Nguyen (Migration)

[2023] AATA 3775

Nguyen (Migration) [2023] AATA 3775 (14 October 2023)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Anh Thi Nguyen

VISA APPLICANTS:  Mr Cong Vu Lam
Mrs Hong Nga Tran
[the third applicant]

REPRESENTATIVE:  Ms Thu Ngoc Bannan (MARN: 0964816)

CASE NUMBER:  2207199

HOME AFFAIRS REFERENCE(S):          OSF2016/038625

MEMBER:Stephen Conwell

DATE:14 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 14 October 2023 at 1:26pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance cannot reasonably be provided by other relatives or obtained from service providers – multiple physical health conditions – partially dependent for assistance – previous care by visa applicant son while visiting home country and two daughters while in Australia – one daughter’s fly-in, fly-out work in remote location and the other’s work and care for own children – informed by providers that care would be a maximum of 4 hours – little or no evidence of inquiries – preference for care by family member – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.20(2), 15AA(1)(b)(iv), (e)(ii), Schedule 2, cl 116.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 8 March 2022 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 5 July 2016. 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 (Cth) (the Regulations). In the present case, the primary visa applicant, Mr Cong Vu Lam (the applicant) is seeking to satisfy the criteria for the grant of a Subclass 116 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 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that cl.116.221 was not met because the delegate was not satisfied that the primary visa applicant (the applicant) was the carer of the resident, who is also the sponsor and review applicant. Specifically, the delegate was not satisfied that the availability of suitable services has been fully investigated for the purpose of r.1.15AA(1)(e)(ii). In the absence of evidence of what assistance was available to the resident, the delegate found that r.1.15AA(1)(e)(ii) was not met.

4. A copy of the decision record was provided to the Tribunal by the resident applicant.

5. The resident was represented in relation to the review by her registered migration agent (representative).

6. The resident, as the review applicant in this matter, appeared before the Tribunal on 6 October 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, Mr Cong Vu Lam, and from his adult sisters, Lam, Thi Ngoc Hang and Tran Hong Nga, who all attended in person. The representative also attended the Tribunal hearing The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the carer of the resident at the time of this decision.

   Background

9. The resident, Ms. Anh Thi Nguyen was born in Vietnam in 1938. She is a widow and has eight adult children -  two daughters living in Australia and the remaining six children in Vietnam. She arrived in Australia in 1999, sponsored by her daughter LAM Thi Ngoc Hang (Ms Hang).

10. The applicant is married, with 1 daughter, born on [Date]. His wife and daughter are secondary applicants in this review. The applicant has travelled to Australia on numerous occasions to visit his mother and sisters. He has also accompanied his mother between Vietnam and Australia on several visits.  At the hearing the parties told the Tribunal that until recently the resident had been living with the applicant and his family in Vietnam for the past two years.

11. When the resident is in Australia she has lived with one or the other of her two daughters - (Ms Hang) or Tran Hong Nga (Ms Nga).  Ms Hang moved to Western Australia in 2006, where she has worked in the mining industry in the north of that state for the past few years on a ‘fly in, fly out’ (FIFO) basis. 

12. In 2008 the resident lived with Ms Hang in Western Australia, however as her health has deteriorated she returned to Melbourne in 2014 to stay with her other daughter, Ms. Nga and her two sons.  The applicants also stay with Ms Nga during their visits to Australia.

13. During the preliminaries the Tribunal asked the resident whether she understood why she was there and whether she understood her responsibilities as a sponsor. Whilst the Tribunal has regard to her age, health conditions and the language difficulties, the Tribunal is not satisfied that the resident is fully aware of, supports and understands her sponsorship obligations. Nevertheless the Tribunal is prepared to accept that one of her daughters will, on her behalf, fulfill the sponsorship obligations. Therefore, the Tribunal is prepared to find that the applicant meets r.1.20(2) of the Regulations.

    Whether the visa applicant is a carer

14. 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.

    Assistance cannot be reasonably provided/obtained – r.1.15AA(1)(e)

15. 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.

16. Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal must consider the level and particulars of this assistance required by the resident in order to then assess whether this assistance cannot reasonably be provided by the appropriate relatives or obtained by from the relevant services.

17. In a Carer Visa Assessment Certificate (CVAC) dated 27 April 2016 (but also signed 9 May 2016 on several pages), the resident was said to have the following medical conditions that may impact her capacity to self-care:

    ·hypertension

    ·degenerative osteoarthritis of both knees; and

    ·degenerative osteoarthritis of lumbar spine with disc bulge leading to spinal canal stenosis.

18. In relation to the functional assessment, the assessing doctor found that the degenerative osteoarthritis of both knees meant that the resident required assistance to transfer from wheelchair to the chair and chair to the bed; she was unable to stand up on her own even with the support of the walking stick. Furthermore, due to degenerative arthritis of the lumbar spine, the resident was unable to stand up or walk without assistance. She was unable to bend forward to touch her feet [while sitting] due to decrease range of movements and pain. She also had decreased sensation [numbness] on the right leg though out all ‘dermatomes’ compared with the left leg. She also had less power on the right leg compared with the left leg.

19. The examining doctor assigned the resident with an impairment rating of 40 points (20 points each for degenerative osteoarthritis of both knees and of the lumbar spine). The report also states the resident needs direct assistance in attending the practical aspects of daily life that will continue for at least two years.

20. The assessing doctor stated that the following medical reports had been considered in making the assessment: 

    ·GP letter by Dr. M Pang, dated 25/02/2016;

    ·Physiotherapist letter by Phuong Le, dated 01/02/2016;

    ·X-ray report: Lumbar spine dated 23/12/2015;

    ·X-ray report: Right knee dated 24/07/2014;

    ·X-ray report: Left knee dated 28/02/2012

21. None of the parties proffered an explanation as to why a more recent CVAC had been obtained, however having seen the resident in attendance at the hearing the Tribunal accepts that the resident’s medical conditions are likely to have deteriorated to some degree in the seven years since the 2016 CVAC.

22. The Tribunal has considered the evidence in front of it, and specifically the 2016 CVAC. Based on this evidence, it finds that the resident is partially dependent on others for assistance, requiring assistance with mobility, bathing/showering, toileting, dressing/grooming the lower body.  Whilst she is able to feed herself, she requires assistance with cooking meals.

23. The Tribunal finds that over the years, this assistance has been provided by the resident’s two daughters, Ms Hang and Ms Nga and by the applicant, who claims to have been his mother’s primary carer during her recent two year stay with him and his family in Vietnam. The applicant told the Tribunal that he has his own tourism company which he is able to operate mainly from his home in Vietnam. Consequently he was able to care for his mother in Vietnam. The applicant also claims to continue to be the resident’s primary carer whilst he and his family are in Australia on Visitor visas. According to the written statement of Ms Hang, dated 29 September 2023,  the economic and family circumstances of the other siblings in Vietnam render all of them unsuitable to care for the resident.

24. The Tribunal put to the applicant that given his fortunate personal circumstances as a business owner in Vietnam, and given that the resident has been living there with him and his family for the past two years, would not a continuation of that arrangement perhaps be the best solution to the future needs of the resident, particularly as six of her adult children live in Vietnam and only two reside in Australia. The applicant replied that his mother prefers to live in Australia and would rather receive care and support  in Australia.

25. The Tribunal notes that the reason that the resident’s daughter, Ms Hang is no longer able to help care for her mother is because she lives in Western Australia, working as a FIFO worker. She has an adult son who lives with her in Perth. The other daughter, Ms Nga lives in Melbourne and has two sons – 19 and 13 years old. She claims that as a busy working mother, she hasn’t the time to continue to care for the resident as her needs increase. When asked how he is able to provide the degree of care his mother requires given that he and  his wife also have a [Age] year old daughter, the applicant claimed that as her son, it is his filial duty to care for his mother and he has no compunction in doing so, including assisting with her more intimate needs such as her toileting.

26. The Tribunal now considers the question of whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. According to the representative’s written submission,

    Her daughters claimed they therefore became reluctant to apply for any Aged Care packages or any assistance from the welfare, community services or local council to come to their home to provide care for Ms Nguyen because Ms Nguyen tends to withdraw herself and refuses to be helped by people she does not know in relation to her personal hygiene, toileting and showering. Therefore children have shared the care of Ms Nguyen amongst them. …

    After the Department of Home Affairs refused their Carer visa application, Ms Nguyen’s daughters stated they have tried again to contact their local councils and My AgedCare to apply for assistance from these services. The daughters claimed, still, the information they received was that there would be only a maximum of 4 hours of care which could be provided to Ms Nguyen at home during normal working hours. Given such limited hours, Ms Nguyen’s daughters found the assistance required to assist Ms Nguyen cannot reasonably be obtained by these services when their mother is requiring 24/7 care.

27. At hearing, Ms Hang and Ms Nga spoke to substantially the same details. They reiterated that their brother, the applicant was best placed financially and in his personal circumstances to care for their mother.

28. The Tribunal has considered the information in front of it, including the representative’s submissions, statutory declarations and written statements of the parties and their testimony at hearing. While it accepts that the resident may wish to be cared for by the applicant, her son, the Tribunal must satisfy itself that enquiries have been made about what services, if any, are able to be obtained. Until this occurs, it is not able to consider the resident’s wishes and make findings about the reasonableness of obtaining assistance from the relevant services.

29. On the information provided, the Tribunal finds that between 2019 and 2022, the Department made repeated requests to the resident and her daughters to submit evidence of any enquiries into what assistance may be able to be obtained from welfare, hospital, nursing or community services in Australia. As noted by the delegate on page 5 of the decision record,

    The family members and the resident have stated that they have not looked at the availability any services from welfare, hospital, nursing or community services in Australia.

    The application was lodged on 5 July 2016 and after considerable time and numerous requests from the Department for evidence of any investigation into the availability of residential care for the resident or in-home welfare/community facilities or nursing services to meet the care needs of the resident, the applicant has only provided a request to My Aged Care dated 14 January 2022 to have an assessment.

    The assessment request to My Aged Care is not evidence of investigation into services available to the resident. My Aged Care only recommends services that the resident could investigate, but does not actually provide any services. …

    In the absence of any supporting documentary evidence of what assistance is available to Anh Thi NGUYEN from any Australian welfare organisation, hospital, nursing home or other community service, I do not find that it has been demonstrated that sub-regulation 1.15AA(1)(e)(ii) has been met.

30. The representative’s written submission claims that after refusal of the carer’s visa application the resident’s daughters tried again to contact their local councils and My AgedCare to apply for assistance in respect of these services. The daughters claimed they were advised that there would be only a maximum of 4 hours of care which could be provided to Ms Nguyen at home.  The Tribunal notes that despite the repeated requests from the Department since 2019, there remains little or no evidence of the enquiries that the family claim to have made in respect of the services that might be available to their mother.

31. The Tribunal is not satisfied that adequate enquiries have been made into what assistance can be obtained by the resident. As a consequence, it is not able to satisfy itself that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia in conjunction with the assistance that can reasonably be provided by Ms Nga, the daughter with whom the resident currently lives in Melbourne.

32. The Tribunal accepts that the resident would understandably, prefer to receive care from a family member but it is not satisfied on the evidence before it that she cannot reasonably obtain such services, wholly or in part, through Australia’s welfare system, nursing, hospital or community services. There is no credible evidence that the Australian relatives of the sponsor have made any meaningful, diligent and sustained efforts to access services from such services for the resident.

33. The Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore requirements of r.1.15AA(1)(e)(ii) and ultimately r.1.15AA(1)(e) are not met.

34. As r.1.15AA(1)(e) is not satisfied, the applicant is not a carer of the Australian relative, being the resident and sponsor, and therefore does not satisfy cl.116.221.

35. Consequently as the applicant does not meet the requirements for the grant of the visa, the secondary visa applicants do not meet the requirements for the grant of visas.

36. For the reasons above, the visa applicants do not meet the criteria for a Subclass 116 visa.

37. There are no claims or evidence before the Tribunal that the visa applicants satisfy the requirements of the other visa subclasses within Other Family (Migrant)(Class BO).

38. For the reasons above, the 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.

    DECISION

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

    Stephen Conwell
    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.