Huynh (Migration)

[2022] AATA 5059

Huynh (Migration) [2022] AATA 5059 (29 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Nhon Bao Huynh

VISA APPLICANTS:  Mr Bao Nam Huynh
Ms Thi Kim Son Nguyen
Miss Yen Nhi Huynh
Miss Yen Lam Huynh
Miss Thuy Yen Tram Huynh

CASE NUMBER:  1910903

HOME AFFAIRS REFERENCE(S):          2014026572

MEMBER:David Crawshay

DATE:29 July 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 29 July 2022 at 11:17am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – willing and able to provide substantial and continuing assistance – extent of the conditions – autism spectrum disorder – functional impairment – behavioural problems – epilepsy – level of assistance required – visa applicant’s temperament – English language ability – financial support – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 28 February 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 24 April 2014. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied that the first-named visa applicant (hereafter referred to as the visa applicant) was able to provide substantial and continuing assistance to the person needing care under r.1.15AA(1)(f). The delegate also found that the secondary applicants did not satisfy the requirements of cl.116.321.

4. The review applicant appeared before the Tribunal on 25 May 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and from Ms Nguyet Ali (Wendy) Du, who is the wife of the review applicant and the mother of the person in need of care – [Child A]. Ms Du’s very good grasp of English and her existing carer relationship with [Child A] meant that she answered the bulk of the questions asked of the review applicant – in effect, answering on his behalf.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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 visa applicant is the carer of the Australian relative. In this case, the Australian relative is [Child A], who is the son of the sponsor (and review applicant).

   Whether the visa applicant is a “carer”

8. Clause 116.221 requires that at the time of decision, the visa 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.

   Willing and able – r.1.15AA(1)(f)

9. Among the various cumulative requirements under the definition of “carer” is r.1.15AA(1)(f), which requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

10. 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.

11. In order to assess whether the visa applicant is willing and able to provide [Child A] the requisite assistance, the Tribunal is required to firstly assess the extent of the conditions he is living with and the level of assistance that needs to be provided to him. In this regard, it has considered the medical evidence that has been submitted, including the evidence in front of the delegate and evidence that has been submitted thereafter. This later evidence includes a report from [Child A]’s occupational therapist dated 10 December 2020, a “therapy outcome report” from a speech pathologist dated 16 December 2020, a letter from his treating paediatrician dated 28 February 2020, and the contents of the Carer Visa Assessment Certificate (CVAC) dated [in] January 2022. The CVAC states that [Child A] has “extreme impairment” due to having autism spectrum disorder with functional impairment and behavioural problems. He is said to have extreme difficulty with interpersonal relationships, cannot interact with other people and is socially isolated. He was said to have had episodes of self-harm and aggression at home, has impaired judgment and decision-making skills. He is also said to suffer from multiple episodes of urinary incontinence and occasional bowel incontinence, and this has been assessed as having a “moderate impact”. Lastly, he is said to suffer from epilepsy which has been controlled over the last five years and for which he was no longer taking medication but was having regular check-ups. This was assessed as having a mild functional impact. Since the CVAC was completed, [Child A] experienced an epileptic seizure on 2 May 2022 which required hospitalisation and an overnight stay, during which he suffered a second seizure. Discharge notes dated 3 May 2022 and an epilepsy management plan dated 8 May 2022 were submitted in support.

12. In terms of the level of assistance that is required, the CVAC states that [Child A] requires assistance with the full suite of activities, being mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervising medication, supervision for personal safety and transportation. The accompanying comments demonstrate that he requires supervision or full supervision in the areas of mobility, toileting and supervision for personal safety. In the other areas, he is said to require assistance or full assistance. The CVAC gives an example of a particularly idiosyncratic method of assistance that he currently receives – which is having tablets hidden in food because of his rejection of them. It also states that he sometimes bumps into people and objects when out walking and does not understand the road rules. Lastly, it states that his mother needs to walk him to the place where he is picked up by the school bus, although later in the CVAC it states that his mother has to drive him to school on some days.

13. Having considered the medical evidence, the Tribunal finds that [Child A] requires assistance with the full suite of activities of daily living. It is an all-encompassing care that is currently only broken by his attendance at the specialist school five days-a-week between 9:00am and 3:00pm. Ms Du told the Tribunal that the assistance from the visa applicant would be in taking care of [Child A] in the morning, on weekends and during school holidays. When [Child A] finishes school (at the end of next year), she indicated that the care would be roughly the same if [Child A] were able to be enrolled in a programme, but may be round-the-clock if not. The Tribunal contrasts this testimony with the comments of the examining doctor in the CVAC, who stated that [Child A] will be attending the specialist school for the next two years “and then he will be at home permanently”. It accepts that the care would need to be provided every morning until at least 8:30am, on weekends and whenever there are holidays for at least the next year-and-a-half. Having considered the seemingly conflicting evidence about the level of assistance thereafter, it finds that it may be more significant if [Child A] were not able to enter a programme. In this regard, Ms Du told said that the family will find out the details of the programme from the school next year. Based on this evidence, the Tribunal considers it possible that the visa applicant will be required to offer [Child A] more substantial assistance when he finishes school in a year-and-a-half.

14. Having made the above findings in relation to the level of assistance required by [Child A], the Tribunal has now proceeded to assess whether the visa applicant is willing and able to render this assistance.

15. The Tribunal has major concerns about the visa applicant’s suitability and fitness to provide the requisite assistance. It is particularly concerned about his temperament. At hearing, the Tribunal heard from the visa applicant and from Ms Du that the visa applicant had twice failed his driver licence in Vietnam. When the Tribunal put to her that he may not have the temperament to provide the assistance based on this, Ms Du replied that the visa applicant was going for a manual licence. When asked whether the visa applicant was a nervous person, she said that he gets nervous when being asked things by outsiders. The Tribunal asked her about how he would perform under high-pressure situations, and she replied that they will need to train him, and that this was how the review applicant used to be.

16. The Tribunal has considered that [Child A] has behavioural problems and has manifested aggression. He is also said to be unaware of road rules. In relation to the latter, Ms Du said that [Child A] is unsafe on roads (which she had explained to the visa applicant) and sometimes runs off. Based on the evidence, the Tribunal considers that there are multiple occasions where the visa applicant’s temperament would be tested – including, importantly, around roads where [Child A]’s behaviour can fairly be described as erratic. Moreover, [Child A] has recently experienced two epileptic seizures (the first in seven years) and the possibility that he may experience more in the future therefore cannot be discounted. Based on the evidence, it is not satisfied that the visa applicant would be prepared temperamentally to be able to deal with what may be tense and stressful situations such as around roads and during seizures.

17. The Tribunal also has concerns about the visa applicant’s technical ability, including his ability to be able to converse in English. In this regard, it notes that he said he would be trained by the review applicant and Ms Du, and that he will need to find out more. However, when questioned about what training the visa applicant would need to undergo, Ms Du told the Tribunal that he would need to study for the first six months to attain basic English before receiving basic training for medications, brushing teeth, showering, toileting and dressing. When it was put to the review applicant and Ms Du that the visa applicant did not appear to be aware of their proposed training regimen or the need to learn English, Ms Du replied that they have not spoken to him about this but have spoken to his wife. She said that she does not know if his wife has informed him.

18. The visa applicant’s lack of English is particularly concerning given that the findings of the CVAC include that [Child A] is not aware of road rules, requires instructions on where to go and needs full one-on-one supervision to ensure safety around roads. While it notes the testimony of Ms Du that Vietnamese is spoken at home (along with English and Cantonese), it also notes that he is communicated to in English at his school. This lack of English may limit the visa applicant’s ability to clearly communicate instructions to [Child A], read non-symbol road signs and converse with bystanders – including in times of emergency.

19. Lastly, the fact of the visa applicant not having a driver licence limits his ability to be able to transport [Child A] to and from appointments and activities. Given the finding within the CVAC that [Child A] cannot travel away from his own residence without a carer, and that his mother is sometimes called upon to drive him to school, this is a significant limitation.

20. The Tribunal also has concerns about the ability for the visa applicants to be supported financially while in Australia.

21. The Tribunal asked Ms Du at hearing about how the visa applicant will support himself over in Australia. She replied that they will support him by providing accommodation to him and his family. She said that two out of the four bedrooms will be reserved for her family and the other two bedrooms will be reserved for the visa applicant’s family (which includes the three secondary applicants who were said to be aged 21, 16 and 10). When asked about other costs involved, Ms Du said that her family will try to provide them if they can. She said that she would go to cheap grocery places, and that hopefully the 21 and 16-year-olds would be able to work at her sister’s restaurant. When asked about what the visa applicant’s wife would do, she replied that she would help them to cook and would help her own children.

22. In answer to the Tribunal’s questions about his intended accommodation in Australia, the visa applicant told it that he would initially stay with the review applicant, and would then rent accommodation for him and his family. He was asked how he would be supported financially while over here. After a pause, he replied that his brother will provide him with financial support, but that he will slowly try to support himself. When asked how he would be able to do this, he replied that he has his own account in Vietnam. He said that he has a house in Vietnam.

23. The Tribunal put its concerns to the review applicant and Ms Du about the visa applicant’s financial support. Ms Du replied that his wife could go out to work. The Tribunal put to her that she said only earlier said the visa applicant’s wife would only be helping them to cook and looking after her daughters. She replied that the visa applicant’s wife might be able to work part-time.

24. The Tribunal has considered the evidence in front of it in relation to the visa applicant’s ability to be supported financially. It is not satisfied that the plans of the parties and of Ms Du are realistic or that they have given this issue much thought. Even if it accepts for present purposes that the five visa applicants could live across two rooms as suggested by Ms Du, it considers that the other measures proposed by her are not likely to be sufficient – in the case of buying cheaper groceries – or are at this stage speculative – such as the school-aged 16-year-old daughter of the visa applicant “hopefully” working. It finds that Ms Du’s shifting response when discussing what the visa applicant’s wife would do in Australia (earlier stating that she would help to cook and would help her own children, but later stating that she might be able to work part-time) is indicative of a lack of planning.

25. As for the visa applicant, there is no recent evidence in relation to his assets in Vietnam and whether their liquidated value would be sufficient to support him and his family, even if combined with other sources of income and cost-saving measures proposed by Ms Du. There has also been no evidence submitted to suggest that the visa applicant would work in order to support his family.

26. The Tribunal has considered the evidence in front of it but it is not satisfied that the visa applicant has the financial ability to be able to support himself and his family while providing assistance to [Child A].

27. Based on the above findings in relation to the visa applicant’s temperament, his technical ability or his ability to be able to support himself and his family, the Tribunal finds that the visa applicant is not willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed.

28. The visa applicant therefore does not meet the requirements of r.1.15AA(1)(f).

29. The Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

30. Because the visa applicant is not the holder of a Subclass 116 visa, the secondary visa applicants do not satisfy cl.116.321.

    CONCLUSION

31. Through questioning Ms Du at hearing, it became abundantly clear that she is suffering due to her need to care for [Child A]. She gave evidence that she had to give up her job because she was unable to work full-time hours and told the Tribunal that a subsequent job offer was declined by her for this reason. She also said that she sleeps in [Child A]’s room and has done so for the last few years. It does not doubt the sincerity of review applicant and her in lodging this visa application. It can only hope that the review applicant and Ms Du can avail themselves of the supports on offer under the NDIS and other programmes.

32. However, and for the reasons above, the visa applicants do not meet the criteria for a Subclass 116 visa.

33. In respect of the other visa subclasses there is no material which would permit a finding that the visa applicants meet prescribed criteria for the visa sought.

34. The evidence before the Tribunal is that the visa applicant was born in 1972. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as he is not old enough to be granted an age pension under the Social Security Act 1991. As such, the visa applicant is not an “aged dependent relative” as defined in r.1.03 for the purposes of cl.114.211 of Schedule 2 to the Regulations.

35. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 115 (Remaining Relative) visa as there are “near relatives”, as defined in r.1.15(2), residing in the same country as the visa applicant, being his wife and daughters. As such, the visa applicant is not a “remaining relative” and therefore is unable to meet cl.115.211.

    DECISION

36. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) 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.