Luu (Migration) - [2023] AATA 3653

Luu (Migration) [2023] AATA 3653 (11 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Kim Lien Luu
VISA APPLICANTS:  Mr Minh Tan Ho
Mrs Thi My Phung Phan
Miss Ngoc Vang Ho
Miss Ngoc Ngan Ho
REPRESENTATIVE:  Ms My Yen Tran
CASE NUMBER:  1935680
HOME AFFAIRS REFERENCE(S):          OSF2015/001240
MEMBER:Deputy President Justin Owen
DATE:11 October 2023
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 11 October 2023 at 2:37pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care cannot reasonably be provided by any other specified relative or reasonably obtained from service providers – severe and chronic mental health conditions and physical pain – significant assistance needed for activities of daily living – current carer/nominee no longer desires to provide care – no contact with only Australian citizen sibling – no attempts to access assistance through NDIS or elsewhere – insufficient evidence as to unsuitability to receive assistance from anyone but visa applicant – preference for particular service not a cultural reason or barrier to assistance from other provider(s) – decision under review affirmed
LEGISLATION
Migration Regulations 1994 (Cth), r 1.15AA(1)(e), Schedule 2, cl 211
CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 17 April 2015, Mr Minh Tan Ho, the first-named visa applicant (the applicant), applied for an Other Family (Migrant) (Class BO) visa. The application was made on the basis of providing assistance to his aunt (his mother’s sister), Ms Kim Lien Luu, who is the resident and sponsor. Ms Luu is also the review applicant for the purposes of this review. The applicant’s wife and two children, Mrs Thi My Phung Phan, Miss Ngoc Vang Ho and Miss Ngoc Ngan Ho are secondary applicants.
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.
On 12 December 2019, a delegate of the Minister for Home Affairs refused to grant the visas. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate found it had not been demonstrated that the care the Australian resident (and review applicant) required, could not reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the applicant was unable to meet reg 1.15AA(1)(e)(ii) of the Regulations. Therefore, the applicant did not meet clause 116.221 of Schedule 2 to the Regulations…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Luu (Migration)

Details

AGLC: Luu (Migration) [2023] AATA 3653
Case: [2023] AATA 3653
Decision Date: 11 October 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, subclass 116 (Carer), made by a nephew (the applicant) for his aunt, an Australian citizen. The applicant sought to migrate to Australia to provide care for his aunt, who suffers from severe and chronic mental health conditions and physical pain, requiring significant assistance with daily living. The Tribunal was required to determine whether the applicant met the criteria for a carer visa, specifically whether the aunt's need for assistance could not reasonably be provided by any other specified relative or obtained from Australian service providers.

The central legal issue before the Tribunal was the interpretation and application of regulation 1.15AA of the Migration Regulations 1994, which defines a "carer" for the purposes of the visa subclass. This regulation requires, among other things, that the need for assistance cannot reasonably be provided by any other eligible relative or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the applicant was a "relative" of the Australian resident and whether the aunt had a medical condition causing impairment and a continuing need for direct assistance.

The Tribunal reasoned that while the applicant was a nephew and thus a "relative" of the Australian aunt, and the aunt's medical condition and need for assistance were established by a Carer Visa Assessment Certificate, the crucial element of regulation 1.15AA(1)(e) was not satisfied. The Tribunal found insufficient evidence to conclude that the aunt could not reasonably receive assistance from other sources. Specifically, there was no evidence of attempts to access assistance through the National Disability Insurance Scheme or other community services. The Tribunal also noted that the current nominee carer no longer wished to provide care and that the aunt had no contact with her only Australian citizen sibling. The Tribunal concluded that the aunt's preference for the visa applicant's specific form of assistance did not constitute a cultural reason or a barrier to obtaining help from other providers, and therefore, the assistance could reasonably be obtained from alternative sources.

Consequently, the Tribunal affirmed the decision not to grant the Other Family (Migrant) (Class BO) visas to the applicant and his family.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCEThe issue in the present case is whether assistance can be reasonably provided for the purposes of reg 1.15AA(1)(e)(i) or (ii). BACKGROUND ON THE EVIDENCE The applicant was born on 29 April 1980 in Dong Nai, Vietnam. The applicant is married with two children born in 2008 and 2009, all of whom are included in the visa application. The review applicant was born on 20 December 1965. The applicant’s mother is her sister; therefore the applicant is her nephew. The review applicant’s most updated Carer Visa Assessment Certificate (CVAC) is dated 10 March 2022. It states that the review applicant suffers from chronic and severe mental health conditions, impairing her functioning. She has an impairment rating of 30 under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991).Whether the visa applicant has claimed to be a ‘carer’ Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is a carer of the review applicant, who is the applicant’s aunt. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. 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. Regulation 1.15AA(1)(a) requires the visa applicant to be 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 applicant’s aunt. The Tribunal is satisfied on the evidence before it the applicant is the nephew of the ‘close relative’ who is an Australian citizen usually resident in Australia. The Tribunal notes the evidence in the Departmental file that the close relative (and review applicant) arrived in Australia on 13 January 1994 and was granted Australian citizenship on 10 December 1997. The Tribunal accepts the claim the close relative is ‘usually resident in Australia’. Therefore, as the applicant is the nephew of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a). Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

Decision

Reasons for decision

There is no evidence, and no claims before the Tribunal, that the secondary applicants meet the primary criteria for the grant of Other Family (Migrant) (Class BO) visas.DECISION The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.Justin OwenDeputy PresidentATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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