LAM (Migration)

[2019] AATA 3977

LAM (Migration) [2019] AATA 3977 (19 July 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs THI NGOC PHUONG LAM

VISA APPLICANTS:  Mr HUYNH NGOC NGUYEN
Ms LE HA NGO

CASE NUMBER:  1726383

HOME AFFAIRS REFERENCE(S):           OSF2014/027565

MEMBER:Ann Duffield

DATE:19 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 19 July 2019 at 2:10pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – access to assistance – no enquiries made about support – no evidence provided – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cl 116, r 1.15AA(1)(f), Schedule 1 item 1123A,

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 and Border Protection on 14 September 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 21 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 (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.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate found that the applicant could not demonstrate that she could not receive the required assistance from a relative or from other services in Australia. The delegate therefore found that the applicant did not satisfy regulation 1.15AA(e).

4. The review applicant appeared before the Tribunal on 4 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and other relatives. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

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

   BACKGROUND

7. The parties provide the Tribunal with a copy of the delegate’s decision along with their application for review.

8. The applicant is a citizen of Vietnam born on 7 December 1960. The secondary applicants include his spouse/de-facto partner born on 8 November 1967 and a daughter.

9. The sponsor is a citizen of Australia born on 1 January 1930 (89 years old). She first arrived in Australia on 24 October 1990.

10. The applicant is the son of the sponsor. The application subject to this review was lodged on 21 April 2014.

11. The sponsor has two other sons who reside in Australia. One, Mr Quang Hien Nguyen (born 19 January 1965) 54 years old is a pharmacist in Melbourne.

12. The sponsor claims that her second son, Huu Loc Nguyen also lives in Melbourne but they have not spoken since around 1992.

13. Mr Quan Nguyen claims he cannot relocate to Brisbane to look after his mother because of his business and personal situation. He has provided a statutory declaration to that effect.

14. The sponsor claims that she is no longer in a position to care for herself and she relies on the periodic assistance of friends and neighbours. The latest carer assessment certificate is dated 17 July 2013 and gives the sponsor an impairment rating of 35 points. She requires direct assistance with all aspects of her day to day life. It’s unlikely that the impairment rating would have changed for the better given the advanced age of the sponsor. Be that as it may, this is not a criteria in question.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the requirements of regulation 1.15AA in relation to whether or not she can receive the care required from relatives currently in Australia or from other services as specified in 1.15AA(1)(e).

    Assistance cannot be reasonably obtained / provided – r.1.15AA(1)(e)

16. 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.

17. The applicant lives in Vietnam and has not been in regular contact with his mother until she visited him there in December 2018. He also claims not to have been in contact with his two brothers in Australia since the 1990’s and does not know what they do. He says that they get on with their own lives. He says that he saw his younger brother when he brought his mother to Vietnam in December 2018.

18. The Tribunal asked the applicant what kind of care his mother needed and he said that she cannot do anything for herself and she is living on her own. The Tribunal put to the applicant that the sponsor travelled to Vietnam on her own and lives on her own and at the age of 88 has been able to make arrangements to either look after herself or be looked after. The applicant said that someone always needed to be with her and that she had a mild stroke and she has a heart condition. The applicant said that the sponsor had an internal haemorrhage in 2017.

19. In relation to the sponsor’s present care arrangements the applicant said that she lives alone and social services come and help her once a week with the housework and she is responsible to arrange the food for herself. He does not know how big the sponsor’s house is or what his and his family’s living arrangements will be. The Tribunal put to him that it had an expectation that he would have a very clear idea about how he and his family would be living and where. It put to the applicant that the reason he didn’t know anything about the sponsor’s living arrangements or her home was because he had no intention of living there to look after her. The applicant denied this.

20. The applicant told the Tribunal that he talks to the sponsor once a week and does not know how the sponsor supports herself financially. He said that both he and his wife would work when they arrived in Australia. The Tribunal put to the applicant that he had just told it that he would have to spend all his time looking after the sponsor. The applicant said that his wife would work.

21. The sponsor told the Tribunal that she lives in a room in a shared house with Mr Ding who used to be the brother-in-law of her deceased husband. She said that he had recently become ill and she was looking after him however, it was becoming more difficult to do so given her own conditions. The Tribunal asked her what help she was getting and she said that she received help from friends.

22. The Tribunal asked the sponsor if she had sought help from aged care services or received any help from any other government or private agency. She said that she had not asked for or sought help from outside agencies.

23. The applicant made a statutory declaration in October 2016 stating that she has had no contact with her two sons in Australia and does not know their whereabouts or their family composition since 1992. She claimed not to have any means of making contact with them. However in February 2019 the sponsor was able to obtain a statutory declaration from Mr Quang Hien Nguyen, stating that his circumstances were such that he was unable to look after his mother. She has made no statement about what efforts she made to locate her son or whether she made any other efforts to locate her second son.

24. The Tribunal asked the sponsor how she planned to provide financial support and accommodation for her son and his family and she said that the house had three bedrooms and she hoped the house owner would let them stay. She said she had some savings and got an aged pension. She has provided no evidence of her financial capacity to support the applicant and his family or provide housing for him and his family for the required time.

25. The sponsor also claimed that she had a daughter in Canada and a niece and nephew in the US that send her money. The Tribunal asked her why her sons in Australia did not help her and she said that they were estranged from her.

26. The sponsor has not provided any evidence to support her statement that her second son is estranged from her, that he lives in Melbourne or that he cannot reasonably provide the relevant care, or that he is unwilling or unable to provide the necessary assistance.

27. The Tribunal found the applicants and the sponsor’s evidence in relation to the sponsor’s other two sons in Australia to be lacking in relevant detail, unreliable and untruthful. On the one hand the sponsor made a statutory declaration that she had no idea of the whereabouts of her two sons since 1992, yet was able to produce a statutory declaration from one of them in 2019. Furthermore, the applicant has no information about the sponsor’s living arrangements, her financial status, how he and his family will live or where or that his mother was living with a male relative of her deceased husband.

28. Neither the sponsor nor the applicant were able to provide any information about what efforts had been made to locate her allegedly estranged son or any evidence that either of the parties tried to locate him. The Tribunal is not satisfied that the sponsor’s second son is estranged from her or that she does not have any contact with him.

29. The sponsor told the Tribunal that she has not even tried to obtain information about what kind of care and assistance she would be eligible to receive from the government. The sponsor has provided no evidence that she has been unable, because of her illness or any other reason, to make the relevant enquiries of the government to provide the relevant care. Furthermore, whilst she claims that she receives no help from the government, the applicant claimed that she received help one day a week.

30. The sponsor has, despite her evidence ill health and age, managed to look after herself, or find others to help look after her since this application was lodged in 2014; that is, for over five years.

31. Given the unreliability and lack of relevant detail of the evidence provided by the sponsor and the applicant, the Tribunal is not in a position to be satisfied that the sponsor is unable to reasonably obtain the relevant assistance she requires either from one of her two sons or from government services. Since she has not even made enquiries about the services available to her and hence make a judgement about whether they would be culturally or otherwise appropriate, the Tribunal cannot be satisfied that the sponsor cannot reasonably obtain relevant and appropriate assistance. The sponsor is mobile and able to look after herself or make arrangements to be looked after. This is apparent from her efforts of the past five years. There is no evidence that the sponsor requires specialised services or full time care. The applicant has indicated that he, his wife and daughter intend to work when they arrive in Australia, which suggests he does not anticipate that his mother, the sponsor, requires a high level of care, or indeed that he intends to care for her at all. The Tribunal is therefore not satisfied that the requirements of r.1.15AA(1)(f) are met.

32. Having carefully considered and weighed the evidence before it, the Tribunal is not 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 also not met.

    CONCLUSION

33. 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 sponsor, and therefore does not satisfy cl.116.221.

34. 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 prescribed criteria for the visa sought.

    DECISION

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

    Ann Duffield
    Senior 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.