Tran (Migration)

[2023] AATA 2565

Tran (Migration) [2023] AATA 2565 (2 June 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Le Anh Tran

VISA APPLICANTS:  Mr Nam Hung O
Ms Kiet Bang Chau
Mr The Lam O
Mr O Chi Lam

REPRESENTATIVE:  Ms Myyen Tran

CASE NUMBER:  2010935

HOME AFFAIRS REFERENCE(S):          OSF2018/028282

MEMBER:Jennifer Cripps Watts

DATE OF DECISION:  2 June 2023

DATE CORRIGENDUM

SIGNED:14 June 2023

PLACE OF DECISION:  Canberra

AMENDMENT:  The following corrections are made to the decision:

The name of the secondary visa applicant, Mr O Chi Lam (born 18 December 1998), was inadvertently omitted from the front page of the decision record made by the Tribunal and notified on 2 June 2023 due to an administrative error, and has been added to the list of visa applicants.

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Le Anh Tran

VISA APPLICANTS:  Mr Nam Hung O
Ms Kiet Bang Chau
Mr The Lam O

REPRESENTATIVE:  Ms Myyen Tran

CASE NUMBER:  2010935

HOME AFFAIRS REFERENCE(S):          OSF2018/028282

MEMBER:Jennifer Cripps Watts

DATE:2 June 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 2 June 2023 at 12:37pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – members of the family unit – carer of an Australian relative – relatives and welfare, hospital, nursing, community services in Australia – family health issues and disabilities – current access to community programs – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 116.221; rr 1.03, 1.15

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 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 5 March 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. At the time of application, for a secondary applicant to be granted the visa, they must be a member of the family unit of, and have made a combined application with, a person who satisfies the primary criteria in subdivision 116.21.  Their visas were refused because they did not meet the secondary criteria.

4. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the primary visa applicant (the applicant) was found not to be a ‘carer’ when assessed against the requirements of reg 1.15AA(1).

5. The review applicant appeared before the Tribunal by MS Teams audio visual on 20 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the primary visa applicant by phone from Vietnam.  The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The review applicant’s representative attended the hearing from the same location as the review applicant.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is a carer, with reference to each of the elements of reg 1.15AA(1) of the Regulations, at the time of this decision.  The applicant was referred to the requirements, which are set out in the primary decision record.  They were explained to the applicant at the beginning of the hearing to refresh her memory.

   Whether the visa applicant is a ‘carer’

9. 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 reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.

10. In this decision, the review applicant is referred to variously as the sponsor, Australian relative, relative, resident, or Ms Tran.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

11. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relative).  In the present case, the Australian relative is identified as the visa applicant’s brother.  The definition of ‘relative’ includes ‘close relative’; brother is included in the definition of ‘close relative’.

12. Therefore, as the applicant is the brother of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

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

14. 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 in Legislative Instrument IMMI 14/085.  The health provider specified in IMMI 14/085 is Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services (Bupa).

15. The Tribunal has been provided with a certificate, a Carer Visa Assessment Certificate and Panel Physician’s Report, under cover of a letter from Bupa dated 15 March 2022.  The certificate is dated 8 March 2022 and signed by the examining doctor and panel physician, Dr Nirmalie De Silva.  The person assessed is Cindy Tang, the daughter of the Australian resident.

16. According to the certificate:

    ·a member of the family unit (Cindy) of the resident (her mother) has a medical condition causing impairments of their ability to attend to the practical aspects of daily life

    ·the impairment has an impairment table rating specified in the certificate 

    ·because of the medical condition, the person has, and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life

17. The Tribunal finds that the certificate provided meets 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.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

18. 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.

19. In the present case, the person with the medical condition is an Australian citizen.  Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

20. 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, which specifies the impairment rating as 30 (thirty).

21. In the present case, the impairment rating specified, at page 8 of the certificate, is 40 (forty). This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance – reg 1.15AA(1)(d)

22. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 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 reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate (Cindy) attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

23. In the present case the Australian relative (resident) is not the subject of the certificate. The person who is the subject of the certificate is Cindy Tang, the daughter of the Australian relative.

24. The Tribunal has made a finding that reg 1.15AA(2) is met relating to the certificate.  It is included in the certificate that the person with, and because of, the medical condition, is a member of the family unit of the Australia relative, and that the person has a need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years (page 9 of the certificate).

25. As the Australian relative requires assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv), the requirements of reg 1.15AA(1)(d) are met.

    Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

26. Regulation 1.15AA(1)(e) of the Regulations (extracted) requires that

    ‘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…’

27. The requirements of reg 1.15AA(1) of the Regulations were addressed at the beginning of the hearing.  The review applicant had provided a copy of the primary decision record and was reminded, as it was explained in the decision, that the reason the visas were refused was because a delegate of the Minister was not satisfied her brother, the primary visa applicant, met all the relevant elements of the definition of ‘carer’ as it is described in reg 1.15AA(1).  The requirements are cumulative.  Some of the requirements were met.  These were referred to briefly at the beginning of the hearing.

28. However, the reason the visas were refused is because reg 1.15AA(1)(e)(i) and (ii) were not met.  The delegate was not satisfied that the applicant demonstrated that it would be unreasonable for the applicant’s relatives in Australia to provide the assistance required to care for Cindy on a ‘collective basis and in conjunction with assistance available from welfare, hospital, nursing, community services in Australia’.  That is, through a plurality of assistance provided and services obtained. 

29. The question for the Tribunal, on review, is the same substantive issue on which the applicant’s visa was refused; that is, whether the applicant meets the requirements of reg 1.15AA(1)(e).

30. The family situation, living and day to day arrangements for Cindy were discussed at the hearing.  Consideration has also been given to the documentary evidence provided.

31. Cindy was born in 2002; she lives with her older sister, Jenny, and their mother in Canley Heights.  The home has three bedrooms, two bathrooms and a granny flat where the resident’s Australian citizen brother lives.  Cindy’s father lives in another residence in Fairfield, about 10 minutes away, with Cindy’s sister, an adult Australian citizen. 

32. At the hearing, the relative gave evidence that she is divorced from Cindy’s father.  Documentary evidence of their divorce was provided to the Tribunal.  Cindy’s father lives close by in the same residence as Cindy’s oldest sister, Julie.  The sponsor said Cindy occasionally spends time with her father, but that it does not usually go well because he does not understand Cindy’s needs.  However, the biological father of the ‘person’ (the sponsor, Cindy’s mother) is not a relative, as defined in reg 1.03, for the purpose of considering reg 1.15AA(1)(e)(i).  for that reason, the Tribunal has not included consideration of whether Cindy’s biological father can provide assistance.

33. The Tribunal accepts that Cindy’s father is not a ‘relative’ of the resident for the purpose of this sub-regulation; that the resident’s sister, who lives in Melbourne and who migrated to Australia as a carer for Cindy some years ago, is no longer able to provide assistance due to her significant health conditions, and that Jenny, the other adult daughter of the resident is probably unable to be relied on to provide any significant assistance to her mother in caring for Cindy due to her own diagnosis of a mild intellectual disability and Autism Spectrum Disorder.  This have been detailed in psychological reports provided to the Tribunal relating to Jenny.  In 2018 and 2019 reports, among other things it is recommended that Jenny apply to the NDIS due to her diagnosed conditions.  The sponsor confirmed at the hearing that they have not yet made an application.

34. The Tribunal has made a finding earlier that the Australian relative (the sponsor) requires assistance in providing the direct assistance to the person (Cindy) who is the subject of the certificate.   However, the Tribunal does not accept that the sponsor can provide no direct assistance at all to Cindy.  The sponsor’s brother lives on the same premises in a separate flat and, although he has provided evidence about his unwillingness to provide the sponsor with assistance, citing his health, the Tribunal does not accept this as reasonable in the circumstances. 

35. Julie, the sponsor’s eldest daughter, who lives with her father only a short distance away, has provided a statutory declaration dated 13 April 2023, in which she includes that she intends to move to the United States of America (USA) to be with her boyfriend and get married.  At the hearing, evidence was given by the sponsor that Julie will be travelling to the USA to visit him in the near future, but just for a visit.  Julie refers to Cindy getting aggressive and hitting her head against the wall and says this frightens her.  Julie also state that she ‘cannot’ care for her sister because she operates a small business.  The Tribunal is satisfied, having made inquiries at the hearing, that while there is a stated intention by Julie that she intends to move to the USA, there are no firm plans in place to move or migrate to the USA, just a general intention.  It is accepted, on the evidence provided, that Julie runs a small business in Frederick Street, Fairfield, about five to 10 minutes’ drive from the sponsor’s house, and that she lives in the Fairfield property with her father.

36. Cindy is the recipient of support from the NDIS that includes the services for support as set below.  NDIS plans for the years 2020-2021 and 2022-2023 have been provided to the Tribunal.  A summary of supports and funding follows:

37. NDIS 2022-2023

    a.Total funded supports $39,675.18

    i.$  4,534.56     NDIA managed, etc. group, social

    ii.$  3,567.00     Paid into bank account fortnightly

    iii.$  8,101.56     TOTAL CORE SUPPORT

    b.Capacity building supports

    i.$  5,819.70     Daily living NDIA managed (down from 2021)

    ii.$22,789.44     Finding and keeping a job CB employment

38. NDIS 2020-2021

    a.Total funded supports $44,314.53

    i.$  4,534.56     NDIA managed, etc. group, social

    ii.$  3,567.00     Paid into bank account fortnightly

    iii.$  8,101.56     TOTAL CORE SUPPORT

    b.Capacity building supports

    i.$  8,055.69     Daily living NDIA managed (down from 2021)

    ii.$22,789.44     Finding and keeping a job CB employment

39. With reference to the certificate relating to Cindy, it is included that she requires supervision and guidance with showering, dressing, and meal preparation, and that it is not safe for her to be at home alone because she opens the door to strangers, sand that someone needs to drive her as she can’t catch transport alone.  She is described as ‘partially dependent’.  The sponsor said at the hearing that Cindy doesn’t like strangers, or socialising with strangers and that she is afraid of being alone, consistent with the matters raised in the report.

40. In various documents provided to the Tribunal by the sponsor, Ms Le Anh Tran, information about her medical conditions is detailed and includes that she suffers from a number of conditions, including hypertension, dyslipidaemia, depression, right should pain due to tenosynovitis and subdeltoid bursitis and recurrent genital herpes simplex.  In the Medical report of Dr Dinh Huong Le, dated 11 April 2023, it is also included that the sponsor has soft tissue injury of her neck, elbow and shoulder from a 2015 motor vehicle accident, that she has an unstable mental state, headache and insomnia, and a number of other conditions including hearing loss and plantar fasciitis on her left foot.  The treatment and medications the sponsor receives are also listed and it is included that the sponsor has gynaecologic problem that is being monitored. 

41. The sponsor was asked at the Tribunal hearing what a typical day was for Cindy.  She said that Cindy gets up, washes her face, changes into clothes, then the sponsor cleans the house.  The sponsor said Cindy is learning cooking from the care partner (which she attends through her NDIS plan funded supports), how to catch the train and to make an application for a job; for four hours a day, two days a week.  The sponsor said she takes Cindy to the doctor, they watch the news, play games and do some shopping together, but that she has to watch Cindy closely because Cindy has a bad temper.  The sponsor must remind Cindy to go to the toilet before bed, otherwise Cindy wets the bed.  Sometimes Cindy has nightmares and hits her head against the wall and needs to be reassured by her mother

42. The sponsor has two siblings in Australia.  One was previously sponsored by her for a carer visa, O Nguyet Anh born in February 1960.  Medical evidence has been provided that this sister of the sponsor is not able, and has not been able since 2017, to provide any assistance due to significant health problems.  The Tribunal has accepted that the sponsor’s sister can no longer provide any assistance due to her health and, to a lesser extent, because she lives in Melbourne and the sponsor and Cindy live in Sydney.

43. The sponsor has an Australian citizen brother, Nhan Hung O born in 1961, who lives in the granny flat at the same address where the sponsor, Jenny and Cindy live.  At the time of application, in statutory declarations provided he says that he is not willing or able to provide any assistance to his sister to care for Cindy.  He was working full time and claimed that he had family commitments of his own.  On review, the sponsor’s brother declares he is unable to provide any assistance for the following reasons:

    a.(About a year ago) He recently underwent a neck dissection and tongue lesion, he cannot talk properly and is still recovering.  A supporting document from Liverpool Hospital includes that he was an inpatient for these procedures on 27 April 2022 and that he was discharged on 4 May 2022.

    b.He does not know if he can return to work

    c.Cindy ‘often gets angry and aggressive’

44. The sponsor, in addition to Cindy, also has two other adult daughters.  One, Julie, lives with the girls’ father; he is divorced from their mother.  There is also Jenny, who lives in the same home as her mother and Cindy.  Since the time of application, extensive medical and related evidence has been provided about Jenny and the Tribunal accepts that she has an intellectual disability and limited social skills and that she herself requires supervision.  In these circumstances, the Tribunal is satisfied that Jenny cannot provide her mother with any significant assistance to care for Cindy.

1. The sponsor was asked whether anyone in the family receives a government carer’s payment and confirmed that she receives a carer’s payment of about $1,200 a fortnight.  The sponsor was asked what may change relating to that arrangement if the visa was granted and said she would ‘let my brother (the applicant) receive it’.  The sponsor was asked, if she was not receiving the carer visa payment anymore, how she would support herself and said she would look for a part time job. 

2. While it is accepted, with reference to the medical evidence provided, that the sponsor suffers from a number of conditions and takes various medication, the Tribunal does not consider it unreasonable that, if the sponsor is planning to work part time outside the home that she cannot provide substantial direct assistance to Cindy of the type she requires.  The Tribunal accepts that Julie may have limited time available, due to work commitments, to assist her mother to provide direct assistance to Cindy, and it is acknowledged that Julie says she has plans to move to the USA.  However, there is no verifiable evidence of her planned migration.  Julie lives close by to her mother and Cindy and the Tribunal is not satisfied she cannot reasonably provide, and is capable of providing, some assistance.  It is accepted that the sponsor’s brother, who lives at the same address as the sponsor and Cindy, claims not to be able to provide any assistance at all to help the sponsor provide the direct assistance Cindy requires.  The Tribunal, in the circumstances is not satisfied that the sponsor’s brother, Nhan Hung O, cannot reasonably provide, and is capable of providing, some ass istance to his sister in providing the direct assistance to Cindy that she requires.  It is acknowledged that the sponsor, her eldest daughter and the sponsor’s brother have all referred to Cindy’s bad temper.  However, there is no evidence before the Tribunal that indicates Cindy is a danger to others.

3. Cindy is an Australian citizen, she has a current INDIS plan with funded supports in place, including two days a week when she attends a community centre program.  It is accepted, on the evidence, that Cindy requires substantial support, but not that she requires 24 hour a day care.  While there is no evidence that Cindy is a danger to others, an inference could be drawn that there is a possibility that she could be a danger to herself, referring to the head banging.

4. In the event that there was an emergency relating to Cindy, for instance she hit her head against the wall and suffered an injury, hospital and ambulance services would be available to her if the injury was serious.  There is no evidence that these services have been needed in the past, but it is not unreasonable to conclude that they can be obtained if needed and are fairly easily accessible.

5. If the sponsor, notwithstanding her medical conditions, intends to work part time outside the home, as she says she has an intention to do, then it is not unreasonable to think that she can provide assistance to Cindy, in a collective arrangement with her Australian brother and her eldest daughter, within an arrangement of a plurality of services that are already and/or can be obtained through hospital, welfare, nursing, hospital or community services, for instance Cindy’s funded NDIS supports.

6. For these reasons, the Tribunal is not satisfied that the assistance cannot reasonably be provided by relevant relatives, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are no met.

   Willing and able – reg 1.15AA(1)(f)

7. 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.

8. For the Tribunal to find that the applicant is a carer, all elements of reg 1.15AA(1) must be met.  It is acknowledged that the applicant provided documentary evidence, and gave oral evidence at the Tribunal hearing, that he is willing and able to provide substantial and continuing assistance.

9. However, as the applicant does not meet reg 1.15AA(1)(e), it is not necessary for the Tribunal to consider whether reg 1.15AA(1)(f) is met.

   Conclusion

10. Given these findings the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl 116.221.

11. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.  There has been no claim made, nor evidence provided, that the applicants meet the criteria for any of the other visa sub-classes.

    Secondary applicants

12. At the time of decision, the secondary applicants must meet cl 116.321 which requires that they continue to be a member of the family unit of a person who is the holder of a subclass 116 visa.  The primary visa applicant with whom the secondary applicants made a combined application, as members of the family unit, does not hold a subclass 116 visa.

13. Therefore, the decision to refuse the visas of the secondary applicants must also be affirmed.

    DECISION

14. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Jennifer Cripps Watts
    Senior 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.