Nguyen (Migration) - [2020] AATA 5523

Nguyen (Migration) [2020] AATA 5523 (3 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mrs THI THU HA NGUYEN
Mr THAT BAO KHOI TON
Miss NU BAO THI TON
Mr THAT TUAN TON

CASE NUMBERS:  1809608
HOME AFFAIRS REFERENCE(S):          CLF2016/58970
MEMBER:Helena Claringbold
DATE:3 November 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 03 November 2020 at 6:04pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance reasonably obtained from welfare, hospital, nursing or community services – segregation from family members – work commitments of other family – risks of institutional care – sponsors refusal of care from outsiders – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.211, 836.221
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

On 29 September 2016, Mrs Thi Thu Ha Nguyen, the applicant, applied for Other Family (Residence) (Class BU) visas. The application was made on the basis that the applicant is providing assistance to her mother, Ms Thi Thu Lang Le, the resident and the sponsor (the sponsor). Mr That Tuan Ton who is the applicant’s spouse, is the fourth named visa applicant, Mr That Bao Khoi, the applicant’s son, is the second named visa applicant and Miss Nu Bao Thi Ton, the applicant’s daughter, is the third named visa applicant.
On 19 March 2018, a delegate of the Minister of Home Affairs refused to grant the visas. The delegate was not satisfied that the applicant satisfied cl.836.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) under the Migration Act 1958 (the Act). It followed that the second, third and fourth named visa applicants did not meet the criteria for the grant of the visas.
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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.
On 6 April 2018, the Tribunal received an application for review of the visa refusals. The applicant provided the Tribunal with a copy of the delegate’s decision record.
In a letter dated 16 January 2020, a medical practitioner stated that the sponsor is suffering from shortness of breath and from 16 January 2020 to 16 April 2020 would be unfit to travel.
On 18 February 2020, the Tribunal invited the applicants to a Tribunal…

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 Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2020] AATA 5523
Case: [2020] AATA 5523
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for Other Family (Residence) (Class BU) visas. The applicant, born in Vietnam in 1965, sought to migrate to Australia to care for her mother, who is an Australian citizen. The applicant had been in Australia on various visas since 2001 and claimed to have been providing assistance to her mother since November 2012. The sponsor, the applicant's mother, is a Vietnamese-born Australian citizen with nine children, six of whom reside in Australia.

The primary legal issue before the Tribunal was whether the applicant met the requirements of Regulation 1.15AA of the Migration Regulations 1994, specifically concerning the inability to obtain or provide necessary assistance. This involved determining if the assistance required by the sponsor could not reasonably be provided by other relatives residing in Australia, or if it could not reasonably be obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the applicant claimed to be the carer of an Australian relative, which was satisfied as the sponsor is an Australian citizen.

The Tribunal reasoned that while the applicant's family circumstances and the sponsor's need for care were acknowledged, the evidence presented did not sufficiently demonstrate that assistance could not be reasonably obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal noted a lack of evidence from relevant service providers and highlighted that the sponsor appeared to have unreasonably rejected available options, insisting only on the applicant's assistance. The Tribunal also addressed procedural matters, including the handling of non-disclosure certificates and an unreadable USB drive submitted by the applicant.

Ultimately, the Tribunal affirmed the decision not to grant the visas to the applicant and the other named applicants, finding that the criteria for the visas had not been satisfied.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issue in the present case is, whether the assistance cannot reasonably be provided to the sponsor by family members who are living in Australia, or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.BACKGROUND ON THE EVIDENCE The applicant was born in 1965 in Danang, Vietnam. Her father is deceased and her mother, who is the sponsor, lives in Australia. She entered Australia in November 2001 as the holder of a Tourist (short stay) (Subclass 676) visa. She has since held several different visas and has departed and returned to Australia on multiple occasions. In October 2012, she entered Australia as the holder of Subclass 457 temporary work (skilled) visa. She claims that she has been providing assistance to the sponsor since November 2012. The fourth named visa applicant was born in 1964 in Danang, Vietnam. The second and third named visa applicants were born in 1995 and 2001 in Danang, Vietnam. The sponsor was born in Vietnam. Her husband died in 2016. She has nine children. Six of her children live in Australia. Three of her children lives in the USA and Vietnam. She entered Australia on 27 March 1991. She was granted Australian citizenship on 8 December 1993. Does the applicant claim to be the carer of an Australian relative? Clause 836.211 of Schedule 2 to the Regulations requires that at the time of application, the applicant claims to be the carer of an Australian relative. In this case, at the time of application, the applicant claimed to be the carer of her mother, who is an Australian citizen. Therefore, at the time of application the applicant meets cl.836.211 of Schedule 2 to the Regulations. Regulation 1.03 provides that carer has the meaning as given in r.1.15AA of the Regulations.Whether the assistance cannot be reasonably obtained or provided? Regulation 1.15AA(1)(e)(i) 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 New Zealand citizen as required by r.1.15AA(e)(i); orthat the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulation 1.15AA(e)(ii).Whether the assistance cannot be obtained or provided by a relative? Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61]. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. The applicant provided information relating to her family circumstances and reasons why the assistance cannot be obtained by the sponsor’s relatives living in Australia. A letter from a psychologist provides information about the sponsor’s nine children and reasons why assistance cannot be obtained or provided by them. Various statements have been provided by the sponsor’s children who live in Australia. They give reasons why they cannot provide care for the sponsor. They claim that even if they could provide some assistance after hours and on weekends, the sponsor requires full-time care, 24 hours a day seven days a week. They assert that the sponsor is comfortable with the applicant and when her other children visit the sponsor becomes agitated. The Tribunal has not considered the requirements of r.1.15AA(e)(i). It has gone onto consider the requirements of r.1.15AA(e)(ii).

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 EVIDENCE The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Home Affairs (the Department’s) case file and the Tribunal’s case files. ISSUE The issue in the present case is, whether the assistance cannot reasonably be provided to the sponsor by family members who are living in Australia, or that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.BACKGROUND ON THE EVIDENCE The applicant was born in 1965 in Danang, Vietnam. Her father is deceased and her mother, who is the sponsor, lives in Australia. She entered Australia in November 2001 as the holder of a Tourist (short stay) (Subclass 676) visa. She has since held several different visas and has departed and returned to Australia on multiple occasions. In October 2012, she entered Australia as the holder of Subclass 457 temporary work (skilled) visa. She claims that she has been providing assistance to the sponsor since November 2012. The fourth named visa applicant was born in 1964 in Danang, Vietnam. The second and third named visa applicants were born in 1995 and 2001 in Danang, Vietnam. The sponsor was born in Vietnam. Her husband died in 2016. She has nine children. Six of her children live in Australia. Three of her children lives in the USA and Vietnam. She entered Australia on 27 March 1991. She was granted Australian citizenship on 8 December 1993. Does the applicant claim to be the carer of an Australian relative? Clause 836.211 of Schedule 2 to the Regulations requires that at the time of application, the applicant claims to be the carer of an Australian relative. In this case, at the time of application, the applicant claimed to be the carer of her mother, who is an Australian citizen. Therefore, at the time of application the applicant meets cl.836.211 of Schedule 2 to the Regulations. Regulation 1.03 provides that carer has the meaning as given in r.1.15AA of the Regulations.Whether the assistance cannot be reasonably obtained or provided? Regulation 1.15AA(1)(e)(i) 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 New Zealand citizen as required by r.1.15AA(e)(i); orthat the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by Regulation 1.15AA(e)(ii).Whether the assistance cannot be obtained or provided by a relative? Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

Decision

Reasons for decision

As the applicant has not satisfied the criteria for the grant of the visa, it follows that the second, third and fourth names applicants do not meet the criteria for the grant of the visas. DECISION The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.Helena ClaringboldMemberATTACHMENTMigration 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

The Tribunal is sympathetic to the sponsor’s circumstances. However, the Tribunal is not satisfied that the evidence provided demonstrates that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, because there is little evidence to support this claim from relevant service providers. Ultimately, other than statements given by the applicant, family members and treating physicians about obtaining services, the applicant has not provided any acceptable independent information that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor; rather, the sponsor has unreasonably rejected any option, stating that she only wants the applicant to provide her with assistance and there is no capacity available to the Tribunal to waiver this requirement. Other considerations On 24 July 2020, the Tribunal wrote to the applicant and advised her of the following: ·That a non-disclosure certificate dated 9 April 2018 has been issued pursuant to s.376 of the Act in relation to certain material which is on the Department’s file CLF2018/13079. On 18 December 2019, a delegate of the Department revoked this certificate. On 18 December 2019, the Department issued a non-disclosure certificate pursuant to s.376 of the Act in relation to certain material which is on the Departments file CLF2018/13079. She was advised of the reasons for the non-disclosure. The applicant was advised that the Tribunal is not satisfied that the information that is the subject of the certificate is relevant to the review and other information the subject of the certificate is detailed in the delegate’s decision record, which the applicant provided to the Tribunal. The applicant was told that the Tribunal considers that the s.376 certificate is valid. She was provided with a copy of the certificate, invited to comment on the validity of the certificate and invited to make submissions regarding the exercise of the discretion to disclose the information.·In addition, the applicant was advised of the following: that on 16 March 2020, she provided the Tribunal with a USB which the Tribunal cannot open and therefore cannot view the contents of the USB. The applicant was advised that If she wanted the Tribunal to consider the information on the USB, she could submit it electronically online or by email. She was also asked to provide a letter from the sponsor’s, current health provider confirming the sponsor’s current place of residence. She was told that the response and information should be received by the Tribunal by 7 August 2020. On 8 August 2020, the Tribunal received a response from the applicant dated 2 August 2020. The applicant stated the following: ·The family is not aware of any non-compliance or unlawful activities by them or of the family being a risk to any other person in Australia. They are law abiding non-citizens in Australia, who respect the laws and values of the Australian society. They have abided by the conditions of all visas held by them and have not been involved in fraudulent or unlawful activities. If there is adverse information on the Department’s file, they feel it should be disclosed to them. If the Tribunal considers the certificate to be valid and the disclosure of the information (the subject of the certificate) is not relevant to the review, they have no objection to a decision being made by the Tribunal. ·Also provided is a letter from a cardiologist dated 27 July 2020. This confirmed that the sponsor attended a telehealth consultation with the cardiologist on ‘30 July 2020’. Another letter printed on 28 April 2020 provided details of the sponsor’s appointment on 30 July 2020 at Concord Hospital. Another letter dated 30 July 2020 details the sponsor’s appointment with a surgeon on 18 August 2020 and another letter details the procedure for the sponsor to have a biopsy on 10 August (2020).