Nguyen (Migration)

[2024] AATA 368

Nguyen (Migration) [2024] AATA 368 (22 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Anna Xuan Anh Nguyen

VISA APPLICANT:  Mr Viet Tuan Kiet Nguyen

CASE NUMBER:  2213307

HOME AFFAIRS REFERENCE(S):          BCC2021/1703634

MEMBER:Moira Brophy

DATE:22 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

·cl 117.211 of Schedule 2 to the Regulations; and

·cl 117.221 of Schedule 2 to the Regulations.

Statement made on 22 February 2024 at 1:15pm

CATCHWORDS

MIGRATION – Child (Migrant) (Class AH) visa – Subclass 117 (Orphan Relative) – orphan relative of an Australian relative – mother’s death certificate – permanently incapacity of father – emotional and physical abuse – Palliative Care Specialist evidence – inability to care for a child – decision under review remitted           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 117.111, 117.211, 117.221; rr 1.03, 1.14

CASES

Acosta v MIBP [2016] FCCA 1276
Nguyen v MIMA (1998) 158 ALR 639

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 July 2022 to refuse to grant the visa applicant a Child (Migrant) (Class AH) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 17 August 2021. At that time, Class AH contained three subclasses: Subclass 101 (Child), Subclass 102 (Adoption) and Subclass 117 (Orphan Relative). In this case, claims have been made in respect of the Subclass 117 visa.

3. The delegate refused to grant the visa because the visa applicant did not meet cl 117.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) because at the time of application, the visa applicant did not meet the requirements of reg 1.14(b) in that the evidence did not establish the visa applicant could not be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts.

4. The review applicant, who was also the sponsor for this application, appeared before the Tribunal on 18 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Amy Nguyen, Mr Van Duc Ngo and Mr Viet Tuan Anh Nguyen.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   Background

6. The visa applicant, Mr Viet Tuan Kiet Nguyen is currently living in Vietnam with the sponsor’s former sister-in-law.  According to the visa applicant’s birth certificate, his parents are Vo Thi Cam Thi (mother) and Nguyen Viet Tuan (father). In the application the sponsor stated the visa applicant’s father was incapacitated and his mother was deceased. A death certificate for the visa applicant’s mother Vo Thi Cam Thi was provided to the Department. The date of death was recorded as 9 July 2012.

7. Prior to hearing the review applicant provided the following:

   ·Copy of the delegate’s decision record and notification, dated 18 July 2022;

   ·Written submission made by the review applicant and dated 27 June 2022;

   ·Medical report for Mr Nguyen Viet Tuan made by Dr Nguyen Xuan Tri and dated 10 June 2022;

   ·Original document in Vietnamese and certified English translation of a Notarial certificate for Mr Nguyen Viet Tuan from the Officer Health Care and Protection Committee, dated 19 May 2021;

   ·Statutory declaration made by the review applicant and dated 26 June 2022;

   ·Medical report for Mr Tuan Viet Nguyen made by Dr The Than Ha Ngoc, Cardiologist, Geriatrician, Palliative Care Specialist, dated 9 June 2023;

   ·Comprehensive Geriatric Assessment Form for Mr Tuan Viet Nguyen, completed by Dr The Than Ha Ngoc and dated 5 June 2023;

   ·Email correspondence from the review applicant requesting priority processing, dated 14 November 2023;

   ·Witness statement made by Amy Nguyen, undated;

   ·Statutory declaration made by Viet Tuan Anh Nguyen and dated 13 January 2024; and

   ·Statutory declaration made by Van Duc Ngo and dated 13 January 2024.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant is the orphan relative of an Australian relative.

   Is the visa applicant an orphan relative of an Australian relative?

9. Clause 117.211 requires that at the time of application the visa applicant is an orphan relative of an Australian relative (cl 117.211(a)) or is not an orphan relative only because the visa applicant has been adopted by an Australian relative (cl 117.211(b)). The visa applicant must continue to satisfy that criterion at the time of decision, or not do so only because he or she has turned 18: cl 117.221.

10. ‘Orphan relative’ is defined in reg 1.14 of the Regulations, which is extracted in the attachment to these reasons. An ‘Australian relative’ is a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 117.111. A ‘relative’ means a grandparent, grandchild, aunt, uncle, niece, nephew or a close relative, and a close relative means a spouse or de facto partner, child, parent, brother or sister (step-relationships are also included): reg 1.03.  In the present case, the sponsor and review applicant, Ms Anna Xuan Anh Nguyen, is the relevant Australian relative.

11. For the reasons below, the visa applicant was an orphan relative of an Australian relative at the time of application. Furthermore, the visa applicant is an orphan relative of an Australian relative at the time of this decision. Therefore, the Tribunal finds that cl 117.211(a) is met, and continues to be met at the time of decision.

    Age – reg 1.14(a)(i)

12. Regulation 1.14(a)(i) requires that the visa applicant has not turned 18. The Tribunal is satisfied on the evidence before it that the visa applicant was born on 1 November 2004. The application was made on 17 August 2021. The Tribunal is satisfied the visa applicant had not turned 18 at the time of application.  Accordingly, reg 1.14(a)(i) was met at the time of application and continues to be met at the time of decision.

    Spouse or de facto partner – reg 1.14(a)(ii)

13. Regulation 1.14(a)(ii) requires that the visa applicant does not have a spouse or de facto partner. The Tribunal is satisfied on the evidence before it that the visa applicant did not have a spouse or de facto partner either at time of application or at time of decision. Accordingly, reg 1.14(a)(ii) was met at the time of application and continues to be met at the time of decision.

    Relative – reg 1.14(a)(iii)

14. Regulation 1.14(a)(iii) requires the visa applicant to be a relative of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, as defined in reg 1.03. ‘Australian permanent resident’ means a non-citizen who is usually resident in Australia and who holds a permanent visa.

15. A ‘close relative’ is defined by reg 1.03 to mean partner, child, parent, brother, sister, or a step-child, step-brother or step-sister; or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew.

16. The Tribunal accepts the sponsor and review applicant is the biological half-sister of the visa applicant. They share the same father, Viet Tuan Nguyen. The sponsor and review applicant is therefore a close relative as defined in reg 1.03. Accordingly, reg 1.14(a)(iii) was met at the time of application and continues to be met at the time of decision.

    No parental care – reg 1.14(b)

17. Regulation 1.14(b) requires that the visa applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts. Permanent incapacity refers to an impairment of a parent’s power, capacity, ability or possibility to care for his or her child which is indefinite or not temporary; it does not refer to a mere refusal to care, abandonment of care or an unwillingness to care by a parent: Nguyen v MIMA (1998) 158 ALR 639 per Merkel J.

18. It is submitted by the visa applicant that his mother is deceased. The Tribunal accepts on the evidence provided, namely the death certificate, that Vo Thi Cam Thi, the mother of the visa applicant passed away on 9 July 2012.

19. The critical issue for the Tribunal is whether the father of the visa applicant, Nguyen Viet Tuan is permanently incapacitated and as a result of that incapacity not able to care for the visa applicant. The requirement is that the parents cannot, as distinct from will not, care for the child, and only because of the prescribed reasons. Accordingly, an applicant cannot be considered an orphan merely because his or her parents have abrogated their responsibility to provide care or fulfil their parental role. In Acosta v MIBP [2016] FCCA 1276 (Judge Street, 26 May 2016) at [10], the Court found that an alcoholic parent and a parent who is neglectful in feeding a child do not on their face fall within the ordinary meaning of the concept ‘permanently incapacitated’. The Court held that parents may be dysfunctional in their childcare or neglectful, but that it is not the same as being ‘permanently incapacitated’.

20. The Tribunal carefully considered the evidence:

    ·Statutory declaration of the review applicant Anna Xuan Anh Nguyen dated 26 June 2022: in that statement the review applicant spoke of the difficulties growing up with a father who was an alcoholic and the emotional and physical abuse in their household prior to her parents divorcing in 2005. The visa applicant is her half-brother. Her father remarried in 2007 and the visa applicant is the child of her father’s later marriage. In her oral evidence to the Tribunal, the review applicant stated she came to Australia to study and became a permanent resident in 2005. In 2010 she returned to Vietnam and removed her brother and half brother from the care of her father because of her concerns for their wellbeing. The review applicant has assumed the care of the visa applicant since that time.

    ·Statutory declaration of Viet Tuan Anh Nguyen dated 16 January 2024: Viet Tuan Anh Nguyen stated that prior to his coming to Australia in 2022, the visa applicant lived with him and his then wife from 2012. The review applicant met the visa applicant’s financial needs since that time, and she continues to do so. The visa applicant has remained living with the former wife of Viet Tuan Anh Nguyen.

    ·Medical report of Dr Than Ho Ngoc, Cardiologist, Geriatrician, Palliative Care Specialist, at Tao Dau Clinic dated 9 June 2023: in this report it was stated Mr Tuan Viet Nguyen DOB 14 February 1954 was suffering from hypertension, Type 2 diabetes, chronic coronary syndrome, dyslipidaemia, chronic kidney disease and microcytic hypochromic moderate anaemia. Dr Ngoc opined Mr Tuan Viet Nguyen “is unable to care for himself and obviously is unable to care for any other people. Mr Nguyen does not have a work capacity permanently. He is permanently incapacitated and has no prospect of returning to work nor of providing care to anyone.”

    ·A Comprehensive Geriatric Assessment form dated 5 June 2023: this assessed Mr Tuan Viet Nguyen as having Post Traumatic Stress Disorder, Dementia, Depression, anxiety, fatigue, hallucinations, delusions and Parkinson syndrome.

    ·A Medical Report dated 10 June 2022 from Dr Nguyen Xuan Tri, a general practitioner in pulmonary diseases and an ENT specialist at Nguyen Xuan Tri Medical Practice: following examination of Mr Nuyen Viet Tuan and his medical history, he considered the following medical conditions contributed to his incapacity: chronic obstructive pulmonary disease, hepatitis C, high blood pressure, diabetes type 2, coronary artery heart disease, dyslipidaemia. He opined that the combination of the patient’s age, multiple serious chronic medial conditions, unhealthy lifestyle with unquittable drinking and smoking habits led to a conclusion the patient was permanently incapacitated.

21. The issue of whether the father of the visa applicant was permanently incapacitated was raised with the visa applicant by the Department in a letter dated 2 June 2022. The review applicant was asked to provide a report from the treating medical specialist and/or treating doctor as evidence that her father has a permanent incapacity and as a result of this incapacity is unable to care for the visa applicant. She was advised the medical report should contain information as to when the condition was diagnosed, treatment provided to date and plans for future treatment, clinical findings from previous testing, whether the impairment was permanent and the extent to which her father required assistance with his daily living activities and how this impacted his ability to care for the visa applicant. The medical evidence provided is summarised above. The Tribunal is mindful of the assessment provided by Dr Than Ho Ngoc that the father of the visa applicant “has no prospect of returning to work nor of providing care to anyone.” The review applicant was also requested to provide evidence of her father’s violence towards the visa applicant and alcoholism by way of police and social worker reports. The Tribunal accepts her evidence that the fact there were cultural barriers to raising issues of domestic violence with police and the fact there were no corroborating reports is not an indicator it did not in fact occur. The review applicant provided evidence by way of a Psychological Assessment from Westmead Hospital conducted on 16 March 2016 where she had discussed with the psychologist the effect on her of growing up with childhood abuse from her father.

22. At the hearing, the Tribunal discussed these issues that had been previously raised with the review applicant. The Tribunal accepts the review applicant wants to be able to support the visa applicant and ensure he is provided with the opportunity to fulfill his potential. The review applicant told the Tribunal of their strong bond and how she feels a keen sense of responsibility towards him.

23. The Tribunal accepts the medical evidence as to the difficulties the visa applicant’s father presently faces and accepts the visa applicant’s father has an impairment that relates to his capacity, or ability to care for a child which is indefinite. When the medical evidence was considered along with the evidence given at the hearing, the Tribunal was persuaded that in this case the father of the visa applicant is unable to care for his son.

24. Accordingly, reg 1.14(b) was met at the time of application and continues to be met at the time of decision.

    Best interests – reg 1.14(c)

25. Regulation 1.14(c) requires that there is no compelling reason to believe that the grant of a visa would not be in the best interests of the visa applicant. As there is no clear evidence that the grant of the visa would not be in the best interests of the visa applicant, the Tribunal finds that there is no compelling reason.

26. Accordingly, reg 1.14(c) was met at the time of application and continues to be met at the time of decision.

27. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

28. The Tribunal remits the application for a Child (Migrant) (Class AH) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 117 (Orphan Relative) visa:

    ·cl 117.211 of Schedule 2 to the Regulations; and

    ·cl 117.221 of Schedule 2 to the Regulations.

    Moira Brophy
    Member

    
    

    ATTACHMENT – RELEVANT LAW

    Migration Regulations 1994

    1.14Orphan relative

    An applicant for a visa is an orphan relative of another person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if:

    (a)the applicant:

    (i)has not turned 18; and

    (ii)does not have a spouse or de facto partner; and

    (iii)is a relative of that other person; and

    (b)the applicant cannot be cared for by either parent because each of them is either dead, permanently incapacitated or of unknown whereabouts; and

    (c)there is no compelling reason to believe that the grant of a visa would not be in the best interests of the applicant.