Lai (Migration)

[2018] AATA 366

Lai (Migration) [2018] AATA 366 (5 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Si Phuong Lai

CASE NUMBER:  1701247

DIBP REFERENCE(S):  CLF2016/30088

MEMBER:Moira Brophy

DATE:5 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 05 February 2018 at 2:26pm

CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Requirement for applicant to be sponsored - Capacity of sponsor to agree to obligations – Severe degenerative illnesses – Sponsor not in a position to agree to obligations – Applicant put on notice to acquire Power of Attorney – Power of Attorney not acquired – Applicant not sponsored as required

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 120(2)(a), Schedule 2, cls 836.213, 836.227

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 Immigration on 4 January 2017 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 17 May 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 (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.836.227.

3. The delegate refused to grant the visa on the basis that cl.836.227 was not met because the delegate was not satisfied the sponsor could fulfil the sponsorship undertaking at the time of decision.

4. The applicant appeared before the Tribunal on 25 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from daughter of the sponsor Ms Si Manh Lai.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by her registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Tribunal Proceedings

   Evidence of Visa Applicant

7. The visa applicant told the Tribunal that she came to Australia in January 2016 and she was living with her mother and younger sister. Her younger sister has two children who were aged 14 years and eight years old. The house they live in is rented by her younger sister and she pays $400 per week rent. The applicant said that her sister was in receipt of a disability support pension from Centrelink and her mother was in receipt of the age pension. The applicant does not have a source of income.

8. When asked what her routine was each day the applicant said that she pass her mother in the morning and changes her nappy. She then feeds her and gives her her medication. After that she does the washing and she cooks the lunch for her mother. She feeds her her lunch and then is she massages her arms and legs. After that she will prepare the evening meal, then feed her mother and put her to bed. She said her mother had required someone to feed her for about a year now. She said her mother was no longer mobile. When it was put to her that that assessment of her functional impairment was contrary to the view of the doctor expressed in the medical report of April 2016 she said she had no comment to make.

9. The Tribunal asked about the siblings of the applicant. She said Thay Trinh was the eldest in the family and she lives near to where her mother lives. She said Thay Trinh sees her mother fortnightly. She is in paid work sewing from home. She has three children who are all grown up and married. Her eldest sister is in good health.

10. Her brother Quang lives with his wife close to where his mother lives. He has two children who are growing up and married. He sees his mother weekly; he is not working and is on a Centrelink payment.

11. The applicant’s siblings Hon Minh, They Mai and Si Sing live in the USA.

12. Hon Trung lives close to the applicant and her mother. He is married with two grown up children and he, his wife and children are all in paid work. He sees his mother weekly.

13. The applicant’s youngest sister, Si Hoa is living in Vietnam. He brother Hon Tan lives near where her mother lives. He is married with two children and he works as a handyman. He sees his mother weekly or fortnightly.

14. The applicant resides with her sister Si Manh. The applicant said Si Manh is not able to cook as ‘her arms are too weak.’ She is only able to use her left arm. She was previously able to cook but is now not able to.

15. The applicant said she did not have any family other than her one sister living in Vietnam. She owns her own home in Vietnam and her nephew is currently living there but he does not pay rent.

    Evidence of Si Manh Lai

16. Ms Si Manh Lai told the Tribunal that her mother has lived with her for the past 10 years. Ms sleigh said her mother and father had originally lived on their own but when they required extra assistance they came to live with her. Ms Si Manh Lai said that she had been in receipt of a disability support pension from Centrelink since 2006. Her mother is in receipt of an aged person’s pension. Her older brother Quang used to receive the carer payment from Centrelink but Ms Si Manh Lai said that was for care provided to their father who has since passed away. Her older brother is now in receipt of newstart.

17. Ms Si Manh Lai said her older sister lives at St John’s Park and is married with three children. She lives with her eldest daughter and is not in paid employment. This sister comes to visit their mother two days a week and she brings food to her mother.

18. Her brother Quang lives that Fairfield with his two sons. He drops in to see his mother on a fortnightly basis. Her sister Si Sang is in the USA and her next sibling Hong Truong lives nearby at St John’s Park. He is married with two kids and he works at a tissue company. He comes to see his mother once every two or three weeks. The next three siblings are resident overseas. Hon Tan is divorced and lives at Fairfield with his two sons he is working at a timber place and he comes to see his mother every four or five weeks.

19. When asked if her mother’s condition had changed in the preceding 12 months she said that she was no longer able to walk and stand. She used to be a lot stronger than she is now. Her mother sees the doctor every three or four weeks.

20. When asked what care she provided for her mother she said that she applies cream to her skin and that she talks to her. She said that she assists her sister to take care of their mother. She said she does things like cut her nails and clean her ears.

21. Ms Si Manh Lai said her sister does the cooking but that she cooks as well but because she has sore legs she is not able to stand a lot. Ms Si Manh Lai said that she does the grocery shopping and her sister gives her mother her medication each day. Ms Si Manh Lai said that she drives to the shops to obtain the medication as her sister does not drive. She said sometimes the pharmacist brings the medication to the house.

22. When asked who May Tran was that was referred to in the initial application Ms Si Manh Lai said that she was a friend of hers and that she helps her with transport, because of her disabilities she is sometimes limited in what she can do. She said that Ms Tran helps whenever needed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the criteria are met for the grant of a carer visa both at the time of application and at the time of decision.

    SPONSORSHIP

    Are the sponsorship requirements met?

24. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).

25. Regulation 1.20(2)(a) specifies the obligations of a sponsor in relation to an application for a permanent visa (which includes an 836 Carer visa).

26. It is specified in Regulation.1.20 that if the applicant is in Australia, the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation during the period of 2 years immediately following the grant of that visa.

27. Cl. 836.227 requires that the sponsorship mentioned in cl 836.213 has been approved by the Minister and is still in force.

28. The Tribunal carefully considered the evidence on file as to whether the sponsor was able to undertake these obligations at the time of application:

    ·A  geriatrician report prepared by Dr Ernest Tam and dated 4 February 2016 states that he reviewed Mrs Lai (the sponsor) on 28 January 2016. Her daughter Ms Si Manh Lai was present at the time of review as was a Vietnamese interpreter.  Dr tam opined mrs Lai was suffering from multiple and complex permanent and disabling cognitive and medical conditions which include the following:

    “Dementia, mixed type including Alzheimer disease and vascular dementia. Mrs Lai presented with progressive loss of memory, forgetfulness, wandering behaviour. She is unaware of danger and would fall over. She acts like a baby. Mrs Lai requires 24 hours care and supervision from her family members for her activities of daily living. Her Mini Mental State Examination score today was 7/30 (orientation 1/10, attention 0/5, recall 0/3) Glabellar and bilateral Palmomental reflexes are negative. Limb reflexes are normal and symmetrical.”

    In summing up at the conclusion of his report Dr Tam stated in part “Mrs Lai is suffering from multiple and complex cognitive and physical conditions that are causing an impairment of her ability to attend to the practical aspects of her daily life.” (ff58-61, DIAC file)

29. According to a handbook issued by the Royal Australian College of General Practitioners  “Patients with Alzheimer disease are likely to score at least 21 on the MMSE for mild disease, 10-20 for moderate disease, and 9 or less for severe disease.”

30. A letter dated 26 May 2015 from Dr Dang Vu Tran of Medlife Family Medical Centre gave as part of her past medical history Dementia/Alzheimers Disease. A further letter from Dr Dang Vu Tran dated 2 September 2016 referred to Mrs Lai having ‘chronic severe dementia (Alzheimer’s Disease) with deteriorating general health and quality of life.’ It went on to say ‘she has poor memory, severe forgetfulness with psychotic symptoms.’

31. The Tribunal is satisfied on the medical evidence referred to above that the sponsor was not in a position to agree to the obligations imposed on her by the regulations at the time of application. An examination of the file is indicative of the applicant having been put on notice of this issue and of having been given the opportunity to provide a Power of Attorney. That document was not provided as it would appear there was not a Power of Attorney in operation at the time of application.

32. Therefore, at the time of application, the applicant was not sponsored as required by the legislation and does not satisfy cl.836.213.

33. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

    Moira Brophy
    Member