Nguyen (Migration) - [2023] AATA 4446

Nguyen (Migration) [2023] AATA 4446 (16 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Thanh Hai Nguyen
REPRESENTATIVE:  Dr Tung-Bao Ngo (MARN: 0006620)
CASE NUMBER:  1927401
HOME AFFAIRS REFERENCE(S):          CLF2019/8904
MEMBER:Justin Meyer
DATE:16 November 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl.836.213 of Schedule 2 to the Regulations; and
·cl.836.227 of Schedule 2 to the Regulations.

Statement made on 16 November 2023 at 5:20pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – subject of an approved sponsorship – sponsor’s capacity to understand the sponsorship obligations – Cognitive Impairment consistent with Alzheimer’s Disease – cogent evidence from the sponsor at the hearing – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), rr 1.03, 1.20; Schedule 2, cls 836.213, 836.227
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 Home Affairs on 26 September 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 22 February 2019. At that time, 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 (Cth) (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. Relevantly to this matter, the primary criteria to be met include cl 836.227.
The delegate refused to grant the visa on the basis that cl 836.227 requires the sponsor’s sponsorship to be ‘approved by the Minister and…still in force’ at time of decision on this application. Regulation 1.20 of the Regulations provides the sponsorship framework for a Subclass 836 visa. A sponsor for such an application is required to undertake the obligations referred to in regulation 1.20. Essentially, the sponsor undertakes to ensure that their family member is supported during their initial settlement in Australia and hence does not become a charge on the wider Australian community. The weight of the medical evidence indicated that the applicant did not have the capacity to understand her sponsorship undertaking at time of the decision. Therefore, the delegate found that the applicant did not meet cl 836.227 in Schedule 2 of the Regulations
The applicant appeared before the Tribunal on 2 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Mui Thi Chu, the visa applicant, who is the applicant's mother. 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. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether the applicant was sponsored by the sponsor under cl.836.213 at the time of application and whether the applicant continues to be sponsored under cl.836.227 at the time of this decision.
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s son.
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 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
Were the sponsorship requirements met at the time of application?
Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. For these purposes, “relative”, “Australian permanent resident” and “eligible New Zealand citizen” are defined in r.1.03 of the Regulations. At the time of application, the applicant was said to be sponsored by an Australian relative, being his mother who is an Australian citizen and who has turned 18.
As alluded to above, the delegate was not satisfied that the sponsor had the capacity to understand the sponsorship obligations. This finding was based in part on the fact that at time of lodging this application, the applicant provided a Carer Visa Assessment Certificate (CVAC) dated 15 February 2019, which provides insight into his sponsor’s medical conditions and the extent to which they impact her activities of daily living.
In this document, the assessing Medical Officer from Bupa Visa Medical Services awarded the sponsor the maximum score of 30 points for ‘Cognitive Impairment consistent with Alzheimer’s Disease’ and ‘Depression’ against Table 7 (relevant to brain function) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011. According to these impairment tables, this maximum score is attributed to a person when they exhibit ‘extreme’ functional impact on their ADLs due to a neurological or cognitive condition.
The assessing doctor noted in the CVAC that it was reported that Ms Chu’s memory was poor and she forgets if she has eaten. It was also stated that she becomes disoriented outside her home. The doctor recorded from their own observations that Ms Chu was unable to understand basic instructions and could not recall her day or month of birth. She was also unable to advise the officer of the details of the home help she receives due to her cognitive impairment.
Submission in writing
The applicant submitted that:
·The sponsor, Ms Thi Mui CHU, is an 82 year-old widow who has five children, two of whom are Australia citizens living in Victoria, but neither of whom can assist because one has heath conditions and the other’s relationship with the sponsor broke down irreconcilably to the point of having not contact.
·The visa applicant is one the sponsor’s sons. He is aged 54, divorced, and has no children.
·He has worked in Vietnam as a Veterinarian for more than twenty years.
·He arrived in Australia in 2018 and has been caring for the sponsor in the past five years.
·Tasks include bathing, cooking, laundry, preparing meals, cleaning doing gardening and others. But the more important tasks are reminding the sponsor to take medications and taking her to see doctors.
·In addition, the visa applicant has taken the sponsor to attend elderly person’s associations each week in her locality.
·In her Statutory declaration dated 11August 2019 the sponsor states she believes there was a misunderstanding of BUPA’s assessing doctor who states: "It appears that you may not have the capacity of understand the requirements of sponsorship undertaking"'. In her declaration she has also suggested the reasons as to why there was a misunderstanding of the examining officer in respect of her gesture during the interview.
·The sponsor states she has and will continue to provide the visa applicant with accommodation and financial support. Presently she has been granted a government accommodation and both have lived there together since 15 July 2021.
The applicant made statutory declaration in 2019 to the effect that there was a misunderstanding by the examining officer who commented that she did not have appropriate eye contact in her interview and was looking down during the assessment. She was born and grew up in a Vietnamese culture where people do not usually maintain eye contact while speaking and talking to an older and/or higher ranking people and bow (down) while listening as a sight of respect to the older and/or high ranking people. Additionally, during the assessment she tried to listen to the interpreter's voice rather than keep eye contact with the officer.
She also enclosed a letter of support by Dr Kim Son Vu, a General Practitioner, who following an examination concluded "I believe that she should be able to have the capacity to understanding her sponsorship undertaking and she can make health and lifestyle decision and financial decisions herself.”
The hearing
In the hearing, the Tribunal questioned the sponsor about her conditions, her housing arrangements, and the role that the applicant has played in assisting her. Some of the Tribunal’s questions were specific in nature and called for the sponsor to recall certain people, addresses and dates.
The applicant said that at the time of the departmental interview she had been taking medication and was confused and her mind was not clear. There was some confusion about the questions and how they were being asked.
I asked whether at the time of filling out her application she was aware of the financial impacts of the sponsorship and she said that she was.
Her son, the visa applicant, she was close to. When he was young he was a ‘good kid.’ He studied well and became a vet. They had kept in touch and he sent money to Australia for a house purchase.
There had been discord in the family with others about property ownership
The sponsor said that her son was a generous person and he cared well for her. She could recall with ease her own date of birth, her sons’ date of birth, where he was in the birth order, and the place of birth. She recalled what she had had for dinner the night before and detail about her heath conditions and medication and that her son looked after for her. She said that she could not survive without her son.
The Tribunal was left with an impression of a person who understood the situation and was capable of making decisions.
The visa applicant, Mr Thanh Hai Nguyen, gave a consistent and coherent account of events and provided corroborative statements. While the determinative issue in this review is about comprehension of sponsorship and whether the sponsor had the capacity to understand the sponsorship obligations, the Tribunal considered evidence that there had been serious family issues with another family member (an account of the visa applicant’s sister having inflicted violence against her mother in the past).
The visa applicant said that he had discussed the financial arrangements with his mother in connection with the sponsorship. He said he had lived for two to three months in one home since arriving in Australia and had now lived in public housing for several years.
I accept the visa applicant’s evidence that his mother was nervous in her interview. I accept that her memory is getting better since freeing herself of an acrimonious relationship with her daughter. On the face of it the applicant appears to help his mother by driving her to appointments and managing her medical matters - he had a good working knowledge of her medications for example.
Based on the cogent evidence from the sponsor and visa applicant in the hearing, I find that the sponsor has not at any material time suffered from any condition that would render her unable to understand the obligations of being a sponsor.
Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl.836.213.
Are the sponsorship requirements met at the time of decision?
Clause 836.227 requires that at the time of decision the sponsorship mentioned in cl.836.213 had been approved by the minister and is still in force.
In coming to a finding on whether the sponsorship should be approved by the minister, the Tribunal has considered that the sponsor appears to have been cared for by the applicant since when the applicant came onshore in 2018, although it notes that it has not made any assessment of the specific carer criteria under r.1.15AA of the Regulations. It has also considered that the applicant is being provided accommodation by the sponsor. To the extent that the Tribunal has a discretion to consider relevant matters before approving the sponsorship,[1] it finds that these matters cause it to be satisfied that the sponsorship should be approved.
[1] Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38. The alternative is that, there being no specific limitation placed on the sponsorship by the Regulations, the sponsorship must be approved because the undertakings in r.1.20 are not enforceable.
Lastly, there is no evidence before the Tribunal that the sponsorship has been withdrawn and so the sponsorship remains in force at the time of this decision.
Therefore, at the time of this decision, the applicant satisfies cl.836.227.
For the reasons above, the applicant meets the criteria for a Subclass 836 visa.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
- cl.836.213 of Schedule 2 to the Regulations; and
- cl.836.227 of Schedule 2 to the Regulations.
Justin Meyer
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.