Nguyen (Migration) - [2023] AATA 1399

Nguyen (Migration) [2023] AATA 1399 (9 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Thanh Dam Nguyen
REPRESENTATIVE:  Mr Christopher Levan (MARN: 1277638)
CASE NUMBER:  1904299
HOME AFFAIRS REFERENCE(S):          CLF2017/107957 CLF2019/755
MEMBER:Meena Sripathy
DATE:9 May 2023
PLACE OF DECISION:  Sydney
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 836.221 of Schedule 2 to the Regulations.

Statement made on 09 May 2023 at 4:13pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – certificate provided meets the requirements of reg 1.15AA – assistance cannot reasonably be provided by other relatives – rating exceeds the impairment rating specified by the relevant instrument – applicant is willing and able to provide to the Australian relative substantial and continuing assistance– sponsor’s needs for assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia – at the time of decision the applicant is a carer of the Australian relative – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 836.211, 836.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 18 February 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 10 November 2017. 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 836.221.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied, due to the failure to provide further information as requested about other family members who may be able to provide the required care, that r.1.15AA(1)(e)(i) is met.
The applicant appeared before the Tribunal on 2 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Thi Kim Nuong Nguyen, her sister Ms Thi Kim Huong Nguyen and Ms Thi Hanh Tran. 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 issue in the present case is, first, whether the applicant meets…

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 1399
Case: [2023] AATA 1399
Decision Date: 9 May 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa). The applicant, a Vietnamese national, sought to migrate to Australia to care for his niece, Catherine Quach, who has Autism Spectrum Disorder with severe intellectual disability. The application was sponsored by the applicant's sister, who is an Australian citizen and the niece's mother. The Tribunal's decision was made by Member Meena Sripathy.

The primary legal issues before the Tribunal were whether the applicant met the criteria for a Subclass 836 visa, particularly concerning the medical condition of the niece, the sponsor's need for assistance, the inability to obtain assistance from other sources, and the applicant's willingness and ability to provide care. This involved assessing a Carer Visa Assessment Certificate (CVAC) which indicated an impairment rating for the niece, and considering statutory declarations and supporting letters regarding the family's circumstances and the availability of community services.

The Tribunal found that the Carer Visa Assessment Certificate met the requirements of regulation 1.15AA of the Migration Regulations 1994, indicating that the niece had a medical condition causing significant impairment and a continuing need for assistance. The Tribunal also considered that the sponsor's husband had a recent cancer diagnosis, impacting his ability to provide care. Crucially, the Tribunal determined that the applicant's niece's impairment rating exceeded the specified threshold and that the applicant was willing and able to provide the necessary substantial and continuing assistance.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, directing that certain criteria for the Subclass 836 visa were met. The Tribunal concluded that the matter should be remitted for reconsideration of the remaining criteria for the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a Vietnamese national, born in 1968. He is married and has one daughter, born in 2000 (22 years) and one son born in 1994 (28 years). The applicant has six siblings, including three sisters residing in Australia (Thi Kim Huong Nguyen, Thi Kim Nuong Nguyen and Thi Kim Thoa Nguyen) and two brothers and one sister and a mother residing in Vietnam. The application is sponsored by the applicant’s sister, Thi Kim Nuong Nguyen who is an Australian citizen. Birth certificates for the applicant and sponsor confirm their sibling relationship, and Australian citizenship certificate for the sponsor confirms her citizenship. The applicant applied for the visa to provide care for Catherine Quach, born in 2002 who is his niece. A birth certificate for Catherine confirms her relationship as the daughter of the sponsor and niece of the applicant. Documents submitted to the Department in support of the application, relevant to the review, include: · Statutory Declaration of applicant dated 7 November 2017. The applicant declared he arrived in Australia on 22 February 2017 on a visitor visa valid for 3 months, to visit and support his sister who was suffering mental health and physical exhaustion as a result of her caring responsibilities for her daughter with autistic spectrum disorder and husband who was recently diagnosed with cancer of the jaw.· A Carer Visa Assessment Certificate (CVAC) dated 6 October 2017 relating to Catherine Quach, indicating medical condition of Autism Spectrum Disorder with severe intellectual disability and difficult behaviours. The certificate provides that she has a medical condition causing physical, intellectual or sensory impairment of her ability to attend to practical aspects of daily life, assessed her with an impairment rating of 30 and indicates that the medical condition she has results in a need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years· Support letter dated 1 November 2017 from Principal, Holroyd School· Letter dated 27 October 2017 from Senior Program Coordinator Share Care addressed to NDIA regarding her budget allocation· Support letter dated 25 October 2017 from Dr Duc Van, Consultant Paediatrician· Letter dated 15 October 2017 from Dr Bach Nga Vu, Registered Psychologist · Statutory Declaration of sponsor, dated 7 November 2017 stating she is the primary carer for her daughter who was diagnosed with autism spectrum disorder in 2005. The declaration details her mental and physical health condition and the circumstances of her family members in Australia and limitations on assistance they can provide her to care for her daughter, including her husband, sisters and nieces and nephews. · Statutory Declaration of sponsor’s husband, Kim Thanh Quach dated 8 November 2017, detailing his health circumstances relating to his recent cancer diagnosis and treatment. Various medical reports relating to this are attached. · Support letter dated 24 October 2017 from Lien Le, Family Caseworker, Parks Community Network

Decision

Reasons for decision

Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining 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 836.221 of Schedule 2 to the Regulations;Meena SripathyMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.