Nguyen (Migration)

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 r.1.15AA(1)(e) of the Regulations, that is, whether the assistance required by the Australian resident cannot reasonably be provided by any other relative of the resident or obtained from welfare, hospital, nursing or community services in Australia; and if this is answered in the affirmative, whether the applicant is willing and able to provide substantial and continuing assistance to the resident, as required by r.1.15AA(1)(f).
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
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
On 14 November 2018 the Department requested further information/documentation from the applicant addressing why the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for Catherine Quach; why other relatives in Australia cannot reasonably provide assistance to her; that the applicant is willing and able to provide the assistance and evidence of entitlements under NDIS.
The applicant provided documentation in response on 18 December 2018, as set out in the delegate’s decision record. The documentation included support letters from various health professionals treating Catherine; NDIS plans for 2017-2018; and the following Statutory Declarations and supporting evidence from relatives:
·     Mai Thy Nguyen (niece of the applicant) – declares that she is unable to assist in the care of Catherine as she has a husband and five year old son, and she does not drive.
·     Manh Khang Vo (nephew of the applicant) – declares he is unable to assist as he suffers his own heath condition, is unfit for work and on a disability support pension since 2011.
·     Tu Anh Vo (niece of applicant) – declares she is unable to assist as she works full time, and often travels for work, and assists to financially support her own parents.
·     Leanne Quach (niece of applicant) - lives at home with her parents (sister of applicant) – declares she is unable to assist because she is studying full time. She and her parents recently (in October 2017) suffered the loss of the death of her brother who had a significant illness since birth and required full time care.
·     Thi Kim Khanh Nguyen (sister of applicant in Vietnam) - declares unable to assist as she is in Vietnam but is able to offer financial assistance to the applicant to help their sister.
·     Thi Kim Huong Nguyen (sister of applicant) – declares unable to assist because of physical limitations and she has responsibilities to her son, who also has a disability and his family.
·     Kim Thanh Quach (husband of sponsor) - updated declaration.
·     Applicant’s Statutory Declaration - detailing his willingness and ability to provide the assistance to the sponsor to care for Catherine.
On 16 January 2019 the Department made a further request for information, specifically a Statutory Declaration from Thi Kim Thoa Nguyen and also evidence to support the claims made in the statutory declarations of other relatives, specifically Kim Thanh Quach, Mai Thy Nguyen, Tu Anh Vo, Leanne Quach, Manh Khang Vo and Thi Kim Nuong Nguyen.
Various documents were provided in response, including
· Statutory Declaration of Thi Kim Thoa Nguyen dated 8 February 2019 detailing her circumstances, and recent loss of her child who suffered from a significant condition since birth and required substantial care. She is unable to provide assistance because of this and her need to support her daughter who is a full time student.
· Various documents to support claims made in the above statutory declarations including evidence of employment, medical letters, study and identity documents.
On 18 February 2019 the delegate refused the application. The decision record incorrectly indicates no response was received to the further request for information made on 19 January 2019, and on this basis the delegate could not be satisfied that r.1.15AA(1)(e)(i) is met.
Evidence before the Tribunal
The applicant applied for review of the decision to the Tribunal on 25 February 2019.
On 7 November 2022 the Tribunal invited the applicant to provide updated and current information about why the assistance or care is not or cannot be provided to the sponsor by her spouse (Kim Thanh Quach), siblings (Thi Kim Huong Nguyen and Thi Kim Thoa Nguyen), and any nieces or nephews of the sponsor who are over the age of 18 years, and updated and current details of any welfare, hospital or community services that are available to or have been obtained by the sponsor to provide assistance to her daughter Catherine Quach, or explanation for why those services have not been obtained, noting the last information/document about services provided to the Department was in 2018/2019.
On 18 and 24 November 2022 the following documents were provided in response:
·     Statutory Declaration of Thi Kim Nuong Nguyen (the sponsor/Australian resident) dated 18 November 2022) – stating that she resides separately under one roof with her partner Kim Thanh Quach, their relationship broke down some time ago. He did not help her much. He did not get his drivers licence and could not help her with anything because he has cancer.
·     Statutory Declaration of Alex Manh Khang Vo (nephew of the resident) stating he cannot assist because of his own health condition and family circumstances. A medical letter dated 17 November 2022 from his treating GP in support is attached.
·     Letter from Thi Kim Nuong Nguyen explaining her circumstances and the activities and care and assistance she provides for her daughter, with the assistance of her brother, the applicant. In mid 2019 she withdrew Catherine from school due to the increasing challenging nature of her behaviour. She was only confident to do this with the help of the applicant. They made an individual program for her and for the past 3 years she has improved greatly. Details of the program was provided and photos.
·     Detailed Daily Schedule for Catherine.
·     Letter from Tu Anh Vo (niece of the resident), dated 14 November 2022. She is unable to assist due to her own work commitments. In July 2022 she purchased a pharmacy and moved to Bathurst, NSW. She also relies on her own parents (the applicant’s sister and brother in law) to assist her, and they travel to Bathurst every week and therefore are unable to assist with the care of Catherine.
·     Statutory Declaration of Mai Thy Nguyen (niece of the resident) dated 15 November 2022. She is unable to assist as she has two young sons of her own and does not have the experience to care for Catherine who has significant special needs.
·     Statutory Declaration of Thi Kim Huong Nguyen – sister of the applicant - states she cannot assist with the care of Catherine. She describes her experiences in the past and difficulties she had to control and supervise her. A copy of her health summary sheet is attached.
·      Statutory Declaration of Thi Kim Thoa Nguyen – sister of the applicant – she explained that she was unable to assist in the care of Catherine in the past because she had a son with severe disabilities also (who has since passed away). She does not believe she can assist now because Catherine is older and her behaviours are more erratic and difficult to manage. She is not in a fit mental state and has to take care of her own family and livelihood.
·     Disability and Home Care Initial Assessment and Recommendation Report – behaviour support report prepared for the purposes of an upcoming NDIS review.
On 22 December 2022 the Tribunal invited the applicant to provide Catherine’s most recent NDIS plan; evidence to support the claim that the partner relationship between Thi Kim Nuong Nguyen and her husband has broken down (such as evidence of updated advice to Centrelink, if receiving income support payments); updated and current evidence of applicant’s living arrangements and involvement in Catherine’s care and any additional evidence of Catherine’s current care arrangements.
On 25 December and 27 February 2023 the Tribunal received the following further documents:
·     Copy of Catherine’s NDIS Plan for period 4 November 2021 to 4 November 2022
·     Letter dated 21 August 2022 from NDIA advising that Catherine’s existing plan and funding will continue for the next 12 months from the end date of the current plan.
·     Letter dated 24 February 2023 from Thi Kim Nuong Nguyen explaining her current circumstances and care arrangements for her daughter Catherine, including her separation from her husband, who remains living separated under one roof, due to financial constraints, and the assistance the applicant provides to her to care for her daughter. Ms Nguyen states that she will be accompanying her daughter to an Inclusive Skating World Championships event in April 2023 and will be outside Australia from 28 March to 23 April 2023.
·     Bundle of photographs showing the applicant and Catherine at home and at activities together.
Tribunal hearing 2 May 2023
The following evidence was provided by the applicant at the hearing. He confirmed his migration history, stating that he came here initially in February 2017 to visit his family members. During this visit he saw the difficulties his sister Nuong was experiencing caring for her daughter and her husband, who had been diagnosed with cancer. Catherine’s behaviour at that time was especially challenging. He decided that he was in a good position to help her because his children were grown up. He returned in August 2017 with this plan in mind, to assist his sister with her caring responsibilities.
He lives with his elder sister, Huong and her husband, at their home in Cabramatta. He has resided at this address from soon after his arrival until now. He stayed with Noung initially when he arrived but as they only have two bedrooms, there was not enough room. Apart from staying with Huong, he stayed at his other sister, Thoa’s house in Fairfield when she was away in Vietnam earlier this year. The applicant confirmed that he does not work and has not worked since coming here in 2017. He is financially supported from his own savings and his family members. He does not pay any rent for his accommodation or food and his sisters, nieces and nephews give him money from time to time for expenses. He opened a bank account with Commonwealth Bank, but hardly uses it.
The applicant confirmed in Vietnam he has a wife and two children, a son aged 28 and daughter aged 23 years. His son is married and has a young child. His daughter recently graduated from university. They all live together at a home they own in Saigon. His wife works at a pre school. Prior to coming to Australia the applicant ran his own business for 4 years, a school, which he sold. The family has the resources of the capital from that sale. Before that he worked for a transport company, in logistics. He is qualified as an accountant. He also has one elder sister and two elder brothers in Vietnam.
In Australia the applicant has three sisters, of which the sponsor, Nuong, is the middle. His elder sister has two adult children, who reside separately, and his younger sister has one adult child who lives with her. The daughter of one of his brother’s also resides here, she is married and has two young children. The applicant was not familiar with the relatives of Noung’s husband, but believes he may have some siblings here. He said she is not on good terms with her husband and has not been for many years and so there is little contact with any of them.
The Tribunal asked the applicant about his niece, Catherine’s conditions. She has autism with significant behavioural issues. She prefers to be outside and he helps his sister take her out to activities and outings regularly. He spends time with here and gives his sister a rest. His sister cannot manage with Catherine on her own when they are out. Apart from her autism she also suffers from seizures on a regular basis, from the last few years.
The applicant confirmed that the primary care for Catherine is done by his sister Nuong. She takes care of all her personal care, feeding and medication. Her husband also lives at home but he does little to care for Catherine. When he was ill with cancer Nuong also had to care for him, but now he is able to look after himself. The applicant said he has rarely seen her husband help Nuong with Catherine since he arrived. He said Catherine needs someone who is fit and strong to supervise her when she is out. The Tribunal asked if his other sisters or nieces and nephews assist. He said they do not because they all have their own lives and responsibilities.
The applicant described the assistance he provides Nuong is primarily driving her and Catherine to activities and outings when requested. This is usually several times a week. Catherine has regular activities such as tennis, swimming, ice skating which are group activities. On weekends he will take her to parks and other outings and take her around while Nuong does other things, or sits and rests. If his sister asks him, he will come to he house an supervise Catherine while she goes out.
Last year they travelled to Vietnam together to see his mother. Catherine and his sister stayed with their mother and he stayed with his wife and daughter. The applicant confirmed his plan is to sponsor his wife and daughter if granted this visa. The Tribunal put to him its concern that he may not continue to assist his sister once his own family arrive as he will have responsibilities to them, as his sisters here do. He said his sisters here do not help Noung because they cannot not because they do not want to. Huong is not strong or fit enough and Thoa has been through her own experience of caring for a profoundly disable child and cannot do it again. The applicant said he intends to continue to support his sister to care for her daughter when his family come. They will also assist with that. His wife has skills with children and his daughter is of a similar age and knows and gets along with Catherine.

The Tribunal put to the applicant that the assistance he gives Nuong appears to be limited and mainly with transport which could be obtained form NDIS support services. In response he said that they have tried such services but it is not always appropriate for Catherine and she needs to have people known to her who understand her. Also, he gives his sister moral and emotional support. He noticed that she is very stressed and she talks to him when they drive. When asked why she cannot get that from her sisters, he said that they often cause her even more stress.
Evidence from Thi Kim Nuong Nguyen
The witness is the sponsor. She confirmed her address and that she lives there with her daughter and husband. She confirmed the applicant does not and has not resided with her because it is only a two bedroom place and there is not sufficient room. He lives with their sister Huong in Cabramatta.
She told the Tribunal about her relationship with her husband. It is not good and they rarely talk. It has not been good since Catherine was diagnosed, he used offensive language about her. She has put up with him because she needed help to care for Catherine. He used to help her a bit until her behaviour became more challenging and then he got sick with cancer. He does not drive. She confirmed that although she considers them as separated under one roof, she has not declared herself as single to Centerlink and they each get a couple rate of income support payments, because she cannot be bothered to explain it to them.
The witness confirmed Catherine’s conditions, consistent with the applicant’s evidence. She gave an account of her daily routine of care for Catherine, confirming that she does most of it by herself, including all personal care, cooking and feeding and administering her medications. She calls on the applicant when she cannot do something because she is unwell or injured. She sees him several times a week. He takes them to activities, and where it is far away he will drive.
The applicant confirmed that Catherine gets assistance through the NDIS which she has used to date to pay for the activities and coaching for Catherine. Although funding has been allocated for assistance for personal care she prefers to use the funds for the activities and do the personal care herself. She has also been allocated funds for transport but it is not sufficient. The Tribunal noted that there is no mention of the applicant in the NDIS plan documentation. She said that this was drafted when Cathering first engaged with NDIS prior to the applicant being in Australia and they just use the same descriptions each year, they have never sought to update the background circumstances. She has since included ‘uncle’ in the NDIS system as a person involved in Catherine’s care. She told the NDIS person who last interviewed them about his role taking her out on weekends.
The witness confirmed that she recently travelled overseas with Catherine for an ice skating competition. They were accompanied by her coach. The trip was partially but not fully funded by NDIS. She is in debt now as she had to pay for the plane tickets herself. She could not afford to bring the applicant with them.
The Tribunal asked the witness about her long term plans for Catherine’s care. She said she has looked after her for 20 years and has been unable to work. She lives in public housing and people look down on her for that. All of this causes her stress. She will always care for Catherine. She does not trust anyone else to look after her. Even though here are centres under the NDIS for people like her it would make her worse not better. Catherine’s situation has improved a lot recently. The witness repeated, she is her child and she will look after her.
The witness confirmed her sisters and relatives do not assist her. Her elder sister causes her more stress because she cannot focus and she is also not in good health herself. Her younger sister has been through her own tragedy losing her child and cannot care for a disable child again. When asked how she is certain the applicant will continue to assist her if his family come she said they have a place to all live together and help each other. He will inherit the assets from their parents and will be able to buy a property here. She believes that he will continue to assist her when his family come here.
The applicant has been helping her by supporting her mental health just knowing that he is there to support her. She cannot do all that she is doing for Catherine without his support. She does not have a good relationship with her husband but she cannot move out on her own so she needs the applicant.
Evidence from Thi Hanh Tran
Ms Tran is a social worker who has been supporting the family for a long time, since Catherine was at school and having behavioural issues. She started getting seizures at that time. She has assisted the family to link with services, previously Aging and Disability and now with NDIS. She understands the applicant assists Catherine’s mother by accompanying her at activities with Catherine. Catherine cannot be alone at any time. She has activities 4-5 times a week. He is often with them. The witness acknowledges that transport assistance can be obtained through NDIS but she understands that this has been problematic in the past. Catherine’s mother has not been happy with it and prefers the applicant’s support.
The witness said she has observed Catherine’s mother’s stress has been significantly reduced since the applicant has been here. She has not seen much assistance from any other family member.
Evidence from Thi Kim Huong Nguyen
The witness is the applicant’s sister. He lives with her and her husband and regularly goes to their sister Nuong’s place to help her. He drives for them and sometimes shops for them and when asked by Nuong he supervises Catherine. The witness said previously, before the applicant arrived, she used to her her sister but she could not handle it when Catherine had behavioural issues. There were incidents when she was bitten and had tantrums. Now she has her own health conditions.
The witness confirmed she has two children but they live separately and are unable to assist their aunt because they have their own issues and responsibilities. Her son has health issues and her daughter lives in Bathurst. Her other niece has young children of her own. Her sister works and cannot care for anyone after her own experiences.
The witness stated she sometimes helps her sister by cooking for her and taking food to her place. But she cannot really do anything else because of her own health problems. She confirmed neither she nor her husband work.
FINDINGS AND REASONS
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 sister, Thi Kim Nuong Nguyen who is also the sponsor. The Tribunal is satisfied on the evidence provided of their birth certificates that they are siblings. The Tribunal is satisfied, on the evidence of a certificate of citizenship that Thi Kim Nuong Nguyen is an Australian citizen.
Therefore, as the applicant is the brother of the Australian relative, the 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.
The Tribunal has before it a certificate dated 6 October 2017 behalf of Bupa Medical visa Services and is signed by a medical advisor who carried it out. The certificate states that Catherine Quach has medical conditions which impacts her capacity for self care, a total impairment rating of 30 under the impairment tables has been assigned, and because of the condition, the person has, and will continue for at least 2 years to have, a need for personal care and attention on a daily basis to carry out routine bodily functions. The Tribunal notes that some years have passed since this certificate was issued, however the regulations do not specify any time period or currency for a certificate. More recent information before the Tribunal (relating to her NDIS review) indicates Catherine’s conditions and need for assistance have not materially improved, and in these circumstances the Tribunal considers it is not necessary to require a fresh assessment. The Tribunal finds that the certificate provided meets 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.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
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 Catherine Quach, the daughter of the Australian relative/sponsor. A copy of her Australian birth certificate was provided. The Tribunal is satisfied that she is an Australian born citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
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 which specifies the impairment rating for this purpose as 30.
In the present case, the impairment rating specified in the certificate is 30, which equals the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
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 2 years as a result of the medical condition.
In the present case the Australian relative (resident) is not the subject of the certificate. The Tribunal has considered the various Statutory Declarations provided by Thi Kim Nuong Nguyen, who is the primary carer for her daughter, Catherine Quach. Ms Nguyen describes her need for assistance to care for her daughter, particularly since her husband was diagnosed with cancer in 2016. More recently, in her Statutory Declaration provided to the Tribunal, Ms Nguyen declared that her relationship with her husband has ceased and he has not provided any assistance to her to care for her daughter. On the basis of the evidence, the Tribunal accepts the Australian relative/sponsor requires assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv) and therefore the requirements of reg 1.15AA(1)(d) are met.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
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. The requirement in relation to Australian relatives of the resident (r.1.15AA(1)(e)(i)) was amended with effect from 9 November 2009, so that the relevant enquiry is whether the ‘assistance cannot reasonably be provided by any other relative of the resident’ (emphasis added).[1] The purpose of the amendment was to allow decision-makers to reach a conclusion that assistance could reasonably be provided even where relatives in Australia claim to be unwilling or unable to provide assistance.[2] Therefore, whether any relatives can reasonably provide the assistance and what a relative is capable of doing are matters for consideration by the Tribunal in determining whether assistance cannot reasonably be provided.
[1] Amended by Migration Amendment Regulations 2009 (No.13) (SLI2009, No.289) Schedule 3, items [1]-[3] to apply to visa applications made on or after 9 November 2009 (r.5(2)).
[2] The Explanatory Statement accompanying Migration Amendment Regulations 2009 (No. 13) (SLI2009, No.289).
As mentioned above, the delegate refused the visa on the basis of not being satisfied on the information and evidence provided that the assistance the resident requires cannot reasonably be provided by other relatives in Australia or service providers in Australia. The Department sought information from the applicant on two separate occasions and responses and documentation was provided, however, the delegate concluded that they were not satisfied this requirement was met, without providing any particular reasoning.
A substantial passage of time has passed since then, and in November 2022 the Tribunal requested updated and current information and documentation from the applicant as to the current circumstances of the resident, her relatives and Catherine who is the person with the medical condition who requires care. It also took oral evidence from the applicant and several witnesses at hearing.
On the basis of all the evidence now before it the Tribunal makes the following material findings. Catherine is a, now, 19 year old young woman, with a diagnosis of Autism Spectrum Disorder, moderate to severe intellectual disabilities and severe language disorder who requires full support from other people in her daily activities and self care tasks. She is primarily non verbal. Her mother has always been and remains her primary carer. She left school during Year 11 in 2019 due to increasingly challenging behaviours. She has a range of health professionals that she sees including a psychiatrist, psychologist, speech pathologist, paediatrician, and GP and participates in a range of activities including tennis, golf and ice skating.
She has been a NDIS participant since 2016 and receives support under the NDIS for her allied health services and assistance to participate in community, social and recreational activities. Her NDIS plan does not provide assistance with at home care or supervision. At hearing her mother confirmed that she could be allocated funds for personal care, but she choses to provide this care herself and prefers to use NDIS funds for activities and coaching for Catherine. The Tribunal accepts that the Australian relative/sponsor is the primary carer of Catherine and provides all of her personal care needs at this time. It accepts that, since the application was made, Catherine has left the structured environment of school, and her care needs have increased/become more challenging. The evidence before the Tribunal is that her mother has put in place a detailed programme of activities and structure to keep Catherine engaged and happy, using funds from her NDIS allocation to do this, and this has had a marked positive impact on Catherine and her behavioural issues. It accepts on the written, documentary and oral evidence before it, that the sponsor has relied on the applicant’s presence and support to do this to date.
The sponsor has the following relatives in Australia: her husband Kim Thanh Quach, sisters, Thi Kim Thao Nguyen and Thi Kim Huong Nguyen and several adult nieces and nephews: Mai Thy Nguyen, Tu Anh Vo, Leanne Quach and Manh Khang Vo. As indicated above, evidence in the form of Statutory Declarations and supporting documents have been provided from each of them. The Tribunal also took oral evidence from Thi Kim Huong Nguyen.
With regard to the sponsor’s spouse, Kim Thanh Quach, the Tribunal notes her written declaration that her relationship has ceased and he has not and is not providing any assistance to her, though he remains living at the same address. At the hearing the sponsor elaborated on the circumstances between her and her husband, confirming that they have little to do with each other now, but she has not formally declared herself as single to Centrelink. They do not and have not for many years shared a bedroom and he does not assist her in the care of Catherine. The applicant’s oral evidence was consistent with this also, confirming that since his arrival he has not observed Catherine’s father playing any significant role in her care. Both told the Tribunal he does not drive. The Tribunal accepts, on the evidence provided, that Mr Quach has had significant health issues of his own in recent years. On the written and oral evidence, the Tribunal is satisfied the sponsor’s husband does not provide assistance to her in the care of Catherine, and in light of his health circumstances and history of their relationship it is satisfied that the assistance cannot reasonably be provided by him.
The Tribunal accepts on the evidence that the sponsor’s sister Ms Thi Kim Thao Nguyen had substantial caring responsibilities for her own profoundly disabled son, who passed away in 2017. The evidence of all witnesses at the hearing confirmed this. Given her past and current circumstances, it accepts that the assistance cannot reasonably be provided to the resident by this relative.
With regard to her other sister, Ms Thi Kim Huong Nguyen, written evidence was provided that she is unable to provide assistance due to responsibilities for her own immediate family, being her son who has a significant mental illness. She stated she provides support to this son and his family as required, and also travels to Bathurst regularly to support her daughter with her business. She declared that she has tried in the past to help her sister with the care of Catherine but found she did not have the necessary skills or capacity to adequately supervise her. At the hearing this witness gave slightly different evidence, stating that she is unable to assist because of her own health issues and past difficulties trying to help care for Catherine. She did not specifically mention any caring or support responsibilities she had for her own children. The Tribunal acknowledges that caring and supervising Catherine requires certain skills and attributes and taking into account the witness’ evidence, it accepts the assistance cannot reasonably be provided by a relative who does not have the necessary confidence to do so.
The Tribunal has considered the declarations and evidence submitted by the nieces and nephews of the sponsor and the oral evidence provided by witnesses at the hearing about these relatives. It accepts that none of these relatives have played a role in the care of Catherine to date. In light of the evidence provided about their respective health, study, family and work commitments and the particular kind of assistance the sponsor requires, being intensive at home supervision and attentiveness, the Tribunal accepts the assistance cannot reasonably be provided by these relatives.

Therefore, on the evidence before it the Tribunal accepts that the assistance cannot reasonably be provided by any other Australian relative.
Regarding assistance from welfare, hospital, nursing or community services in Australia, the evidence before the Tribunal is that Catherine is, and has been since 2016, receiving assistance under the NDIS. Copies of her NDIS plan, including current plan, have been provided. The Tribunal accepts that the sponsor has actively pursued assistance for Catherine under the NDIS program and advocates for appropriate services and supports. However, NDIS does not and will not provide complete at home supervision and therefore it is clear that the assistance she requires cannot reasonably be obtained from welfare, hospital or nursing or community services. The Tribunal has carefully considered the sponsor’s written and oral evidence and program of activities she has sought to put in place for Catherine to maximise her quality of life and progressive development. It is clear that she is fully committed and dedicated to her daughter’s wellbeing and dignity of life. It is also clear that she requires assistance, particularly as Catherine gets older and bigger, to provide direct assistance to Catherine to attend to practical aspects of daily life. While the assistance from NDIS is available and can, and should, be responsive to the needs of Catherine, the Tribunal notes and acknowledges that appropriate and adequate home care is a more economical and suitable outcome for all concerned.
To date the applicant has assisted the sponsor by providing transport assistance and supervision at external activities and events with Catherine and also supervision at home and respite for the sponsor as necessary. While it is conceivable that some of this assistance could be obtained from NDIS funds, the Tribunal accepts that the sponsor additionally benefits from moral and emotional support of the applicant accompanying her that she would not get from a service provider. As the sponsor bears the load as the primary carer for Catherine, this emotional and moral support cannot be undervalued. The Tribunal’s observations at the hearing are that the sponsor is genuinely dedicated to providing her daughter the highest quality of life possible and is committed to using the available resources in the most economical and beneficial manner towards that goal. In these circumstances, it accepts that it is reasonable that she obtain assistance from the applicant to provide direct assistance to her daughter rather than from service providers, and that the assistance from such providers can be more usefully, and economically, directed to Catherine’s many other needs.
For the above reasons, the Tribunal is 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 met.
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.
The applicant has been in Australia since 2017. In his written and oral evidence he has indicated that he came back to Australia in August 2017 to provide support to his sister, the sponsor, because he observed from his earlier visit how she was struggling with mental and physical exhaustion as a result of full time caring responsibilities for her daughter and husband who was recently diagnosed with cancer. He has remained in Australia since that time, returning to Vietnam only once in April-May 2022 (travelling on that occasion with the sponsor and Catherine). The Tribunal accepts that the applicant has been assisting the sponsor in caring for Catherine by providing practical driving and other assistance with her activities and outings. The applicant has also provided the sponsor necessary moral and emotional support. The evidence before the Tribunal indicates the applicant has demonstrated his willingness and ability to provide the required assistance to the sponsor over the past 5 years. The Tribunal observes that the Statutory Declarations from the applicant’s sisters and each of the nieces and nephews, and the evidence of witnesses at hearing, refer to the applicant’s assistance to the sponsor throughout the period of the last 5 years, and his experience, patience and physical capacity to do so. The fact that he has remained continuously in Australia since the application was lodged and continued to assist the sponsor throughout this time, despite the hardship of prolonged separation from his own wife and children, is an indication of his commitment and dedication to the role.
The Tribunal has also considered the applicant’s motivation of a visa outcome. At hearing the Tribunal discussed at some length with the applicant and sponsor its concern about whether he will continue to provide the assistance to the sponsor in future given his stated intention to sponsor his wife and daughter to come and live with him in Australia and his responsibilities to them in future. It has carefully considered their responses. While an accurate prediction of the applicant’s future actions is difficult and ultimately speculative, the Tribunal is satisfied, on the basis of past conduct, and their oral evidence regarding future plans and intentions, that the applicant is committed to provide the sponsor substantial and continuing assistance of the kind needed.
Taking into consideration that the applicant has been providing assistance to the sponsor to care for Catherine for the past 5 years, the Tribunal is satisfied that the applicant is willing and able, in the sense contemplated by those terms, to provide the sponsor substantial and continuing assistance of the kind needed.
Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).
Conclusion on ‘Carer’ criterion
Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.
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 Sripathy
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.

[2023] AATA 1399

9 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies