Nguyen (Migration)

[2022] AATA 3472

Nguyen (Migration) [2022] AATA 3472 (9 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Thi Hao Nguyen

VISA APPLICANTS:  Mr Tuan Anh Vu
Mrs Duc Huong Chung
Miss Khanh Vy Vu

REPRESENTATIVE:  Ms Carina Ford (MARN: 9802862)

CASE NUMBER:  2011278

HOME AFFAIRS REFERENCE(S):          OSF2017/048532

MEMBER:Brendan Darcy

DATE:9 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·Clauses 116.211 and.116.212 of Schedule 2 to the Regulations in relation to the first named applicant;

·Clause 116.221 of Schedule 2 to the Regulations in relation to the first named applicant; and

·Clause 116.311 of Schedule 2 to the Regulations in relation to the second named applicant and the third named applicant.

Statement made on 09 September 2022 at 1:16pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – care reasonably provided by Australian relative – overnight supervision and assistance required – Australian relatives all engaged in business or employment – family health issues – financial hardship – care reasonably be obtained from welfare, hospital, nursing or community services – conditions in aged care facilities – decision under review remitted     

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.212, 116.221, 116.311, 116.321; rr 1.03, 1.05, 1.12, 1.15

CASES

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

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 16 June 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visas on 4 April 2017. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.

3. Relevantly to this matter, the primary criteria to be met include clause 116.221 and 116.221 and the secondary criteria to be met include 116.321.

4. For the purposes of this decision, the review applicant, Mrs Thi Hao Nguyen, will be referred to as the sponsor; the first named visa applicant, Mr Tuan Anh Vu, will be referred to as the first applicant; the second named applicant, Mrs Duc Huong Chung, as the second applicant; and the third named visa applicant, Khanh Vy Vu, as the third applicant.

5. The delegate refused to grant the visas on the basis that the first applicant did not met cl 116.221 and definition of ‘Carer’ under regulation 1.15AA was not met by the first applicant and cl 116.321 was not met by the other applicants.

6. The sponsor appeared before the Tribunal on 5 August 2022, to give evidence and present arguments. The Tribunal also received oral evidence from the first visa applicant (via a teleconference facility) and the sponsor’s daughters (outlined below).

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The parties were represented in relation to the review.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

9. The sponsor was born on 1 January 1939. She first arrived in Australia in 2003. The sponsor was conferred Australian citizenship on 17 May 2017. She further claims that her husband is deceased at the time of application.

10. On 4 April 2017, the sponsor lodged a visa application for Class BO Subclass 116 Carer visas.

11. Included in that visa application were the particulars of the visa applicants: the first applicant was born on 2 March 1965; the second applicant was born on 18 September 1966; while the third applicant was born on 14 December 2000. Each of the visa applicants are citizens of Vietnam and copies of their Vietnamese passports are attached to the visa application.

12. The first applicant claimed to be the biological child of the sponsor. The second applicant claimed to be the married partner of the first applicant, while the other applicants claimed to be the biological children of the first applicant. Certified copies (with translations into English) of their birth certificates and the certificate of marriage between the first and second applicants are on departmental file.

13. The sponsor’s Carer Visa Assessment Certificate (CVAC) dated 27 February 2017 is on departmental file. It indicates that the sponsor was assessed by medical professionals as reaching an impairment rating of 30 based on the Social Security Tables for the Assessment of Work-related Impairment for Disability Support Pension rating. It indicated the sponsor was fully dependent for showering, dressing/grooming, transportation, medicating and feeding due to loss of vision. The sponsor’s medical condition, which led to her being in need of constant supervision or monitoring because she may be a danger to herself or others, was legal blindness from HSV related keratitis (progressive), as well of general frailty arising from the sponsor’s advanced years.    

14. According the submitted Form 40 (sponsorship for migration to Australia), the sponsor had four daughters and two grandchildren who were aged 18 years and over, that were not dependent on the sponsor, and were living in Australia:

    ·     VU, Kim Thi Lien              (DOB: 7 June 1961)

    ·     VU, Trang Thi Thu           (DOB: 19 April 1967)

    ·     VU, Lan Thi  (DOB: 25 October 1965)

    ·     VU, Huong Thi Anh          (DOB: 2 May 1974)

    ·     Pham, Phuong,                (DOB: 12 April 1990)

    ·     Thong Vu  (DOB: 24 October 1991)

15. Each of the daughters have Australian citizenship, except for Lan Thi VU who was an Australian permanent resident at the time of application. Another daughter, Thi Kim Anh VU resided in Vietnam at the time of application.

16. The Department wrote to the sponsor on 22 January 2020, requesting a statutory declaration from the resident’s adult family members explaining why they could not reasonably provide the assistance and care Ms Nguyen required. The Department also requested evidence to support any claims.

17. In response, the applicants provided the following relevant documents:

    ·     A letter from Dr. Anh Chuong LE, Balmoral Eye clinic;

    ·     A statutory declaration from the resident's daughter, Huong Thi Anh Vu;

    ·     Financials for Vu Accounting Pty Ltd, year ending 30 June 2018, and 30 June 2019;

    ·     Individual Tax Return 2018 for Huong Thi Anh Vu;

    ·     A letter from Laura Marantz at Monash Health confirming Thi Kim Lien Vu’s full time employment;

    ·     A statutory declaration from the resident's daughter, Thi Kim Lien Vu;

    ·     A statutory declaration from the resident's daughter Thi Lan Vu;

    ·     A letter from Dr Yvonne PUN regarding Thi Lan Vu's health condition, osteoarthritis of the knees;

    ·     Statutory declaration from resident's daughter Trang Thu Thi Vu;

    ·     A letter from Austral Rope and Cordage Pty Ltd confirming Ms Trang Thu Thi Vu has been employed as an accountant on a permanent part-time basis two days a week since 2010;

    ·     A letter from VU Accounting confirming Ms Trang Thu Thi Vu is employed as an accountant on permanent part-time basis two days a week since 2016;

    ·     Individual Tax Return 2018 & 2019 for the resident's grandson Mr Thong Vu;

    ·     Notice of assessment-year ending 30 June2018 & 2019 for Mr Thong Vu;

    ·     Three payslips from Crown Melbourne Ltd for Mr Thong Vu;

    ·     Evidence of part-time employment from Crown Melbourne for Mr Thong Vu crown;

    ·     Statutory declaration from the resident's grandson, Thong Vu;

    ·     Evidence of casual employment status from Partners in Co Packing for Mrs Phuong Pham;

    ·     Statutory declaration from resident's granddaughter, Phuong Pham;

    ·     Statutory declaration from the primary applicant dated 17th February 2020;

    ·     Advocacy letter of support from the Australian Vietnamese Women's Association Inc. dated 18 February 2020.

18. Huong Thi Anh Vu declared in her signed statement that she is not able to care for her mother due to the following reasons:

    ‘I run my two businesses full time. As a business owner and with the nature of the businesses in accounting and conveyancing, I need to work at least 12-14 hours every day’;

    ‘I have a partner and I often stay at my partner's place’;

    ‘Due to my work commitment and my own relationship, I basically have no time left in the day to look after my mother’; and

    ‘My mother needs a care for both day and night due to her poor eyesight’.

19. Thi Kim Lien Vu declared to the Department that she is not able to care for her mother due to the following reasons:

    ‘I have a full-time job at Monash Hospital. My job requires me to be on a monthly rotating shift’; and

    ‘I need to work night shifts and with my own family commitments, I cannot stay overnight with my mother. Due to my mother's health, she also needs overnight assistance’.

20. Lan Thi Vu declared to the Department that she is not able to care for her mother due to the following reasons:

    ‘I do not have a driver's licence and I am not capable of driving a car or riding a bicycle due to poor coordination’;

    ‘I am not able to speak, read or write English’;

    ‘I have my own health issues to deal with. I have arthritis on both knees, and I am struggling to walk. I also suffer from high blood pressure’; and

    ‘I have great difficulty to understand and remember things and hence I believe I am not capable of following doctor instructions to administer medications for my mum correctly’.

21. Trang Thu Thi Vu declared to the Department that she is not able to care for her mother due to the following reasons:

    ‘I have been effectively engaged in full time employment. I work six day a week, two days at Austral Rope & Cordage Pty Ltd, two days at Mercy Health and two days for VU Accounting Pty Ltd’.

22. Thong Vu declared to the Department that he is unable to care for his grandmother due to the following reasons:

    ‘I work permanent part-time rotating shift at Crown Casino. My job at Crown Casino requires me to be three months afternoon and evening rotating shift’;

    ‘I am not capable to communicate effectively in Vietnamese’; and

    ‘I do not have a driver's licence’.

23. Phuong Pham, the sponsor’s adult granddaughter, declared in her signed statement that she cannot look after her grandmother due to the following reasons:

    ‘l work 5 days a week; and

    ‘I have two young children of ages eight and five to look after’.

24. A delegate acting on behalf of the Minister refused the visa application on 16 June 2020. The sponsor applied to have refusal decision reviewed, and submitted an appeal to the Tribunal along with a copy of the Departments decision record on 7 July 2020.

25. On 29 July 2021, the Tribunal requested from the applicant a CVAC to fulfill the criteria/definition of the term ‘carer’ pursuant to regulation 1.15AA. The applicant provided the required certificate at the time the visa application was made. However, as considerable time passed since the issuing of the CVAC, an updated copy was sought by the Tribunal.

26. The applicant’s representative submitted the updated CVAC (dated 12 December 2021) to the Tribunal on 22 December 2021. It indicates an impairment rating of 35 under the Social Security Act’s Tables of Work-related impairing for the Disability Support Payment of permanent medical conditions.

27. On 2 August 2022, the Tribunal received a 15-page legal submission prepared by the parties’ representative. It included a number of attachments, as per the following;

    ·     The more recent CVAC

    ·     A letter dated 18 February 2022 from a care a manager of the home care packages administered by the Australian Vietnamese Women’s Association;

    ·     Publicly available information about National Disability Insurance Scheme (NDIS) eligibility;

    ·     A letter by Huong Thi Ahn Vu dated 27 July 2022 in support of this visa application;

    ·     A letter by Lien Thiu Kim Vu dated 29 July 2022 in support of this visa application;

    ·     A letter by Trang Thu Thi Vu dated 29 July 2022 in support of this visa application;

    ·     A letter by Lan Thi Vu dated 29 July 2022 in support of this visa application;

    ·     A letter by Tuan Anh Vu dated 28 July 2022 in support of this visa application;

    ·     A business registration of Vu Accounting Pty Ltd;

    ·     A July-December 2021 mortgage statement;

    ·     Various photographs;

    ·     A psychologist’s letter outlining the Huong Thi Anh Vu’s personal circumstances and mental health symptoms.

    ·     Letters dated 17 September 2021 from employers indicating Lien Vi has been working with Monash Health on an ongoing and part-time basis since 2005 and with the Oak Towers Aged Car on a permanent part time basis since 2017.

    ·     A letter dated 13 February 2020 indicating Trang Thu Thi Vu was employed on a part time basis with Austral Rop and Cordage;

    ·     A letter dated 13 February 2020 indicating Trang Thu Thi Vu was employed by Vu Accounting on a part time basis;

    ·     A loan statement indicating Lien Kim Vi has a $400,000 plus mortgage;

    ·     A loan statement indicating the husband of Trang Thu Thi Vu has a $550,000 mortgage;

    ·     A medical letter dated 17 February 2020 indicating Lan Thi Vu has persistent pain in her knees arising from osteoarthritis; and an accompanying medical imaging report; and

    ·     Publicly available information and media reports about Covid-19 in Australia’s aged care system

28. As mentioned above, the sponsor, the first applicant and witnesses attended a scheduled hearing on 5 August 2022.  At the end of the hearing, the Tribunal requested a further legal submission and to provide it by 12 August 2022.

29. On 12 August 2022, the Tribunal received a post hearing submission which included;

    ·     A further legal submission dated 12 August 2022;

    ·     Statement of Tuan Anh Vu, signed and dated 11 August 2022;

    ·     Letter from Hung Vuong University, Ho Chi Minh City and dated 11 August 2022, confirming that Vu Khanh Vy is studying full time at the University; and

    ·     Vu Khanh Vy’s fee tuition receipt, dated 29 March 2022.

30. No further documents in relation to this matter received by the Tribunal.

31. No non-disclosure notices were attached to the applicant’s Departmental and Tribunal files.

    Whether the applicant is a carer

32. The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this decision.

33. Clause 116.211 of the Regulations requires that the visa applicant claim to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant is a carer of the sponsor, who is the visa applicant’s biological mother.

34. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

35. Regulation 1.15AA(1)(a) requires the applicant to be 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 first applicant’s mother.

36. There is no dispute in this matter about whether or not the first applicant is the son of the resident. Regulation 1.03 includes a child or step-child of a person in its definition of a close relative.

37. The Tribunal is also satisfied that the sponsor who is the relative is an Australian citizen based on the submitted evidence. Therefore, the sponsor is ‘an Australian relative’.

38. Therefore, as the applicant is the son 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)

39. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), state 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.

40. Regulation 1.03 includes a child or step-child of a person in its definition of close relative.

41. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMI 07/013), or issued by a specified health provider in relation to a review of such an opinion.

42. On examination of the 2021 CVAC received by the Tribunal, it is issued by BUPA Medical Visa Services to the abovementioned person with a medical condition. Legislative Instrument IMMI 07/013 specified BUPA Medical Visa Services as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

43. The certificate specifies that:

    ·     the caree has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life;

    ·     the impairment has an impairment table rating specified in the certificate; and

    ·     because of the medical condition, the caree has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.

44. Regulation 1.15AA(3) stipulates that the opinion in a certificate from the health service provider is to be taken as correct for the purposes of whether or not the applicant satisfies the impairment criterion.

45. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv).

46. Accordingly, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

47. 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.

48. In the present case, the person with the medical condition is the first applicant’s mother.

49. In the present case, the person with the medical condition is ‘the resident’. On departmental file is evidence the applicant arrived in Australia on 8 March 2003 as a citizen of Vietnam, and became a permanent resident in Australia on 20 November 2014. There is no evidence she had Australian citizenship conferred upon her at the time of application. This strongly supports the residency status of the person with a medical condition to be that of an Australian permanent resident.

50. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

51. 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 07/012.

52. In the present case, the impairment rating specified in the certificate is 35. This rating exceeds 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)

1. 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.

2. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

   Assistance cannot be reasonably provided by Australian relatives – reg 1.15AA(1)(e)(i)

3. Regulation 1.15AA(1)(e)(i) 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.

4. The Tribunal notes and accepts that the sponsor’s husband is deceased.

5. The relevant relatives who claim they cannot reasonably provide assistance to the caree were all adults at the time this application for a Carer visa was lodged. The sponsor has a number of Australian citizen and permanent resident children who are usually residents in Australia : Kim Thi Vu,  Thi Kim Lien Vu, Trang Thi Thu Vu; Lan Thi Vu;  and Vu Huong Thi Anh. The sponsor’s relevant grandchildren were Thong Vu and Phang Pham.

6. The delegate, having considered their statements and supportive documents, was not satisfied they did not have the cumulative capacity to provide the assistance the sponsor requires, despite their competing work and family commitments.

7. The gist of the evidence provided to the Tribunal is that several relatives have in the past provided the assistance the sponsor requires, but as her fragility and her eye condition has deteriorated assistance has become more time consuming and challenging. Overall, the Tribunal accepts this evidence as outlined during the hearing, to be credible.

8. The Tribunal notes however that the Department’s policy[1] states that the delegate should take a practical approach to assessing the reasonableness of the claims of family member who are unable to provide the required level of care;

   ‘For example, it would not be reasonable to expect a relative to put themselves into financial hardship or situations where they (or their dependent family members) would suffer physical or mental harm in providing the assistance.’

   [1] Policy - [Div1.2/Reg 1.15AA] Reg 1.15AA - Carer- Assessing assistance needs

9. Without exhaustively examining each of the circumstances of the sponsor’s children living in Australia, the Tribunal accepts that a number of the relatives have had or continue to have significant familial and financial commitments including a number of substantial mortgages, which they work diligently to repay. The Tribunal does not assess that putting those family members under greater financial and emotional hardship, if they were to provide the level of care the sponsor requires, would be practical. It would certainly not be reasonable to expect the sponsor’s daughter who already manages a disability while on social security benefits and is relatively isolated from the sponsor, to provide further assistance The Tribunal has sympathy for one of the relatives who has balanced running a demanding business on a full-time basis, while also caring for her sponsor. As her mother’s condition has deteriorated, the impact upon her has been so acute as to have triggered a significant decline in her mental health.  

10. The Tribunal accepts that the daughters of the sponsor can only provide the sponsor with the assistance she requires by unreasonably placing themselves into severe mental and financial stress. The Tribunal accepts there is a general willingness of the daughters to assist, but they have reached the limits of their cumulative capacity to do so. 

11. With regards to the grandchildren of the sponsor, the Tribunal accepts that Thong Vu is a young male with weak Vietnamese language skills and that Phuong Pham has care responsibilities as a mother of two young children. The Tribunal accepts both are unwilling to provide assistance to their elderly grandmother. In the case of the male grandchild, the Tribunal accepts that it would not be culturally and medically suitable or appropriate to care for the sponsor.

12. Having considered the evidence and the relevant supporting information individually and cumulatively, the Tribunal accepts the evidence that the assistance the sponsor (the caree) needs cannot reasonably be provided by any other relative of the sponsor who is an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen. In making this finding, the Tribunal has been cognisant that the cumulative impact on caring for the sponsor will unreasonably put those relatives into financial hardship and exacerbate their mental health wellbeing in the context of the sponsor’s unique treatment requirements and deteriorating fragility.

13. The Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, and, therefore the requirements of reg 1.15AA(1)(e)(i) are met.

    Assistance cannot be reasonably obtained by services in Australia– reg 1.15AA(1)(e)(ii)

14. Regulation 1.15AA(1)(e)(ii) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

15. Currently the sponsor has been receiving and continues to receive 15 hours of service per week from the Home Care Packages programme administered by a Commonwealth funded service provider, the Australian Vietnamese Women Association. This assists the caree with personal care, domestic assistance, kitchen help and transportation. The correspondence from the service provider indicates the Association is not able to extend its care.

16. With regards to NDIS, the Tribunal accepts the caree is not eligible for a services and support package due to the age eligibility of that programme.

17. The Australian relative who requires assistance is likely to be eligible for residency and care within a residential aged care facility. The Tribunal accepts the relatives have made reasonable enquiries with such facilities within a reasonable radius where the sponsor’s live, namely the Springvale area of eastern metropolitan Melbourne.

18. It was also claimed that the aged care facilities were highly susceptible to Covid-19 infections and that frail and aged persons with serious illnesses were at an unreasonable risk of such infections, leading to hospitalisation and/or to succumbing to the viral infection. While the Tribunal accepts the continued possibilities of Covid-19 and other contagious outbreaks in aged care facilities, the Tribunal places little weight on these, given outbreaks outside of aged care homes are also possible, and that older Australians are generally more susceptible to disease and death from Covid-19 regardless of which setting. It is only marginally relevant to the question as to whether the sponsor as the caree cannot reasonably obtain these services in the Australian community, compared to obtaining them from the first applicant as a carer.

19. At the scheduled hearing, the relatives of the sponsor provided various reasons as to why that assistance cannot reasonably be provided by an aged care facility within a reasonable traveling distance. Including the facilities with which the relatives have made contact, it was claimed that there was no available Vietnamese speaking staff, and that they were none providing Asian meals. The Tribunal questioned this as there are a number of Chinese aged care specific homes where Asian food is available, but it accepted that most Vietnamese specific aged care facilities were located in western metropolitan Melbourne, which will be unreasonably distant from the relatives’ residencies.

20. The Tribunal enquired whether the sponsor would be able to access suitable care given the specific health requirements pertaining to the applicant’s eyes. The relatives insisted that the sponsor’s eyes are extremely sensitive to temperature and such precise temperature control cannot be reasonably obtained in aged care facilities. It was relatedly argued the sponsor’s blindness contributed to her physical and mental isolation should she be required to reside in an aged care facility, especially if she could not be communicated to in Vietnamese. The Tribunal found this information far more persuasive.

    In assessing the criterion relating to r. 1.15AA(1)(e)(ii), the Tribunal has also placed significant weight on the nature of the sponsor’s permanent visual impairment whereby she is legally blind and is reliant on regular and constant eye cleanliness to avoid infection and other complications. The CVAC mentions the sponsor can only be left at home alone for a maximum of two hours before one of her daughters or a home care package worker if the the assistance required for the sponsor’s eye conditions is to be effective. The sponsor cannot attempt to cook or clean or move distances independently. Her medical practitioner from a specialist eye clinic confirms the required high levels of care due to the sponsor’ deteriorating eye conditions and the need for a carer with a capacity to provide constant care.

21. While the Tribunal assesses the quality of care in aged care facilities to be among a high standard, the combination of the sponsor’s blindness, lack of English, her cultural and linguistic needs and the specialised high level of care to treat her eye condition has invited the Tribunal to find that the assistance the sponsor requires cannot be reasonably be obtained from welfare, hospital, nursing or community services in Australia when considering the evidence cumulatively.

22. For these reasons, the requirements of reg 1.15AA(1)(e)(ii) are met.

23. Given the above findings about parts (1)(ee)(i) and (ii) of reg. 1.15AA, 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)

24. Regulation 1.15AA(1)(f) requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

25. 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.

26. The applicant claims to have sufficient English language skills to understand the relevant technical and medical meanings associated with administering medication and caring out other care responsibilities for the resident. In particular, he pointed out that he completed tertiary studies in English, and he has used English in a professional setting while working for an international bank. The first applicant also claimed that he is in frequent contact with his mother and his siblings and is aware of her medical and other requirements. While caring for his mother, the first applicant’s capacity to care will be enhanced by the second applicant finding remunerative work to support him. It is also likely should the first applicant be granted the visa, he will be able to access the Carer Payment and/or the corresponding auxiliary supplement and be able to access a driver’s licence.  

27. The Tribunal accepts that the applicant has a genuinely familial and medically suitable relationship with the caree. Accordingly, the applicant is therefore 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 in relation to the first applicant

28. Based on the reasons outlined above, at the time of application the first applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 116.211.

29. The Tribunal makes a further finding that the first applicant also satisfies clause 116.212 given clause 116.211 findings above accept whereby the first applicant is sponsored by the Australian relative has turned 18 and is mentioned in Subdivision 116.21.

30. As the criteria under both clauses 116.211 and116.212 are met, the first applicant satisfied the primary criterion as a whole at the time of criteria pursuant to clause 116.21.

31. Given these findings the Tribunal concludes that at the time of decision the first applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl 116.221.

    The other applicants

32. The Tribunal notes the decision record states that the delegate refused to grant the other applicants the visas as they did not meet the criterion under clause 116.321. The delegate did so because the primary applicant did not satisfy the primary criteria.

33. Clause 116.321 states the applicant continues to be a member of the family unit of a person who is the holder of a Subclass 116 visa at the time of decision. The scope and definition of ‘member of the family unit’ is given effect under regulation 1.12.

34. In order to consider clause 116.321, the Tribunal has to consider the time of application criteria for secondary applicants under clause 116.311: the applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 116.21.

35. It is claimed the first applicant is the spouse of the second applicant, and is therefore, a member of the same family unit of the persons who satisfied clause 116.211. Regulation 1.12(2)(a) specifies that a spouse or a de facto partner of the family head.

36. On Departmental file is a certified translation of a marriage certificate issued by an authority in Vietnam indicating the first and second applicants had their marriage registered on 23 July 1999.  With no evidence to the contrary, the Tribunal is satisfied that the second applicant is a member of the same family unit as the first applicant as required by regulation 1.12(2)(a), both at the time of application and the time of decision.

37. The third applicant’s birth certificate indicates she was born 14 December 2000. This indicates that the third applicant was aged 17 at the time of application in April 2017, and that the third applicant satisfies the secondary criterion under cl 116.311.

38. However, the third applicant reached the age of majority in December 2018 and is currently aged 21. Her birth certificate indicates she is the biological child of the first and second applicants.

39. The third applicant is a member of the same family unit for the purposes of the 116 Carer visa if she has not turned 23, and is dependent on the family head, or on the spouse or de facto partner of the family head. Regulation 1.05A(1) requires a decision maker to assess whether the dependent applicant is wholly or substantially reliant on the family head (the first applicant) for all their basic needs, including food, clothing and shelter, and that this reliance is greater than on any other person.

40. During the hearing, the Tribunal enquired whether the third applicant was materially dependent on the first applicant and whether she is a full-time student in tertiary studies. The first applicant said the third applicant is financially reliant on him and is studying full time. The parties undertook to provide additional evidence to support this.

41. In a post hearing submission, the Tribunal received a letter from the Hung Vung University in Ho Chi Minh City (Saigon) that the third applicant is enrolled on a full-time basis between 2018 and 2002 in information technology. The submission also included receipts of paid tuition fees for last financial year and statement by the first applicant indicating the third applicant is wholly reliant on him and his wife for accommodation, food and other expenses and that third applicant has never worked.

42. The Tribunal notes that under 1.05A, it is generally accepted an applicant who is a full-time student is otherwise financially reliant on their parents if they have undertaken continuous full-time study since completing secondary school.

43. Given the overall credibility of the parties’ evidence, the Tribunal accepts the third applicant should be considered 'wholly or substantially reliant' on the first applicant for the purposes of regulation 1.05A, and that she is a member of the same family unit as the first applicant for the purposes of regulation 1.121(b)(i) at the time of application and regulation 1.12(b)(ii) at the time of application.

44. Given the findings above, the Tribunal makes the finding that the other applicants meet the criterion under clause 116.311 because they are members of the same family unit, and made a combined application, with the first person who satisfied the primary criteria in Subdivision 116.21.

45. While the Tribunal is satisfied the second and third applicants satisfy the primary criteria in Subdivision 116.21, the Tribunal cannot make a determination that the first applicant meets the second part of the clause 116.321, which requires the first applicant to be a person who is a holder of a Subclass 116 at the time of making this decision. Clearly, at the time of making this decision, the first applicant is not a holder of a Subclass 116 visa.

46. It is accordingly the correct and preferrable course to remit this combined application for Carer visas to the Minister to consider the remaining criteria for a Subclass 116 visa.

    DECISION

47. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

    ·Clauses 116.211 and.116.212 of Schedule 2 to the Regulations in relation to the first named applicant;

    ·Clause 116.221 of Schedule 2 to the Regulations in relation to the first named applicant; and

    ·Clause 116.311 of Schedule 2 to the Regulations in relation to the second named applicant and the third named applicant.

    Brendan Darcy
    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.