Nguyen (Migration) - [2023] AATA 3754

Nguyen (Migration) [2023] AATA 3754 (19 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Thi Nga Nguyen
Mr Tan Quyen Duong
REPRESENTATIVE:  Mr Ehsan Jahanandish, Smart Migration Group
CASE NUMBER:  2108689
HOME AFFAIRS REFERENCE(S):          CLF2019/1686
MEMBER:Michael Ison
DATE:19 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 19 June 2023 at 5:28pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – CVAC certification – lung cancer – assistance cannot reasonably be provided/obtained – other relatives – sister – wife – welfare, hospital, nursing or community services – home care services – palliative care services – insufficient inquiries about the assistance that may be available – strong compassionate circumstances – request for Ministerial referral declined – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.221, 836.321
CASES
Biyiksiz v MIMIA [2004] FCA 814
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Hon Anh Vuong v MIAC [2013] FCCA 274
Xiang v MIMIA [2004] FCAFC 64
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The first named applicant is Mrs Thi Nga Nguyen who is 59 years of age and is a national of Vietnam. Ms Nguyen is referred to as the applicant or the first named applicant in these reasons for decision.
The applicant first arrived in Australia on 7 June 2015 as the holder of a Visitor (Subclass 600) visa that was valid to 9 July 2015. The applicant departed Australia on 9 July 2015.
On 3 March 2016 the applicant was granted a second Visitor visa that was valid to 10 June 2016. The applicant returned to Australia on 18 March 2016 and departed on 10 June 2016.
On 15 October 2018 the applicant was granted a third Visitor visa, valid to 26 January 2019. The applicant returned to Australia on 26 October 2018 and has not departed since.
On 16 August 2006 the applicant married Mr Tan Quyen Duong and provided a certified translation of a copy of their marriage certificate to the Department. The Tribunal accepts that Mr Duong and the applicant are married. Mr Duong arrived in Australia after the applicant on 7 November 2018 as the holder of a Visitor visa. Mr Duong is referred to as the secondary applicant or the second named applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2023] AATA 3754
Case: [2023] AATA 3754
Decision Date: 19 June 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse to grant Other Family (Residence) (Class BU) visas, specifically Subclass 836 (Carer) visas, to Mrs Thi Nga Nguyen and Mr Tan Quyen Duong. The applicants sought review of the refusal decision made on 14 June 2021. Mrs Nguyen, the primary applicant, applied for the visa on the basis that she is a carer for her father, Mr Albert Quang Tinh Nguyen, an Australian citizen. Mr Duong was included as a secondary applicant as a member of Mrs Nguyen's family unit.

The Tribunal was required to determine whether the applicants met the criteria for a Subclass 836 Carer visa, specifically whether Mrs Nguyen was a 'carer' as defined by regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the sponsor, Mr Albert Quang Tinh Nguyen, had a need for direct assistance that could not reasonably be provided or obtained from other Australian relatives or from welfare, hospital, nursing, or community services in Australia, as required by clause 836.221. The Tribunal also considered the validity of the medical certification provided, which was over two years old, and the implications of the primary decision-maker's finding of insufficient evidence regarding the availability of alternative care.

The Tribunal found that Mrs Nguyen met the requirement of being a 'relative' of the Australian resident, her father. However, the central issue was whether the sponsor's need for assistance could reasonably be met by other means. The delegate had refused the visa on the basis that there was insufficient evidence to demonstrate that the sponsor's care needs could not be met by Australian relatives or services. The Tribunal noted that while the provided medical certification (CVAC) was old, it was not a legislative requirement to obtain a fresh examination, though it was departmental policy to consider it. The Tribunal ultimately affirmed the delegate's decision, concluding that the applicants had not sufficiently demonstrated that the sponsor's care needs could not reasonably be met by other available avenues in Australia. Consequently, the secondary applicant's visa was also refused as he was not a member of the family unit of a person who had satisfied the primary criteria.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 June 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).Background The first named applicant is Mrs Thi Nga Nguyen who is 59 years of age and is a national of Vietnam. Ms Nguyen is referred to as the applicant or the first named applicant in these reasons for decision. The applicant first arrived in Australia on 7 June 2015 as the holder of a Visitor (Subclass 600) visa that was valid to 9 July 2015. The applicant departed Australia on 9 July 2015. On 3 March 2016 the applicant was granted a second Visitor visa that was valid to 10 June 2016. The applicant returned to Australia on 18 March 2016 and departed on 10 June 2016. On 15 October 2018 the applicant was granted a third Visitor visa, valid to 26 January 2019. The applicant returned to Australia on 26 October 2018 and has not departed since. On 16 August 2006 the applicant married Mr Tan Quyen Duong and provided a certified translation of a copy of their marriage certificate to the Department. The Tribunal accepts that Mr Duong and the applicant are married. Mr Duong arrived in Australia after the applicant on 7 November 2018 as the holder of a Visitor visa. Mr Duong is referred to as the secondary applicant or the second named applicant in these reasons for decision. On 11 January 2019 the applicant applied onshore for an Other Family (Residence) (Class BU) (Subclass 836) Carer visa while in Australia on the basis that the applicant is a relative of her sponsor Mr Albert Quang Tinh Nguyen, who is the applicant’s father. Mr Tan Quyen Duong was included in this Subclass 836 Carer visa application as a secondary applicant on the basis he is a member of the family unit of the applicant, which the Tribunal accepts. The visa applications for the Subclass 836 Carer visas were refused on 14 June 2021. It is the refusal to grant the applicants’ those Carer visas that is the subject of this review. Mr Albert Quang Tinh Nguyen is 91 years of age, was born in Vietnam and had Australian citizenship conferred on him on 19 December 1985. Mr Nugyen is referred to as the sponsor and where relevant as the resident in these reasons for decision. On 15 February 2019 [Ms A], who was then [age] years old and is now [age] years old, applied offshore for a Combined Partner (Class UF) (Subclass 309) visa and a (Class BS) (Subclass 100) visa on the basis of being the spouse of the sponsor, who was then 86 years old and is now 91 years old. [Ms A]’s two children from a previous relationship, being [Mr B]who is [age] years of age and [Ms C] who is [age] years of age, were included in [Ms A]’s Partner visa application as secondary applicants on the basis they are members of [Ms A]’s family unit. On 14 July 2020 [Ms A] and her two children were granted Subclass 309 visas. [In] August 2020 they first arrived in Australian as the holders of Subclass 309 visas.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is a ‘Carer’ under reg 1.15AA by demonstrating that the assistance the sponsor has a direct need for cannot be obtained from relevant Australian relatives or welfare, hospital, nursing or community services in Australia or some combination of the two in accordance with the requirements of cl 836.221 and reg 1.15AA(1)(e).Whether the applicant is a carer Clause 836.221 requires that at the time of decision, the 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.Applicant is a relative of the resident – reg 1.15AA(1)(a) 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 applicant’s father. The Tribunal is satisfied, based on the personal identification documents provided by the applicants and the resident that the first named applicant is the daughter of the resident. As the applicant is the daughter of the Australian relative, the Tribunal finds the first named applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).Certification – reg 1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets 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 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa). A CVAC has been issued in this case. The CVAC has been issued by a currently registered medical practitioner employed by Bupa who signed the certificate on 5 February 2019. The CVAC is now more than four years old largely due to delays in the primary decision-making process, which took almost two and a half years to be made and a backlog of cases at the Tribunal. According to Department policy, where a CVAC is more than two years old the decision-maker can request that the person with the medical condition undertake a fresh examination and provide an updated CVAC. This is not a legislative requirement however and the Tribunal is mindful such requests will incur additional costs for an applicant or resident and can lead to significant further delays in the completion of a review.

Decision

Reasons for decision

The second named applicant also holds a Bridging A visa with condition 8101 attached.The primary decision of a delegate of the Minister The applicant provided the Tribunal with a copy of the primary decision. The applicants applied for the visas on 11 January 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 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 836.221 and the secondary criteria to be met include cl 836.321. The delegate refused to grant the visa for the first named applicant on the basis that cl 836.221 was not met because the delegate found there was insufficient evidence to demonstrate that the care needs of the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. The delegate refused to grant the visa for the second named applicant on the basis that cl 836.321 was not met because the second named applicant was not the member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 Carer visa given the first named applicant’s primary application had been refused.Postponement of the Tribunal hearing scheduled for 20 October 2022 On 23 August 2022 a hearing invitation was sent to the applicants by post inviting the applicants to appear in person before the Tribunal on 20 October 2022 to give evidence and present arguments. On 12 October 2022 the Tribunal received a request from the applicants representative that the hearing be postponed as the representative had only been appointed on 31 August 2022 and requested additional time to properly prepare the applicants submissions and documentary evidence. The Tribunal agreed to postpone the applicants hearing. Postponement of the Tribunal hearing scheduled for 15 December 2022 On 13 October 2022 a rescheduled hearing invitation was sent to the applicants via their representative inviting the applicants to appear in person before the Tribunal on 15 December 2022 to give evidence and present arguments. On 12 December 2022 the Tribunal received a request from the representative that the hearing be postponed due to the representative’s personal medical circumstances. Supporting evidence of the representative’s circumstances were provided with the request. The Tribunal agreed to postpone the applicants hearing. The Tribunal hearing held on 9 March 2023 The applicant appeared before the Tribunal on 9 March 2023 to give evidence and present arguments, in-person. The Tribunal had been informed the second named applicant would also be available to give evidence and present arguments. On the day of the hearing the Tribunal was told the second named applicant was supporting the sponsor to attend a medical appointment. The first named applicant rang the second named applicant several times throughout the hearing for the purpose of arranging him to give evidence by telephone, but the second named applicant did not answer his telephone.

Ratio Decidendi

Legal Principle Established

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