Details
- AGLC
- Nguyen (Migration) [2020] AATA 5958
- Case
- [2020] AATA 5958
- Decision Date
-
CaseChat Overview and Summary
This matter concerned an application for a Subclass 116 (Carer) visa by Mr. Vu, who sought to be the carer for his Australian citizen mother, Mrs. Nguyen. Mr. Vu's wife and two daughters were secondary applicants. The Tribunal was required to determine whether Mr. Vu met the primary criteria for the visa, specifically focusing on whether the assistance Mrs. Nguyen required could not reasonably be provided by other relatives or obtained from Australian community services, and whether Mr. Vu was willing and able to provide substantial and continuing assistance.
The Tribunal considered the definition of "carer" under regulation 1.15AA of the Migration Regulations 1994. It accepted that Mr. Vu was a relative of Mrs. Nguyen and that Mrs. Nguyen had a medical condition causing impairment and a need for direct assistance for at least two years, satisfying subregulations 1.15AA(1)(a), (b), and (c). The central issue was whether subregulation 1.15AA(1)(e) was met, which requires that the necessary assistance cannot reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services.
The Tribunal noted that further evidence had been provided since the Department of Home Affairs' initial decision, including reports from a psychologist, GP, and statements from Mrs. Nguyen's daughters regarding their inability to provide care and attempts to source external care. The Tribunal also considered information regarding a Level 2 Home Care Package and residential aged care fees. While the Tribunal found that Mr. Vu met the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Regulations, it did not make a final determination on the remaining criteria under r.1.15AA(1)(e) and (f).
Consequently, the Tribunal remitted the applications for Other Family (Migrant) (Class BO) visas for reconsideration by the Minister, with the direction that the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Regulations were met. The visa applications of the secondary applicants were also remitted for reconsideration.
Orders
Orders of the court
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Background
Background to the litigation
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.BACKGROUND OF THE EVIDENCE Applicant Mr. Vu was born in Vietnam in 1961. His father is deceased, with his mother, the visa sponsor, born 1937, and having lived in Australia since 2012. He has an older brother living in Vietnam and 2 sisters living in Australia. He is married, with 2 daughters, born 2002 and 2009, with the wife and daughter’s the secondary applicants to the visa. He visited Australia from 28/5/15 to 22/6/15. Sponsor Mrs. Nguyen was born in Vietnam in 1937. Her husband is deceased and she has 4 children, with 2 daughters living in Australia and two sons in Vietnam. She arrived in Australia on 12/6/12 on a Contributory Parent 143 Visa granted 18/5/12 and is an Australian Permanent Resident and became an Australian Citizen on 1/11/16. As part of her visa conditions she is not eligible for the Australian Aged Pension.INFORMATION TO THE TRIBUNAL Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Migration Agent request for priority consideration, due to health issues of carer daughter, 30/1/20 and supporting review of women by Bronwen Winterburn, Clinical Psychologist, 28/1/20Statement by non-residing daughter of sponsor of inability to care for mother, 11/8/20Statement by residing daughter of sponsor of care needs of mother, attempts to source care from third parties, 13/8/20Sponsor report on health condition by GP, 24/6/20Consulting Psychologist report, 29/7/20, on sponsor by Bridge ConsultingSubmission 23/11/20, including:-Migration Agent commentsMy Aged Care, Australian Government, confirmation of Level 2 Home Care Package, 6/10/20Australian Government, Services Australia, Residential Aged Care Fees CONSIDERATION OF CLAIMS AND EVIDENCE In this case, Mr. Vu 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. Mr. Vu must meet the primary criteria in Part 116 to be granted the visa, and his wife and two children need only meet the secondary criteria. The primary criteria to be met include cl.116.221 which requires that Mr. Vu is to be the carer of the Australian relative. The term “carer” is defined in r.1.15AA. As the Sponsor, Mrs. Nguyen, is an Australian Citizen by grant and the applicant Mr. Vu is her son and the sponsor requires care, the Tribunal accepts that Regulation 1.15AA(1)(a) is met. The Tribunal accepts that Mrs. Nguyen has the required health provider assessment that specifies that she has a variety of medical condition that causes impairment of her ability to attend to the practical aspects of daily life, she has the required number of impairment points and she has a need for direct assistance in attending to the practical aspects of daily life for at least two years. As a result, the requirements of r.1.15AA (b) and (c) are met.
Evidence
Evidence Before The Court
Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:- Migration Agent request for priority consideration, due to health issues of carer daughter, 30/1/20 and supporting review of women by Bronwen Winterburn, Clinical Psychologist, 28/1/20Statement by non-residing daughter of sponsor of inability to care for mother, 11/8/20Statement by residing daughter of sponsor of care needs of mother, attempts to source care from third parties, 13/8/20Sponsor report on health condition by GP, 24/6/20Consulting Psychologist report, 29/7/20, on sponsor by Bridge ConsultingSubmission 23/11/20, including:-Migration Agent commentsMy Aged Care, Australian Government, confirmation of Level 2 Home Care Package, 6/10/20Australian Government, Services Australia, Residential Aged Care Fees CONSIDERATION OF CLAIMS AND EVIDENCE In this case, Mr. Vu 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. Mr. Vu must meet the primary criteria in Part 116 to be granted the visa, and his wife and two children need only meet the secondary criteria. The primary criteria to be met include cl.116.221 which requires that Mr. Vu is to be the carer of the Australian relative. The term “carer” is defined in r.1.15AA. As the Sponsor, Mrs. Nguyen, is an Australian Citizen by grant and the applicant Mr. Vu is her son and the sponsor requires care, the Tribunal accepts that Regulation 1.15AA(1)(a) is met. The Tribunal accepts that Mrs. Nguyen has the required health provider assessment that specifies that she has a variety of medical condition that causes impairment of her ability to attend to the practical aspects of daily life, she has the required number of impairment points and she has a need for direct assistance in attending to the practical aspects of daily life for at least two years. As a result, the requirements of r.1.15AA (b) and (c) are met. In issue in this matter is whether r.1.15AA(1)(e) and (f) of the definition are met at the time of this decision.Regulation 1.15(1)(e) – can the assistance be reasonably provided by certain relatives or obtained from certain services?The definition of ‘carer’ in r.1.15AA includes at r.1.15AA(1)(e) that:(e) the assistance cannot reasonably be:1.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; or2.obtained from welfare, hospital, nursing or community services in Australia; and As it applies to Mrs. Nguyen, r.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. 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.
Decision
Reasons for decision
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa. As the applicant Mr. Vu meets this criterion, his wife and two children meet the secondary criteria for the grant of the visa, and it is appropriate to remit the visa application of the secondary visa applicants for reconsideration.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.116.211 of Schedule 2 to the Regulations; and·cl.116.221 of Schedule 2 to the Regulation.Steven GriffithsMemberATTACHMENTMigration 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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