 to the Regulations; and

    ·cl.836.221 of Schedule 2 to the Regulations.

    Steven Griffiths
    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.