Tran (Migration)

[2023] AATA 4223

Tran (Migration) [2023] AATA 4223 (10 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Chanh Tran

VISA APPLICANTS:  Mr Minh Hung Tran
Mrs Truc Loan Trieu
Master Trieu Gia Bao Tran
Master Trieu Gia Phu Tran

REPRESENTATIVE:  Mrs Pauline Lam (MARN: 9476142)

CASE NUMBER:  2014197

HOME AFFAIRS REFERENCE(S):          OSF2018/009541

MEMBER:Joseph Francis

DATE:10 August 2023

PLACE OF DECISION:  Perth

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

Statement made on 10 August 2023 at 12:56pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – Alzheimer’s disease – assistance cannot reasonably obtained/provided – willing and able – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

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 11 September 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 visa on 11 January 2018. 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 cl 116.221 was not met because Reg.1.15AA was not satisfied; in particular the relevant sub-regulations addressed below.

4. The review applicant appeared before the Tribunal on 28 February 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issues in the present case is whether the applicant meets Reg 1.15AA, in particular sub -regulation (e)(i) that requires that care cannot be given or 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; and sub-regulation (e)(ii) that requires the assistance cannot be obtained from welfare, hospital, nursing or community services in Australia.

8. The Tribunal notes that the Australian citizen requiring care has submitted a Carer Visa Assessment Certificate from BUPA, with an impairment rating of 35.  The primary condition, amongst others, is Alzheimer’s disease.  It is not disputed that the sponsor requires significant care.

9. The Tribunal considered the ability for the sponsor’s qualifying relatives to provide the care required.  It is accepted and understood that there are only two relatives in Australia that could be considered to provide the care under Reg 1.15AA.

10. The sponsor’s daughter, Ms Huong Tran, claimed she works and is unable to provide the required care.  As evidence in support of this claim, the Tribunal received confirmation of Ms Tran by letter from Lane Cove Council dated 7 March 2023.  The Tribunal places weight on this evidence.

11. Additionally, Ms Tran has a very young child she also cares for.  Given the confirmation that Ms Tran is employed on a permanent basis, combined with the requirements to care for her child, it is reasonable to conclude that Ms Tran has a limited ability to care for the citizen requiring care, being her father, Mr Chanh Tran.

12. The Tribunal also considered what care could be provided by Ms Tran’s husband, Mr Truong An Nguyen.  Mr Nguyen also claimed to work full-time and has limited opportunity to provide care for his father-in-law.

13. As evidence to support this claim, the Tribunal received confirmation of full-time employment of Mr Nguyen at Australia Post.  Additionally, a certificate for ten years’ service and relevant pay slips.  The Tribunal places weight on this evidence and finds Mr Nguyen is also limited in his ability to provide substantial care to his father-in-law.

14. Given this evidence, the Tribunal finds that sub-regulation (e)(i) is met at the time of this decision.

15. The delegate noted concerns with the issue that no assistance had been sought from any welfare, hospital, nursing home or community services in Australia.

16. With regard to this requirement, the Tribunal was in receipt of further evidence that was not available to the delegate at the time of the decision. The Tribunal received copies of correspondence seeking assistance from the following organisations:

    ·     Apollo Care

    ·     Hammond Care

    ·     Silverchain 

17. Further, the Tribunal was provided a medical opinion from the sponsor’s treating doctor in Australia, Doctor Earnest Tam, further supporting the preferred option for Mr Chanh Tran to be cared for in-home.  The Tribunal places some weight on this medical opinion.

18. Given the above evidence and with consideration to the circumstances of the family members, both individual and collectively, The Tribunal finds that sub-regulation (1)(e)(i) is also met.

19. Further, the Tribunal notes that the sponsor has spent some time back in Vietnam in order to be cared for by the visa applicant.  Given this history, and with assurances that the visa applicant is both willing and able to provide the required care, the Tribunal is satisfied that sub-regulation (1)(f) is also met.

20. Therefore, it follows that the Tribunal is satisfied that Reg 1.15AA is met, and finds cl 116.221 is also met.

21. 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

22. 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

    Joseph Francis
    Member