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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. On 18 February 2020, the Tribunal invited the applicants to a Tribunal hearing on 23 March 2020. On 14 March 2020, the applicants accepted the invitation to the Tribunal hearing. On 18 March 2020, the Tribunal wrote to the applicants and advised that the Tribunal hearing set down for 23 March 2020, was postponed.  On 19 May 2020, the Tribunal wrote to the applicant and advised that as a result of COVID-19 there would be a delay in considering the matter under review.

7. On 24 June 2020, the applicant and the fourth named visa applicant advised the Tribunal that ‘we wish that the AAT could making consideration without in-person hearing due to COVID-19’. On 26 June 2020, they confirmed their direction to the Tribunal for a decision to be made on the papers.  On 9 September 2020, further advice was received from the applicant due to COVID-19 pandemic and concerns for the sponsor’s health the Tribunal should make a decision on the papers.  However, the applicant stated that ‘they’ are available for other methods of Tribunal hearings. On 11 September 2020, the Tribunal called the applicant and sought clear direction from her as to whether she wanted to proceed with a Tribunal hearing or for the Tribunal to decide on the papers.  On 11 September 2020, the applicant wrote to the Tribunal and stated that as the sponsor’s health is getting better, she wanted to proceed with a Tribunal hearing by video.

8. On 13 October 2020, the applicant appeared before the Tribunal in a video hearing to provide evidence and give arguments. The Tribunal also received oral evidence from the second, third and fourth visa applicants. The Tribunal hearing was assisted by the services of an interpreter in the English and Vietnamese languages.    

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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

11. 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

12. 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.

13. 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.

14. 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?

15. 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.

16. 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?

17. 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); or

    that 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?

18. 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].

19. 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.

20. 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).

21. The Tribunal considered the information provided about the sponsor’s family members being unable to care for her and the applicant’s evidence to the Tribunal that their circumstances remain unchanged; however, it has made no finding on these claims. The Tribunal will base its decision on whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia, for the sponsor.

    Whether the assistance cannot be obtained from welfare, hospital, nursing or community services in Australia

22. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

23. The applicant provided information relating to her family circumstances and reasons why assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.  She provided information about the sponsor’s care and her medical and psychological conditions, medical appointments, medical tests and results and medication and other information including the following.

24. A Carer Visa Assessment Certificate (CVAC) dated August 2016, recorded the following:  that the sponsor lived with the applicant and her family and received informal family support. The sponsor was assigned a total rating of 35.  She had medical conditions that may impact her capacity to self-care: [medical details deleted]. Functional impairment is present in conditions impacting [specific conditions]. She requires assistance with mobility, bathing and showering, toileting, dressing and grooming, supervision of medication and personal safety and transportation and was partially dependent.

25. In July 2016, Dr Van Lanh Nguyen, the sponsor’s general practitioner provided information including the following:

    ·He has been the family doctor since April 1991. The sponsor’s husband passed away in June 2016 after almost three years in palliative care. Since his passing the sponsor has been ill. The sponsor suffers from [a condition] and is awaiting surgery, [and has specified conditions which are] difficult to manage. He hopes that the applicant will be able to assist in the care of the sponsor.

26. In 2016 and 2017, a psychologist provided information about the sponsor’s circumstances including the following:

    ·The report was prepared for the sponsor to support the applicant’s application for the visa. The psychologist consulted with the sponsor and the applicant in September 2017 and with the applicant after the sponsor’s admission to Nepean Hospital for [surgery]. He detailed the sponsor’s family members and their circumstances. He asserted, that the applicant has been the carer for the sponsor since 2016. The sponsor has multiple medical conditions and has been diagnosed with [listed conditions] and cannot walk unassisted and suffers from [mental health issues] and bereavement after the loss of her husband. As a result of these conditions she cannot function or perform the basic domestic tasks and personal care such as bathing, toileting, dressing and taking medication. Other than attending medical appointments, the sponsor had not gone out of the house in two years. She has a fear of the unknown and of hospitals and nursing homes. In her medical doctor’s opinion, the sponsor needs a carer who would live in to look after her ‘around the clock’. The sponsor receives minimal assistance from health and community services on an ad-hoc basis and not suitable for a patient who would need a high level of care. The level of care from welfare or community services could not be reasonably expected to that level of care the applicant provides and would be expensive, impractical and inconvenient. The sponsor needs someone who is close to her and by her side always. She also has psychological and emotional needs such as recalling and listening to old family stories, reading newspapers and watching videos in Vietnamese which can only be catered for in the home environment by a suitable carer. The special relationship between the sponsor and the applicant has developed a trust for the family in terms of pooling together their emotional and financial resources to care for the sponsor. The psychologist asserts that the applicant’s care of the sponsor contributes significantly to her quality of life.

27. On the form 47OF at question 71 which asked, ‘Has anyone sought assistance from an Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?’ The response box is ticked in the affirmative. Provided as part of the visa application are copies of letters that the sponsor sent to various agencies. She sought advice on services to assist her daily living. In October 2016, community transport wrote to the sponsor and enclosed information about community transport and the taxi subsidy scheme. She was advised that if she wanted to access community transport, she would need to contact My Aged Care. Also, in October 2016, a social worker from South Western Sydney Local Health District, responded to the sponsor about information on eligibility for community services on psycho-social support, transports, counselling services or meals on wheels. The sponsor was advised that to access community services she would need to call My Aged Care.  She was told about a pamphlet written in Vietnamese and English which gave further information about My Aged Care. She was also advised that to access community based mental health services she would need to call the Mental Health Line to seek assessment and treatment for her mental health [conditions]. She was told that access to interpreting services were available. A letter from a home care service provider tells the sponsor of an attached pamphlet giving information about their services and advised her that if she couldn’t understand she should call and speak with one of the Vietnamese staff members who would assist.

28. The applicant provided the Tribunal with the following information:

    An Aged Care Assessment Team (ACAT) assessment summary generated on 28 May 2019 for the sponsor: 

29. The assessment summary recorded that the applicant signed the ACAT assessment consent form on behalf of the sponsor due to the sponsor’s [condition]. The sponsor has a history of [specified conditions]. She has [other specified conditions]. She needs assistance with cleaning, cooking, personal care, shopping, medication, gardening and transport due to her [frailty] impairment and pain. The sponsor did not have any services provided or ACAT approval. She would benefit from a Home Care Package (HCP) Level 3 and some services while she is waiting for the HCP.

    A letter dated 28 May 2019, from New South Wales Government, South Western Sydney Local Health District, Aged Care Assessment Team:

30. The letter dated 28 May 2019 recorded that on 27 May 2019, the sponsor was assessed by the ACAT. She was approved as eligible to receive permanent Australian Government subsidised aged care from 28 May 2019 in the form of an HCP Level 3.  Her priority for home care services was medium and she would be placed on the national queue and notified when a home care package is assigned to her.  She should consider the contribution she may be asked to make to the cost of the services. The first step is for her to seek a formal income assessment from the Department of Human Services (DOHS).  She should call the Department and discuss her circumstances and the next steps.  Consideration had been given to her medical, physical, psychological and social circumstances as indicated by her assessment information which indicated that she needs help to perform daily living tasks including assistance in making decisions about her living activities and arrangements as identified by the ACAT assessor and this was due to her [specified condition].  She would benefit from increased social and community participation.

31. A letter from the Australian Government, Department of Health, My Aged Care:

    It recorded that as a result of the sponsor’s assessment with the ACAT and conversations with My Aged Care, they provided referral codes to enable the sponsor access to services of flexible respite, personal care and domestic assistance.

32. A letter dated 14 November 2019, from the Australian Government, My Aged Care:

    The sponsor was advised that she had reached the top of the queue and had been assigned a level one home care package. This package is lower than the one she is approved for but lets her start to receive some home care services while she waits for a level three home care package. To use her home care package, she needed to choose a home care provider that offers the services she needs and agree to receive services and enter into a Home Care Agreement with her chosen provider by 9 January 2020. If she receives an income tested payment, she did not need to take any further steps about the fees she would need to pay.  However, if she was not receiving an income tested payment, she should call the DOHA and ask if she needed a formal assessment. Her services can start once she has an agreement in place. If she had not entered into an agreement with a home care provider by 9 January 2020 the package would be withdrawn. If she had not entered into an agreement by 9 January 2020, she could seek a 28-day extension to do so. The sponsor was asked to advise My Aged Care if she didn’t want the home care package now and that she could contact My Aged Care in the future and ask for a package.

33. A letter/report from Liverpool Health Service records that the sponsor was admitted to Liverpool Hospital on 27 August 2019 and discharged on 3 September 2019:

    It stated that the sponsor was brought into the hospital by her family because of concerns about her [psychological state]. Over the past two to three months the family reported an escalation in [specified symptoms].  In the last three weeks the sponsor had periods where she [had specified behaviours] and had increased aggression toward her grandson and granddaughter and told her family that she wants to join her husband (who is deceased). She had not previously seen a geriatrician or older age mental health team. The letter/report recorded what appears to be various clinical notes including that the issues during admission were [a specified condition].  It also recorded the sponsor’s discharge plan and medication on discharge.

34. On 1 November 2019, a medical practitioner stated the following:

    The sponsor suffers from multiple medical problems being [specified condition].  [Surgery] was performed to improve her [specified conditions].  She is attended and supported fulltime by the visa applicant.

    A letter dated 17 January 2020, from an Old Age Psych from the Bankstown Older People’s Mental Health (OPMH) provided information including the following:

1. He recommended that the applicant be granted the visa and remain in Australia to care for the sponsor. He has been the sponsor’s physician since September 2019. He stated that the sponsor suffers from [conditions] and has medical comorbidities including [specified conditions] which impacts on her quality of life. The sponsor mobilises outside of the house in a wheelchair and with the assistance of family. As a result of her mental illness, pain and difficulties mobilising she requires the full-time care and support of the applicant.

   A letter dated 5 March 2020, from a psychologist, provided information including the following:

2. Her report is provided at the request of the sponsor and will detail the need for the applicant to remain in Australia to provide care for the sponsor. She detailed information about the sponsor and her family members, which she stated was taken from brief clinical interview, mental health assessment observations during consultations and medical records and interviews with the sponsor and her family. She assessed and provided counselling sessions to the sponsor from September 2019 to February 2020. The sponsor mentioned during the sessions that she is (feeling) the lowest she has ever felt in her life. She feels uncertain about her life and feels that she is not open with people since her husband passed away and has lost interest in everything. She [has specific difficulties] almost daily. She suffers [conditions] and ruminates about the applicant’s visa application, health issues and life stresses most of the time.  She stated that she has no thoughts to harm herself and there are no psychotic symptoms.  

   ·In 2013, the sponsor’s husband and applicant’s father, was diagnosed with [a specified condition].  The applicant applied for a carer visa related to her father and was approved for the visa and was placed in a queue for visa grant. Her father passed away on 25 June 2016, and the carer visa application was refused. The applicant then applied for a carer visa in order to care for the sponsor. The information appears to be from reliable sources and valid. She is concerned about the possible psychological implications should the applicant be refused the visa. She assesses the sponsor as suffering from [specified conditions]. The sponsor experiences persistent [specified symptoms] and avoidance of previously enjoyed activities.  Symptoms of [her condition] reported by the sponsor include [specified symptoms]. Her depression appears to have been triggered by the loss of her husband, chronic health problems, loneliness and fear that the applicant will leave her side and fear of separation from the applicant triggered and maintained the sponsor’s psychological issues. The sponsor does not have any other suitable people to care for her and its unlikely that any individual would provide the same level of care the applicant provides.

   ·It is evident that the sponsor requires fulltime care to meet her physical and psychological needs and it is perceived that the sponsor would be unlikely to be able to live independently without the fulltime support of the visa applicant. The sponsor is best supported from having one carer who can comfort her continuously in the face of [one condition] and that carer would obviously be female. Refusing the visa will impact significantly on the sponsor’s mental health. Removing the applicant as the sponsor’s carer will no doubt cause significant psychological injury to the sponsor. The sponsor has a strong bond with the applicant and depends on her in all aspects of life. It is recommended that the applicant be permitted to care for the sponsor. The sponsor has been encouraged to continue sessions with the psychologist to help reduce her mental health issues. The sponsor speaks very broken English and due to her [condition] also struggles to communicate in her native language.

3. On 6 March 2020, a social worker from South Western Sydney, Local Health District stated that her visits to the sponsor range from fortnightly to monthly depending on her mental state and care needs. She provided information including the following:

   ·The applicant requested the report and it has been given with the permission of the sponsor to update the applicant’s application for review. The sponsor is an 80-year-old Vietnamese-speaking widow since 2016. She was sponsored by her children to come to Australia and arrived in 1991. The sponsor stated that her children are working and have their own lives. The applicant reported that she attends to the sponsor’s caring needs including giving medication, supervising her safety (mental and mobility) monitoring her mental state and providing her with comfort as required, supervising her personal care, cooking Vietnamese meals, supervision and assistance for personal care and going walking to a park, weather permitting. Caring for elderly parents is well known in the Vietnamese community.  The applicant’s siblings are supportive of her caring for the sponsor and agree that this arrangement would be best for the sponsor. They have limited time to provide one to one care for their mother. The applicant stated that she and her family live with the sponsor, at no cost, in a house provided by the applicant’s siblings.

   ·The applicant reported that the sponsor has approval for a community care package but wanted to be cared for by the applicant rather than accessing social support services.

   ·In September 2019, the geriatric team working at Liverpool Hospital referred the sponsor to local community mental health services for [specified behaviours]. 

   ·In October 2019, her care was transferred to Bankstown Older People Mental Health (OPMH).  Bankstown OPMH provides clinical treatment to older people with mental health issues and mental illness. The changes in her social environment, ageing process and medical issues are likely factors impacting her mental well-being and increasing care needs. The sponsor has been recommended [medication] as a treatment. The health care services they provide their consumers compounded with the one to one care available by family members in safe and collaborative environment would have a positive health impact on their consumers.

4. On 15 March 2020, the applicant stated the following:

   ·In 1991 her family moved to Australia. In 2012, she moved to Australia under her husband’s Subclass 457 visa. Her parents were living with her brother’s family, who work long hours and her parents mainly cared for each other. As the accommodation provided by her husband’s company was far away from her parents she asked if she could move in with her parents and care for them. During her stay her father was diagnosed with [a medical condition] and asked if they could stay to help. She applied for a carer visa with her father as sponsor which was approved and she was placed in a queue. When her father passed in June 2016, the carer visa application was cancelled.

   ·The sponsor has problems which are not known to everyone. Since her father’s funeral, the sponsor has ‘been hiding in her shell, angry with everyone and in self-denial’. Gradually, all family members gave up on her. The applicant is the one who lives with her and who stands next to her the whole time. They share a strong bond and the sponsor is more open with her. The sponsor was depressed and having a breakdown because of worry of having to live by herself.

   ·The applicant lodged an application for a carer visa with her mother as the sponsor.  She entrusted the carer visa application to her lawyer. On 8 March 2018, the carer visa was refused and the sponsor was devastated and depressed. Her daily work for the sponsor is very exhausting. She wakes the sponsor and helps her out of bed. The sponsor requires help in all aspects.  She uses a walker but needs aid to navigate slowly. She needs help dressing and with toileting and hygiene. The sponsor requires assistance with meals and she monitors the sponsor sleeping during the day in case of breathing problems. She talks to the applicant during the day and when siblings arrive, she withdraws and seeks comfort in the applicant.

   ·The sponsor is psychologically dependent and very particular.  She has become dependent on the applicant and will refuse care being given to her by other people.  She is difficult with strangers and people who she doesn’t trust. It is even hard for her siblings to maintain contact when the sponsor is so attached to the applicant. She believes that one person is necessary to psychologically deal with the sponsor’s difficulties.

5. On 15 March 2020, Mr That Bao Khoi Ton, stated the following:

   ·The applicant has cared for her parents since 2012. When his grandfather died, they went through a lot of ups and downs with the sponsor. They wanted to take the sponsor for a medical assessment but she refused. At that time, the sponsor told them that she was panicking because she was afraid the carer visa would be cancelled and she would have to live alone. The applicant must be with the sponsor until she gets better. The refusal of the carer visa (under review) is very stressful because the first application was approved and queued.

6. On 8 March 2020, Miss Nu Bao Thi Ton, stated the following:

   ·She spends time talking to the sponsor a few times a week. After her grandfather died the sponsor developed negative thoughts. She will provide her grandmother with physical and psychological support.  However, her grandmother trusts the applicants more than anyone else.

7. On 15 March 2020, Mr That Tuan Ton, stated the following:

   ·He moved to Australia in 2012, with his family and became the editor of a Vietnamese television channel and currently prepares radio sessions for the Vietnamese community. His employer provided the family accommodation. At the time he thought that it was better for the applicant to live with her parents because they had been separated for a long time. The applicant cared for her father until he passed. The sponsor became pessimistic and lost hope for life. She was embarrassed about some of her children and [details deleted]. She distances herself from family members except the applicant and her family.

8. Statutory declarations from the sponsor’s children who live in Australia have been provided, and give information about the care the applicant provides the sponsor and other information as follows:

   ·Ms Thi Thu Ngoc Nguyen, the sponsor’s eldest daughter, stated the following: The applicant’s siblings work fulltime and are unable to care for the sponsor. The applicant is the only person who can care for the sponsor fulltime. The sponsor needs care 24 hours a day, seven days a week. She needs someone who is close to her to be by her side always. When she was in hospital recently, the applicant had to stay with her as the sponsor feared being surrounded by strangers and at other times someone close needs to be with her.  Residential care would not be suitable for the sponsor. She can’t speak English and can’t communicate with staff. Her mental health would worsen if she was in a nursing home. They enquired with aged care agencies about home care.  They were verbally advised that they could only provide home care for a few hours a week. The government is unable to provide full time home care as it would be expensive and this is the reason they didn’t follow up on their enquiries.

   ·Mr Dang Phuoc Nguyen, the sponsor’s eldest son, gives reasons why he can’t care for the sponsor and stated the following: he used to live in the same place as the sponsor but they didn’t get on and he moved out. The sponsor needs full-time care and is a traditional Vietnamese lady who won’t accept a male to care for her physically and psychologically. The applicant is the only one who can care for the sponsor.

   ·Statements from the sponsor’s other children and grandchildren give reasons why they can’t care for the sponsor.  They explain that the sponsor required 24 hours care each day and reasons why the applicant is the best person to care for the sponsor. They assert that the sponsor is a difficult person and difficult to get along with and will not accept assistance from a male person.

   ·Other third-party statements give information about the care the applicant provides the sponsor and about their bond.  

9. In a statement dated 31 March 2020, which is typed and signed by the applicant but appears to have been written by another person, gives information as follows:

   ·The sponsor suffers from a myriad of complex medical conditions. She needs 24/7 constant care and assistance for toileting, bathing, mobility, dressing, grooming, transportation and taking medication. The applicant has been caring for the sponsor since 2012. The delegate did not give due consideration to the sponsor’s other serious permanent impairments. This underestimates the level of care that is needed and distorts the decision about which mode of care is appropriate. The sponsor has [specified conditions and their impacts] and she needs assistance with all household and domestic duties. She suffers from mental health issues that have continued to worsen.

   ·The assessing officer and psychologist noted that she suffered from [specified conditions].  She has [a condition relating to] her children.  Her psychologist has written that she is stubborn and withdrawn with her other children. The discharge records from Liverpool Hospital show that the doctor observed signs of [negative behaviours]. She has become strongly attached to the applicant both physically and psychologically. The psychiatrist and psychologist request the grant of the visa in the best interest of the sponsor’s health and breaking their bond is not in her best interest.

   ·The sponsor suffers from co-morbidities which further complicate her care needs.  She is currently being treated for [specified conditions]. All of which need require special dietary care and pharmaceutical care and regular medical and diagnostic appointments. She suffers from [conditions] leaving her dependent on the applicant all day and night. Her conditions are permanent. She has been receiving care from the applicant and is comfortable with this arrangement. It will be possible to maintain the sponsor’s dignity by granting the visa. She actively resists help from male persons. As an Australian it is important that the sponsor gets the appropriate level of care to suffice her needs and keep her connected with medical service providers. The applicant is in frequent contact with medical specialists and health professionals to manage the sponsor’s health. Placing the sponsor in a nursing home is inappropriate because she will be vulnerable to neglect and communicable disease in that setting. Her broken English and need for an interpreter will also be an isolating factor, further deteriorating her mental health. The risks of institutional care are serious, especially considering the risk of COVID-19 and the fact that the current care arrangements in-home are going smoothly.

   ·Enquiries about community services providing home care visits were made but the costs were extreme without government support. Consideration was given to splitting the costs between siblings, but the fact remained that the support was not enough to care for the sponsor’s needs.  Home care service was only available a few days a week despite the sponsor needing 24/7 support.  This was inappropriate for the sponsor’s needs. The quality of care the sponsor receives from a stranger is unlikely to be of the same standard that is available in the home environment provided by the applicant. Especially when the sponsor has mental health issues and [difficulties] trusting others. She has proven that she is not cooperative with anyone helping her other than the applicant. Due to her mental illness and [specified condition] the sponsor is extremely resistant to outside help. The applicant meets the definition of carer and the requirements for the carer visa. It is requested that the Tribunal substitute a decision to grant the visa

10. The sponsor’s daughter declared that they enquired with aged care agencies about home care.  However, were verbally advised that they could only provide home care for a few hours a week and the government is unable to provide full time home care as it would be expensive and this is the reason they didn’t follow up on their enquiries. It is maintained that community services providing home care visits were cost prohibitive and would be unable to cater for the sponsor’s 24/7 needs.  While other claims relate to the inappropriateness of the sponsor being cared for by a male person and that she has difficulty with strangers and people she doesn’t trust.

11. The Tribunal considered the information provided by Dr Van Lanh Nguyen and accepts his opinion regarding the sponsor’s conditions.  It also considered the information provided by a psychologist in 2016 and 2017. It understands that the sponsor may fear hospitals and nursing homes. However, it may not be possible for the sponsor to have a live-in carer to look after her and be by her side always. The Tribunal accepts that care from welfare or community services may be different to that provided by the applicant.  It does not accept the psychologist’s opinion that these services would be expensive, impractical and inconvenient because it is unclear how the psychologist came to that view or on what evidence he based his opinion. It does not accept that the sponsor’s emotional and psychological needs could not be assisted by family members and medical professionals and/or others. While the Tribunal may accept that the applicant contributes to the sponsor’s quality of life and that they have developed trust, it does not accept that this means that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

12. The Tribunal considered the information provided by OPMH in January 2020. The Tribunal accepts that the sponsor suffers from the conditions as detailed. It does not accept that the assistance for the sponsor cannot be reasonably obtained from services in Australia, because there is little evidence before the Tribunal to demonstrate that this is the case.

13. The Tribunal considered the information provided by a psychologist in March 2020.  It accepts that the sponsor may feel uncertain and is not open with people and suffers from the conditions as detailed. It understands that it may be preferable for the sponsor to be cared for by one female carer. It accepts that the sponsor and the visa applicant may have a strong bond and that the refusal of the visa may present challenges for the sponsor including language challenges. It does not accept, even considering the sponsor’s psychological conditions that this means that assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.

14. The Tribunal considered the information provided by a social worker in March 2020 about the sponsor’s mental health. It accepts that the changes in the sponsor’s circumstances may challenge her mental well-being and possible increase care needs. It understands that the position put forward is a preference for the sponsor to be cared for by the applicant.  However, it does not accept that this means that assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

15. The applicant told the Tribunal the following. She is the carer for the sponsor who has multiple complex medical conditions.  She suffers [specified conditions]. She assists the sponsor with hygiene and getting dressed and taking her medication and exercising to assist her mobility. She prepares meals and cleans the sponsor’s room and the house. During the day she prepares the sponsor to listen to ‘Dharma’ to assist her spirituality. The sponsor walks with the assistance of a walker or a frame and when necessary uses a wheelchair. The sponsor has multiple medical conditions that need attention and with the assistance of her husband she takes the sponsor for medical appointments and for social outings to the park or beach.  More recently the social outings have been restricted because of the COVID-19 pandemic.

1. The Tribunal discussed with the applicant the assessment by ACAT which resulted in the sponsor being approved as eligible to receive permanent Australian Government subsidised aged care from 28 May 2019 in the form of an HCP Level 3. It asked the applicant whether a formal income assessment from the Department of Human Services had been sought.  It also asked the applicant whether the sponsor had accessed the services of flexible respite, personal care and domestic assistance.  It asked the applicant whether the sponsor had chosen a home care provider that offered the services she needs and agreed to those services and entered into an agreement with her chosen provider.

2. The applicant told the Tribunal the following. She is the main carer for the sponsor. ACAT made an assessment but only offered an HCP Level 1 and 2 and she was told not to do anything until an HCP Level 3 became available and she had not done anything about it yet.  The HCP Level 1 and 2 would not suffice as the sponsor needs care day and night. After the letter from ACAT came the sponsor became depressed. They have not accessed the services of flexible respite, personal care and domestic assistance or chosen a home care provider or entered into any agreement with a home care provider. The sponsor refused services from strangers.  She refused to go near crowds and rejects strangers coming near her.  She refuses help from a nursing home and if they placed her in a nursing home it would seem that the family can’t look after her. The sponsor will not accept being placed in a nursing home and will not accept being cared for by a male person. She will only accept care from the applicant and her family. However, the applicant thought that they should enquire about nursing homes facilities. She contacted a nursing home but was advised that they were not ‘doing anything because of COVID’. She also had her son email two other nursing homes but they have not received any responses. At times they have asked other family members to visit the sponsor but they were not available or sometimes came for short visits.

3. Mr That TuanTon, told the Tribunal the following. The applicant provides care for the sponsor and no one else can be as close to the sponsor as the applicant. They have agreed that she will provide that care and he will care for their children. He has observed that the relationship between the sponsor and her children is close.  However, she has the closest relationship with the applicant. The lifestyle in Australia and Vietnam is different but relationships between parents and their children is the same. The applicant has a strong bond with the sponsor who listens to her. He organises time to assist the applicant take the sponsor for medical appointment.  He also assists with moving the sponsor to the car. The sponsor’s other family members don’t give the sponsor attention because they are busy in their own lives. The sponsor likes the tradition of family living under the same roof and is demanding 24 hours a day.  She is argumentative and forgets things.  He helps by explaining things to her and keeping her happy. When they take the sponsor to the hospital, she becomes nervous because of the language barrier. He doesn’t think that any service can provide the care she needs.

4. Miss Ton, told the Tribunal the following. She is in her first year of university studying pharmacy and management.  She lives at home and sees that the sponsor needs help with toileting and hygiene and needs someone to cook for her.  She referred the Tribunal to the written submissions already provided to the Tribunal.

5. Mr That Bao Khoi Ton, told the Tribunal the following. He is in his third year studying international hospitality.  The applicant spends lots of time caring for the sponsor who can be very cranky. He tried to contact nursing homes but they didn’t reply so they can’t rely on nursing homes.

6. The Tribunal accepts the following. The sponsor suffers from the conditions as described.  The sponsor may be psychologically dependent on the applicant and a particular person and have difficulty with strangers and people she does not trust and wants someone close to her. The applicant’s view is that one person is necessary to psychologically deal with the sponsor’s difficulties. The sponsor would rather remain in her own home and have the applicant provide her with care and assistance and is concerned about living alone. The sponsor may be reluctant to engage other services. The Tribunal understands that the visa process can be stressful and that the applicants previously were queued in relation to a carer visa application relating to the applicant’s father.

7. The Tribunal has been provided information about the sponsor enquiring about services that may be obtained. The information provided is that the sponsor wrote to several agencies seeking assistance. Evidence has been provided, that she received some responses to her letters and was directed to various help lines which would advise her and that the advice could be given in either the Vietnamese or English languages. Other claims are made about residential care not being suitable for the sponsor because she can’t speak English and can’t communicate with staff and this would isolate her. It is claimed that nursing home care is inappropriate because the sponsor would be vulnerable to communicable disease, especially considering the risk of COVID-19. It is asserted that the sponsor’s mental health would worsen if she was in a nursing home.

8. The sponsor may be reluctant to think of other aged care services.  It appears to the Tribunal that neither the sponsor or her family took any action to obtain services offered to the sponsor either as a result of the letters that were sent to agencies or through ACAT. The evidence from ACAT is that the sponsor was  assessed and eligible to receive permanent Australian Government subsidised care from May 2019 with an HCP level 3 and while she waited for those services to become available was assigned an HCP Level 1 and that these services were permanent.  The instructions in how to obtain services in the Aged Care letter gives clear directions about how to activate interim services while awaiting the availability of the HCP Level 3. While it is unclear whether these services would provide the level of assistance required for the sponsor, there is little evidence that other services in Australia could not be reasonably obtained by welfare, hospital, nursing or community services.

9. It is apparent that the sponsor is having trouble looking after some aspects of her welfare.  It follows that it is a matter for her family to decide how best to care for her.  It is evident that the sponsor wants to remain in her own home with the applicant caring for her. However, this does not necessarily mean that the assistance cannot reasonably be obtained through services in Australia.  In considering the claims about the lack of 24-hour services and the cost of services being prohibitive, the Tribunal is not satisfied that this is the case because it has not been provided any independent evidence of enquiries made to community services or from service providers to show that this is the situation or that any investigation has been undertaken to establish whether 24-hour services are reasonably obtainable from welfare, hospital, nursing or community services in Australia. Neither is the Tribunal satisfied that cultural factors, such as language barriers and not being cared for by a male person, mean that the assistance cannot reasonably be obtained from welfare, nursing or community services in Australia because no evidence has been provided to support that service providers cannot cater to the sponsor’s cultural needs. The Tribunal notes that both the sponsor’s general practitioner since 1991 and her psychologist in 2016 and 2017 are male persons. The claims that services can’t communicate with the sponsor in her own language is provided without any information to support the claim.  There is no evidence about what these services are or about the services that were approached that allowed this view to be formed. The Tribunal understands that the sponsor may have difficulty with strangers and people she does not trust and that the COVID-19 Pandemic may present challenges in obtaining suitable services for the sponsor, as would her psychological and health conditions and her language and cultural requirements. The Tribunal does not consider it to be reasonable for the sponsor to refuse services in Australia.  It does not accept that that assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia for the sponsor.

10. 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

11. 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.

12. 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).

13. The Tribunal considered the information the subject of the certificate and the applicant’s response to the Tribunal’s invitation to comment on or respond to the information. Part of the information the subject of the certificate is related to previous visa applications made by the applicant and her husband. The information is related to the applicant’s husband’s employment and qualifications and is not relevant to this review and the Tribunal places no weight on the information for the purposes of this review.  Other information the subject of the certificate is related to the sponsor’s children and their reasons for not being able to provide care to the sponsor.  This information and the delegates consideration of the information is detailed in the delegate’s decision record which the applicant provided to the Tribunal.

14. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. Having considered the evidence individually and as a whole, the Tribunal is not satisfied  that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for the sponsor, therefore r.1.15AA(1)(e)(ii) is not satisfied.

15. As the Tribunal has determined that the criteria for the grant of the visa have not been satisfied the Tribunal has not considered the remaining criteria.

16. 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 prescribed criteria for the visa sought.

17. There are no claims or evidence that the applicant meets the criteria for any of the other subclasses contained in Class BU.

18. 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

19. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Helena Claringbold
    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.