Khaov (Migration)

[2024] AATA 2439

Khaov (Migration) [2024] AATA 2439 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Lim Srun Khaov

VISA APPLICANTS:  Mrs Sokkim Tot
Mr Chhunheang Sroem

REPRESENTATIVE:  Mrs Lina Tjoeng (MARN: 0744254)

CASE NUMBER:  2008489

HOME AFFAIRS REFERENCE(S):          OSF2015/042342

MEMBER:Deputy President Justin Owen

DATE:25 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2024 at 3:15pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass  (Carer)– visa applicant is the niece of the Australian relative – a valid Carer Visa Assessment Certificate (CVAC) was issued – certificate meets the requirements of reg 1.15 – satisfied that the assistance required by the resident cannot be reasonably provided by a relevant relative – not satisfied the visa applicant has any experience or training in providing the substantial and continuing assistance an elderly person – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 116.221, 116.321

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 3 April 2020 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 applicant is a 50-year old Cambodian national. The secondary applicant is her husband. The parties applied for the visa on 9 April 2015. 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 applicant is 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.  The delegate was not satisfied the care the review applicant (Ms Lim Srun Khaov who is also the sponsor and the relevant Australian resident) requires could not be 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 citizen.  

4. The review applicant appeared before the Tribunal on 1 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Muoy Peov Khaov, Mr Vuthy Mau and the visa applicant Mrs Sokkim Tot who is the niece of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the visa applicant meets Regulation 1.15AA(1)(e) for the purposes of cl.116.221 of Schedule 2 to the Regulations.

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

9. 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 visa applicant’s aunt.

10. On the evidence and identity documentation in the Departmental and Tribunal files, the Tribunal is satisfied that the visa applicant is the niece of the Australian relative.  

11. Therefore, as the visa applicant is the niece of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

12. 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.

13. 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.

14. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 31 October 2019. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the person who has the medical condition has an impairment rating (of 40) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

15. The Tribunal finds that the certificate provide does meet 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.

16. 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.

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

18. 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.

19. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

20. 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.

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

22. 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.

23. The review applicant’s most recent CVAC states the review applicant is fully dependent, requiring assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervising medication, supervision for personal safety and transportation.  The review applicant was diagnosed with functional impairment of the lower limbs as she suffers from Parkinson’s disease.  She was also diagnosed with cervical spondylosis as an impairment of the spine.  She is also incontinent which represents a moderate functional impairment.   The review applicant has been living in a residence provided by the Department of Housing with her elderly 93-year old husband, who also claims his own medical issues.

24. The Tribunal notes the correspondence provided from specialist geriatrician Dr Ernest Tam dated 16 March 2023 and correspondence from Dr Narith Van dated 11 April 2024.  This correspondence discusses the increasing needs of the review applicant who is now 93 years of age. The issue of the applicant’s major depressive illness with psychotic symptoms was also raised, despite it not specifically appearing in the CVAC. The claim is the review applicant’s medical conditions now require 24/7 care and support.      

25. The review applicant has eight children, all but one married, who have children of their own. All the review applicant’s children claim to be in gainful employment other than the eldest two (Mr Muoy Lor Khaov and Mrs Muoy Eng Khaov who are 72 and 70 years of age respectively and now retired.  The Tribunal accepts that, given the review applicant’s considerable health impediments, that neither is capable of providing the assistance she requires. 

26. Ms Muoy Peov Khaov, the review applicant’s youngest daughter, attended the hearing and provided testimony.  The evidence suggests she has played a significant role in supporting her mother’s increasing health needs.  The Tribunal found her to be an eloquent and transparent witness who also supported her elderly mother at the hearing when she gave evidence. Ms Khaov works four days a week in a meat processing factory.  She stated that she supports her mother as much as she can now, and the responsibility is shared by many of her siblings.  She stated that her mother’s declining health, combined with her own personal demands as an employee and a mother, made it increasingly difficult to provide the care necessary. There is a real challenge in finding family members to assist the review applicant overnight where she is requiring supervision as well as assistance for matters such as incontinence. Ms Khaov discussed incidents in recent years, including where the review applicant was in danger of accidentally burning her property down.  The Tribunal considers Ms Khaov is able to continue to provide some support to her mother, but accepts it, in its own right, is inadequate when considering the review applicant’s pressing needs.  

27. The Tribunal has noted the evidence pertaining to the other five children of the review applicant, including the statutory declarations provided by all parties. The youngest son, Mr Sam Khaov, resides in Wollongong whilst his sister Ms Chief Lang resides in Brisbane.  The Tribunal accepts that neither are able to provide assistance to the review applicant. 

28. The three remaining sons: Mr Muoy Ly Khaov, Mr Muoy Long Khaov, and Mr Muoy Try Khaov are all in full-time employment in manufacturing, construction and cleaning respectively.  The youngest is 59 years of age.  All have extensive families they are supporting.  None have any particular training or expertise in providing the assistance the review applicant requires.  The family in their statutory declarations have discussed how most do provide some assistance in some way: the pressing needs however of the review applicant (i.e. providing care overnight), and her specific medical conditions provide an ongoing challenge. 

29. The Tribunal finds that the review applicant’s youngest daughter  Ms Muoy Peov Khaov and three sons Mr Muoy Ly Khaov, Mr Muoy Long Khaov, and Mr Muoy Try Khaov can all provide some assistance to the review applicant as the Australian relative.  The Tribunal notes however the very specific and considerable needs of their mother.  Whilst they can obviously, including with external support through the provision of services, provide a degree of assistance to their mother, the Tribunal ultimately is satisfied that they cannot provide the considerable assistance as she specifically requires.  She is wheelchair-bound, suffering from Parkinson’s disease, and the evidence suggests is dealing with a major depressive illness with psychotic symptoms. This is due to their own individual work and family responsibilities as well as the specific care needs of their mother. 

30. The Tribunal notes the applicant has provided an extensive list of grandchildren as well as statutory declarations discussing their own inabilities to provide the assistance the review applicant as the Australian resident requires.  They are collectively working and/or studying at university.  Various letters of employment have been provided.  Whilst some live locally to the review applicant, others live interstate.  Ultimately, the Tribunal accepts that the review applicant’s grandchildren, particularly given her specific care needs whereby she is requiring overnight care and assistance, are not able to provide the specific assistance she requires.

31. On the evidence before it, the Tribunal is satisfied that the assistance required by the resident cannot be reasonably provided by a relevant relative.   The applicant meets reg. 1.15AA(1)(e)(i).       

32. The Tribunal has also considered whether the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia: reg. 1.15AA(1)(e)(ii).

33. The Tribunal discussed with the applicant whether the assistance could not be reasonably obtained from welfare, hospital, nursing or community services in Australia.

34. The Tribunal notes that the review applicant has made a meaningful effort to obtain the assistance she requires from welfare, hospital, nursing or community services.  She receives 8 hours care per week in the home from Dementia Caring Australia Pty Ltd.  This assistance the review applicant states is with food preparation, cleaning, cooking, transportation and shopping. It was explained that the review applicant undertook an Aged Care Assessment some years ago and is currently receiving a Home Care Level 3 package. 

35. The review applicant submits that the assistance she requires cannot be provided from welfare, hospital, nursing or community services in Australia. 

36. The review applicant is a Khmer speaker and does not speak English.  It is submitted that she has a strong preference for Cambodian cuisine.  It is asserted there would be significant cultural challenges should the review applicant move into aged care given, as the Tribunal understands from its own investigations, there are no Cambodian or Khmer speaking aged care facilities available anywhere within a significant vicinity.  The Tribunal accepts that entering an aged care facility where the applicant is unable to communicate in Khmer would be a significant challenge to the review applicant both linguistically and culturally.  The Tribunal would also note it would potentially involve the review applicant not being able to remain living with her 93-year-old husband who she has lived with for many decades.   

37. The Tribunal is satisfied that accessibility of the review applicant to the services she requires from welfare, hospital, nursing or community services is limited given her cultural needs is ultimately inadequate.  The Tribunal has come to this conclusion as it is satisfied that her stated desire for assistance to be provided by Khmer speakers, and her stated wish for a specific Cambodian cultural diet are cultural reasons as opposed to a mere preference. She also obviously wishes to remain with her elderly husband. The Tribunal notes the review applicant is a 93-year-old woman with significant medical conditions including severe depression.  She together with her husband came to Australia in the early 1980s after the well-publicised horrors of years previous in Kampuchea which became Cambodia.

38. On the evidence before it, the Tribunal is satisfied that the assistance required by the Australian resident – the review applicant - cannot be obtained from welfare, hospital, nursing or community services.  The applicant meets reg. 1.15AA(1)(e)(ii).       

39. 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. 

40. Regulation 1.15AA(1)(f) 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.

41. 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.

42. In assessing the ability of the visa applicant to provide the assistance which is required, the Tribunal has considered the following relevant factors:

    ·The visa applicant’s understanding of the assistance required and commitment to providing long term care;

    ·whether the visa applicant has specialist skills if such skills are necessary to provide the required assistance. If the applicant does not possess specialist skills, how the applicant proposes to acquire them;

    ·how the visa applicant will be able to provide the required assistance whilst maintaining other obligations, for example where they have their own family which may need to be cared for, and;

    ·how the visa applicant proposes to financially support themselves if granted the visa.

43. At the Tribunal’s hearing, the Tribunal put the review applicant on notice that there was also a requirement for the grant of the visa, under reg.1.15AA(1)(f) that the visa applicant be willing and able to provide to the Australian relative substantial and continuing assistance of the kind she needed.  The Tribunal explained that it would be asking questions of the review applicant and the visa applicant as to this matter. 

44. The review applicant, and Australian resident for the purposes of this review, is 93-years of age at the time of decision.  She is the aunt of the visa applicant.  The most recent CVAC before the Tribunal is dated 18 October 2019.  The review applicant was listed with a range of medical conditions that impacted her capacity for self-care which included Parkinson’s disease; osteoporosis; and cervical spondylosis.  The certificate states the review applicant required assistance with mobility; bathing/showering; toileting; dressing/grooming; eating/feeding; supervising medication; supervision for personal safety; and transportation.  The review applicant’s overall dependence with aspects of daily living (ADLs) was assessed as fully dependent. 

45. In relation to the functional assessment, functional impairment was found to be present with conditions impacting lower limbs; conditions impacting the spine; and continence. The examining doctor, Dr Lisa Bamberg, assigned the Australian resident an impairment rating of 40 points based on the relevant tables.

1. The review applicant provided the Tribunal with further evidence pertaining to her health.  These included correspondence from the review applicant’s GP Dr Narith Van dated 11 April 2024 that stated the review applicant was becoming frailer.  He stated the review applicant was suffering from Parkinson’s disease and major depression with psychotic symptoms.  A report was also provided from Dr Ernest Tam dated 16 March 2023 that stated the review applicant required 24 hours a day care and needed a carer for her safety due to the high risk of falls.  Dr Tam mentioned assistance was required with the review applicant’s daily living including with showering, dressing, toileting and feeding.  Emotional support for depression was also listed as an area the review applicant required assistance in.    

2. At the hearing the Tribunal discussed in great detail the requirement that the visa applicant was required to be willing and able to provide her aunt, the review applicant, with the substantial and continuing assistance of the kind she requires.  The Tribunal explained that if it was not satisfied it was the case, the Tribunal would affirm the decision under review.

3. The evidence before the Tribunal is that the visa applicant has visited the review applicant in Australia just once, a decade ago in 2014 when she visited Australia on a tourist visa.  The visa applicant stated she had also seen the review applicant in 1990 and 2001 when she visited Cambodia.  On the evidence of the review applicant and visa applicant, the visa applicant has not physically met the review applicant for 10 years at the time of decision. 

4. The visa applicant stated she and her husband, the secondary applicant, worked on a farm.  She also claimed to have undertaken some retail work.  They have no children. 

5. The Tribunal asked the review applicant what training and experience does her niece, the visa applicant, have in providing care to someone with her very considerable needs and why she was the most appropriate person to provide care.  She responded (with the assistance of her daughter who attended the hearing) that the visa applicant has no children, and furthermore she thought the visa applicant may have provided some care for her elderly mother.  She stated she was not quite sure what the visa applicant did for a living. 

6. The Tribunal asked the visa applicant as to why she was the most appropriate person to provide care to the review applicant.  The visa applicant stated that it was because she would treat her like her own mother.  In response to the Tribunal’s questions she claimed to have a little knowledge of English, but there was no evidence to suggest this.  She stated she did not drive.  The visa applicant claimed that she had experience over four to five years of caring for her late mother. In response to the Tribunal’s questions about the assistance the review applicant requires and the review applicant’s past medical history and medications, the visa applicant was vague, general and high-level in her responses.  

7. The Tribunal, noting the significant care needs of the review applicant, and having taken into account the evidence before it, retained significant concerns as to the ability of the visa applicant to provide the assistance of a kind the review applicant required. 

8. On 31 May 2024 the Tribunal subsequently wrote to the review applicant under s 359A of the Act noting for the grant of the visa, reg. 1.15AA(1)(f) requires that the visa applicant was willing and able to provide to the review applicant as the Australian relative the substantial and continuing assistance of the kind needed. 

9. The Tribunal noted that based upon the various evidence before the Tribunal pertaining to the review applicant’s own health and medical needs for significant assistance, as well as the evidence and written and oral submissions pertaining to the visa applicant’s ability and aptitude to provide the ‘substantial and continuing assistance’ the review applicant required, the Tribunal held significant doubts that the visa applicant was able to provide the assistance as required under the Regulations. The Tribunal notes the visa applicant has no familiarity with the Australian health system and accessing services, limited to no fluency in English, and no satisfactory evidence of providing constant care and assistance for an elderly individual with purported significant care needs.   

10. The Tribunal noted the information was relevant as the specific Regulations requires that the visa applicant is willing and able to provide to the Australian relative the substantial and continuing assistance of the kind needed. The Tribunal furthermore explained that the information is relevant because the Tribunal was not satisfied that the visa applicant had the skills required to provide the assistance she requires.  The Tribunal explained the consequences of it relying on this information in making its decision, is that the Tribunal may find the visa applicant is not willing and able to provide the nature of assistance the visa applicant required.  The Tribunal explained that if it made this finding, the Tribunal would affirm the delegate’s decision to refuse the visa applicant’s application.  

11. On 13 June 2024 the review applicant responded through her representative.  In a statutory declaration dated 12 June 2024 the visa applicant stated she was committed to providing 24/7 care to the review applicant.  She stated she was physically fit to care for the review applicant and provided a letter from a GP in Cambodia supporting this claim.  The visa applicant claimed she lived with her mother until she died in 2019 and was therefore experienced in providing constant care and assistance to an elderly individual with significant care needs.

12. The visa applicant stated she would be able to provide personal care; clinical nursing support; and domestic assistance.  She also provided a recent Letter of Offer dated 7 June 2024 to undertake a Certificate III of Individual Support from an Australian vocational education provider, the Pacific College of Technology, where she states she can equip herself with additional skills and knowledge of the Australian care system and Australian culture.  She states she has passed the English admission test to enrol and after completing the year-long course two days a week she will be able to understand the Australian health system, communicate with doctors and other stakeholders, and gain the skills to support people living with disabilities.  The visa applicant states she will also learn on the job training from the external carers that provide 7.5 hours a week care services to the review applicant.   

13. The Tribunal has considered all the evidence.  Whilst the Tribunal accepts the visa applicant is ‘willing’ to provide assistance to the review applicant, it remains dissatisfied that the visa applicant is ‘able’ to provide the ‘substantial and continuing assistance’ which the review applicant requires.  The level of continuing assistance required, based on the evidence before the Tribunal is significant.  

14. The Tribunal notes the claim the visa applicant has experience providing care services and assistance to her own elderly mother over a lengthy period of time, though there is no satisfactory evidence before the Tribunal to substantiate such a claim. The Tribunal found the applicant’s oral testimony concerning care related questions to be very general and lacking in detail for someone with the purported experience of the visa applicant.  There is no evidence and indeed no claim the visa applicant has undertaken training in care services previously.  The Tribunal does not subsequently accept the visa applicant’s claims that she has acquired the skills required to provide substantial and continuing assistance of the kind required by the review applicant through unsubstantiated care in the past for her own late mother.

15. The Tribunal notes the claim the visa applicant will obtain further training and experience in providing significant and ongoing aged care through undertaking a course through a vocational education provider named the Pacific College of Technology in Sydney.  The Tribunal does not place any significant weight on the Letter of Offer received from the College and the educational services it purportedly provides.  The Letter of Offer is not an enrolment. The Tribunal notes that there is no evidence before the Tribunal that the visa applicant is able to provide either the $8,400 tuition fee or the $29,710 living costs listed as fees and associated charges for the 52-week course.  The applicant states she and her husband work as farmers, and she has done some work previously in retail and through making dresses. The Tribunal is not satisfied she has the financial resources to actually take up the Letter of Offer and enrol in the course.  The Tribunal is not satisfied on the evidence before it that the visa applicant will, as an extension of such financial demands, have the financial resources and savings to provide the substantial and continuing assistance the review applicant requires.  The Tribunal considers there is at least a possibility circumstances and financial need will lead to the visa applicant seeking gainful employment, undermining her ability to provide the ongoing assistance she claims she will provide.  On the evidence before it, the Tribunal is not satisfied that the visa applicant’s personal financial situation means she is willing and able to provide the ongoing assistance required.

16. Furthermore, the Tribunal notes the vocational education course she states she will attend is conducted two days per week.  The review applicant, visa applicant and other family members have all consistently stated they are unable to provide the care the review applicant requires, and whilst the visa applicant states her husband will care for the review applicant whilst she attends these courses, there is no evidence to suggest the visa applicant’s husband has the skills to provide the care services and assistance the review applicant requires.      

17. The Tribunal is not satisfied the visa applicant has received any training, or has any past significant experience, in providing substantial and continuing assistance to someone in the situation of the review applicant. The Tribunal is not satisfied the visa applicant has the specialist skills necessary to provide the required assistance. The Tribunal notes her Letter of Offer as well as her claims to have previous long-term experience in providing assistance, but the Tribunal does not consider this equips her to be ‘able’ to provide the specific assistance the review applicant requires.  The Tribunal furthermore notes the review applicant requires the assistance she requires today, not in a year’s time after the purported completion of a Certificate III in Individual Support.     

18. The visa applicant has stated that she has passed the English admission test with the Pacific College of Technology to enrol in the Certificate III in Individual Support.  No evidence of such a test being undertaken has been provided beyond the Letter of Offer and the Tribunal retains significant doubts as to the fluency of the visa applicant in English. The Tribunal is not satisfied, based on all the evidence before it, that the visa applicant understands sufficient English to be able to navigate the emergency help services the review applicant requires should this become necessary.      

19. The Tribunal notes the claim by the visa applicant that she can learn on the job training from the external aged care services that visit the review applicant for 7.5 hours a week.  The Tribunal would note that these services exist to undertake specific domestic tasks and duties, they are not on the job training courses for unqualified or unskilled individuals that wish to provide care services.  The Tribunal puts little positive weight on the claim. 

20. The Tribunal has concerns as to the familiarity the visa applicant has with the assistance required by the review applicant.  The Tribunal notes that the visa applicant has not seen the review applicant in person for a decade. When asked what medications the review applicant took, and how many a day, the visa applicant was general and non-specific.  The Tribunal accepts the visa applicant wishes the best for her aunt.  The Tribunal is not however satisfied that the visa applicant has demonstrated on the evidence before it that she has the aptitude or awareness of the review applicant’s health and specific needs to provide her with the specific ongoing assistance she requires.

21. The Tribunal accepts the visa applicant is willing to provide her aunt with care and assistance.  The Tribunal does not on the evidence however accept the visa applicant has the skills and experience to provide the specific assistance required by the review applicant.  The Tribunal is not satisfied the visa applicant has any experience or training in providing the substantial and continuing assistance an elderly person like the review applicant requires.  The Tribunal furthermore is not satisfied the visa applicant has the financial support (without seeking regular employment) she requires to undertake and complete the Certificate III in Individual Support course at the Pacific College of Technology, and provide the substantial and continuing assistance her aunt requires. 

22. Therefore, the visa applicant is not willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and does not meet the requirements of reg 1.15AA(1)(f).

23. Given these findings 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.

24. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets the prescribed criteria for the visa sought.

25. The evidence before the Tribunal is that the visa applicant was born on 6 April 1974.  The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age  pension under the Social Security Act 1991. The visa applicant does not therefore meet the criterion for a Subclass 114 (Aged Dependent Relative) visa. 

26. To be assessed as a remaining relative the visa applicant must have no near relatives living outside Australia.  In the applicant’s form 47OF dated 2 March 2015 the visa applicant listed her mother as well as two sisters and a brother currently residing in Cambodia and none are Australian citizens, Australian permanent residents, or eligible New Zealand citizens.  The Tribunal is therefore not satisfied the visa applicant meets the criterion for a Subclass 115 (Remaining Relative) visa.

    Secondary visa applicant

27. The application of the secondary visa applicant Mr Chhunheang Sroem was refused by the delegate on the basis that the primary visa applicant’s visa had been refused. As the Tribunal has affirmed the delegate’s decision and found that the primary visa applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the applications of the secondary visa applicant.

28. The secondary visa applicant Mr Chhunheang Sroem does not meet cl 116.321 as he is not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.

29. There is no evidence, and no claims before the Tribunal, that the secondary visa applicant meets the primary criteria for the grant of an Other Family (Migrant) (Class BO) visa.

    DECISION

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

    . 

    Justin Owen
    Deputy President

    
    

    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.