Nguyen (Migration)

[2019] AATA 2074

Nguyen (Migration) [2019] AATA 2074 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Nuc Nguyen

VISA APPLICANTS:  Ms Thi Tam Pham
Mr Thanh Doan
Mr Anh Bao Doan
Mr Anh Vu Doan

CASE NUMBER:  1721596

HOME AFFAIRS REFERENCE(S):           2013026957 OSF2013/026957

MEMBER:Stavros Georgiadis

DATE:14 February 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 14 February 2019 at 11:24am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – applicant not carer of Australian relative – not able to provide substantial, continuing assistance to person needing care – no current health provider certificate provided – review applicant has access to ongoing care – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA, Schedule 2, cl 116.221

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 Immigration and Border Protection on 21 August 2017 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 8 November 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, the applicant 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. Relevantly to this matter, the primary criteria to be met include cl.116.221.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied that the first named (primary) visa applicant is able to provide substantial and continuing assistance to the person needing care to meet Regulation 1.15AA(1)(f).  The remaining visa applicants (as members of the same family unit as the primary applicant) were accordingly, also not able to satisfy the criteria for the grant of the visas.

4. The review applicant is aged 81 years. She appeared before the Tribunal on 13 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Huong Nguyen who is the sister of the review applicant’s daughter in law, Thi Kim Loan Nguyen. Ms Thi Kim Loan Nguyen is the spouse of the review applicant’s deceased son and is the review applicant’s current carer.  She has been providing care for the review applicant since June 2014 and they have been residing together in the same household. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The primary issue in the present case is whether, for the purposes of cl.116.221 at the time of decision, the visa applicant (the applicant) is a ‘carer’ of the Australian relative (or ‘resident’) in accordance with the definition of ‘carer' in r.1.15AA of the Regulations.

   Whether the visa applicant has claimed to be a ‘carer’

8. Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant claims to be a carer of the review applicant, who is the visa applicant’s aunt.

9. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. This includes a relationship of aunt / niece, as is the case here.

10. The Tribunal accepts from the oral evidence presented and documents before it, that the applicant claims to be a carer of the other person (the review applicant) at the time of application.

11. The Tribunal notes that the review applicant is an Australian Citizen and therefore finds from the relationship of aunt / niece, that the ‘carer’ sponsor is an ‘Australian relative’ - i.e. a ‘relative’ as defined in r.1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen.

12. The Tribunal is satisfied that at the time of application, the visa applicant claimed to be a carer of an Australian relative and therefore, satisfies the requirements of cl.116.211.

    Whether the visa applicant is a ‘carer’

13. Clause 116.221 requires that at the time of decision, the visa applicant is a ‘carer’ of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations, which is set out in the attachment to this decision. The elements of r.1.15AA are cumulative. Accordingly, where the applicant has not met any one element of r.1.15AA, the Tribunal has not found it necessary to consider any remaining elements.

    Applicant is a relative of the resident – r.1.15AA(1)(a)

14. Regulation 1.15AA(1)(a) requires that the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s aunt. The Tribunal accepts the applicant’s submission that the relationship of aunt / niece is a specified type of relationship included within the meaning of r.1.03.

15. The Tribunal considered the review applicant’s residency status.  Mrs Thi Nuc Nguyen told the Tribunal that she has been living in the suburb of Pooraka, South Australia in her current home for approximately 5 years now, and that prior to that she lived in the same suburb in SA but in another shared residence.  Accordingly, the Tribunal is satisfied that the applicant, Ms Thi Tam Pham, is not only a relative of the Australian relative, Mrs Thi Nuc Nguyen, having regard to the definitions of ‘relative’ and ‘close relative’ in r.1.03 but further, that Mrs Thi Nuc Nguyen, is ‘usually resident’ in Australia.

16. Therefore, given the visa applicant’s relationship as a niece of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).

    Certification – r.1.15AA(1)(b)

17. Regulation 1.15AA(1)(b) requires a certificate which meets the requirements of r.1.15AA(2).  This states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the 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.

18. Regulation 1.15AA(3) stipulates that the opinion in a certificate from the health service provider is to be taken as correct for the purposes of whether or not the applicant satisfies the impairment criterion.  For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister as set out (relevantly) in Legislative Instrument IMMI 14/085, or issued by a specified health provider in relation to a review of such an opinion. Here the health provider specified by the instrument is Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services (Bupa).  

19. The submission at the hearing was that there appears to be no (current) certificate from a specified health provider - just medical reports dated more than 2 years before the date of hearing. Written submission from the applicant’s representative made following the hearing, on the day of the hearing, set out as follows:

    ... “ in regards to a “current “ BUPA CERTIFICATE OF IMPAIRMENT with a rating for the purpose of the need for a carer, I advise that we do not have a “current certificate dated within the past 2 years” , nor does Thi Nuc NGUYEN herself.

    This is a matter that [has] obviously been overlooked given the passage of time since the November 2013 visa application.

    It has taken over 5 years for the case to become [sic] before the AAT for reconsideration - the writer was not involved with the original submissions.

    It is considered reasonable to ask the member/AAT for an extension of time to allow for a fresh medical examination by BUPA – we have contacted BUPA and the lead time for another medical report/certificate would be say 6 weeks.” ...

20. Further written submissions from the applicant on the day following the hearing confirmed that the applicant received a Carer Visa Assessment Certificate dated 1 October 2013 and opened the envelope containing the certificate on 15 November 2013.

21. The Tribunal accepts from the oral evidence provided and submissions that there is no “current certificate dated within the past 2 years” from a health provider specified by the Minister in Legislative Instrument IMMI 14/085, or issued by a specified health provider in relation to a review of such an opinion.

22. The Tribunal has considered the applicant’s request in the written submissions to delay making a decision in the matter until a fresh certificate (from the current health provider, BUPA) can be obtained. The Tribunal notes the Carer Visa Assessment Certificate dated 1 October 2013 from the specified health provider (at that time) Medibank Health Solutions. There is no other certificate before the Tribunal for the purposes of r.1.15AA. The Medibank Health Solutions certificate is substantially more than 2 years old.

23. It is clear that to satisfy the requirements for the visa at the time of decision, the Regulations require a medical assessment from a health provider specified by the Minister in Legislative Instrument IMMI 14/085. As observed by the applicant the visa application was made in November 2013 and more than 5 years has passed since the application was lodged. The Tribunal has a significantly outdated certificate before it which, for the reasons outlined in the following paragraphs, will not satisfy the requirements of r.1.15AA.

24. The Tribunal notes that the applicant was invited on 15 January 2019 to participate in the hearing of 13 February 2019 but did not seek or attempt to obtain any current certificate for the purposes of satisfying the requirements of r.1.15AA since being advised in writing of the date of hearing. Nor until now, has the applicant sought any updated certificate since 2 years after the last certificate of 1 October 2013 was issued.

25. The Tribunal notes that the review applicant is represented by a registered migration agent and therefore, has the benefit of access to advice regarding her application. Allowing further time to obtain a second certificate would cause substantial further delays to the application. In addition, despite the lack of a current certificate, the Tribunal is of the view based on the review applicant’s oral evidence, that she is not able to satisfy the requirements of r.1.15AA(1)(b)(e) as she has access to ongoing care provided by her daughter-in-law (Loan Nguyen) with whom she lives and who has been caring for her in the same household for the past 5 years.  Thi is despite Loan Nguyen currently having six grandchildren of her own. Ms Loan Nguyen’s sister, who works part-time, is able to assist with the care of their own mother aged 73 years, whom she lives next door to. The Tribunal also notes the review applicant’s niece, the visa applicant, has two children to care for including a child aged 3 years (under school age), that she will be starting a hairdressing business in Australia with her husband (as they presently have in Vietnam), and that she will not be residing in the same household as the review applicant. Furthermore, the review applicant receives other care and services from welfare, hospital, nursing or community services including the Vietnamese Community in SA and her local council as described at the hearing and is presently being assessed by My Aged Care for further services and assistance. In these particular circumstances described above, the Tribunal has declined the adjournment request for the reasons set out and has decided to proceed to determine the matter on the evidence available before it at the time of this decision.

26. The Tribunal notes the present tense language of r.1.15AA(1) suggesting that the certification must be in relation to matters that are current as at the time of assessment of r.1.15AA. As a result, where evidence is such that it can no longer be said that ‘according to a certificate…the medical condition is causing physical, intellectual or sensory impairment’ etc. (emphasis added) as at the time of the decision, it is problematic for the Tribunal to rely on the aforementioned certificate of 1 October 2013 given it age.

27. Further, the requirement in r.1.15AA(1)(b)(iv) suggests certification contains an additional temporal element insofar as it must relate to a medical condition requiring specified assistance not only as at the time of the certification, but also on a continuing basis for at least two years after that date.[1] While certification can clearly cover a longer period requiring specified direct assistance than two years, in requiring the relevant health services provider to direct its attention to the need for assistance for only ‘at least two years’, without more, it cannot be said that a particular certification has considered matters falling beyond this period. The period beyond 2 years to the date of this decision is in excess of a further 3 years.  The material test is whether, because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life [r.1.15AA(1)(b)(iv)].

    [1] r.1.15AA(1)(b)(iv).

28. The Tribunal considers that in the case where the provided certificate is more than two years old, it is no longer current for not having contemplated the matters directed in r.1.15AA(1)(b)(iv) as in existence as at the time of the Tribunal’s decision.

29. Accordingly, the Tribunal finds that the certificate dated 1 October 2013 does not meet the requirements of r.1.15AA(2).

30. Given these findings, the Tribunal concludes that at the time of decision the first named visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.  Accordingly, none of the remaining named applicants in this combined application (as members of the same family unit) can satisfy the requirements for the grant of the visa.

31. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 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 - consistent with the delegate’s findings on this.

    DECISION

32. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Stavros Georgiadis
    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.