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

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

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.

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Details

AGLC: Pham (Migration) [2021] AATA 2835
Case: [2021] AATA 2835
Decision Date: 9 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), made by a Vietnamese national. The applicant sought to migrate to Australia to care for her elderly Australian citizen mother, who was in receipt of an aged pension. The core of the dispute revolved around whether the applicant met the sponsorship requirements for the visa, specifically concerning the need for care and the inability of other Australian relatives or services to provide it.

The Tribunal was required to determine whether the applicant qualified as a "carer" under regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the applicant was a relative of the Australian resident, whether the Australian resident had a medical condition causing significant impairment requiring ongoing assistance, and crucially, whether such assistance could not reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also had to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal found that the applicant, as the granddaughter of the Australian resident, met the definition of a "relative" under regulation 1.15AA(1)(a). However, the decision text indicates that the Tribunal did not make a final determination on all the criteria. Instead, it concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the criterion under clause 116.221 of Schedule 2 to the Regulations, relating to the applicant being a carer of the Australian relative, was met. This suggests that while the applicant's relationship was established, further assessment was required on other aspects of the carer criteria, particularly the reasonableness of care provision by others and the availability of community services.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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 The issue in the present case is whether the sponsorship requirements are met. Background 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. 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’ 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 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. 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). 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. 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.

Decision

Reasons for decision

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 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 RegulationsStephen ConwellMemberATTACHMENTMigration 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

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