Nguyen (Migration) - [2023] AATA 2596

Nguyen (Migration) [2023] AATA 2596 (18 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Van Thoi Nguyen
VISA APPLICANTS:  Miss Thi Thu Trang Nguyen
Mr Hoang Phu Nguyen
CASE NUMBER:  1929444
HOME AFFAIRS REFERENCE(S):          BCC2015/070392; OSF2015/070392; OSF2016/073540
MEMBER:Deputy President Justin Owen
DATE:18 July 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 18 July 2023 at 1:28pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care reasonably obtained from welfare, hospital, nursing or community services in Australia – collective family assistance available – limited efforts to obtain care services – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 114.211, 115.211, 116.221, 116.321; rr 1.03, 1.15
Social Security Act 1991
CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
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 28 August 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth).
The visa applicants applied for the visas on 7 April 2015. The primary visa applicant (the visa applicant) is a 54-year-old female Vietnamese national. The secondary visa applicant is her 21-year-old son who is also a Vietnamese national. His application is on the basis that he is a member of the family unit of the primary visa applicant. At the time of application, 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 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.
The delegate refused to grant the visas on the basis that cl 116.221 was not met. The delegate was not satisfied the care the review applicant (Mr Van Thoi Nguyen who is also the sponsor and the relevant Australian resident) requires could not be reasonably obtained from welfare, hospital, nursing and community services.
The review applicant appeared before the Tribunal on 1 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Thi Thu Trang Nguyen, who is the visa applicant and the sponsor and review applicant’s daughter, and Mrs Hoang Uyen Nguyen, who is the visa applicant’s daughter and the review applicant’s granddaughter. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the visa applicant is a ‘carer’
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 reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 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 father. The Tribunal is satisfied on the evidence before it that the applicant is the daughter and therefore a ‘relative’ of the Australian relative who is an Australian citizen usually resident in Australia.
Therefore, as the visa applicant is the daughter of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).
Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet reg 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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 9 December 2021. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the person who has the medical condition has an impairment rating (of 30) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.
The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)–(iv). Accordingly, the requirements of reg 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.
In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 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. The relevant instrument for these purposes is IMMI 17/126.
In the present case, the impairment rating specified in the certificate is 30. This rating meets the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is, for the subject of the certificate, attending to the practical aspects of daily life for at least two years as a result of the medical condition.
As the person to whom the certificate relates is the Australian relative, reg 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.
The review applicant’s most recent CVAC states the review applicant is partially dependent, requiring assistance with mobility, bathing/showering, supervising medication, supervision for personal safety and transportation. The review applicant was diagnosed with knee pain, memory loss and fatigue due to chronic pain. The review applicant has been living with his wife, who also claims her own medical issues, in a home provided by the Housing Commission. The review applicant’s granddaughter in correspondence to the Tribunal claims the review applicant’s health has deteriorated since May 2022 and he has had two hospital admissions late in 2022.
At the Tribunal’s hearing, the review applicant stated he has four sons in Australia who are all Australian citizens. They range in age from mid-40s to early 50s. It has been submitted that they are unable to provide the assistance the review applicant requires. The review applicant originally outlined why he believes they are unable to assist him in a statutory declaration dated 17 February 2015 which the Tribunal has reviewed.
The Tribunal discussed the review applicant’s four sons who are all adults in the context of whether the assistance the review applicant requires cannot reasonably be provided by them either individually, collectively, or in combination with assistance obtained from welfare, hospital, nursing or community services.
The review applicant stated his eldest son Mr Ba Phuc Nguyen lives in Fairfield and cannot assist. The review applicant stated his eldest son has his own wife and children to look after and is busy working in a factory. The visa applicant stated that the eldest brother was not very well, and was suffering from depression as well as other health concerns like diabetes. She stated her eldest brother did not even visit the review applicant for lunch.
The review applicant stated his second son Mr Ba Khoa Nguyen cannot assist as he is a very busy dentist in Canley Vale with his own wife and children. The visa applicant agreed in her own testimony. The Tribunal notes that statutory declarations were also previously provided to the delegate from Mr Ba Khoa Nguyen stating he is working 14 hours a day, seven days a week whilst his wife is also managing two nail shops. He stated he was unable and unwilling to support his father, the review applicant.
The review applicant stated his third son Mr Ba Han Nguyen in Bankstown cannot assist as he has his own young family and wife to look after, whilst he also works as a factory worker. The visa applicant stated he had no time to assist. He previously provided statutory declarations to the delegate stating he and his wife were too busy with work, and caring for a young son, to provide any assistance.
The review applicant stated his youngest son Mr Ba Kiet Nguyen in Canley Vale cannot assist as he has his own family problems and he is looking after his three children. The visa applicant stated her youngest brother would visit occasionally. Mr Ba Kiet Nguyen also provided statutory declarations to the delegate stating his employment and family demands precluded any assistance he could provide to the review applicant.
The Tribunal asked the visa applicant if her brothers could not assist their father collectively if they were all occupied with their own employment and families. The visa applicant did not agree they could, given their existing responsibilities. Noting the visa applicant had applied for an offshore Carer visa, the visa applicant responded to the Tribunal that she had arrived in Australia in October 2022 and provided assistance to her father since this time.
In relation to his own wife, the review applicant states that she has her own health problems such as diabetes and is unable to provide any of the assistance he requires. The visa applicant concurred in her own testimony, stating her mother also had arthritis, high blood pressure, and that her parents were in a similar position in regard to their health. The Tribunal also noted a claim in the correspondence of the review applicant’s granddaughter, that was not pushed by the review or the visa applicant in their own testimony, that the review applicant and his wife were currently “separate”. The Tribunal is unable to confirm the veracity of this claim but for the purposes of this review accepts the ability of the review applicant’s wife to assist her husband is very limited.
The Tribunal enquired as to the review applicant’s granddaughter, Mrs Hoang Uyen Nguyen who is 29 years of age, and whether she can provide any assistance. The review applicant submitted that she was busy as a nurse at Liverpool Hospital and was married with her own young family, having had her first baby last year, meaning providing ongoing assistance was a challenge. The Tribunal notes Mrs Nguyen’s written submission to the Tribunal where she states that in the past few years she has assisted both the review applicant and his wife with managing their medications, medical appointments and assisting them with grocery shopping and running errands. As she attended the hearing, the Tribunal asked her to expand upon these matters. She stated that whilst the review applicant’s home care hours had increased in recent times, he needed someone to supervise him on a one-on-one, ongoing basis. In her opinion, the visa applicant was the most appropriate person to do so as she had a “great bonding” with the review applicant compared to his sons.
The Tribunal accepts the members of the review applicant’s family, both individually and collectively, are busy. The Tribunal appreciates they each have their own employment and young families. The Tribunal particularly notes the evidence of the review applicant’s granddaughter, whom the Tribunal accepts has provided significant assistance to her grandfather and is now facing significant impediments from continuing to do so given her job and first child. The Tribunal cannot conclude however on the basis of such limited evidence and limited insights that the entire family is essentially precluded from providing any ongoing assistance to the Australian resident, the review applicant. The Tribunal notes the review applicant lives in Canley Heights whilst all four sons live in the same local area. The Tribunal does not consider the review applicant’s nearby sons are unable, collectively and in conjunction with external services that may be obtained especially, to reasonably provide the assistance review applicant requires.
There is no corroborative evidence before the Tribunal that the review applicant’s sons are suffering from any physical or mental impediments that would preclude them from assisting with their father’s care. The Tribunal explored with the review applicant and visa applicant at the hearing what assistance can be provided by the family and ultimately is not satisfied that collectively the review applicant’s sons and other family members, including occasionally his granddaughter, are unable in such circumstances to provide the assistance the Australian resident requires, particularly in conjunction with assistance from welfare, hospital or nursing or community services. The review applicant’s sons have provided statutory declarations stating their inability to assist whilst the review applicant and visa applicant have provided oral testimony considering their purported limitations. The Tribunal has reviewed all the evidence concerning their claimed limitations, including the declarations of 2015 and 2017, and ultimately does not consider it is satisfied that they collectively are unable to provide at least some assistance to their father in conjunction with assistance obtained from welfare, hospital, nursing or community services.
The Tribunal accepts that the assistance required may potentially be beyond the capabilities of the Australian resident’s family members in Australia on an individual basis. The Tribunal accepts the existing family and employment responsibilities of the applicant’s Australian resident families may limit their own individual ability to provide the ongoing assistance required. The Tribunal has taken into account the evidence before it pertaining to the medical needs of the review applicant, and the assistance he purportedly requires. Ultimately however, it is not satisfied, on the limited evidence before it, that the assistance he requires cannot be reasonably provided by another Australian relative(s), being his sons on a collective basis, particularly in conjunction with assistance obtained from welfare, hospital, nursing or community services.
The Tribunal is not satisfied that the assistance the sponsor requires cannot reasonably be provided by a relevant relative, either individually, collectively with the family, or in conjunction with welfare, hospital, nursing or community services obtained in Australia. The visa applicant does not meet the requirements of reg 1.15AA(1)(e)(i).
The Tribunal notes that for the visa applicant to meet reg 1.15AA(1)(e)(ii), the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital or nursing or community services.
The Tribunal notes that in the applicant’s Form 47OF application form, the box ‘Yes’ was selected to Question 71 that enquires “Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?” The organisations named were ‘Ageing, Disability & Home Care’, ‘Respite Care Community service’ and ‘Veterans Home Care’.
The documents the visa applicant provided that appear in the Departmental file are a filled out Veterans’ Home Care Standard Assessment form dated 19 January 2015; an unsigned Application for Respite Care or Permanent Entry to an Aged Care Home and an undated application for support under the Community Support Program of the NSW Department of Family and Community Services.
The Tribunal noted the documents and asked as to what efforts had been in fact undertaken to obtain the services the review applicant required from welfare, community, hospital or nursing services.
The review applicant stated that no efforts had been undertaken at the time of application. He stated that he had not known how to get access to such services. The visa applicant similarly had no evidence of any efforts undertaken to obtain assistance at this time.
The Tribunal finds that no genuine efforts had been undertaken to seek assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist the visa applicant at the time of application. The Tribunal considers the documentation that was provided in the application – a Veterans’ Home Care Standard Assessment form dated 19 January 2015; an unsigned Application for Respite Care to an Aged Care Home and an undated application for support under the Community Support Program of the NSW Department of Family and Community Services were in all likelihood never actually lodged with the relevant government bodies. There is no evidence before the Tribunal of any acknowledgements or responses to these applications from any of the relevant organisations.
The Tribunal also notes that in the forms themselves the unsigned application form to an aged care home was for respite care, not permanent aged care entry, whilst the Veterans’ Home Care Standard Assessment form states that the review applicant and sponsor is not in fact on any waiting list for a Community Aged Care Package or residential care.
The Tribunal also notes the review applicant’s claim to the delegate that his lawyer assisted him in seeking community services, whilst he claimed he was placed on the waiting list for AAWAHS Aged Care and Rehabilitation. No evidence has been submitted in support of this claim.
The Tribunal enquired as to what efforts had been made to obtain the assistance required since this time. The visa applicant stated that efforts had been made to obtain assistance from welfare, community, hospital or nursing services at the time of the review applicant’s knee operation when he required assistance. She stated at this time she started travelling to Australia during the June school holidays (she is a qualified school teacher) to stay with her father and support him. The visa applicant confirmed the review applicant’s statement that no attempts had been made to obtain any services at the time of application, and they had only begun doing so in 2019, some four years after the Carer visa application was lodged. The Tribunal notes that an aged care assessment (ACAT) was in fact undertaken in July 2018.

The Tribunal asked the visa applicant of any evidence of attempts made to obtain assistance from welfare, community, hospital or nursing services. She stated there was very little evidence. She stated she was aware of applications that had been made, and the Church had been of assistance.
The Tribunal acknowledges that in July 2018 the review applicant was assigned a Level 3 Home Care Package after undertaking an ACAT. This ACAT provided permanent approvals for permanent residential care; residential respite care at a high level, as well as the Level 3 Home Care Package. The Tribunal acknowledges that in 2019 the review applicant was receiving a Home Care Level 1 package that involved two hours’ service per week to assist with domestic assistance and laundry, whilst in October 2019 the review applicant was approved by My Aged Care for a Level 3 Home Care Package.
The evidence to the Tribunal at its hearing is that the review applicant is currently obtaining two hours’ assistance in the home with domestic needs, three days per week. The review applicant and visa applicant both stated in their oral testimony that the review applicant needs 24/7 care. The Tribunal asked the visa applicant if this was the case, why was residential aged care – as the review applicant has been approved for – unsuitable.
The visa applicant stated the review applicant had not applied for any other services. She claimed her father would not go into residential aged care. In written evidence, correspondence was submitted from the review applicant’s granddaughter Mrs Hoang Uyen Nguyen who stated that the review applicant has stated a desire to remain at home. She stated that several times the review applicant’s sons have suggested his entry into residential aged care which had upset him and he had rejected. She asserted the visa applicant was the most suitable person to provide the increasing care he required. Mrs Nguyen added that as a nurse she was strongly opposed to placing the review applicant into aged care, particularly due to current nurse to patient ratios. She stated extra care could be provided to the review applicant if he remained at home.
The Tribunal has considered all the evidence before it concerning what attempts to obtain the assistance the sponsor requires from any welfare, community, hospital or nursing services had been made. The Tribunal has considered this in the context of the review applicant’s health needs.
The Tribunal acknowledges that the review applicant as the Australian resident may have a strong preference to receive care from the visa applicant in his own home. The Tribunal notes that reg 1.15AA(1)(e)(ii) requires that care must be sought in order to determine that there is no assistance that is able to be reasonably obtained from welfare, hospital, nursing and community services in Australia.
The Tribunal discussed the sponsor’s needs for assistance in some detail with the visa applicant and the review applicant at the Tribunal’s hearing. The Tribunal asked why these services could not be obtained from external welfare, hospital or nursing or community services. The argument by both parties, as well as the review applicant’s granddaughter, appears to be the review applicant has a strong preference to stay in his home and for his daughter to provide this assistance. He is opposed to entering residential aged care, despite his claim being that he now requires 24/7 assistance.
The Tribunal notes that the evidence before it strongly suggests that very limited attempts have been made to obtain any of the services the review applicant, as the Australian resident, requires at any time between the time of application and the time of decision. The Tribunal notes that to meet the criteria for the grant of this visa, the visa applicant is required to illustrate that this assistance cannot be reasonably obtained through welfare, hospital, or nursing or community services. The Tribunal acknowledges an ACAT was undertaken and the review applicant has utilised some limited (currently six hours per week) support in the home. There is no evidence or claim that residential care has been enquired into, even given the claimed health challenges the review applicant faces (or for that matter his health needs as listed in his CVAC). Given the very limited attempts that have been made to enquire into and obtain such services, the Tribunal is not satisfied that these services are not available.
The Tribunal accepts the claim that the visa applicant has been providing some of the care services the review applicant requires when she visits Australia. The Tribunal has no doubt she is a capable and loving daughter who wishes the best for her father and has worked diligently in support of him. The question for the Tribunal however remains, is this assistance reasonably obtainable through welfare, hospital or nursing or community services? In the absence of such limited attempts to obtain such services over many years, the Tribunal is not satisfied that they are not obtainable.
The Tribunal is not satisfied from the very limited evidence before it that the assistance the review applicant as the Australian resident requires cannot be reasonably obtained from welfare, hospital or nursing or community services. On the evidence before it, due to the lack of any genuine enquiries into what services are available, the Tribunal is unable to come to a level of satisfaction that the services required cannot be reasonably obtained. There is no evidence from agencies or service providers confirming that they cannot provide suitable assistance, or that the availability of care they provide does not cover the care required by the Australian resident. There is no evidence of any requests ever being made beyond the undertaking of ACATs and the utilisation of a limited number of services. There is no evidence of any attempt to enquire into whether permanent residential care, as approved in the ACAT now almost five years ago, has been sought. Quite simply, the Tribunal is not satisfied that any meaningful attempt has been made to obtain the services the Australian resident, the review applicant, requires.
The Tribunal accepts the review applicant as the Australian resident has a strong preference for the services he requires to be obtained from his daughter, the visa applicant, rather than from external services. The Tribunal has considered the issue of cultural reasons for the review applicant’s daughter to provide the care he requires. The Tribunal notes however that a mere preference for a particular service is to be distinguished from a cultural reason. In Hon Anh Vuong v MIAC [2013] FCCA 274, the Court found that the applicant’s mere preference to be cared for by his children rather than by strangers was not a barrier to his obtaining welfare assistance and therefore was not a matter that the Tribunal was required to consider further in its determination of reg 1.15AA. In the current review, the Tribunal notes in fact that in the review applicant’s Application for Respite Care to an Aged Care Home that he provided to the delegate in 2015, he answered ‘No’ to the question ‘Please advise whether you have any cultural or religious requirements, such as specific dietary needs’ and ‘N/A’ to the question ‘Please advise whether there are any cultural, religious or other organisations that you would like to remain in contact with once you have accepted a place in a residential aged care home’ (D1, folios 50–51). There is no evidence before the Tribunal of culturally specific services being sought by the review applicant. On such evidence before it, the Tribunal considers the review applicant, as the Australian resident, has a preference to be cared for by his daughter, the visa applicant, rather than via obtaining external welfare, hospital, nursing or community services. The Tribunal considers the review applicant’s desire for this care to be obtained from his daughter is clearly a preference rather than for any specific cultural reason.
The Tribunal also notes Lam v MIBP [2013] FCCA 1263, where the Court confirmed it is for the applicant to satisfy the Tribunal that the relevant services are not reasonably obtainable. The Tribunal accepts the review applicant as the Australian resident may have a preference to obtain the services he requires from the visa applicant. There is no evidence before the Tribunal however that this preference is a barrier to the review applicant reasonably obtaining welfare, hospital, or nursing or community services assistance. Given there is little evidence of any effort that has been undertaken to obtain the services he requires (beyond those services currently being received), the Tribunal is not satisfied that the services he requires are not reasonably obtainable. The Tribunal is not satisfied that the Australian resident’s preference for his daughter, the visa applicant, to provide him with care services is a barrier to him reasonably obtaining those services via welfare, hospital, nursing or community services.
Given the lack of evidence of any attempt to acquire welfare, hospital, nursing or community services, the Tribunal is not prepared to accept that the assistance the Australian resident requires cannot be reasonably obtained through welfare, hospital, nursing or community services.
The Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant does not meet reg 1.15AA(1)(e)(ii).
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 reg 1.15AA(1)(e) are not met.
As the applicant does not meet the requirements of reg 1.15AA(1)(e), there is no need for the Tribunal to consider the further requirements for the grant of the visa.
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 116.221.
The evidence before the Tribunal is that the visa applicant was born on 1 February 1969. The Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 114 (Aged Dependent Relative) visa as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991. As such, the visa applicant is not an ‘aged dependent relative’ as defined in reg 1.03 for cl 114.211 of Schedule 2 to the Regulations.
The Tribunal finds that the visa applicant is not entitled to the grant of a Subclass 115 (Remaining Relative) visa as the visa applicant’s near relatives, as defined in reg 1.15(2), resided in the same country as the visa applicant at the time of application. At the time of application, 7 April 2015, the visa applicant was married to Mr Tri Dung Nguyen. The Tribunal is satisfied the visa applicant was in a spousal relationship with Mr Tri Dung Nguyen at that time: he in fact was a secondary applicant in this review and subsequently withdrew his application. The visa applicant and Mr Tri Dung Nguyen divorced on 7 June 2019, over four years after the application was lodged. To meet the Remaining Relative criteria, the applicant must be, both at the time of application and at the time of decision, the ‘remaining relative’ of an ‘Australian relative’ of the applicant. At the time of application she was not the remaining relative of an Australian relative due to her then spouse who is a Vietnamese national and family members she declared in her application including her spouse’s mother, brother and sister who are all listed as Vietnamese nationals. The applicant’s then spouse, his mother and his siblings were all ‘near relatives’ of the applicant at the time of decision and none were Australian citizens, Australian permanent residents or eligible New Zealand citizens. As such, the visa applicant is not a ‘remaining relative’ and therefore is unable to meet cl 115.211.
Secondary applicant
The application of the secondary applicant Mr Hoang Phu Nguyen was refused by the delegate on the basis that the visa applicant’s visa had been refused. As the Tribunal has affirmed the delegate’s decision, and found that the visa applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the application of the secondary applicant.
The secondary applicant Mr Hoang Phu Nguyen does not meet cl 116.321 as they are not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.
There is no evidence, and no claims before the Tribunal, that the secondary applicant meets the primary criteria for the grant of an Other Family (Migrant) (Class BO) visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Justin Owen
Deputy President

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.