Le (Migration)

[2021] AATA 1646

Le (Migration) [2021] AATA 1646 (14 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr Phuc Thien Le

VISA APPLICANTS:  Mr Duc Tan Nguyen
Mrs Hoang Thuy Tien Luong
Mr Duc Tien Nguyen

CASE NUMBER:  1722092

HOME AFFAIRS REFERENCE(S):          2013028080 OSF2013/028080

MEMBER:Helen Kroger

DATE:14 April 2021

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 14 April 2021 at 2.37pm.

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian citizen – required assistance could be provided by relatives in Australia – carer for sponsor’s son – sponsor’s son lives alone – community health order with support services – living independently – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 116.221; r 1.15

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 23 August 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 20 November 2013. 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.116.22. A carer is further defined at Regulation 1.15AA of the Migration Regulations 1994.

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 required assistance could not be provided by relatives in Australia.

4. The review applicant (applicant) appeared before the Tribunal on 13 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s wife, Ms Nguyen.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant provided a copy of the delegate’s Decision record for the purpose of its review.

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 grounds to support the subclass 116 (Carer) visa are met. Regulation 1.15AA(1)(e) requires that assistance cannot reasonably be provided by: (i) any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen; or (ii) obtained from welfare, hospital, nursing or community services in Australia.

   BACKGROUND

8. The review applicant (applicant), Dr Phuc Thien Le, is a 75 year-old Australian citizen who is seeking to sponsor Mr Duc Tan Nguyen, a Vietnamese national and his nephew, the primary visa applicant, to Australia as a carer for his son, Mr Thien Ngon Le. The primary visa applicant and his son, Mr Thien Ngon Le, are first cousins. Documentation has been submitted to the Tribunal to indicate Mr Le’s medical condition. A copy of a Carer Visa Assessment Certificate, dated 23 May 2014 , completed by Medibank Health Solutions, indicates that Mr Le at that time was assessed with an impairment rating of 30 based on the Social Security Tables and in it’s consideration of the document, the Tribunal is satisfied that this is a true and genuine document (folio 27). Various medical documentation was submitted to the Department, including a medical certificate and psychiatric report dated 1 March 2013, Mental Health Review Board Determination 1 March 2013, with a continued detention report dated 15 October 1993, clinical and social worker report, dated 13 September 2013, psychiatrist report dated 29 April 2014 along with further documentary submissions that support the applicant’s claim that his son has experienced a long term mental health condition, variously described as schizophrenia with related conditions. The applicant provided further oral evidence during the hearing in relation to his son’s mental health condition and the Tribunal is satisfied that the applicant’s son, Mr Thien Ngon Le has and continues to suffer mental health issues, and that he has been prescribed medication, in order to manage the condition.

9. The applicant told the Tribunal that he has seven adult children, with one child living in the United States, two sons live in Sydney with their families, one son lives in Vietnam (Tony Le), who previously assisted in the care of his brother, and three children live in Melbourne – two daughters and the son in need of care. The applicant told the Tribunal that the two daughters who live in Victoria are both married with children and that one daughter lives around 15-30 minutes away and the second around one hours drive.

10. The applicant told the Tribunal that his son, Mr Ngon Le lives independently in Footscray in a unit supported by the government. He confirmed that he doesn’t live with anyone. The applicant explained that he used to live with his brother Mr Tony Le who moved to Vietnam nearly two years ago, and that this son who assisted with care, is now married with his own family, living permanently in Vietnam.  The applicant’s youngest child, a daughter, is around 40 years old.

11. The applicant told the Tribunal that the Mr Ngon Le has been living on his own for the last two years since his brother moved to Vietnam. The applicant indicated that he is worried about him because he cannot cope with daily life such as cooking and washing. He told the Tribunal that the last ‘incident’ experienced by the Mr Ngon Le took place in September 2020 when the Covid 19 related restrictions on movement had been imposed in Victoria. The applicant tried to contact his son without success, visited his house and couldn’t locate him and subsequently reported his absence to the police. He received a phonecall from the Mercy Hospital to advise him that his son had been admitted, and he told the Tribunal he was provided limited information.

12. The applicant explained that his son  had told him that he doesn’t want to see him since this time and that he wont admit either his father or his wife to his unit if they visit. The applicant’s wife claimed that they took him some food two weeks before the hearing, and that he wouldn’t admit them and that they left the food on the doorstep. Mr Ngon Le is subject to a community treatment order, has an assigned case manager, and it is through that manager that he has communicated to his father that he doesn’t want to see him.

13. The applicant indicated that this visa application was old, that Mr Ngon Le had agreed to his cousin providing support for him at the time of the application, and that there was no indication that he had changed his view. The applicant told the Tribunal that he had not spoken with his about this visa application since it was lodged.

14. He explained that his son who moved to Vietnam, would take Mr Ngon Le shopping, remind him about his medication, keep him company, provide emotional support, and took him to Doctor appointments.

15. The applicant told the Tribunal that the application was made a long time ago, that the situation had changed, that the applicant lived alone, that he was getting old himself and had his own health problems, that he was worried about his son and that he wanted someone to stay with him so he knew that he was ok.

16. Ms Nguyen, the applicant’s wife, told the Tribunal that Mr Ngon Le had come home and stayed with them a couple of times around the Chinese New Year and that when Tony Le his brother lived with him, that he had company, someone to socialise with, provide him emotional support and could support him, that his sisters in Victoria were not close to him and indicated that there wasn’t anyone else in the family who took any interest in his welfare.

17. The Tribunal has carefully considered all the evidence before it with particular regard to the oral evidence provided by the review applicant and his wife at the hearing that indicates that the Mr Ngon Le  lives independently and that his mental health issues continue to be of great concern to his father. Whilst the Tribunal has great sympathy with the applicant and his continuing concerns about his son’s health, it has considered the applicant’s submission regarding the Mr Ngon Le rejecting any contact with his father and step mother. The Tribunal is satisfied that the applicant is living independently under the direction of a community health order, that he has been assigned a case manager, and that the applicant now has limited insight or input into his son’s living arrangements. The evidence before the Tribunal indicates that the Mr Ngon Le is the recipient of community services and has been able to access support services, whether deliberately or otherwise.

18. The Tribunal is not unsympathetic with the applicant’s stated wish that he would like his nephew to be able to move to Australia and live with him, so that he could supervise him closely and provide emotional support and companionship.  The Tribunal finds this a reasonable sentiment from the applicant, given his demonstrated concern for his son and his increasing age. Notwithstanding these stated genuine good intentions, there is no evidence before the Tribunal to indicate that the Mr Ngon Le would accept this support if provided, given the oral evidence that indicates that he is rejecting direct contact and offers of help from his father and step-mother.

19. 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.

20. The Tribunal has given particular regard to the oral evidence provided during the hearing that indicates that the Mr Ngon Le has lived independently for at least two years, in a unit provided by the Government, where he lives on his own. The evidence before the Tribunal indicates that he is supported under a community health plan, and that he has a case manager who supervises his mental health plan. He is not dependent on any family member and has limited his contact with his parents and has limited, if any, contact with his six siblings and their respective families. There is no evidence before the Tribunal to indicate that they cannot provide any support, emotional or physical, or between them provide a degree of companionship to him.

21. Accordingly the Tribunal finds that the Mr Ngon Le is able to access and reasonably obtain assistance from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e)(ii) are not met. 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 son of the review applicant, and therefore does not satisfy cl.116.221.

22. It follows, that as the primary visa applicant does not satisfy the requirements of cl.116.221, the secondary applicants do not satisfy the criteria as set out above.

    DECISION

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

    Helen Kroger
    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.