Pham (Migration)

[2021] AATA 2835

Pham (Migration) [2021] AATA 2835 (9 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Lan Pham

VISA APPLICANT:  Miss Thi Minh Khanh Trinh

CASE NUMBER:  1725303

HOME AFFAIRS REFERENCE(S):          2014079732 OSF2014/079732

MEMBER:Stephen Conwell

DATE:9 July 2021

PLACE OF DECISION:  Melbourne

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

·cl 116.221 of Schedule 2 to the Regulations

Statement made on 09 July 2021 at 3:59pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – relative of an Australian relative – care reasonably provided by Australian relative – continual supervision and assistance required – Australian relatives all engaged in business or studies – cultural and language issues – limited home care weekly support provided – decision under review remitted  

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, 1.20; Schedule 2, cls 116.221, 116.222

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 Immigration and Border Protection on 22 September 2017 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (applicant) applied for the visa on 14 May 2014. 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 cl.116.221.

3. The delegate refused to grant the visas on the basis that the legal requirements in cl.116.221 were not met.

4. The review applicant (sponsor)  provided a copy of the delegate’s decision to the Tribunal for the purposes of the review. The sponsor was represented in relation to the review by her registered migration agent (representative).  

5. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

6. The parties participated in the hearing by telephone on 22 June 2021 to give evidence and present arguments. The sponsor attended the hearing but her mental state (she has been diagnosed with Alzheimer’s Disease and dementia) precluded her from participating.  Instead, Ms. KCD, who is one of the sponsor 's daughters and her primary carer, gave evidence and presented arguments on behalf of the sponsor. The Tribunal also received oral evidence from the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The interpreter also attended the hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Home Affair’s (the Department’s) case file and the Tribunal’s case file. 

   Issue

9. The issue in the present case is whether the sponsorship requirements are met.

   Background

10. The applicant was born in 1978 in Vietnam. She is single, having never married and having no de facto partner. She lives with her parents and her younger sister, who is married and her sister’s family. She previously helped her parents in their green-grocery business. However in recent years, she has performed volunteer work for the Church.  She is one of the sponsor’s grandchildren, her mother being the sponsor’s daughter who remained in Vietnam.

11. The sponsor was born in 1937 and is 84 years of age. She has seven adult children, and several grandchildren, most  of whom live in Australia. The children and grandchildren living in Australia are Australian citizens or Australian permanent residents. The sponsor’s husband died in 2012. She is a settled Australian citizen who is usually resident in Australia.  She is in receipt of an aged pension.

    Whether the visa applicant is a ‘carer’

12. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision

13. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s mother.

14. Therefore, as the applicant is the grand-daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03 and meets the requirements of r.1.15AA(1)(a).

15. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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.

16. For a certificate to meet r.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 IMMI 14/085) or issued by a specific health provider in relation to a review of such an opinion.

17. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVA Certificate) was issued on 9 December 2013. The Tribunal is satisfied that the CVA Certificate meets the requirements of 1.15AA(2). The Tribunal is satisfied that according to the CVA Certificate the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to the practical aspects of daily life. The Tribunal is satisfied that an impairment rating (of ‘50’) is specified in the CVA Certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least 2 or more years, a need for direct assistance in attending to the practical aspects of daily life.

18. The Tribunal finds that the CVA Certificate provided meets the requirements of r.1.15AA(2). Further, the CVA Certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i) - (iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

19. Regulation 1.15AA(1)(ba) requires the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

20. In the present case, the Tribunal is satisfied that the person with the medical condition is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

21. 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.

22. In the present case, the impairment rating specified in the CVA Certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r. 1.15AA (1)(c).

23. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.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 r.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. As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.

24. 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.

25. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should be given to the nature of care actually required by the person needing the care when making such assessment: see at [61].

26. ‘Care’ may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that r. 1.15AA(1)(e) should not be construed as requiring that the assistance must only be provided by a single person.

27. The medical evidence before the Tribunal indicates that the sponsor has Alzheimer’s Disease  and dementia with ‘psychotic features’, as well as osteoarthritis, chronic knee, back pain and hearing loss. The Tribunal accepts that the sponsor has considerable care needs due to her multiple medical diagnoses. The Tribunal accepts the claim – and supporting medical evidence – that the sponsor’s condition has deteriorated significantly since the issuance of a CVAC Certificate concerning her medical conditions over seven years ago.

28. The Tribunal has considered the written submissions by the representative dated 10 October 2018 and 8 June 2021, attaching evidence and declarations provided by the sponsor’s  family members in Australia. The Tribunal has noted their extensive submissions since the time of the application as well as the oral evidence provided to the Tribunal at the hearing by the sponsor’s  daughter Ms KCD, who has been the sponsor’s primary carer since late 2018. Also noted are the statutory declarations statements and supporting evidence submitted by the sponsor’s other children and grandchildren living in Australia, all of which confirm that both they and their respective spouses are engaged in full-time employment, running their own business or in university studies.[1] The evidence shows that some of the sponsor’s children and grandchildren live interstate and are therefore unable to assist in the care of the sponsor. [2]  These personal circumstances have made it difficult for all of the sponsor’s children in Australia to support and assist their mother.

    [1]  Other family members’ declarations and supporting evidence see folios [23-83], [184-205], [207-252]

    [2]  Interstate family members’ declarations and supporting evidence see Department File, folios [206-216]

29. The Tribunal considered the evidence submitted by the sponsor’s grandchildren who reside in Australia and their ability to provide care, support and constant monitoring the sponsor required and the Tribunal concluded that her grandchildren are either living and working full-time interstate, or in full-time study at university or are still in high school. None of the sponsor’s children and grandchildren living in Australia are able to offer the level of ongoing assistance the sponsor requires – which is a 24/7 care and monitoring.

30. The Tribunal notes the extensive care the sponsor requires. Her needs as outlined in the medical reports before the Tribunal are complex and her condition is expected to deteriorate over time. She requires continual supervision and assistance.

31. At the hearing the Tribunal discussed the care needs of the sponsor with the applicant’s daughter, Ms KCD. The Tribunal has considered her oral testimony. When her other siblings were reluctant to take on the full-time care of the sponsor, Ms KCD, (who is also in full-time employment, but has not the additional responsibility of children of her own), decided to take the sponsor to live with her and her partner on a permanent basis. This occurred in late 2018 and Ms KCD has been the sponsor’s principal carer since then.  The Tribunal asked the Ms. KCD if the sponsor had appointed her or any of her other relatives under an Enduring Power of Attorney / Enduring Guardianship to assist her in medical, financial or legal matters.  Ms KCD said that no formal appointment has been made, however she helps the sponsor access and utilize her pension monies (approximately $1,000 per fortnight). She also assists the sponsor with her medical needs. Another daughter, Ms. LPTD, owns the home that the sponsor previously lived in alone, following the death of the sponsor’s husband. The sponsor lived alone for six years before moving in with Ms. KCD.

32. The daughter, Ms. LPTD helps the sponsor with some banking and legal business. However Ms KCD said she is fairly certain that no formal Enduring Power of Attorney / Enduring Guardianship has been executed by the sponsor. As the sponsor’s mental state has further deteriorated, it appears to be too late in consider having these legal documents executed.

33. Ms KCD stated that since moving in to live with her and her partner, the sponsor’s overall mood has improved, although her medical diagnosis is that her Alzheimer’s Disease and  dementia will continue to deteriorate over time. In her oral evidence, she indicated that despite her dedication and love for her mother, she was unable to provide the care the sponsor requires as both she and her partner work full-time. Furthermore it is not possible for her to work on a part-time basis in her current role, nor would it be financially advisable for her to do so, even if it were possible.

34. Ms KCD stated that her partner’s and her plans to start their own family have been neglected but also, her own physical and mental health has suffered from taking on the additional responsibilities of caring for the sponsor. The Tribunal notes the medical report from Melbourne Rheumatology pertaining to Ms KCD, which appears to be dated 3 May 2021. The report notes that she has some neck, back and shoulder pain and some restriction of movement,  the report appears to suggest that Ms KCD’s medical condition appears to be consistent with her sedentary work role, her life-style and her age.  According to Ms KCD, it was not any longer easy for her to balance her responsibilities towards her work and her partner, whose own full-time job requires him to work interstate in Hobart three days a week.

35. In her statutory declaration dated 15 June 2021, Ms KCD details her daily week-day routine which involves getting up before 7am, getting herself ready for work, then preparing breakfast for the sponsor, preparing her daily medication and seeing if she has been incontinent overnight. She then helps the sponsor move into the dining room where they have breakfast together to ensure that the sponsor eats breakfast and takes her medication. A note is often left for the home carer who spends three hours with the sponsor from 9am on weekdays. The sponsor is then alone in the afternoon until Ms KCD or her partner return from work. On returning from work Ms KCD then attends to the sponsor’s needs –she helps the sponsor shower and dress, cleans and tidies her room and settles the sponsor in the living room to watch TV.  Ms KCD then prepares dinner for the household. She gives the sponsor further medication for heartburn and arthritis, with dinner.

36. The Tribunal noted the medical advice dated 2 May 2017 by Mr Hieu Pham, consultant psychiatrist and psycho-geriatrician notes that he has been treating the sponsor for five years at the time. further that her medication can only slow down her mental decline, not stop or reverse it. In his opinion the health of the sponsor was ‘deteriorating’. That report was prepared over four years ago and the Tribunal accepts that the sponsor’s health condition and her cognitive abilities would only have declined further since then. In the Tribunal’s opinion if the sponsor’s high-level 24/7 needs could not be met by her children and extended family at that time, her deteriorating health over the past four years can only make her current medical care needs even more difficult for her family and in and in particular her daughter Ms KCD, to meet. The Tribunal is satisfied that Ms KCD (the daughter whom the sponsor currently lives with) cannot provide the high-level 24/7 care to her mother, the sponsor, even with the support of 15 hours of home care weekly support provided by the government.

37. The Tribunal notes that the care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA (1)(e) should not be construed as requiring that the assistance must only be provided by a single person. The Tribunal has considered whether the care the sponsor requires can be provided collectively by family members who are Australian citizens or permanent residents residing in Australia. After reviewing the information provided to the Tribunal pertaining to each family member, and particularly noting the complex and increasing needs of the sponsor, the Tribunal is satisfied that the existing family members in Australia, both individually and collectively, are unable to reasonably provide the care and assistance the sponsor requires.

38. The Tribunal is satisfied, based on the evidence provided  by the sponsor’s family members but in particular, her daughter, Ms KCD, (her current carer)  in her oral evidence before the Tribunal and her statutory declarations of 22 April 2014, 15 June 2021 and 23 June 2021 that the assistance the sponsor requires cannot reasonably be obtained or provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen. The applicant subsequently meets r.1.15AA(1)(e)(i).  

39. The Tribunal also discussed with Ms KCD whether the ‘assistance’ could not be reasonably obtained from welfare, hospital or community services in Australia.

40. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to the obtainability by the person requiring assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant service is to be reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Ahn Vuong v MIAC [2013] FCCA 274 at [34].

41. Kingston Aged Care Assessment Service, (Kingston ACAS) in an assessment letter dated 13 September 2013 that the sponsor assessed and approved for the high level of care – high level respite and residential care. Dr David Cheung issued a Carer Visa Assessment Certificate on 9 December 2013, giving the sponsor a total impairment rating of 50.

42. The evidence before the Tribunal includes an Aged Care Assessment of the sponsor was carried out on 13 May 2019. The report states that the sponsor had been approved to receive Residential Respite Care at a High Level and Home Care Package Level 4 High Priority, “as the client is at immediate risk …” and “carer arrangements are unsustainable.”.

1. The Tribunal was told by the sponsor’s daughter, Ms KCD that the sponsor would become very distressed at the thought of being ‘abandoned’ in an alien environment amongst strangers. In this respect it is appropriate to observe that the sponsor is a traditional Vietnamese elderly woman whose life has for many years revolved around her husband, her family and her home. She would not want to go into residential care which was considered to be (at this stage) detrimental to her mental health. The Tribunal accepts that the sponsor requires 24-hour care because of her deteriorating mental state and because she requires supervision and assistance with toileting at night. The Tribunal also accepts that the sponsor prefers to remain at home in her familiar family surroundings.

2. The Victorian and Australian Federal governments provide various services to assist elderly people to continue to reside in their homes. The sponsor has been assessed as eligible to receive a high-level home care package, and that provides her with assistance 15 hours on a weekly basis (being three hours each morning, Monday to Friday). The Tribunal accepts that there would be no obtainable welfare or community services that could provide 24-hour assistance (as is required) to Ms Truong. While community assistance is in place for the sponsor, the Tribunal is not satisfied that such services are sufficient to meet her increasing personal needs, which include overnight care.

3. The Tribunal also accepts the cultural and language issues present which are necessary considerations when considering the sponsor’s care circumstances. Having considered all the evidence, individually and as a whole, the Tribunal is not satisfied that the sponsor can reasonably obtain assistance from welfare, hospital or community services in Australia. Therefore, the applicant satisfies r. 1.15AA(1)(e) (ii).

4. On the evidence presented, the Tribunal is satisfied that care and assistance cannot be reasonably provided to the sponsor resident either by her family or ‘community services’ or a combination of both. Therefore, the Tribunal is satisfied that r.1.15AA(1)(e) (i) and (ii) are met.

5. In a statutory declaration dated 23 June 2021, Ms KCD, the sponsor’s daughter, stated that  she understands the undertakings in managing the financial affairs for the sponsor.  As such Ms KCD agrees to support and assist the sponsor to meet the undertakings in providing accommodation and financial assistance to the applicant for up to two years from the date of the grant of the visa. Ms KCD agrees to the following:

   ·To provide information and advice to assist the applicant to settle in Australia;

   ·To ensure accommodation is available to her in Australia or if necessary, to provide accommodation for up to two years from the date of their arrival in Australia, if necessary;

   ·To provide financial assistance as required to meet her health and medical and pharmaceutical needs;

   ·To provide support as required to enable them to attend appropriate English language courses;

   ·To undertake to assume vicariously (or otherwise) the sponsor’s sponsorship responsibilities if required.

6. The Tribunal is satisfied on the evidence that Ms KCD is fully aware of, supports and understands that she, on behalf of the sponsor, will fulfill the sponsorship obligations. Therefore, the applicant meets r.1.20(2) of the Regulations.

7. At the time of decision, the Tribunal approves the sponsorship. The applicant meets cl.116.222 of Schedule 2 to the Regulations.  

8. 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 116 visa.

9. The Tribunal is satisfied that the applicant  who is one of the sponsor’s  grand-daughters) is willing and able to provide the sponsor substantial and continuing assistance to fulfill her  particular and increasing needs. There is no evidence before the Tribunal that the applicant is physically or psychologically unable to provide the assistance required and as needed. The Tribunal is satisfied from the evidence of Ms KCD that the applicant demonstrates particular personal knowledge of her mother’s circumstances, and particular needs and has the ability to provide the necessary care and assistance and therefore, satisfies the requirements of r. 1.15AA (1)(f).

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

11. 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 116 visa.

    DECISION

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

    ·cl.116.221 of Schedule 2 to the Regulations

    Stephen Conwell
    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.