Tran (Migration) - [2023] AATA 1666

Tran (Migration) [2023] AATA 1666 (30 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Thanh Truc Tran
REPRESENTATIVE:  Mr Paul Joseph Smith, lawyer, of Paul Joseph Smith Migration Services
CASE NUMBER:  1824235
HOME AFFAIRS REFERENCE(S):          CLF2017/25272
MEMBER:Michael Ison
DATE:30 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 30 May 2023 at 5:28pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably provided by welfare, hospital, nursing or community services in Australia – family injuries and physical limitations – culturally appropriate food and care – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.221; Schedule 8; rr 1.03, 1.15
CASES
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
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 Home Affairs on 6 August 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is Mrs Thanh Truc Tran who is 50 years of age and is a national of Vietnam. Mrs Tran is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia on 18 December 2007 as the holder of a Sponsored Family Visitor (Class UL) (Subclass 679) visa that was valid to 15 March 2008 and the applicant departed Australia on that date.
On 15 June 2009 the applicant applied for an offshore Other Family (Migrant) (Class BO) (Subclass 116) (Carer) visa on the basis that the applicant claims to be a relative of her sponsor Mrs Diep Ngoc Thi Nguyen, who is claimed as the applicant’s mother. The applicant’s application for the Subclass 116 visa was refused on 8 April 2010.
On 23 August 2010 the sponsor Mrs Nguyen lodged an application with the Tribunal to review that visa refusal in Tribunal review number 1005270. That review application was heard by the Tribunal, differently constituted, on 23 December 2010. On 24 December 2010 the Tribunal affirmed the decision under review.
On 2 March 2017 the applicant was granted a Visitor (Class FA) (Subclass 600) visa to attend her father’s funeral in Australia. That visa was valid to 3 April 2017. The applicant arrived in Australia on 3 March 2017.
On 28 March 2017 the applicant applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) (Carer) visa while in Australia on the basis that the applicant claims to be a Carer in accordance with reg 1.15AA of the Migration…

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.

Continue reading Tran (Migration)

Details

AGLC: Tran (Migration) [2023] AATA 1666
Case: [2023] AATA 1666
Decision Date: 30 May 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse to grant Mrs Thanh Truc Tran, a national of Vietnam, an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer). Mrs Tran had applied for the visa onshore, seeking to provide care for her mother, Mrs Diep Ngoc Thi Nguyen, an Australian citizen. The delegate's refusal was based on the applicant not meeting the definition of a 'Carer' under regulation 1.15AA of the Migration Regulations 1994 (Cth), specifically concerning the inability to obtain necessary assistance from Australian welfare, hospital, nursing, or community services.

The primary legal issue before the Tribunal was whether Mrs Tran met the criteria for being a 'Carer' as defined in regulation 1.15AA, and consequently, whether she satisfied clause 836.221 of the Migration Regulations. This involved determining if Mrs Tran was a relative of the resident (which was accepted), if a valid certificate (CVAC) had been issued confirming the sponsor's medical condition and need for care, and crucially, whether the assistance the sponsor required could not reasonably be obtained from Australian community services.

The Tribunal found that the sponsor, Mrs Nguyen, was indeed the applicant's mother and that a valid CVAC had been issued by Bupa Medical Services, confirming Mrs Nguyen's medical conditions, the resulting impairments to her daily life, and her ongoing need for direct assistance for at least two years. However, the delegate had not been satisfied that the sponsor's care needs could not reasonably be met by Australian community services. The Tribunal noted that the delegate had accepted that the sponsor's six adult children in Australia could not individually or collectively meet her needs. The Tribunal concluded that the matter should be remitted for reconsideration, implying that the delegate's assessment of the availability of community services may have been insufficient or that further consideration was warranted.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 August 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).Background The applicant is Mrs Thanh Truc Tran who is 50 years of age and is a national of Vietnam. Mrs Tran is referred to as the applicant in these reasons for decision. The applicant first arrived in Australia on 18 December 2007 as the holder of a Sponsored Family Visitor (Class UL) (Subclass 679) visa that was valid to 15 March 2008 and the applicant departed Australia on that date. On 15 June 2009 the applicant applied for an offshore Other Family (Migrant) (Class BO) (Subclass 116) (Carer) visa on the basis that the applicant claims to be a relative of her sponsor Mrs Diep Ngoc Thi Nguyen, who is claimed as the applicant’s mother. The applicant’s application for the Subclass 116 visa was refused on 8 April 2010. On 23 August 2010 the sponsor Mrs Nguyen lodged an application with the Tribunal to review that visa refusal in Tribunal review number 1005270. That review application was heard by the Tribunal, differently constituted, on 23 December 2010. On 24 December 2010 the Tribunal affirmed the decision under review. On 2 March 2017 the applicant was granted a Visitor (Class FA) (Subclass 600) visa to attend her father’s funeral in Australia. That visa was valid to 3 April 2017. The applicant arrived in Australia on 3 March 2017. On 28 March 2017 the applicant applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) (Carer) visa while in Australia on the basis that the applicant claims to be a Carer in accordance with reg 1.15AA of the Migration Regulations 1994 (Cth) (the Regulations) as the relative of her sponsor (the resident) Mrs Nguyen. It is the refusal to grant the applicant that Carer visa that is the subject of this review. The applicant provided evidence to the Department in the form of the applicant’s birth certificate showing the names of her parents to demonstrate her relationship with her sponsor, Mrs Nguyen. Based on this evidence the Tribunal finds the sponsor is the applicant’s mother. Mrs Nguyen is 71 years old and had Australian citizenship conferred on her on 29 January 2000. Ms Nguyen provided the Department with a copy of her Certificate of Australian Citizenship and the Tribunal finds Ms Nguyen is an Australian citizen. Ms Nguyen is referred to as the sponsor or the resident, as the context requires, in these reasons for decision. The sponsor’s husband passed away suddenly in February 2017, and she has six adult children in Australia who are Australian citizens and are siblings of the applicant. On 14 February 2017 the applicant married Mr Thanh Do Nguyen and provided a copy of their marriage certificate to the Department. The Tribunal accepts that Mr Thanh Do Nguyen and the applicant are lawfully married. The applicant has three children: two daughters, aged 24 and 26 years old and one son, aged 27 years old. The applicant provided a copy of her children’s birth certificates to the Department. The Tribunal accepts that the applicant has three children identified in the birth certificates.

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 issue in the present case is whether the applicant is a ‘Carer’ under reg 1.15AA. The delegate of the Minister was not satisfied the applicant meet cl 836.221, as the delegate found the applicant did not meet the definition of ‘Carer’. The delegate made this finding because the delegate was not satisfied under reg 1.15AA(1)(e)(ii) that the assistance the resident (or sponsor) requires could not reasonably be obtained from welfare, hospital, nursing or community services in AustraliaWhether the applicant is a carer Clause 836.221 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.Applicant is a relative of the resident – reg 1.15AA(1)(a) 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 relation). In the present case, the Australian relative is identified as the applicant’s daughter. The Department file includes a certified translation of a Vietnamese birth certificate for the applicant that names the sponsor as her mother. The Tribunal accepts this evidence. Therefore, as the applicant is the daughter 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) 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. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in a legislative instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa). Two CVAC’s have been issued in this case. The most recent CVAC has been issued by a currently registered medical practitioner employed by Bupa who signed the certificate on 18 September 2022. According to the most recent CVAC, the sponsor has medical conditions causing impairments to the sponsor’s ability to attend to the practical aspects of daily life, the impairments have Impairment Table ratings specified in the CVAC and the CVAC states because of the sponsor’s medical conditions, the sponsor 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.

Decision

Reasons for decision

The applicant has departed Australia only once since arriving in Australia on 3 March 2017. On 14 November 2017 the applicant departed Australia as the holder of the Bridging B visa and returned to Australia on 14 December 2017. The applicant has not departed Australia since that time.The primary decision of a delegate of the Minister The applicant provided the Tribunal with a copy of the primary decision. The applicant applied for the visa on 28 March 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B 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 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221. Notably, the delegate accepted that the sponsor’s care needs could not be met individually or collectively by the sponsor’s six adult children who live in Melbourne and are Australian citizens. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied that the assistance the sponsor requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.The Tribunal hearing The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments, in person. The following family members of the applicant and sponsor attended the Tribunal hearing to give oral evidence if required (ages at the time of hearing):·The sponsor;·Mr Phi Long Tran, aged 52 years, who is a son of the resident and brother of the applicant;·Mr Thinh Long Tran, aged 47 years who is a son of the resident and brother of the applicant;·Ms Thao Thanh Tran, aged 44 years old who is a daughter of the resident and sister of the applicant;·Mr Hieu Long Tran, aged 43 years who is a son of the resident and brother of the applicant;·Mr Kim Long Tran, aged 41 years who is a son of the resident and brother of the applicant;·Mr Thach Long Tran, aged 38 years who is a son of the resident and brother of the applicant;·Mr Daniel Tran, aged 22 years who is a grandson of the resident and son of Mr Phi Long Tran; and·Mr Christopher Tran, aged 20 years who is a grandson of the resident and son of Mr Phi Long Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Each of the potential witnesses were sworn in and the Tribunal discussed their ability to give relevant evidence. The sponsor was immediately excused from giving evidence because it was obvious to the Tribunal when the sponsor was being sworn in that her dementia and memory issues would render her evidence unreliable or incoherent. The Tribunal accepts the sponsor’s inability to give evidence is caused by her medical conditions and makes no adverse findings and draws no adverse inferences against the sponsor because she was not able to give evidence on the day of the Tribunal hearing.

Ratio Decidendi

Legal Principle Established

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