Nguyen (Migration) - [2019] AATA 4403

Nguyen (Migration) [2019] AATA 4403 (4 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Thi Loan Nguyen
VISA APPLICANTS:  Ms Thi Thanh Thuy Tong
Ms Tong Thi Tho Nguyen
CASE NUMBER:  1721588
HOME AFFAIRS REFERENCE(S):           2013027299 OSF2013/027299
MEMBER:Kate Millar
DATE:4 October 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 116 (Carer) visa:
·cl.116.221 of Schedule 2 to the Regulations.

Statement made on 04 October 2019 at 5:04pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) –dependent for activities of daily living – assistance cannot reasonably be provided by relatives or obtained from community services in Australia – decision under review remitted
LEGISLATION
Migration Regulations 1994 (Cth), r 15AA
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mrs Nguyen is 84 years of age, and lives with her husband Mr Chi Van Tong who is 85 years of age. Mr Tong provides care for Mrs Nguyen along with a second cousin Ms Huong Nguyen.
Mrs Nguyen suffers from depression, osteoarthritis, and chronic pain which results in poor mobility. She has problems with her vision.
Mrs Nguyen wants her daughter to come from Vietnam and care for her. On 9 September 2013, Mrs Nguyen’s daughter, Ms Thi Thanh Thuy Tong together with her grand-daughter Ms Tong Thi Tho Nguyen applied for Other Family (Migrant) (Class BO) visas. Their visa applications were refused by a delegate of the Minister for Immigration on 16 August 2017 because the delegate was not satisfied that the care required by Mrs Nguyen could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
Mrs Nguyen appeared before the Tribunal on 12 August 2019 to give evidence and present arguments, and was represented by her registered migration agent. The Tribunal also received oral evidence from her sons Thanh Van Tong, Troung Van Tong and Thanh Van Tong. Mrs Nguyen has two sons with the name Thanh Van Tong, one born 1966 and one born 1976. The Tribunal also heard from Ms Huong Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Mr Tong was reported to be too unwell to attend the hearing or to participate by telephone. A medical certificate was provided after the hearing stating he was unit to attend the hearing on 12 August 2019.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicants applied for the visa on 9 September 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 (the Regulations).
In the present case, Ms Tong is seeking to satisfy the criteria for the grant…

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) [2019] AATA 4403
Case: [2019] AATA 4403
Decision Date: 4 October 2019

CaseChat Overview and Summary

This matter concerned an application for a Subclass 116 (Carer) visa by Ms Tong, who sought to provide care for her Australian citizen daughter, Mrs Nguyen. The Tribunal was required to determine whether Ms Tong met the criteria for the visa, specifically focusing on whether the assistance Mrs Nguyen required could not reasonably be provided by other relatives or obtained from community services in Australia.

The legal issues before the Tribunal were the interpretation and application of subregulations 1.15AA(1)(e)(i) and (ii) of the Migration Regulations 1994. These subregulations define a "carer" by requiring that the necessary assistance for the Australian resident cannot reasonably be provided by other eligible relatives or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered its obligation to accept the nature and scope of the impairment and consequential need for assistance as documented by a health service provider, as per subregulation 1.15AA(3).

The Tribunal reasoned that while certain criteria for the Subclass 116 visa had been met, specifically that Ms Tong was a relative and Mrs Nguyen had a documented medical condition requiring ongoing assistance, the crucial elements of subregulation 1.15AA(1)(e) remained in dispute. The Tribunal noted that it could consider whether the required assistance could be met by a combination of family support and community services, a position supported by case law. However, the Tribunal did not make a final determination on these specific criteria.

Consequently, the Tribunal remitted the visa application for reconsideration by the Minister. The remittal was made with the direction that the first named applicant, Ms Tong, met the criterion specified in clause 116.221 of Schedule 2 to the Regulations, allowing for further assessment of the remaining criteria for the Subclass 116 visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The visa applicants applied for the visa on 9 September 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 (the Regulations). In the present case, Ms Tong 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 Tong must meet the primary criteria in Part 117 to be granted the visa, and her daughter need only meet the secondary criteria. The primary criteria to be met include cl.116.221 which requires that Ms Tong is a carer of the Australian relative. The term “carer” is defined in r.1.15AA As Mrs Nguyen is an Australian citizen,[1] and Ms Tong is her daughter,[2] r.r.1.15AA(1)(a) is met. Mrs Nguyen has the required health provider assessment that specifies that:·she has a 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. [1] As shown by a copy of her Australian passport. [2] As shown by an English translation of her birth certificate, issued in Vietnam. 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:(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 … 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. 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.[3][3] [2013] FCCA 1263What assistance does Mrs Nguyen require? In looking at the type of assistance required, the Tribunal is not required to turn its mind to the nature and scope of the assistance required, and 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.[4] [4] r.1.15AA(3), Sefesi v MIBP [2016] FCCA 975

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 Ms Tong meets this criterion, her daughter may meet the secondary criteria for the grant of the visa, and it is appropriate to remit the visa application of the second named applicant for reconsideration. DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 116 (Carer) visa are met:·cl.116.221 of Schedule 2 to the Regulations;Kate MillarSenior MemberATTACHMENTMigration 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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