Nguyen (Migration) - [2018] AATA 3293

Nguyen (Migration) [2018] AATA 3293 (13 July 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thi Hien Nguyen
CASE NUMBER:  1610034
DIBP REFERENCE(S):  CLF2016/4022
MEMBER:Kira Raif
DATE:13 July 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 13 July 2018 at 8:57am
CATCHWORDS
Migration – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Whether the care cannot reasonably be provided by any other relative – Where the sponsor has a number of other relatives resident in Australia - Where the applicant claims care cannot be provided by other relatives – Care can be appropriately provided by a mixture of professional services and relatives currently present in Australia – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA, Schedule 2, cls 836.221, 836.321
CASES
Azzi v MIMIA [2002] FCA 24
Jajo v MIBP [2013] FCCA 1554
Nguyen v MIBP [2015] FCCA 3254
STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 June 2016 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant is a national of Vietnam born in May 1956. She applied for the visa on 18 January 2016. The delegate refused to grant the visa on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was the carer of her Australian relative. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 19 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and two of the applicant’s siblings. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by her registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Relevant law
At the time the application was made, 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 Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.
Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in r.1.15AA of the Regulations.
Whether the applicant is a carer
Regulation 1.15AA(1)(a) requires 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 applicant’s mother and evidence of the relationship has been submitted with the application.
The applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.1.15AA(2), 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.
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 or issued by a specified health provider in relation to a review of such an opinion.
The applicant provided with her application a copy of the Certificate issued by Bupa Medical Visa Services in January 2016. The Certificate specifies that the sponsor is a person who has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life. The certificate indicates that there is a need for direct assistance in attending to the practical aspects of daily life because of the medical condition and that the need for direct assistance will continue for at least 2 years. The Certificate indicates that an impairment rating of 50 has been assigned.
The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The sponsor is an Australian citizen and a copy of her Australian passport has been submitted with the application. The requirements of r.1.15AA(1)(ba) are met.
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.
Regulation 1.15AA(1)(e) 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 NZ citizen or obtained from welfare, hospital, nursing or community services in Australia.
In considering this provision, the Tribunal has had regard to the sponsor’s particular circumstances and her medical condition and has assessed the capacity of others to provide care in light of the sponsor’s specific needs.
The sponsor has several relatives in Australia, including five adult children and six adult grandchildren. There are other children residing in Vietnam. Each of the sponsor’s relatives in Australia provided statements explaining why they are unable to provide the requisite care and additional statements have been provided to the Tribunal prior to, and after the hearing.
The sponsor’s relatives provided declarations referring to their employment commitments or study commitments. Evidence of their employment and study has been submitted. The Tribunal accepts that these relatives are employed and some have study commitments and others have family commitments. The Tribunal accepts that some have young children to take care of. The Tribunal accepts and that they are not able to act as full-time carers to the sponsor but the Tribunal is not satisfied that such commitments would preclude them from providing at least some degree of care to their grandmother. For example, while the Tribunal accepts that having young children or working full-time would involve considerable time commitments, the Tribunal does not accept that as a result, these relatives cannot spend time with the sponsor or help with at least some of the tasks she requires.
Each of the sponsor’s children also provided declarations outlining their commitments and explaining why they cannot care for their mother. Again, the Tribunal accepts that they work and have family commitments. The Tribunal accepts that they cannot act as full-time carers. The Tribunal does not accept that such commitments preclude them from providing some degree of care.
The applicant and some of her siblings claim that it is culturally inappropriate for a male relative to provide care with such tasks as showering and toileting. The Tribunal acknowledges that this may be the case but the Tribunal does not consider that all care must be provided by a single relative, so that if one relative is unable for whatever reason to provide particular type of care, it may be possible for that relative to provide other type of care.
In her submission to the Tribunal of 13 June 2018 the applicant argues that her mother requires 24 hour care due to her age and medical condition and she states other relatives cannot provide such care as that would require them to reduce their work commitments or give up their jobs. The applicant also claims that it would be culturally inappropriate and embarrassing for male relatives to assist with some tasks.
In oral evidence to the Tribunal the review applicant said that although her mother has six children and five grandchildren, they all have full-time jobs and their own families and they are busy and cannot provide the 24 hour care. The review applicant said that even if the relatives can contribute towards the care during the day, they need to be with their families during the night.
The review applicant told the Tribunal she has not worked since coming to Australia and her siblings help with the food and expect her to care for her mother. The Tribunal questioned the applicant about the relatives in Australia and the applicant explained why each of the sponsor’s children and grandchildren cannot contribute to the care of the sponsor.
The Tribunal questioned the applicant about the ACAS Assessment and what care may be provided. The applicant said that three days a week someone comes and helps. The Tribunal is mindful that the ACAS Assessment Report indicates approval for high level residential care, rather than in-house care. The applicant said that her mother does not want to go to a nursing home because she cannot communicate in English and also because she cannot eat the food. The applicant said her mother is afraid of strangers and needs her to stay with her all the time.
The applicant said that they have not considered hiring a professional carer because since her husband passed away, her mother has nightmares and whenever that happens, she needs to comfort her mother. The applicant said her mother does not want strangers and believes her relatives should take care of her, as is the Vietnamese tradition.
The applicant’s sister gave oral evidence to the Tribunal that none of the relatives are able to contribute to the care full-time because of work and family commitments. Ms Nguyen said that at best, they can take turns to provide care at night but it is difficult to do it during the day. Another sister also gave evidence referring to the emotional support that the applicant provides to her mother, given all the difficulties the family has gone through.
The Tribunal accepts that the sponsor requires full-time care and due to the nature of her condition, assistance is required with most or all of the basic tasks of daily living. The Tribunal also accepts that it may be more appropriate for some tasks to be performed by female carers. The Tribunal accepts that due to various commitments, none of the sponsor’s children and grandchildren are able to act as full-time carers. However, the Tribunal does not consider that the legislation contemplates the provision of full-time care by a single relative. It is also possible that care can be provided by a group of relatives or a combination of relatives and other services – see Jajo v MIBP [2013] FCCA 1554 at [55]. Further, it is also open for the Tribunal to find that the assistance can be provided by a combination of relatives and welfare, hospital, nursing or community services for the purpose of r.1.15AA(1)(e) – Nguyen v MIBP [2015] FCCA 3254. On appeal, the Federal Court confirmed in Nguyen that the relevant assistance can be obtained from a combination of relatives in Australia and welfare, hospital, nursing and community services, that the services referred to in r.1.15AA(1)(e)(ii) are not restricted to public sector services and that no assumption can be made that the services will be free, or unpaid. (Nguyen v MIBP [2016] FCA 688).
Thus, while the sponsor’s children and adult grandchildren may be unable to act as full-time carers, the Tribunal does not accept that they are unable to contribute towards the care of their mother. While male relatives may not help with personal hygiene or other tasks, there is no reason they cannot assist with other tasks such as shopping, driving, and attending medical appointments, domestic chores, supervision of food and medication.
The Tribunal also notes that some of the relatives refer to financial obligations that preclude them from reducing work hours. The Tribunal accepts that as a general rule, reducing work hours would result in lower income and may affect the family’s budget. However, there is very little evidence to support the claims that each of the relatives who refers to the financial obligations as precluding the reduction of work hours would in fact be unable to meet their financial obligations if the work hours are reduced. The Tribunal acknowledges that following the hearing, each of the relatives provided additional declarations as to why their work hours cannot be reduced, but the Tribunal does not consider that to be sufficient. It is not enough to state that they cannot reduce work hours. There is little evidence, for example financial records, income and expenditure evidence, to show that the reduction of hours would adversely affect the family’s budget to the extent that the living expenses cannot be met. There is insufficient evidence in relation to most of the relatives as to whether the working could be more flexible or whether work from home arrangements could be put in place or whether other alternatives have been considered. It has not been established to the satisfaction of the Tribunal that the reduction of work hours and the resultant reduction in income would in fact have a negative impact on the family or would result in the family being unable to meet its needs. It has not been established that it is not possible to change work patterns without reducing work hours. For example, while the relatives state in their declarations that for various reasons they cannot work different hours, there is no evidence that any of the employers have been approached to establish different work patters and that such requests have been denied.
The applicant also provided with her application an ACAS Assessment Outcome Report, dated September 2009, which indicates that the sponsor qualifies for high level residential care and is approved for high level respite and permanent residential care. The applicant argues that her mother has been approved for a Home Care Package Program delivered by the Australian Vietnamese Women’s Association but the availability is limited to 7.5 hours of domestic assistance and transport a week, which is not sufficient. The Tribunal is mindful, however, that the ACAS assessment refers to residential care and is not limited to in-house care.
In her written submission to the Tribunal of 13 June 2018 the applicant notes that an earlier application for the Carer visa was made and although it was refused and affirmed by the Tribunal, the Tribunal formed the view that the Carer requirements were met. The Tribunal finds that submission unhelpful. Firstly, the Tribunal decision, which the review applicant cites in her submission, indicates that the Tribunal formed only a ‘preliminary’ view on the availability of care and it would have been unnecessary for the Tribunal to make that assessment given the adverse findings in relation to a different clause. Secondly, the present circumstances of the family may well be different to the circumstances as they existed in 2012 when the previous Tribunal made its decision. For example, there may be more relatives available now compared to 2012 because more of the grandchildren reached the age of 18 or there may have been other changes in the relatives’ circumstances since 2012. The applicant notes that her second application was also assessed as meeting the visa requirements but has been queued. Again, the Tribunal is mindful that this is not the application that is before the Tribunal and that is the subject of this review. The delegate’s findings that the visa applicant meets the visa requirements in another application are not binding upon the Tribunal in the same way as the delegate’s findings in the present application that the visa applicant does not meet the visa requirements are not binding on the Tribunal. The Tribunal conducts a de novo review and is not bound by the findings of the primary decision maker and it is unclear why the review applicant believes the Tribunal should have regard to the earlier positive findings of the delegate in another application but disregard the delegate’s findings in the present application, even though it was an earlier one.
The Tribunal has considered the applicant’s evidence, as well as the oral evidence that is before the Tribunal and the various declarations prepared by each of the sponsor’s relatives prior to the hearing and the supplementary declarations submitted on 11 July 2018.
The Tribunal has considered whether assistance can be provided by any other relative of the sponsor. Overall, the Tribunal accepts that due to various health concerns, family and work commitments, none of the sponsor’s children and grandson can act as full-time carers for her. The Tribunal accepts that the review applicant requires a carer and is prepared to accept that the applicant has a closer relationship with her mother than the others. However, the Tribunal is not satisfied that the sponsor’s relatives in Australia, including her five other daughters and an adult grandson, are unable or unwilling to provide care to her. Although they may not be able to provide care on a full-time basis, the Tribunal has formed the view that they can contribute to the provision of care and perform a variety of tasks despite their health and various commitments. Contrary to the submission from the applicant’s representative, the Tribunal notes that, on the reasoning in Azzi v MIMIA [2002] FCA 24, the Tribunal’s inquiry is not limited to what assistance can be obtained from one relative.
Further, applicant has not satisfied the Tribunal that the family cannot contribute financially to hire a carer to supplement the care the family can provide. The Tribunal acknowledges the parties’ evidence that the sponsor feels uncomfortable about having strangers in the house. However, the Tribunal is of the view that a professional carer, trained in dealing with the elderly in a culturally suitable manner, would not be inappropriate. The Tribunal is of the view that the combination of such care arrangements, from family and a professional carer if there is a need for one, would be adequate and suitable.
Having regard to all the circumstances of this case, the Tribunal is not satisfied that the assistance cannot reasonably be provided by any other relative or a combination of relatives and other health professionals. In reaching this conclusion, the Tribunal acknowledges the evidence of the applicant and her siblings, nieces and nephews that the applicant is the best, and the only, person capable of caring for the sponsor. The Tribunal does not accept that she is the only person capable of providing requisite care. The Tribunal is not satisfied the applicant meets r.1.15AA(1)(e).
The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221. The second named applicant does not meet cl. 836.321 and there is no evidence that he meets the primary criteria for visa grant.

The applicant is not old enough to be granted the aged pension and she is not an Aged Dependent Relative of an Australian relative. The applicant stated on the form that she has a sibling in Vietnam and the Tribunal finds a sibling is a near relative, so that the applicant does not meet the requirements for the grant of the Remaining Relative visa.
Conclusion
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.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Kira Raif
Senior Member