Nguyen (Migration)

[2022] AATA 5237

Nguyen (Migration) [2022] AATA 5237 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Ve Nguyen

REPRESENTATIVE:  Ms Pamela Nhi Tieu

CASE NUMBER:  2208343

HOME AFFAIRS REFERENCE(S):          CLF2014/81293

MEMBER:Deputy President Justin Owen

DATE:20 December 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 20 December 2022 at 11:24am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Court remittal – ‘carer’ of the Australian relative – Australian relative requiring care deceased – compelling and compassionate circumstances – lengthy legal process – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.12, 1.15AA; Schedule 2, cls 836.212, 836.213, 836.221

CASES
Nguyen v MICMSMA [2020] FCA 1732

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 May 2022 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).

2. The applicant applied for the visa on 28 May 2014. 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.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the applicant did not meet reg 1.12(e)(ii), and subsequently did not meet reg 1.15AA(1)(b)(i).

4. On 23 February 2016, a differently-constituted Tribunal upheld the delegate’s refusal of the application.  The Tribunal found the applicant met reg 1.15AA(1)(b), but was not satisfied the assistance provided by the applicant to the Australian relative could not reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services, and found therefore that the requirements of reg 1.15AA(1)(e) were not met. The Tribunal notes reg 1.15AA(1)(e) was not considered by the delegate.  

5. The applicant applied for review of the differently-constituted Tribunal’s decision in the Federal Circuit Court.  It was argued before the Federal Circuit Court that the Tribunal had committed jurisdictional error in construing and applying reg 1.15AA(1)(e). On 28 February 2017, the Court quashed the Tribunal’s decision of 23 February 2016 and issued a writ of mandamus directed to the Tribunal requiring it to reconsider and determine the applicant’s application for review made on 28 October 2014 according to law.

6. The Minister appealed the Court’s decision to the Federal Court.  On 20 September 2017, the Full Bench of the Federal Court dismissed the Minister’s appeal, finding that the Tribunal had committed jurisdictional error in construing and applying reg 1.15AA(1)(e), and finding that the Federal Circuit Court was correct in reaching its conclusion that the Tribunal had erred. 

7. The matter returned to a differently-constituted Tribunal for consideration of the delegate’s original decision of 17 October 2014.  On 18 December 2018, a differently-constituted Tribunal affirmed the delegate’s decision on the basis the applicant was not usually resident in the same household as her mother, the Australian resident requiring assistance at the time of application, and therefore the applicant did not meet reg 1.15AA(1)(b)(i) and subsequently cl 836.212 was not met. 

8. The applicant applied for review of the differently-constituted Tribunal’s decision of 18 December 2018 in the Federal Circuit Court.  On 21 November 2019, the Federal Circuit Court dismissed the application for review, finding the applicant was unable to establish jurisdictional error. The Court held that cl 836.213 was unable to be satisfied by the applicant as the sponsor (the applicant’s sister Ms Thi Huyen Nguyen) was not usually a resident in the Australian resident mother’s household. 

9. The applicant applied for review of the Federal Circuit Court’s decision at the Federal Court.  The Minister contended that the differently-constituted Tribunal was correct in its interpretation of cl 836.212, the resident for the purposes of the reg 1.15AA definition of carer, read with cls 836.111 (definition of ‘Australian relative’), 836.212 and 836.213, was the sponsor and because the mother (with the relevant medical condition) was not a member of the family unit of the sponsor, the Federal Circuit Court ought to have found the applicant as the appellant did not meet the definition of ‘carer’ in reg 1.15AA such that cl 836.212 could not be satisfied.

10. The Federal Court allowed the appeal and ordered the matter be remitted to the Federal Circuit Court to be heard and determined according to law.  The Federal Court found there is no express requirement in cl 836.2 that the sponsor Australian relative in cl 836.213 and the care recipient Australian relative in cl 836.212 have to be the same person.  The Federal Court found the differently-constituted Tribunal had subsequently committed a jurisdictional error in its decision. 

11. The Federal Court found that the definite article ‘the’ in cl 836.213 refers to the Australian relative as defined in cl 836.111, not to the ‘an Australian relative’ referred to in cl 836.212. The word ‘resident’ in reg 1.15AA does not refer to the sponsor of the applicant carer. The definitions in regs 1.15AA and 1.12 therefore do not apply to prescribe criteria with respect to the sponsor of an applicant carer.

12. The Federal Court found that it therefore followed that the sponsor met the criteria for sponsorship of the appellant as prescribed in cl 836.213 and the related definition of ‘Australian relative’ in cl 836.111. These were the only criteria for sponsorship that the applicant as the appellant had to meet.

13. On the basis of the Federal Court’s decision, the ‘Australian relative’ in cls 836.212 and 836.213 does not need to be the same person. It is appeal level authority that the sponsor for a Subclass 836 Carer visa needs to be the visa applicant’s Australian relative (or their relative’s partner), but does not need to be the person claimed as the Australian relative requiring care: Nguyen v MICMSMA [2020] FCA 1732.

14. On 15 December 2020, the Federal Circuit Court subsequently quashed the differently-constituted Tribunal’s decision of 18 December 2018.  The Minister conceded to the matter being remitted because there was nothing for the Federal Circuit Court to consider following the Federal Court decision in Nguyen v MICMSMA [2020] FCA 1732, given the Court had held that the Tribunal had committed jurisdictional error as there was: (a) no express requirement in cl 836.2 that the sponsor Australian relative in cl 836.213 and the care recipient Australian relative in cl 836.212 have to be the same person; (b) that the definite article ‘the’ in cl 836.213 refers to the Australian relative as defined in cl 836.111, not to the ‘an Australian relative’ referred to in c 836.212, while the word ‘resident’ in reg 1.15AA does not refer to the sponsor of the applicant carer; and (c) that it follows that the sponsor met the criteria for sponsorship of the appellant as prescribed in cl 836.213 and the related definition of ‘Australian relative’ in cl 836.111.

15. The matter returned to a differently-constituted Tribunal for consideration of the delegate’s original decision of 17 October 2014. The Tribunal noted that the delegate had refused to grant the visa on the basis cl 836.221 was not met because the applicant did not meet reg 1.12(3)(ii), and subsequently did not meet reg 1.15AA(1)(b)(i).  The Tribunal noted the delegate had not gone on to make other findings in relation to the various other criteria for the grant of the visa.  Given this, and noting the President’s Directions, the Tribunal made findings in relation to the requirement the delegate refused the applicant’s visa on reg 1.15AA(1)(b), and remitted to the delegate for consideration of any remaining reg 1.15AA(1) criteria.       

16. On 14 October 2021, the Tribunal, noting the decision in Nguyen v MICMSMA [2020] FCA 1732 subsequently remitted the decision to the delegate for reconsideration, with the direction that the applicant met cls 836.212, 836.213 and 836.227 and reg 1.05AA(1)(b) for the purpose of cl 836.221 of Schedule 2 to the Regulations. The Tribunal noted the delegate had not assessed the remaining requirements of reg 1.15AA, and remitted the matter to the delegate to consider the remaining criteria. The Tribunal, noting the time that had elapsed since the application, urged the Department to make findings in relation to the remaining criteria as a matter of priority.

17. On 20 May 2022, the delegate refused the application on the basis that the Australian resident with the medical condition, Ms Hoa Thi Nguyen, who was the applicant’s mother, was deceased.  The delegate noted that on 3 May 2022, in response to a request of the delegate, the applicant’s representative had provided a Death Certificate for Ms Hoa Thi Nguyen dated 11 May 2019.  The applicant’s representative also provided a written statement stating Ms Thi Hoa Nguyen had suffered a stroke and deceased.  The applicant through her representative also provided a submission from adult relatives of the late Ms Hoa Thi Nguyen declaring why they were unable to provide the required assistance to the late Ms Nguyen. 

18. On the basis the applicant through her representative had confirmed the Australian resident with a medical condition, Ms Hoa Thi Nguyen, was deceased, the delegate found the applicant could not satisfy reg 1.15AA as the Australian resident with a medical condition no longer had a need for a carer.  As the applicant could not satisfy reg 1.15AA(1), the applicant did not meet reg 1.15AA at the time of decision.  The delegate subsequently found that as the applicant did not meet reg 1.15AA, they did not satisfy cl 836.221 at the time of decision, which requires ‘The applicant is a carer of a person referred to in cl 836.212’.

19. On 8 June 2022, the applicant applied for review of the delegate’s decision at the Tribunal.          

20. The applicant appeared before the Tribunal on 14 December 2022 via videoconference to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Huyen Nguyen, who is the applicant's sister.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

21. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The applicant applied for the visa on the basis that her sponsor and sister, Ms Thi Huyen Nguyen, requires assistance in providing care to the sponsor’s (and applicant’s ) mother Ms Thi Noa Nguyen.  The issue before the Tribunal is the member of the family unit requiring care, Ms Thi Noa Nguyen, deceased on 11 May 2019. 

    Whether the applicant is a carer

24. 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.

25. At the Tribunal’s hearing of 14 December 2022, the applicant confirmed orally that her mother the Australian relative (or ‘resident’) requiring care deceased on 11 May 2019.  The Tribunal explained that there were time of application and time of decision criteria that needed to be satisfied in order to meet the requirements for the grant of the visa.  The Tribunal noted that the applicant could not, at the time of decision, be the carer of a person that was deceased, and could not obviously be providing assistance to her sister and sponsor in providing care to the sponsor’s mother Ms Thi Hoa Nguyen given her death on 11 May 2019. 

26. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being her late mother Ms Hoa Thi Nguyen, and therefore does not satisfy cl 836.221.

27. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses, there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

28. The evidence before the Tribunal is that the applicant was born on 15 June 1962. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act1991 (Cth). Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.

29. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa.  The test in reg 1.15(1) is about whether the applicant is the remaining relative of the Australian citizen, in this case her sister, the sponsor.  The Tribunal has considered whether the applicant’s sponsor is the sister of the applicant; whether the applicant’s sister is usually resident in Australia; and relevantly whether the applicant has no near relatives other than near relatives who are usually resident in Australia and Australian citizens, Australian permanent residents or eligible New Zealand citizens.  The applicant stated at the Tribunal’s hearing that she has four adult married children aged between 33 and 40 years of age that live in Vietnam.  As the applicant has children who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens who are usually resident in Australia, it appears she has a near relative as per reg 1.15(2)(b)(i) and is therefore not a remaining relative as per reg 1.15(1).   As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.

    Ministerial Intervention

30. In the applicant’s written submissions to the Tribunal of 10 December 2022, the applicant through her representative conceded that ‘the Tribunal does not have jurisdiction to remit this matter to the Department in circumstances where the person requiring the care has passed away’. 

31. The applicant however has submitted that there are compelling and compassionate circumstances that warrant the applicant still being granted the Carer visa that she applied for on 7 March 2014. 

32. The Tribunal invited the applicant’s representative to address the matter at its hearing of 14 December 2022.  The applicant’s representative submitted that the treatment of the applicant by the legal process over the past 8 years, where her case had transited multiple times through the Full Bench of the Federal Court, the Federal Circuit Court and the Tribunal was both unfair and unreasonable.

33. It has been submitted that had the Minister not unsuccessfully appealed against the 28 February 2017 decision of Judge Howard of the Federal Circuit Court, and instead remitted the matter to the Tribunal, there would have been ample time for a decision to be made in the applicant’s favour, well prior to the death of Ms Nguyen in May 2019.  The applicant’s representative stated the Minister’s unsuccessful appeal precipitated a series of legal delays. 

34. The applicant’s representative stated during this period the applicant continued to tirelessly provide care and support to Ms Nguyen until her death on 11 May 2019. 

35. It was submitted that during this period, the applicant’s husband had left her in Vietnam and had remarried.  Subsequent questioning by the Tribunal revealed the applicant was not in fact married to her former husband.

36. The applicant in her own testimony stated she had no home to return to, and was not close to her four adult children in Vietnam who each had their own families and lives.  The applicant stated that she had worked in the garment industry when in Vietnam.

37. The applicant’s sister Ms Thi Huyen Nguyen also provided oral testimony at the Tribunal’s hearing in support of the applicant’s claim for Ministerial Intervention.  She stated she was single and was working full-time in the garment and textiles industry.  She stated she was unable to look after their mother, and the applicant had diligently and tirelessly supported her seven days a week up until her death in May 2019.  She reiterated the process of legal and merits review had been unfair, and if she had not been ‘wrongly assessed’, then the applicant would have been granted her Carer visa whilst their mother was still living.  Ms Thi Huyen Nguyen’s arguments were reflected in a statutory declaration also supplied to the Tribunal.  She pointed out that the applicant today was also assisting with looking after children. 

38. In support of her claim for Ministerial intervention, the applicant’s written submission of 10 December 2022 states that she has been living in Australia for over 8 years and in this time she sacrified her health, her life and her own family in Vietnam in order to care for her frail late mother. 

39. It is claimed that the failure of the Department to grant the Carer visa some seven to eight years ago when it came before the delegate resulted in a long and unnecessary journey for the applicant and her family, which was only resolved when the Tribunal remitted the matter to the Department on the third time the matter came before it.

40. The applicant has stated that but for the errors made by the delegate at first instance, and by the Tribunal on 23 February 2018 and 18 December 2018, the applicant would have been granted the Carer visa prior to the death of Ms Hoa Thi Nguyen on 11 May 2019.  The applicant claims that due to reasons beyond her control, being the legal and review process, she was unable to finalise her visa application process until now.  The applicant’s submission is that the legal and review processes that caused the delay in her application are no fault of her own, and but for these processes, she would have ‘undoubtedly’ met the requirements to be granted the Carer visa had the delegate made the correct and lawful decision at the relevant time. 

41. The applicant has requested the Tribunal support her request for Ministerial Intervention pursuant to s 351 of the Act.  The applicant asserts that there are compelling and compassionate circumstances which both justify Ministerial Intervention and presumably satisfy the public interest requirement. In response to the Tribunal’s questions, the applicant’s representative agreed that the request pertained to ‘Compassionate circumstances regarding your age and/or health and/or psychological state, that is not recognised would result in serious, ongoing and irreversible harm and continuing hardship’; and ‘Strong compassionate circumstances that if not recognised would result in serious, ongoing and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident’.

42. The Tribunal has considered the applicant’s request carefully.  The Tribunal appreciates the frustration the applicant and her family have felt through what was an extensive and in many ways excruciating process that traversed the Tribunal on three occasions, the Federal Circuit Court on two occasions and the Full Bench of the Federal Court.  The Tribunal acknowledges that the delegate’s original interpretation of cl 836.213 was ultimately found to be incorrect by the Federal Court in Nguyen v MICMSMA [2020] FCA 1732 when the Court essentially found that the applicant was not required to be usually resident in the same residence as the Australian resident requiring assistance.

1. The Tribunal accepts the applicant provided extensive care and support to her mother, Ms Nguyen up until her death in May 2019.  The Tribunal makes no formal finding as to whether this was undertaken in conjunction with her sister, Ms Thi Huyen Nguyen and other family members, or by herself solely.  

2. The Tribunal does not however ultimately consider that the circumstances in this case warrant the Tribunal’s support of the applicant’s request for Ministerial Intervention.  The Tribunal notes that the applicant was not precluded from providing care and support for her mother, and support to her sister the sponsor in providing care and support, up until the time of her mother’s death in May 2019.  The Tribunal notes that the applicant and her representative did not inform the delegate of the death of the applicant’s Australian adult relative, Ms Hoa Thi Nguyen for some three years, resulting in the matter coming before the Federal Court, the Federal Circuit Court, and the Tribunal with each body unaware of the fundamental matter of the death of Ms Nguyen.

3. The Tribunal is not satisfied that the applicant will suffer serious, ongoing and irreversible hardship if she was to return to Vietnam.  The Tribunal notes that the applicant has family and four adult children residing in Vietnam.  She has worked in gainful employment over many years whilst in Vietnam.  The Tribunal accepts she would prefer to remain in Australia.  It does not accept any hardship she will face is serious, ongoing and irreversible. 

4. The Tribunal does not consider there are strong compassionate circumstances that would result in serious, ongoing and continuing hardship to an Australian citizen or Australian family unit.  The Tribunal in these circumstances has considered the hardship caused to her sister and housemate Ms Thi Huyen Nguyen and other family members in Australia.  The Tribunal accepts the applicant’s sister would prefer for her sister to remain with her in Australia.  The Tribunal accepts the applicant looks after her sister’s grandchildren and enjoys a good relationship with her Australian family unit.  The Tribunal does not accept however that the refusal of the visa will result in serious, ongoing and continuing hardship to the applicant’s Australian family unit including her sister.  The Tribunal is of the opinion that the applicant will be able to maintain a close and ongoing relationship with her sister and her Australian family unit should she return to Vietnam through modern and ubiquitous forms of communication. 

5. The applicant has submitted “but for” the delegate’s original refusal of the application – and various other decisions made by the Tribunal and Courts in the years following – the applicant would have been granted a Carer visa.  This has been held as a reason warranting Ministerial Intervention.  The Tribunal understands the applicant’s frustration in the lengthy legal process, but with respect does not consider this a reason for it to support her submission for Ministerial Intervention.  The Tribunal notes that when originally refusing the applicant’s application the delegate did not in fact make findings pertaining to a range of the reg 1.15AA criteria for the grant of the visa, both at the time of application and the time of decision. This was reflected in the decisions of the Courts and Tribunals who addressed various criteria in question, not whether the applicant met all the required criteria for the grant of the visa.  Whether the applicant would have in fact met all the required criteria whilst the Australian resident requiring care was living remains a question of conjecture.  On the basis of the evidence before it, the Tribunal is not satisfied that “but for” the delegate’s refusal, and the Minister’s decision in in 2017 to unsuccessfully challenge a decision favourable to the applicant at the Full Bench of the Federal Court, the applicant would have in all certainty been granted the visa.  The applicant was unable to meet all the criteria for the grant of the visa prior to the death of her mother Ms Hoa Thi Nguyen.  The Tribunal has genuine sympathy for the applicant, but does not consider her contention warrants the Tribunal supporting her submission for Ministerial Intervention.      

6. Having regard to the applicant’s circumstances, and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal has determined not to refer the matter to the Department, to be brought to the Minister’s attention.  The Tribunal notes of course that the applicant retains the ability to make her own request directly to the Minister.          

   DECISION

7. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

   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.