Ta (Migration)

[2021] AATA 2592

Ta (Migration) [2021] AATA 2592 (15 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hue Thi Tuyet Ta

VISA APPLICANTS:  Mrs Lan Thi Tuyet Ta
Mr Giang Van Truong
Ms Linh Thi Phuong Truong

CASE NUMBER:  1824095

HOME AFFAIRS REFERENCE(S):          OSF2014/027207

MEMBER:Andrew McLean Williams

DATE:15 July 2021

PLACE OF DECISION:  Brisbane

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:

·cl 116.221 of Schedule 2 to the Regulations;

·cl 116.321 of Schedule 2 to the Regulations.

Statement made on 15 July 2021 at 1:22pm

CATCHWORDS
MIGRATION – Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – sponsor’s responsibility for older and infirm husband and son with complex and ongoing needs, and own depression – son gets some allied health and administrative assistance through NDI, but not day-to-day care at home – applicant’s ability to provide appropriate care – knowledge of condition, ability to drive and ability in English – now living in Australia and providing care for 19 months – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(f), Schedule 2, cls 116.211, 116.221, 116.321

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 26 June 2018 refusing 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 visa on 28 October 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’).

3. 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 as set out in Part 116 of Schedule 2 to the Regulations. Relevantly, these include cl 116.221, which requires that the applicant be a ‘carer’ for the Australian relative mentioned in clause 116.211.

4. In this case the primary visa applicant is Mrs Lan Thi Tuyet Ta, who is the older sister of the review applicant, Mrs Hue Thi Tuyet Ta. Hue Thi Tuyet Ta is married to Mr Buu Thoi Ly, and each of them are Australian citizens who reside in Brisbane.  They have a 13 year old son, Phuoc, also an Australian citizen.  Phuoc has complex and ongoing needs, arising in consequence of his having a diagnosis of autism and ADHD.  Phuoc is the ‘Australian relative’ for purposes of clause 116.211.

5. Mr Buu Thoi Ly is nearly 75 years of age, and is a good deal older than his wife Hue Thi Tuyet Ta.  Although Buu Thoi Ly has reasonable English, Hue Thi Tuyet Ta has quite limited English.  Buu Thoi Ly has one older brother in Melbourne, together with some nephews, none of whom he has seen for several years.  He has no other family other than his wife and son in Brisbane.  Hue Thi Tuyet Ta also has only her husband and her son Phuoc as relatives in Australia. 

6. Prior to 1975, Buu Thoi Ly was an officer in the army of the Republic of Vietnam.  When the communists from the North overthrew South Vietnam, Buu Thoi Ly was taken prisoner and was incarcerated in a re-education camp. He was forced to undertake hard labour for 14 hours each day as well as suffering from beatings, food deprivation, lack of adequate medical treatment, and other inhumanities.  As may be expected,  Buu Thoi Ly still suffers to this day in consequence of those experiences.  In addition, his general physical health is now declining as he gets older and he is therefore not able to provide much assistance to his wife in terms of supervising and caring for Phuoc.   Hue Thi Tuyet Ta now finds herself in the difficult situation of being simultaneously the full-time carer for both her husband and her son, with all his complex and on-going needs.  Hue Thi Tuyet Ta is also quite socially isolated.  The burden of all this has become intolerable for her and has caused her a medically diagnosed depressive condition.  Her treatment providers have recognised that the solution is for her to have more assistance in the home.  Although the family have some assistance under Phuoc’s NDIS package, that assistance extends only to Phuoc’s requirements for allied healthcare, and some limited administrative support.  The NDIS package does not extend to in-home assistance of the practical, day-to-day type that would make a real difference.

7. On 28 October 2014 an application was lodged in Ho Chi Minh City for Lan Thi Tuyet Ta to become a carer pursuant to an Other Family (Class BO) (Subclass 116) visa in order for her to come to Australia and provide assistance to her nephew Phuoc and her younger sister Hue Thi Tuyet Ta.  The application was decided by a delegate in Seoul (South Korea) on 26 June 2018.

8. The delegate refused to grant the visas on the basis that Lan Thi Tuyet Ta was considered unable to meet Regulation 1.15AA(1)(f) - and consequently regulation 116.221 - (a time of decision criteria) because the delegate could not be satisfied that Lan Thi Tuyet Ta had demonstrated sufficient knowledge of autism as a condition; did not know how to drive a motor vehicle; and could not speak any English.  The delegate concluded that each of these were necessary in order for Lan Thi Tuyet Ta to show that she had the experience and qualifications necessary to provide appropriate care for Phuoc.

9. The review applicant appeared before the Tribunal on 15 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant Lan Thi Tuyet Ta, and from Mr Buu Thoi Ly.  Ms Liz Martyn-Johns, an advocate from AMPARO Advocacy, a not-for-profit social welfare advocacy agency also appeared before the Tribunal to help the review applicant and her husband.  Ms Martyn-Johns had also prepared detailed written submissions (dated 18 June 2021), that usefully synthesise the various medical and other reports going to Phuoc’s complex needs, and giving the social context and background for this particular carer visa application.

10. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether Lan Thi Tuyet Ta - as the primary visa applicant - (‘the applicant’) satisfies the requirements of Regulation 1.15AA(1)(f) and consequently regulation 116.221.

    Whether the visa applicant is a ‘carer’

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

14. Lan Thi Tuyet Ta has been living in Australia pursuant to a bridging visa and has now been caring for her nephew Phuoc on a daily basis for approximately 19 months.  She is familiar with Phuoc and his condition and understands all of his special needs.  She has undertaken some short seminar courses in Vietnam on autism, and is able to drive a motor car.  She will apply for an Australian driver licence in the event that the visa is granted.  She is also undertaking voluntary conversational English classes, and feels that she is making good progress with that, and fully intends to enrol for further English language studies in the future, in the event that the visa is granted.   

15. Regulation 1.15AA(1)(a) requires the visa applicant to be a ‘relative’ of the resident who is the Australian relative. In the present case, the Australian relative is identified as her nephew Phuoc, who obviously now qualifies as a ‘relative’ for purposes of Regulation 1.15AA(1)(a).  

16. Regulation 1.15AA(1)(b) requires that there be a certificate, which meets requirements of reg 1.15AA(2), which stipulates 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.

17. 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, or issued by a specified health provider in relation to a review of such an opinion.

18. In this case the departmental file contains the necessary certificate issued pursuant to regulations 1.15AA(1)(b) and 1.15AA(2), signed by a Dr P Conroy on 10 November 2014. Dr Conroy thereby certifies Phuoc to have autism spectrum disorder, with a wide range of developmental problems, requiring a ‘high level of support and supervision’.  Dr Conroy assigned an impairment rating of 30, and says that Phuoc will continue to have a need for direct assistance in attending to the practical aspects of daily life for at least the minimum required period of two years.

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

20. 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. Phuoc is an Australian citizen and is resident in Australia. Accordingly, the requirements of reg 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 17/126.  In the present case, the impairment rating specified in the certificate issued by Dr Conroy is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

22. Regulation 1.15AA(1)(d) does not apply in this case.

23. 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. 

24. In light of Mr Buu Thoi Ly’s advancing years and declining health, and Mrs Hue Thi Tuyet Ta now struggling to cope as a carer for both her husband and autistic son and her suffering from a depressive illness in consequence of that, and this family having no other relatives in Brisbane whom are able to help, the Tribunal is satisfied that Mrs Hue Thi Tuyet Ta does require the assistance of another carer, to help Phuoc with his day-to-day needs. Ms Martyn-Johns informed the Tribunal, and it is now accepted, that there is no practical possibility for assistance of the type required being provided by welfare, hospital, nursing or community services. 

25. Accordingly, 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.

26. 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.

27. 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.

28. The Tribunal is satisfied that Lan Thi Tuyet Ta is both willing and able to provide her nephew Phuoc with substantial and continuing assistance of the kind needed.

29. Therefore, the visa applicant meets the requirements of reg 1.15AA(1)(f).

30. Given these findings the Tribunal concludes that at the time of decision the primary visa applicant is a carer of the Australian relative, and therefore satisfies cl 116.221. The other visa applicants as family members of the primary visa applicant therefore satisfy cl. 116.321.

31. 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

32. 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:

    ·cl 116.221 of Schedule 2 to the Regulations; and

    ·cl 116.321 of Schedule 2 to the Regulations.

    Andrew McLean Williams
    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.