Luong (Migration)

[2020] AATA 1446

Luong (Migration) [2020] AATA 1446 (17 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr An Gia Luong

CASE NUMBER:  1818588

HOME AFFAIRS REFERENCE(S):          CLF2015/34734

MEMBER:Adrienne Millbank

DATE:17 April 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 April 2020 at 10:55am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s capacity to understand sponsorship obligations – stroke and dementia – living in nursing home – care provided to sponsor by applicant – criminal convictions and imprisonment – bridging visa cancelled – other relatives unable to provide care – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), rr 1.15AA, 1.20, Schedule 2, cls 836.213, 836.221, 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 Home Affairs on 26 June 2018 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 was born in Vietnam in 1995 and is 24 years old at the time of decision. At the time of application, the applicant identified his sex as female. At the time of decision, he identified as a male. He advised the Tribunal that he began transitioning in 2017, and wished to be addressed as Mr Luong.

3. The sponsor was born in Vietnam in 1935 and is of Sino-Vietnamese background. She was 80 at the time of application and is 84 years old at the time of decision. The sponsor first arrived in Australia in 1992. She obtained Australian citizenship by grant in 1994. She has seven children, including two daughters living in Australia, in Sydney and Brisbane. She has two grandchildren living Brisbane, the applicant and another grandson who is aged 30 at the time of decision.

4. The applicant first arrived in Australia in September 2011 on a Student (Subclass 571) visa. He was granted a further Student (Subclass 573) visa on 6 May 2014.

5. After the applicant’s arrival in Australia in 2011, he lived with his aunt in Brisbane who, at that time, was also sharing the house where she lived with her partner and son (the applicant’s cousin), with her mother (the sponsor). The applicant’s aunt and the sponsor had a ‘falling out’ in 2014; the applicant’s aunt told the sponsor to leave the house; and the applicant moved with the sponsor into a granny flat in a share house. The sponsor was in receipt of the age pension, and the applicant, who as noted was on a Student (Subclass 573) visa at the time, worked part-time in a supermarket.

6. The applicant applied for the visa on 5 June 2015 based on his claim to be caring for his grandmother.

7. At the time of application, 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 cls.836.213 and 836.227, and cl.836.221.

8. The delegate refused to grant the visa on the basis that cl.836.213 was not met. The delegate was not satisfied, based on the sponsor’s medical diagnosis of Dementia at the time of application, that the sponsor had the capacity to understand her sponsorship obligations. The documents provided to the Department included a Bupa Carer Visa Assessment Certificate (CVAV) dated 5 May 2015. This rated the sponsor 30 for Dementia, and stated:

   The resident is reported to get disorientated in time, place (tends to get lost easily – therefore carries with her ID card) and person (lack of recognition).

9. The application was queued in June 2016 when the annual cap for the visa class was reached. In December 2016, the sponsor suffered a stroke and was admitted into the Royal Brisbane Women’s Hospital. From there, in March 2017, she was admitted into in a nursing home in New Farm, where she has since lived.

10. The delegate’s decision record indicates that on 21 April 2018, when the application was reactivated, the Department requested the applicant to provide evidence to show whether any person had legal authority in place to make health and lifestyle decisions on behalf of the sponsor. The applicant was also requested to provide a new CVAC for the sponsor, and a new sponsorship form. At the time of the delegate’s decision, the information and evidence requested had not been provided.

11. On 15 June 2018 the applicant was arrested and place on remand in Brisbane Women’s Correctional Centre. He was released on bail on 20 August 2018, and returned to prison on 23 July 2019. An Administrative Form – Notice of Placement Decision from Queensland Corrective Services dated 28 August 2019 provided by the applicant to the Tribunal shows that the applicant was sentenced on 23 July 2019 to eight months’ imprisonment, with a custodial end date of 22 March 2020. It shows that the applicant was sentenced, in the Brisbane District Court, for the offences of:

    Producing dangerous drugs schedule 2 drug quantity of or exceeding schedule 3 × 3; Possessing dangerous drugs schedule 2 drug quantity of or exceeding schedule
    3 × 3; Possessing anything used in the commission of crime defined in part 2 × 4; Possessing dangerous drugs and Supplying dangerous drugs.

12. The Queensland Corrective Services documents provided to the Tribunal by the applicant also show that the applicant was required to appear before the Brisbane Magistrates Court on 30 August 2019 for the offence of ‘Unlawful taking of electricity × 3’.

13. The applicant’s Bridging visa was cancelled under s.501 on 25 October 2019, and on Friday 20 March 2020 he was transferred to the Brisbane Immigration Transit Accommodation (BITA).

14. The applicant appeared before the Tribunal by video from BITA on 26 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence by phone from the applicant’s aunt and girlfriend. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

15. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing by phone.

16. The Tribunal noted at the outset of the hearing that the delegate had refused the visa on the basis that cl.636.213 was not met, however the circumstances of the case had changed since the application was lodged and the delegate’s decision was made. The Tribunal advised the applicant that the criteria for the grant of the visa included that, at the time of the Tribunal’s decision, the sponsorship is approved by the Minister and still in force; and that he is the carer of the sponsor. The Tribunal advised the applicant that it would be considering whether the sponsor has the capacity to understand her sponsorship obligations, and whether the applicant meets the definition of carer as set down in r.1.15AA, at the time it made its decision. The applicant indicated that he understood that the Tribunal would be considering whether he met the time of decision criteria in cls.836.221 and 836.227.

17. The Tribunal asked the applicant and the representative, Ms Thi Kim Anh Nguyen of Jack Ta and Associates, why a sponsorship Form 40 had been provided to the Tribunal which had not been lodged with the Department; why this form was signed (on 18 May 2018) by the applicant’s aunt, who had no legal authority to undertake sponsorship obligations on behalf of the sponsor; and why, under ‘Your residential address’, it provided an address in Annerley where the applicant claimed to live, when the sponsor has resided in a nursing home in New Farm since March 2017. The applicant stated that he filled in the form with the help of his agent. The representative stated that a revised sponsorship application form was unable to be submitted to the Department following the visa refusal; that it was provided for the ‘information’ of the Tribunal; and that she was not aware that a nursing home could be put down as a residential address.

18. A new Bupa CVAC, signed on 7 June 2018, was also provided to the Tribunal. There is no information before the Tribunal to indicate that this was received by the Department. This CVAC assigned to the sponsor an impairment rating of 50, and advised that her need for personal care, supervision and monitoring was ‘permanent (at least 2 years)’. The accompanying Carer Visa Report stated that the main medical condition that ‘may impact the sponsor’s capacity to self-care’ following her stroke was:

    Right hemiparesis and Right-side neglect secondary to Left Thalamic Haemorrhage (Haemorrhagic Stroke) — December 2016.

    It stated under Summary Comments:

    Since her stroke, [the sponsor] has been placed in an aged care facility where she can be cared for 24 hours throughout the day. She is now fully dependent on others and requires close supervision for her self-care and safety.

19. A copy of a Power of Attorney document, signed by the sponsor on 15 February 2017, appointing the applicant with power over the sponsor’s financial and personal health matters, was provided to the Tribunal.

20. Following the hearing, on 9 April 2020, a post-hearing submission by the representative was received by the Tribunal. The Tribunal has considered the post-hearing submission and the further documents and photographs provided.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issues in the present case are whether, at the time of this decision, the applicant was sponsored by his Australian relative, and whether the applicant was the carer of the Australian relative.

    Are the sponsorship requirements met?

23. 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).

24. Clause 836.227 requires that at the time of decision, the sponsorship mentioned in cl.836.213 is still in force.

25. In this case, the applicant claims to be sponsored by his Australian citizen grandmother.

26. As noted, the CVAC provided at the time of application diagnosed the sponsor as suffering from Dementia, and identified this as the major health issue contributing to her impairment rating of 30. The representative argued, in a written submission dated 17 March 2020, that the sponsorship form was signed on 3 March 2015, two months prior to the CVAC dated

    
    

    5 May 2015, and there was no evidence that at the time of the sponsor signed the Form 40 she had Dementia. The representative further submitted that the CVAC dated 7 June 2018, which certified that the sponsor has an impairment rating of 50, stated that the sponsor’s stroke left her with only ‘moderate impairment to her brain function’. The Tribunal notes that the CVAC advises, under Functional Assessment Table 7: Brain Function, that there is functional impairment present, and that:

    Since her stroke [the sponsor] has been left with moderate impairment to her brain function. She is unable to problem solve and efficiently manage her affairs. She has appointed her grand-daughter [the applicant] as her Enduring Power of Attorney. In her GP report, [the sponsor’s] speech has been formally assessed in Cantonese and she has expressive and receptive dysphasia [impairment of the ability to express or understand language]. In her premorbid state [the sponsor] was living with her grand-daughter and fully independent with activities of daily living. Since her stroke, she has difficulty planning and decision making. Her memory appears largely intact as she remembers the frequency and timing of her medication but still requires assistance preparing the medication. [The sponsor] still remembers the names of certain family members. Her self-awareness is also intact as she understands the loss of function to her right arm and leg.

27. The applicant advised at hearing that he disagreed with the first CVAC’s diagnosis of Dementia. He stated that the sponsor appeared confused on the day of the medical examination because she was anxious, and she did not suffer from Dementia. The Tribunal put to the applicant the proposition that without the diagnosis of Dementia, the sponsor would not have received an impairment rating of 30, required to justify a carer. The applicant stated that his grandmother needed him to care for her at the time of application because she was old and, at over 70 kilograms, overweight. The Tribunal put to the applicant that in 2015, besides holding down a part-time job, he was occupied in the production and supply of drugs. The applicant acknowledged that he was engaged in activities other than caring for the sponsor in 2015, but claimed that he nevertheless found time for her every day.

28. The Tribunal put to the applicant at hearing that the sponsor was unable, following her stroke and confinement in a nursing home, to understand or take on the obligations of a sponsor in relation to the visa, including the expectation that the sponsor would assist the applicant to the extent necessary, financially and in relation to accommodation. The applicant acknowledged that the sponsor has never supported him financially; that the sponsor has not provided him with accommodation; and that the sponsor’s government pension has since March 2017 gone to the nursing home as a contribution towards the cost of her care. He acknowledged that he himself has no source of income and does not own residential property.

29. The applicant nevertheless stated that it is his intention, in the future, to remove the sponsor from the nursing home and to look after her by himself. He acknowledged the medical advice that full-time, 24-hour a day care is required for the sponsor, and that he would not be able to go out to work if he was caring for her. He stated that he and the sponsor would live off the sponsor’s government pension. In the post-hearing submission received on 9 April 2020, the representative stated that the applicant would be eligible for a ‘Carer Payment’ from Centrelink.

30. The applicant claimed the sponsor wants to leave the nursing home and live with him. He claimed that even though the most recent medical assessment conducted by Dr Michael Horwood in 2019 indicated that two nursing assistants were required to meet a number of the sponsor’s care needs, including going to the toilet, he had his own techniques for lifting her and managing her physical needs.

31. The Tribunal asked the applicant why, if the sponsor did not want to be in a nursing home and he was willing and able to look after her full-time, the sponsor went into a nursing home in March 2017 and has stayed there. The applicant stated that he was told by doctors when the sponsor was in hospital following her stroke that the sponsor had to go into a nursing home because he wouldn’t be able to look after her. No evidence was provided by the sponsor that she wishes to leave the nursing home and consign herself to the care of the applicant, and the Tribunal finds the applicant’s claim to intend to remove the sponsor from the nursing home and care for her by himself unconvincing and self-serving.

32. The Tribunal acknowledges that the applicant has power of attorney over the sponsor’s financial and health matters, but considers the sponsor’s circumstances of being fully dependent indefinitely on care in a nursing home renders her unable to understand the undertakings and obligations of a sponsor for this visa application. The Tribunal notes from the most recent (7 June 2018) CVAC assessment that the sponsor is unable to problem-solve and efficiently manage her affairs. The Tribunal finds, regardless of whether at the time of application the sponsor suffered from Dementia and needed a carer, that following her stroke in December 2016 and at the time of decision, the sponsor does not have the right mental capacity to make the sponsorship undertaking in relation to r.1.20.

33. Therefore, at the time of decision, the sponsorship is not in force and the applicant does not satisfy cl.836.227.

34. For the sake of completeness, the Tribunal has also considered whether the applicant is the carer of the sponsor.

    Whether the applicant is a carer

35. Clause 836.221 requires that at the time of decision, the 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.

36. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03, i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s paternal grandmother.

37. As the applicant is the granddaughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

38. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

39. For a certificate to meet r.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.

40. The Tribunal finds that the certificate issued by Bupa on 7 June 2018 meets the requirements of r.1.15AA(2). The Tribunal is satisfied that the certificate was issued on behalf of a specified health service provider and signed by the medical adviser (Dr Michael Horwood), who carried it out, and that the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

41. 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.

42. In the present case, the person with the medical condition is an Australian citizen. Evidence was provided in the form of an Australian Citizenship Certificate that the sponsor obtained Australian citizenship by grant in 1994. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

43. 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.

44. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

1. Where the person to whom the certificate relates is not the Australian relative (resident) but a member of their family unit, r.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 r.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.

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

3. 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.

4. The Bupa CVAC dated 7 June 2018, under Current Care Requirements, states:

   [The sponsor] is currently staying at a permanent 24-hour residential aged care facility called Palm Lodge Nursing Home. Her granddaughter [the applicant] visits her there daily and brings her home cooked Asian meals for dinner. As her maiden language is Cantonese, [the sponsor] has difficulty expressing herself in English. Her granddaughter has been able to communicate with her fluently in Vietnamese and Cantonese.

5. The Tribunal put to the applicant that he was arrested one week after the CVAC report was signed, and has not visited the sponsor daily and brought her home-cooked Asian meals because he has been in prison or immigration detention. The applicant claimed that while he was on bail, from 20 August 2018 to 23 July 2019, he cooked for and visited the sponsor every day. The Tribunal put to the applicant that he was in full-time employment while on bail; that his place of work was about 14 kilometres away from the sponsor’s nursing home; and that his place of residence was about 15 kilometres away from the sponsor’s nursing home. The applicant acknowledged these facts but claimed he nevertheless cooked for and visited the sponsor every day while on bail. He further claimed that while incarcerated, his girlfriend visited the sponsor in his stead and provided home-cooked Vietnamese meals, even though the sponsor did not like her cooking so much. The applicant’s girlfriend in a statutory declaration with an illegible date provided to the Tribunal, and at hearing, supported the applicant’s claim that she visited the sponsor while the applicant was in prison. Photos were provided from the applicant’s girlfriend’s mobile phone showing that she was in the nursing home.

6. The Tribunal accepts that the sponsor has been visited in her nursing home by the applicant and by his girlfriend, but does not accept that these visits constitute care that cannot be reasonably provided by the nursing home. The Tribunal notes that Dr Michael Horwood of Merthyr Medical Centre, who provided the medical assessment for the CVAC of 7 June 2018, provided a letter dated 8 May 2018 in which he stated that the sponsor has been in his care since her admission to the nursing home in March 2017; that the sponsor ‘has a CVA and been left hemiplegic’; and that the sponsor ‘is dependent on full time care, which is currently provided by Nursing home care’.

7. The Tribunal further notes that the Comprehensive Medical Assessment provided by Dr Michael Horwood in July 2019 states under the heading ‘Immediate Action’ that the sponsor requires a nutritious soft diet and fluids, and directs:

   Dietary needs. Set up/positioning. Supervision for all meals and drinks. Prompt and encourage to continue eating. Place food on cutlery at times during the meal to encourage to continue or complete eating. Assist as necessary with feed. Monitor intake.

8. Under ‘Interventions’, the assessment directs:

   Staff to cut up food and position [the sponsor] for meals … [the sponsor] is at risk of aspiration due to Hx of CVA. Staff standby in case physical assistance is required during all oral intake. Staff to assist her with feeding due to limited dexterity secondary to CVA. She also needs verbal prompts to complete all food/fluids. Monitor food intake. Weigh monthly and refer to dietician or speech pathologist for any dietary or weight concerns.

9. The applicant advised at hearing that the sponsor weighs around 55 kilos. He stated that she is no longer overweight. He did not claim that she is underweight or that he has observed her to be malnourished. The Tribunal accepts that the applicant may have cooked meals for the sponsor, but finds, on the medical evidence provided, that the sponsor’s nutritional needs have been assessed by her doctor and are being met by the nursing home.

10. The applicant claimed that the sponsor has been subject to discrimination and racism by ‘Australian’ nursing staff because of her ethic background and inability to speak English. He acknowledged however that the sponsor shares her room with a fellow Cantonese speaker, and that the nursing home is staffed by people from different ethnic backgrounds. The applicant’s girlfriend, in her statutory declaration and at hearing, also claimed to have witnessed, when visiting on behalf of the applicant, incidents of racism and discrimination directed against the sponsor. No details or evidence was provided of such incidents. When the Tribunal asked the applicant and his girlfriend whether they had lodged official complaints about the mistreatment they had witnessed in order to prevent it from recurring, they stated that they had not. On this basis, the Tribunal considers the claims contrived or exaggerated, and self-serving. The Tribunal does not accept that the assistance required by the sponsor cannot reasonably be obtained from the nursing home where she lives because she is subject to racism and discrimination.

11. Statutory declarations were provided from members of the applicant’s and the sponsor’s family, who declared they were unable to visit the sponsor in the nursing home because: they have fallen out with her; they are too busy with their work and businesses; they cook Chinese rather than the Vietnamese food the sponsor prefers; they are busy caring for other family members; they have a gambling addiction; and they are reliant on newstart benefits and cannot not afford to travel interstate. The Australian resident family members further stated that they are concerned that the sponsor is at risk of ill treatment in the nursing home, and do not trust that she is getting the care she needs.

12. The Tribunal asked the applicant why his family had not pooled resources to purchase nursing home care that they trusted. The applicant responded that he alone is able and willing to care for the sponsor; that he cannot afford to pay for nursing home care; and that his aunts and cousin in Australia have abandoned the sponsor.

13. The Tribunal finds the reasons provided by the sponsor’s daughters and other grandson in Australia for not visiting the sponsor unconvincing, and considers their excuses contrived or exaggerated for the purpose of the visa application. The Tribunal considers that if these family members are as claimed concerned about how the sponsor is being treated and believe a family presence is required to monitor her well-being; and if as claimed they believe the sponsor requires Vietnamese home-cooked meals, it is reasonable to expect them to ‘share the load’ and find time in their lives, and/or the forgiveness and forbearance to occasionally cook for and visit the sponsor.

14. Photos were provided showing the applicant tending to the sponsor by spooning food into her mouth and cutting her toenails. The photos do not support the applicant’s claim that the sponsor dotes on him and needs his continuing care. In most of the photos, the sponsor appears disengaged from the applicant and uninvolved in his tending activities. The Tribunal notes that the sponsor has lived in a nursing home without any visit from the applicant since July 2019.

15. Having considered the evidence, arguments and circumstances of the parties, the Tribunal is not satisfied that the assistance required by the sponsor cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. Indeed, the Tribunal finds that the assistance required by the sponsor is being provided, and has been provided for the last 3 years, by a nursing home in New Farm. Therefore, the requirements of r.1.15AA(1)(e) are not met.

16. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.

17. 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 the prescribed criteria for the visa sought.

18. The evidence before the Tribunal is that the applicant was born on 22 December 1995. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act1991. Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.

19. The Tribunal also finds that the applicant is not entitled to the grant of the Subclass 838 (Aged Dependent Relative) visa as there is no evidence that the applicant is dependent upon the Australian relative as required by the definition of ‘aged dependent relative’ in r.1.03. Therefore, cl.838.212 is not met.

20. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 (Remaining Relative) visa as the applicant’s near relatives, as defined in r.1.15(2), reside in the same country. Information provided by the applicant at the time of application is that his parents and only sibling, a sister, live in Vietnam, his country of citizenship. In witness statements signed on 13 March 2020 provided to the Tribunal, the applicant’s parents state that they live in Vietnam. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.

    DECISION

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

    Adrienne Millbank
    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.