Nguyen (Migration)

[2022] AATA 586

Nguyen (Migration) [2022] AATA 586 (7 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Nuc Nguyen

VISA APPLICANTS:  Ms Thi Tam Pham
Mr Anh Bao Doan
Mr Anh Vu Doan
Mr Thanh Doan

REPRESENTATIVE:  Mr Mitchell Simmons (MARN: 1383008)

CASE NUMBER:  2013687

HOME AFFAIRS REFERENCE(S):          OSF2013/026957

MEMBER:Kate Millar

DATE:7 March 2022

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·     cl 116.221 of Schedule 2 to the Regulations.

Statement made on 07 March 2022 at 9:40am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – Federal Circuit Court remittal – relationship between visa applicant niece and review applicant aunt – review applicant’s and her sister’s birth certificates give different names for mother and different dates of birth for father – statutory declaration by sister – scope of impairment and need for assistance – assistance cannot be provided by other specified family members or service providers – six grandchildren’s family, work and occasional care – current home-care package for 8 hours per week – community and social support – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e)(i), Schedule 2, cl 116.221

CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
Lam v MIBP [2013] FCCA 1263
Nguyen v MICMA [2019] FCA 934
Perera v MIMIA [2005] FCA 1120
Sefesi v MIBP [2016] FCCA 975
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mrs Nguyen is 84 years old and suffers from osteoarthritis and depression.  Until his death in 2013 she was cared for by her son, and she now relies on assistance from her ex-daughter-in-law Loan Nguyen.  As Loan separated from her son in 2011, Mrs Nguyen does not consider this care arrangement to be ongoing and wants her niece Ms Thi Tam Pham to come to Australia with her family to provide her care.

2. Ms Pham and her family applied for Other Family (Migrant) (Class BO) visas on 8 November 2013, however their applications were refused by a delegate of the Minister for Immigration under s.65 of the Migration Act 1958 (the Act) because the delegate was not satisfied that Ms Pham was willing and able to provide substantial assistance to Mrs Nguyen as required for the grant of the visa.

3. Mrs Nguyen applied to this Tribunal for a review of this decision, and on 14 February 2019, the Tribunal (differently constituted) affirmed the decision to refuse visas to Ms Pham and her family members.  This decision was remitted by the then Federal Circuit Court with the consent of the Minister for reconsideration, and this is the reconsideration of this matter.

4. Mrs Nguyen appeared before the Tribunal on 10 February 2022 to give evidence and present arguments and was represented in relation to the review. The Tribunal also received oral evidence from Huong Thi Thahn Nguyen, the sister of Mrs Nguyen’s son’s ex-wife, who assisted Mrs Nguyen with the visa application and helps her interact with services; Thi Thanh Huong Dao, the carer who provides care as part of Mrs Nguyen’s Aged Care Package; and her grandchildren Thi Tuyet Nguyen, Thi Minh Thuy Nguyen, and Quoc Huy Nguyen.  The Tribunal also received oral evidence for the visa applicant Thi Tam Pham.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa applicants applied for the visas on 8 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 (Cth) (the Regulations).

7. Ms Pham is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Ms Pham must meet the primary criteria in Part 116 to be granted the visa, and the remaining applicants need only meet the secondary criteria. 

8. The primary criteria to be met include cl 116.221.  This requires Ms Pham to be a carer of the Australian relative as defined by the Regulations.  As Mrs Nguyen is an Australian citizen,[1] at issue is whether Ms Pham meets the definition of ‘carer’.  This requires a number of elements to be met, and the Tribunal has worked its way through each of these elements.

   [1] As shown by a copy of her Certificate of Australian Citizenship

   Mrs Nguyen’s evidence

9. Mrs Nguyen expressed her clear wish for her niece to come to Australia and said now she is in her 80s she is very weak and in pain.  She is worried about going to the toilet at night because she might fall over, and it is very dangerous for her.  There is no information before the Tribunal to show Mrs Nguyen has in fact, fallen or required medical attention because of a fall. 

10. Mrs Nguyen said she cannot read, write or speak English.  There are a number of unsigned statements purportedly from Mrs Nguyen that are in English.  Mrs Nguyen said Ms Huong Nguyen prepared these statements.  As Mrs Nguyen cannot understand what was provided, the Tribunal does not place a great deal of weight on these statements.

11. Mrs Nguyen could remember the name of her father but not her mother.  She said she had the same parents as her sister, the visa applicant’s mother, however there are different names for the mother on their birth certificates.  On this being pointed out to Mrs Nguyen, she said she left home very early to get married and can’t remember.  Submissions were requested on the difference in year of the father’s birth in the birth certificates, with Mrs Nguyen’s father stated as being born in 1902 and her sister’s father stated as being born in 1907.

12. Mrs Nguyen could not state what community services she received, who lives in the house with her, or much detail on what care she needs during the day.  She became tired and was unable to provide further evidence, preferring others to speak on her behalf.

13. Given the most recent assessment of her doctor that Mrs Nguyen suffers some cognitive impairment, while this was not listed in the care visa assessment, the Tribunal heard from Mrs Huong Nguyen and Ms Huong Dao about the assistance Mrs Nguyen requires and the services provided by the community. 

    Is Ms Pham a relative of Mrs Nguyen?

14. Regulation 1.15AA(1)(a) requires that Ms Pham be a relative of Mrs Nguyen. In her application for the visa Ms Pham states Mrs Nguyen is her maternal aunt. 

15. The term “relative” is defined in reg 1.03 as including a niece or nephew and a step-niece or step-nephew.

16. Mrs Nguyen provided a birth certificate recording her mother’s name as Thi Nu Nguyen and her father as Van Nho Nguyen, born 1902.

17. A statutory declaration was provided from Thi Dam Nguyen, the visa applicant’s mother,  stating her older sister is Mrs Nguyen and her daughter is Ms Pham.  A birth certificate for Thi Dam Nguyen shows her mother is Thi Nhuan Nguyen and her father is Van Nho Nguyen, born 1907.

18. The birth certificate of Ms Pham shows her mother is Thi Dam Nguyen.

19. On balance the Tribunal is satisfied that Ms Pham is the niece of Mrs Nguyen and meets reg 1.15AA(1)(a). 

    Medical certificate

20. Regulation 1.15AA(1)(b) requires that a medical certificate be provided in relation to a medical assessment carried out by a specified health provider and signed by the medical adviser who carried it out, which specifies that:

    ·Mrs Nguyen has a medical condition; and

    ·That medical condition is causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life; and

    ·The impairment has a rating specified in the certificate under the Impairment Tables; and

    ·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.

21. The most recent medical certificate provided is dated 23 May 2019.  It provides the name of signature of the examining doctor, and a stamp from Bupa Medical Visa Services.  The certificate specifies the required information and states Mrs Nguyen has an impairment rating of 40 points.  Bupa Medical Visa Services is a specified health provider (IMMI 14/045).  It follows that reg 1.15AA(1)(b) is met.

    The person is an Australian citizen

22. Mrs Nguyen is an Australian citizen and reg 1.15AA(1)(ba) is met.

    The person meets the required impairment rating

23. The rating specified in the certificate must meet or exceed the required impairment rating.  The required impairment rating is 30 points (IMMI 17/126), and the certificate specifies Mrs Nguyen has an impairment rating of 40 points.  It follows that reg 1.15AA(1)(c) is met.

    Can the assistance be reasonably provided by certain relatives or obtained from certain services?

24. The definition of ‘carer’ in reg 1.15AA includes at reg 1.15AA(1)(e) that:

    (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…

25. As it applies to Mrs Nguyen, reg 1.15AA(1)(e)(i) requires a consideration of the assistance she requires, the reasons put forward by her relatives for being unable to provide her with this assistance, and whether these reasons are reasonable.

26. Regulation 1.15AA(1)(e)(ii) involves a consideration of whether the assistance Mrs Nguyen needs cannot be obtained from welfare, hospital, nursing or community services in Australia.

27. The Tribunal can look at whether the assistance Mrs Nguyen requires can be met by a combination of assistance from her family together with welfare, hospital, nursing or community services in Australia.  This approach was adopted without comment in Lam v MIBP.[2]

    [2] [2013] FCCA 1263

    What assistance does Mrs Nguyen require?

28. In looking at the type of assistance required, the Tribunal is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider.[3] 

    [3] Regulation 1.15AA(3), Sefesi v MIBP [2016] FCCA 975, Nguyen v Minister [2019] FCA 934

29. This was explained in Sefesi v Minister for Immigration and Anor[4]at [21] as:

    The terms of reg.1.15AA make it clear that the assistance in question is the assistance referred to in reg.1.15AA(1)(b)(iv), namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition. However, contrary to the allegation made in the second ground of the application, the Tribunal was not required by reg.1.15AA to turn its mind to the “the nature and scope of the assistance needed” by Mrs Tupou. The nature and scope of Mrs Tupou’s impairment and any consequential need for assistance was the subject of the Medibank Health Solutions certificate which the Tribunal was required by reg.1.15AA(3) to accept as correct. Relevantly for the present allegation, the Tribunal was required to accept the advice of the certificate and to not enquire further into the matters it addressed.

    [4] Sefesi at [21]

30. Of interest is that the certificate is required to specify that because of the medical conditions the person has a need for direct assistance attending to the practical aspects of daily life.  It does not require the certificate to specify what that direct assistance entails.  However, the carer visa health assessments do provide this information, and both the Federal Circuit and Family Court of Australia and the Federal Court have held the Tribunal is bound by the specification in the medical assessment of what direct assistance the person requires. The Tribunal has relied on the health assessment provided the health service provider. 

31. The health service provider specified by the Minister most recently assessed Mrs Nguyen on 23 May 2019.  This assessment reports Mrs Nguyen has osteoarthritis of her lower limbs and spine and moderate to severe depression. 

32. The assessment records that the advanced osteoarthritis in her knees and spine affects her mobility and stamina and limits her ability to exert herself.  She mobilises at home with the help of a walker, but outside the house uses a wheelchair.  The health assessment comments on the ability of family to care for Mrs Nguyen and the availability of services, however, in the absence of an assessment of other family members or of these services, the Tribunal considers these comments outside the scope of the assessment.

33. The health assessment reports that Mrs Nguyen requires assistance with mobility, mobilising with a wheelchair outdoors and a single point stick indoors, and depends on others for transfers and support when she gets up. 

34. For bathing/showering Mrs Nguyen requires assistance as she has decreased power in her lower limbs leading to an unsteady gait and is at risk of falling.  She uses a shower commode.

35. In regard to toileting, it is reported that she requires assistance, and the comment about her mobility is repeated.  For dressing/grooming, Mrs Nguyen requires some help with dressing, especially in wearing trousers.  It reports that she requires assistance with supervising medication and uses a Webster pack from the pharmacy.  It states she requires supervision for personal safety as she is at risk of falling if she does not have any support for transfers.  She is reported as requiring assistance with transport as she is at risk of falling if she does not have any support for transfer.  Overall, she is assessed as fully dependent for activities of daily living. 

36. Some of the comments in the assessment do not match the reported assistance required, for example, in stating Mrs Nguyen requires assistance with eating/feeding the comment in the assessment states she has decreased power in her lower limbs leading to an unsteady gait and risk of falling.  It is difficult to see how this comment relates to difficulty with eating/feeding.  This calls into question the level of thought that has been put into the comments.  Nevertheless, the Tribunal is required to consider the assessment is correct.

37. In summary, the comment most repeated is that Mrs Nguyen has deceased power in her lower limbs and is unsteady.  She needs help with transfers and equipment for high risk activities, such as using a shower commode in the shower. 

38. Other information that is not included in that assessment is contained in the My Aged Care assessment dated 25 September 2019, after the assessment of the health service provider.  This states that Mrs Nguyen had a right knee replacement and was seeking assistance as she had become deconditioned following her knee surgery.  In contrast to the health services assessment, this report states that prior to admission she could walk short distances and transfer to the toilet and onto a bed or chair, but currently requires standby assistance.  She reported being able to manage her medication independently. 

39. A report from Mrs Nguyen’s general practitioner dated 9 August 2021 notes chronic pain with poor mobility, osteoporosis leading to a high risk of fracture should she fall, urinary incontinence, anxiety and depression and a moderate cognitive impairment. 

40. Mrs Nguyen said she needs constant supervision to prevent her falling and needs assistance at night with going to the toilet. 

    The assistance cannot reasonably be provided by certain other relatives

41. Regulation 1.15AA(1)(e) requires identification of those relatives of Mrs Nguyen’s who are Australian citizens, Australian permanent residents or eligible New Zealand citizens, and an examination of whether they cannot reasonably provide the assistance.

42. In Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs[5] Justice Kerr found that in looking at the assistance the Tribunal must consider whether the assistance that can be provided will be provided over time, and not just at the date of the decision.  This follows from the “assistance” as specified in the medical assessment being assistance that is required for at least 2 years and is to take into account “foreseeable changes in the resident’s care needs and the circumstances of his or her family members”.[6] 

    [5] [2019] FCA 934

    [6] Ibid at [62]

43. The term “relative” is defined in reg 1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.  A close relative is a spouse, de facto partner, child, parent, brother or sister or a step-child, step-brother or step-sister.

44. As this regulation applies to Mrs Nguyen this includes her six grandchildren. 

45. Regulation 1.15AA(1)(e)(i) was considered by Judge Nicholls in Anveel v Minister for Immigration and Border Protection,[7] in which he said that this provision requires an examination of whether, from the perspective of the relative, they cannot provide the care,[8] and requires a focus on the reasons the relatives cannot provide the care.[9]  Judge Nicholls remarked that it is important to note that the test is stated in the negative and said:

    It is not whether the care “can” be “provided”, it is whether it “cannot” be provided by relatives.  The focus of the Tribunal therefore must be on the reasons as to why the relatives cannot provide the care.[10]

    [7] [2013] FCCA 2181

    [8] At [61]

    [9] At [62]

    [10] At [62]

46. In Jajo v MIBP,[11] Judge Emmett stated that, on the facts of that case, where there were a number of children in Australia it was open to the Tribunal to conclude that a number of relatives can provide the assistance required by the person needing care.[12]  

    [11] [2013] FCCA 1554

    [12] At [57]

47. It is therefore necessary to look at the circumstances of each of her grandchildren and the reasons they state they cannot provide care.  Approximately one month before the hearing, the Tribunal requested that Australian relatives of Mrs Nguyen who lived in Adelaide attend the hearing to give oral evidence. 

48. Only three of her six grandchildren, all of whom live in Adelaide, were made available to give evidence.  In general, unsigned written statements were provided.  The Tribunal had significant reservations about the unsigned written statements and placed little weight on these statements in the absence of any oral evidence given in support of the statements.  One grandchild did not provide a statement or give oral evidence. 

49. In looking at the circumstances in which the care is required, it has not been suggested that Mrs Nguyen cannot continue living with her ex-daughter-in-law. 

50. Quoc Huy Nguyen is Mrs Nguyen’s grandson.  At the time of the application he was living with Mrs Nguyen, but now lives separately with his wife.  Huy works full time as a senior analyst developer for Sonic healthcare.  He says he lives in a two-storey house and cannot provide care for his grandmother.  His wife is pregnant and due to give birth in early April.  He provided evidence of his employment, his marriage and his wife’s pregnancy.  Huy states he sees Mrs Nguyen weekly to fortnightly on Sundays.  He does not provide her with assistance when he is there.  Huy’s full time work, living arrangements and the needs of his family means the Tribunal accepts that he cannot provide the assistance required by Mrs Nguyen.

51. Thi Phuong Nguyen is Mrs Nguyen’s granddaughter who lives approximately 15 minutes from Mrs Nguyen.  An unsigned statement was provided that she has had two children aged 4 and 6 years and was pregnant with her third child.  She worked 3 days a week for Benson Radiology.  She suffers from arthritis which would affect her ability to provide care to her grandmother.  Phuong provided birth certificates for her children, evidence of her current pregnancy and evidence of her current address. The Tribunal accepts Phoung cannot provide the assistance required by Mrs Nguyen. 

1. Thi Tuyet Nguyen provided an unsigned statement that she has three children aged 10, 7 and 5.  She states her husband works full time and she plans to open a business in April.  She stated she sees her grandmother after taking her children to school 1 to 3 times a week.  Immunisation records were provided for her children, however these do not name the parents.  Tuyet gave oral evidence by Microsoft Teams to the Tribunal, and confirmed she now has three children and operates her own business which trades from 10 am to 3 pm, 6 days a week.  Phuong expressed concern about the ability of her mother or other family members to safely provide care to Mrs Nguyen when she needs physical assistance with showering and toileting as Mrs Nguyen’s physical needs become greater.  Tuyet was concerned about an occupational health and safety risk to her mother.  The Tribunal accepts that Tuyet cannot provide the assistance Mrs Nguyen requires, other than occasional social interaction when she visits her grandmother. 

2. Thi Minh Thuy Nguyen, another of Mrs Nguyen’s granddaughters, gave oral evidence to the Tribunal.  Minh works part-time 4 days a week and has two children under 5 years of age.  She spends Fridays and Sundays with her mother and grandmother, and she can assist Mrs Nguyen at the times she is at her home.  Minh speaks Vietnamese and can communicate with her grandmother.  She did not consider there were areas of assistance her grandmother needed but did not receive, as she said that if she was not at the house, her mother and another of her sisters were generally there.  Minh was asked if there were any gaps in the assistance provided to Mrs Nguyen, and she said there is not really a gap in the personal care Mrs Nguyen requires, but that Mrs Nguyen’s perception was that she was not receiving enough care and wants more.  On being asked what Mrs Nguyen may want, she said more company to deal with loneliness.  On being asked about overnight care, Minh said that Mrs Nguyen was currently living with her mother, and her mother met most of Mrs Nguyen’s needs. 

3. The evidence provided by Minh that she and her sisters, together with her mother, can meet Mrs Nguyen’s need for assistance was put to Mrs Nguyen through her representative under s 359AA of the Act, and time was provided after the hearing to respond to this information.  The Tribunal concluded, having considered the response, that the times at which her granddaughters are at the house do not match the times at which Mrs Nguyen requires assistance. 

4. The next granddaughter is Thuy Linh Nguyen.  Linh declined to provide a statement or to attend the hearing to give evidence.  She is currently living with Mrs Nguyen, as she has been doing for approximately the last year, and her mother together with her 2-year-old child.  According to her sister, Linh has a business and plans to move out soon. 

5. The Tribunal carefully considered whether to draw an adverse inference that Linh’s evidence would not assist Ms Pham to show the care Mrs Nguyen receives cannot reasonably be obtained from Linh, as a result of the failure of Linh to provide any evidence to the Tribunal, particularly as she is currently living with Mrs Nguyen and could provide evidence on any assistance she provides.  While the Tribunal was concerned about the lack of evidence, her sister Minh, who otherwise gave slightly adverse evidence had said Linh would move out soon and the Tribunal finds accordingly, and that Linh cannot reasonably provide the assistance required by Mrs Nguyen. 

6. The last granddaughter, Thao Nhi Nguyen, also did not attend to give oral evidence as requested.  There is an unsigned statement from Nhi.  As noted, the Tribunal has reservations about accepting unsigned statements in this case where Ms Huong Nguyen has stated she has prepared statements for others.  However, this unsigned statement is accompanied by evidence that Nhi lives separately from her grandmother and has a young child. She provided a pay record from the restaurant she states she owns with her husband showing she worked full time in February 2022.  Her statement indicates she visits her mother 3 to 4 times a week as her mother assists her to care for her baby.  She states when she visits she will join her mother and grandmother for a meal if she is not too busy.  The Tribunal accepts that Nhi cannot provide the assistance required by Mrs Nguyen for supervision and overnight care as she lives separately, has a young child and works in the business she owns with her husband. 

7. In summary, the Australian relatives of Mrs Nguyen cannot reasonably provide the assistance Mrs Nguyen requires due to her need for supervision and overnight care. 

   The assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

8. Mrs Nguyen has a home care package which she states means she gets help from a Vietnamese community support worker for individual social support, personal care, cleaning her room, bathroom and toilet, going for a walk, attending medical appointments and buying medication as well as taking her to visit friends or attend social support groups.  Mrs Nguyen says this is only for a few hours a week and, given she needs help with all aspects of her life on a daily basis, this is not enough. 

9. Salisbury Council has a weekly support group for Vietnamese people which Mrs Nguyen has attended since 2010.  Transport to and from the program is provided. 

10. A letter from the Home and Community care coordinator who coordinates Mrs Nguyen’s home care package was provided.  Mrs Nguyen has had a Level 3 home care package from September 2020.  In total, this provides 8 hours per week of support which includes domestic support, social support, assisted shopping, home care and transport to a social activity group accompanied by a carer.  She receives nursing and physiotherapy services.  The services are provided through the Vietnamese Community in Australia, and it is stated this is to ensure her cultural needs and choices are upheld. 

11. Mrs Nguyen’s care plan shows she has social support on Mondays for 3 hours and Tuesdays all day.  She has 2 hours a week of cleaning, including the common lounge and dining areas.  She has assistance with transport, and access to physiotherapy, occupational therapy and equipment as required. 

12. Mrs Nguyen’s care is provided by Ms Thi Thanh Huong Dao who gave evidence to the Tribunal.  She provides 8 and a half hours of care to Mrs Nguyen per week.  The social support Mrs Nguyen receives through Salisbury Council is not included in this care.  Ms Huong Dao takes Mrs Nguyen to medical appointments and the hairdresser, assists her with showering and cleans her room, and talks to her. 

13. Mrs Nguyen’s need for supervision and assistance with toileting cannot be met in the community, with the only alternative being residential care.  Mrs Nguyen’s general practitioner states she is very frightened about going to residential care as she convalesced in residential care after her knee replacement and her doctor reported she developed symptoms of depression from being unable to communicate with the staff and other residents.  Her doctor states she would be unable to tolerate the food served in a facility. There is a nursing home in Adelaide with a Vietnamese wing, however there is no other information before the Tribunal that suitable residential care can be obtained for Mrs Nguyen given her particular needs. 

14. The Tribunal finds Mrs Nguyen’s need for assistance with showering, medication, social activity and transport is obtained through welfare, hospital, nursing and community services. It finds her need for supervision and overnight care such as toileting is not met. 

    Conclusion – can the assistance reasonably be provided by relatives or obtained from community services?

15. In this case, the health service assessment states Mrs Nguyen requires supervision due to her limited mobility.  While many of Mrs Nguyen’s other needs for assistance can be obtained from community services or reasonably provided by relatives, they cannot provide overnight supervision which she states is her major concern.  There are also periods in the day when she cannot obtain the assistance she requires or have this provided by her grandchildren, such as when she could not get up from the toilet.

16. As a result, her need for assistance cannot be reasonably provided by her Australian relatives or obtained from welfare, hospital, nursing or community services in Australia. 

    Is Ms Pham willing and able to provide substantial and continuing assistance of the kind needed?

17. Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

18. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

19. Ms Pham says she will care for her aunt, and her husband will seek to improve his English and get a job as a barber or any other job to support the family.  Mrs Nguyen’s next door neighbour says she is willing to provide accommodation for Ms Pham and her family until they can rent or buy another property, and they may rent the investment property of one of Mrs Nguyen’s granddaughters. 

20. Ms Pham gave evidence by Microsoft Teams.  She cannot speak, read or write English, and said her statements were prepared by Ms Huong Nguyen.  The Tribunal places little weight on her written statements.

21. Ms Pham said she would need to cook for Mrs Nguyen, and help her with exercises, and be by her side at night to help her to the bathroom.  Ms Pham has two children who are 7 and 8 years old.  Mrs Nguyen’s care needs are not complex, and the Tribunal has no reason to doubt Ms Pham is willing and able to provide substantial and continuing assistance of the kind that is needed. 

22. In terms of financial support, Ms Pham would be eligible for carer pension and she states her husband will find work.  She says they will sell the property they own in Vietnam and this will assist her family to establish themselves in Australia. 

23. The Tribunal finds Ms Pham is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

    CONCLUSION

24. Given these findings the Tribunal concludes that at the time of decision Ms Pham is a carer of the Australian relative, being Mrs Nguyen, and therefore satisfies cl 116.221.  As Ms Pham satisfies cl 116.221, the secondary visa applicants may satisfy the secondary criteria, and it is appropriate to also set aside and remit the decisions for the secondary visa applicants. 

25. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.

    DECISION

26. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

    ·cl 116.221 of Schedule 2 to the Regulations.

    Kate Millar
    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.