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

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).
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.
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.
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.
The delegate refused to grant the visas on the basis that the first applicant did not met cl 116.221 and…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Nguyen (Migration)

Details

AGLC: Nguyen (Migration) [2022] AATA 3472
Case: [2022] AATA 3472
Decision Date: 9 September 2022

CaseChat Overview and Summary

This matter concerned an application for Class BO Subclass 116 (Carer) visas by three applicants from Vietnam, who sought to care for their Australian citizen sponsor. The sponsor, who arrived in Australia in 2003 and became a citizen in 2017, had a medical condition resulting in legal blindness and general frailty, requiring constant supervision and assistance with daily life. The sponsor had several adult children and grandchildren residing in Australia, some of whom were Australian citizens and one a permanent resident. The Department requested statutory declarations from these Australian relatives explaining why they could not reasonably provide the required care, along with supporting evidence.

The legal issues before the Tribunal were whether the applicants could satisfy the criteria for a Subclass 116 Carer visa, specifically concerning the sponsor's need for care, the inability of other Australian relatives to provide that care, and the unavailability of alternative welfare or community services. The Tribunal was required to consider the evidence submitted by the applicants, including medical reports, statutory declarations from Australian relatives, financial documents, and employment details, in light of the requirements of Regulation 1.15AA of the Migration Regulations 1994.

The Tribunal reasoned that while the sponsor clearly had a medical condition requiring substantial and ongoing assistance, and the applicants were willing and able to provide this care, the crucial question was whether such assistance could reasonably be obtained from other Australian relatives or from community services. The evidence presented indicated that the sponsor's Australian relatives were engaged in business or employment, and some faced their own health or financial challenges. However, the Tribunal found that the submissions did not definitively establish that care could not reasonably be obtained from other sources, nor did they fully address the conditions in aged care facilities.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that specific criteria for a Subclass 116 visa, relating to the first applicant's eligibility and the second and third applicants' eligibility, were to be considered met. The overall decision was to remit the combined application for Carer visas to the Minister for further consideration of the remaining criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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 DarcyMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:(a)the applicant is a relative of the resident; and(b)according to a certificate that meets the requirements of subregulation (2):(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and(e)the assistance cannot reasonably be:(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or(ii)obtained from welfare, hospital, nursing or community services in Australia; and(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.(2)A certificate meets the requirements of this subregulation if:(a)it is a certificate:(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and(ii)signed by the medical adviser who carried it out; or(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEBackground 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. On 4 April 2017, the sponsor lodged a visa application for Class BO Subclass 116 Carer visas. 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. 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. 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. 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) 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. 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. 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.