Tran (Migration)

[2022] AATA 5236

Tran (Migration) [2022] AATA 5236 (20 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Phan Tran

VISA APPLICANTS:  Mr Thanh Ngan Nguyen
Ms Thi Kim Yen Lam
Mr Chi Kien Nguyen
Ms Thanh Uyen Nguyen

REPRESENTATIVE:  Mr James Chung

CASE NUMBER:  2012203

HOME AFFAIRS REFERENCE(S):          2018/028291 OSF2018/028291

MEMBER:Meena Sripathy

DATE:20 December 2022

PLACE OF DECISION:  Sydney

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 20 December 2022 at 10:47am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – assistance cannot reasonably be provided/obtained – Home Care Package Level 3 approved – 8 hours of services per week – preference for personal care to be provided by a close family member – willing and able – visa applicant’s family responsibilities – obligation and duty to care for his parents – decision under review remitted

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

CASES
Anveel v MIBP [2013] FCCA 2181

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 6 July 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 29 June 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 first named visa applicant (primary visa applicant) is seeking to satisfy the primary criteria for the grant of a Subclass 116 visa. The second, third and fourth named visa applicants are applying as members of the family unit of the primary visa applicant. The application is sponsored by the primary visa applicant’s mother, who is an Australian citizen. 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 the delegate was not satisfied on the material before the Department, that the assistance required cannot be reasonably obtained from welfare, hospital, nursing and community services in Australia and therefore r.1.15AA(1)(e)(ii) of the definition of Carer in r.1.15AA was not met.

4. The sponsor sought review of the decision to the Tribunal on 29 July 2020.

5. Following the application for review being lodged, the review applicant provided an updated Carer Visa Assessment Certificate to the Tribunal in March 2022. Further supporting documents were provided to the Tribunal on 1 November 2022.

6. The review applicant appeared before the Tribunal on 15 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence in person from the review applicant’s son in Australia, Thanh Nhan Nguyen and the primary visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The primary visa applicant is a 46 year old Vietnamese national.  He is married and has two children, aged 11 and 6 years old. His wife and children are included in the visa application as secondary applicants.  The primary visa applicant seeks the visa to provide assistance to his mother, Mrs Thi Phan Tran, who is a 68 year old Vietnamese born Australian citizen, who sponsored the application, to provide care to her spouse, Thanh Binh Nguyen. The sponsor, who is the review applicant before the Tribunal, has a son living in Australia and a daughter in Vietnam. 

9. The following documents relevant to the issues under consideration were provided to the  Department with the application:

   ·Carer Visa Assessment Certificate (CVAC) dated 03 January 2018 relating to Thanh Binh Nguyen, indicating multiple health conditions and an impairment rating of 50.  The certificate indicates that Thi Phan is the primary carer for Thanh Binh Nguyen and no formal services had been arranged.

   ·A specialist report from Dr. Ernest Tam dated 07 June 2018 supporting the application for the visa applicant to provide assistance to his mother to care for her spouse.

   ·Statutory Declaration from Nguyen Thanh Nhan of 11 St John Rd Canley Heights, dated 25 June 2018 , son of the sponsor,  stating he is working full time and unable to care for his father or assist his mother, due to his own family and financial commitments.

   ·Letter from Ms Sandra Soo confirming full employment for Mr Thanh Nhan Nguyen dated 12 April 2018.

   ·Support letter from Dr Tien Manh Nguyen dated 24 September 2017 regarding sponsor’s health.

   ·Statutory declaration from sponsor, Tran Thi Phan of 11 St John Road Canley Heights, dated 25 June 2018, regarding care being provided to her husband.

   ·Statement of Nguyen Thanh Ngan (visa applicant) confirming his willingness and ability to provide the assistance required.

10. On 11 May 2020 the Department requested further information from the visa applicant, including information about whether any person is receiving a Carer Payment relating to care of the person with the medical condition, details of all adult relatives in Australia of the sponsor, evidence of why assistance cannot be obtained from services in Australia, evidence of the sponsor’s household composition.

11. On 2 June 2020 the applicant provided the following further documents:

    ·A cover letter dated 2 June 2020 from the visa applicant’s representative addressing the specific information requested by the Department.  The letter advises the sponsor resides in a 3 bedroom house with her husband (the person requiring care) and son and his wife and two children (born in 2013 and 2018). 

    ·ACAT assessment for Nguyen Thanh Binh dated 13 March 2020, referring to his major health conditions of long term depression, dementia and gouty arthritis, among other conditions. The assessment recommended a Home Care Package Level 3.  

    ·Statutory Declarations from Nguyen Thanh Nhan and from sponsor dated 1 June 2020.

    ·Support letters from Dr Tien Manh Nguyen dated 14 May 2020 regarding both  Thanh Binh Nguyen and the sponsor’s health conditions.

    ·Evidence of sponsor’s receipt of a service pension from Department of Veteran’s Affairs, letter dated 25 May 2020.

12. On 6 July 2020 a delegate of the Department refused the application, on the basis of being not satisfied on the evidence provided that the level of care required by Mr. Nguyen cannot reasonably be provided by the combination of nursing, welfare community services and other informal supports which may currently be in place.

    Evidence before the Tribunal

13. Before the Tribunal, the following further documents and evidence has been provided:

    ·Updated CVAC dated 23 March 2022 relating to Thanh Binh Nguyen, indicating multiple health conditions, including chronic ankle pain and mixed type dementia, major depressive disorder and double incontinence, and an impairment rating of 100.

    ·Statement from sponsor, dated 01 November 2022 providing details about her husbands’ two younger brothers, and her son living in Australia and the Level 3 Home Care Package services currently provided to Mr Nguyen Thanh Binh.  She states her own health circumstances are deteriorating and she is struggling to continue to provide care.

    ·A letter dated 28 October 2022 from Mr Thanh Nhan Nguyen’s employer confirming his continuous full-time employment since May 2011 to date.

    ·A letter from Dr Tien Manh Nguyen confirming Mrs Thi Phan Tran’s degenerative health circumstances and continuing treatment.

    ·A letter from Home Caring company dated 25 October 2022 regarding the Home Care package that Mr Thanh Binh Nguyen is receiving.

    Tribunal Hearing 15 December 2022

14. At the hearing the review applicant confirmed her current address and history of her living arrangements in Australia. She lives with her husband, who is the person requiring care, and her son and his family (comprising his wife and two children aged 8 and 4 years). They have all lived together since the review applicant came to Australia in 2008, and her son and husband lived together prior to that.  The Tribunal asked about her travel history since she came to Australia. She confirmed she travelled back to Vietnam yearly until 2019, always with her husband because she could not leave him alone in Australia. She travelled back to access traditional medicine there for her own and also her husband’s health conditions, and she also visited her elderly mother, who is now 100 years old.  The Tribunal noted that movement records it has before it indicate that in 2016-2017 her husband travelled without her and spent a substantial period of time outside Australia, and asked her about this.  She could not recall him ever travelling without her, later she said there may have been one occasion he travelled with his brother. 

15. The review applicant provided the following evidence about her family composition.  In Vietnam she has her son the primary visa applicant and a daughter, who is married and lives with her husband and child several hundred kilometres from the son who lives in their family home. The review applicant said when she visits Vietnam she stays with her son, and her daughter comes to visit.  She also has her elderly mother, and four siblings, all of whom are married and have their own families.  She stated none of their children are in Australia.  In Australia the review applicant has her son who resides with her and her husband and no other relatives.  Her husband has two younger brothers but he is no longer in contact with them.  When asked why, she said she does not know the reason but they had a fight some 5 years ago and since then she has not heard from these families.  They each have two children, who are adults but she is not in contact with them.  Her son also has no contact with these relatives.

16. The Tribunal asked about her son who lives with her.  She stated he works as a driver for a paper manufacturing company 6 days a week. He leaves home around 6am and returns at 7 or 8 pm.  His wife also works 2 days a week as a nail technician and looks after the children and house.  The review applicant confirmed she does not have any responsibility for looking after their children because she cannot due to her caring responsibilities. 

17. The review applicant was asked about her husband’s health conditions.  She described the multiple conditions he has including dementia, backbone problems, heart problems, hypertension, high cholesterol, gout which causes joint pain and he is also doubly incontinent and needs to wear a nappy for protective purposes. He visits his GP frequently to obtain medication and she takes him.  They go by taxi.

18. The review applicant described a routine day for them.  She wakes around 6 am and he wakes between 6-7am. She assists him with personal hygiene including toileting, face washing, brushing teeth. She then gives him his medication and breakfast and after that puts on the TV and he rests and sometimes sleeps. She prepares and feeds him lunch. He sleeps after lunch, and she gives him medication again.  She does some housework. In the evening she gives him dinner and his medication and he sleeps around 9pm or so.  During the night she needs to assist him if he needs to go to the toilet. After that if he does not  sleep straightaway she has to stay awake and supervise him so that he does not try and wander away.   Her nights are therefore interrupted and she gets tired during the day.  The Tribunal asked how she manages physically with her husband.  She said it is very difficult as he is taller and heavier than her.  He has a high falls risk and sometimes she falls with him. 

19. The Tribunal asked if she gets any assistance with these activities.  She said she does not.  Only her son can help and he is not present during the day. At night he needs to sleep because of his work. Her husband does not allow any strangers to help him with personal activities. The Tribunal asked about the services she receives. She confirmed that from this year she gets assistance of 8 hours a week, but the carers only do housework and cleaning, not personal care. She has tried to get them to help him with personal hygiene activities but he gets angry and screams and she gets worried if his blood pressures increases. They did not have these services when they first applied for the visa. She acknowledged that she needed some help and that the services have helped her a bit but she still has responsibilities to him day and night and she is exhausted.

20. The Tribunal asked if they were able to get an increase in the services would that help her. She said she does not think so because firstly she is concerned there would be a charge for more services and secondly her husband does not allow them to help with many things. The Tribunal asked if she takes her husband on outings. She said she used to take him out in a wheelchair. However after an incident where he fell out, they stopped these outings.  She finds it too difficult to push him in the wheelchair and so now they rarely go out.

21. The Tribunal asked her how the visa applicant will be able to assist her, given he has a wife and children like her son here and he may also say he has his own responsibilities. In response she said they have discussed it with him and his wife and he undertook to care for his father until he dies.  He promised her he would do this. When asked why her other son cannot do it, she said he has been working in Australia for a long time, well before his father became so dependent. He would have to leave his job to do this.  The Tribunal put to her its concern that the visa applicant may say the same thing if granted a visa. In response she said she does not believe so because their situations are quite different. She explained why.  The visa applicant is the eldest son, and has promised to look after the father. The son here has been employed for a long time and needs to keep that job. She knows the visa applicant and believes he will keep his word. He will also look after her.

22. The Tribunal asked about her health. She said she has problems with her back, stomach and joints.  She has fallen frequently helping her husband. She feels dizzy often, and worse when she has not slept properly. When asked if she or her husband have had any hospitalisations recently she said they have not, fortunately.

23. When asked if the visa applicant has any skills or qualifications to undertake care duties, she said he has a certificate in this area and some years ago he helped at a doctors clinic.  Otherwise his job is as a tour guide, since the COVID situation has improved he has returned to that work now.  In response to how the visa applicant would financially support his family, she said he would sell his property in Vietnam and have some savings, and his wife would be able to work.

    Evidence from Thanh Nhan Nguyen

24. The witness confirmed his living arrangements, family composition and work and work history.  His evidence was substantially consistent with the review applicant.

25. He stated the only assistance he gives his mother is in the evenings when he is home and during the night when he falls down.  His mother does not otherwise wake him because he needs to sleep properly for his job as a driver.  His mother does all the care by herself.  When asked what he knows of his mother’s health, he said that she has her own medical conditions, including joint and back pain and mental health issues including depression from the long term care she has provided and sleep deprivation. When asked why he cannot help her more he said he tries to but she wants him to sleep well so she does not wake him.

26. The witness confirmed that they receive some home care services now since the past year. He has not met the carer because he is at work during the day. He understands she does not provide direct assistance to his father because he won’t allow it.  She comes between 1-3 pm  to the house and does cleaning and makes the bed. He confirmed his father does not like strangers in the house. He has seen this with his behaviour when he has neighbours or friends visit. He gets angry and screams.

27. The Tribunal asked about the family relationship with his uncles. He confirmed that for the last 5-6 years they have not seen them but does not know the reason. He has no contact with his cousins either because they stopped contacting.

28. The Tribunal put to him, given his reasons for not assisting his mother, why would not the same apply to his brother.  He said his situation is different to his brother’s. His brother’s child is older than his so he has less responsibility to care for the children and also he (the witness) has established long term employment and it is not reasonable to expect him to give it up.  His brother is prepared and willing to care for their father and he will have savings to bring to Australia when he sells the property.  His brother is the eldest son in the family  according to their traditions and culture it is his responsibility to care for the parents. They have a family agreement that he will undertake this responsibility. They have tried to find the best solution for all of them as a family and this is it. If he quits his job he will have no job, it is a better option for his brother to come here to care for father and mother.

29. Regarding their living arrangements, the witness said if the visa applicant is granted a visa, he will arrange for new accommodation for their family and his parents.

    Evidence from visa applicant - Thanh Ngan Nguyen

30. The visa applicant confirmed his current living arrangements and family composition and employment. He referred to his employment history, including working in the countryside helping sick people in the past after he completed his school education.

31. The visa applicant was asked about his knowledge of the medical conditions of his father and his care needs. He was able to describe these, consistently with the review applicant’s evidence. He said he knows this from his communication with his mother which is regular. He understands his mother is finding it difficult to continue caring for his father and her own health is deteriorating. He needs care and supervision all day and throughout the night.

32. The visa applicant last saw his father 3-4 years ago. He stayed with him for 2-4 weeks each time they visit. The Tribunal noted that the records before it indicate they spend longer than that in Vietnam each visit. He was not sure and could not recollect. Later the review applicant clarified that in the past when she visited Vietnam she would stay with her son for a few weeks and then take her husband and stay with her brother and elderly mother as she was visiting to spend time with her mother also.

33. The visa applicant understood if he came to Australia he would assist his mother to care for his father, including helping him with his personal hygiene activities, cooking and feeding and keeping him safe. He can also drive him to appointments.

34. When asked why he would want to do this, given his brother here does not, he said his mother is elderly herself and her health is getting worse. She is tired and doesn’t know if she can continue to do this. He wants to look after his father for his mother’s sake. He understands his brother cannot because he has an established job. He considers it his obligation to care for his parents and he is willing to do it. He can sell his property and family business and will have savings to bring to Australia.

1. Regarding his skills and qualifications to do caring duties he referred to the course he did in the past. He also believes the love between parent and son is sufficient for him to be able to do this adequately. He was aware that they have some services now, but his father won’t allow her to assist with personal care.

   FINDINGS AND REASONS

   Whether the visa applicant is a ‘carer’

2. 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.

3. 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 visa applicant’s mother.  Evidence of the relationship between the visa applicant and the Australian relative was provided to the Department in the form of a birth certificate showing that the primary visa applicant is the son of the sponsor (Australian relative).

4. Therefore, as the visa applicant is the child of the Australian relative, the visa 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)

5. 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.

6. The Tribunal has before it a certificate dated 17 March 2022 that relates to a medical assessment of Thanh Binh Nguyen carried out on behalf of Bupa Medical visa Services and is signed by a medical advisor who carried it out.  An earlier certificate dated 3 January 2018 was provided to the Department, but as a result of the lapse of time since that certificate was obtained an updated certificate has been provided. The certificate states that Thanh Binh Nguyen has a medical condition, the medical condition is causing physical, intellectual or sensory impairments of the ability of that person to attend to practical aspects of daily life, a total impairment rating of 100 under the impairment tables has been assigned, and 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. 

7. The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). The Tribunal further finds that the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the Tribunal finds that the requirements of r.1.15AA(1)(b) are met.  

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

8. 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.

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

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

10. 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 for this purpose as 30.

11. In the present case, the impairment rating specified in the certificate is 100. This rating clearly exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

12. 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 attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

13. In the present case the Australian relative (resident), who is the sponsor and review applicant, is not the subject of the certificate.  The subject of the certificate is the husband of the Australian relative/sponsor/review applicant.  A marriage certificate was provided to support this relationship. The Tribunal discussed at hearing the review applicant’s circumstances, including her own health conditions and difficulties she experiences providing direct assistance with daily activities for her husband.  Her evidence was consistent with and supported by the evidence of her sons, and information in supporting documents including medical letters from her own GP and her husband’s geriatrician.  On the evidence before it, the Tribunal is satisfied the Australian relative requires assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv) the requirement of reg 1.15AA(1)(d) is met.

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

14. 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.

15. The requirement in relation to Australian relatives of the resident (r.1.15AA(1)(e)(i)) was amended with effect from 9 November 2009, so that the relevant enquiry is whether the ‘assistance cannot reasonably be provided by any other relative of the resident’ (emphasis added).[1]  The purpose of the amendment was to allow decision-makers to reach a conclusion that assistance could reasonably be provided even where relatives in Australia claim to be unwilling or unable to provide assistance.[2]  Judicial authority addressing this criteria indicates that whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].

    [1] Amended by Migration Amendment Regulations 2009 (No.13) (SLI2009, No.289) Schedule 3, items [1]-[3] to apply to visa applications made on or after 9 November 2009 (r.5(2)).

    [2] The Explanatory Statement accompanying Migration Amendment Regulations 2009 (No. 13) (SLI2009, No.289).

16. As mentioned above, the delegate refused the visa on the basis of not being satisfied that the assistance required in this case cannot be reasonably obtained from welfare, hospital, nursing and community services in Australia and this is the issue in dispute in this matter. In reaching this conclusion the delegate, having considered the ACAT assessment obtained for Thanh Binh Nguyen in March 2020 approving him for a Home Care Package Level 3 and Residential Respite Care for 63 days per year, was not satisfied that evidence had been provided as to what services were accessed by him under the home care package he was approved for, and in those circumstances was not satisfied the care he requires cannot be reasonably obtained from welfare, hospital, nursing and community services in Australia.

17. Before the Tribunal evidence has been provided that, since the delegate’s decision the family has commenced receiving services under the Home Care package of 8 hours per week.  A letter from Home Caring company dated 25 October 2022 confirms this, and the review applicant and witnesses provided oral evidence to confirm it.

18. New evidence has also been provided to the Tribunal including an updated and current CVAC, which details the medical conditions and current care needs. The Tribunal has taken into consideration the assessment of care needs set out in the CVAC which was consistent with the review applicant’s oral evidence of her daily care routine regarding her husband, Mr Thanh Binh Nguyen.   It is clear from this evidence, that Mr Nguyen requires substantial direct assistance with most activities of daily living (ADL), including mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervising medication and transportation and the Tribunal accepts that the review applicant has a long term need for assistance in providing this direct assistance to him.

19. The Tribunal took oral evidence from the review applicant and her son in Australia about the arrangements that have been and are in place for the care of Mr Nguyen to date. It accepts on the evidence provided that the review applicant substantially provides the care, and in particular the personal hygiene care, early morning and over night care, and cooking and feeding activities, by herself. For the past year, she has been assisted to some extent by home care services of a carer who attends daily for around 2 hours, to provide domestic cleaning assistance. The evidence of the review applicant and witness was consistent that her son with whom she lives provides minimal assistance because of his work commitments. Their evidence was also consistent that there are no other Australia resident relatives who are or have provided assistance in the past. The Tribunal accepts that the documentary evidence of the CVAC and doctors letters supports and is consistent with their testimony and on this basis the Tribunal accepts that these are the arrangements in place.

20. The Tribunal has considered whether the assistance can reasonably be provided by Australian relatives, and specifically her son with whom she lives and has lived with for many years.  It accepts that Thanh Nhan Nguyen is employed and has held the same employment for over a decade. It accepts that he has two young children for whom his wife is the primary carer.  In the circumstances of his long term employment and family commitments the Tribunal accepts that the assistance the review applicant requires cannot reasonably be provide by him.  The review applicant provided information that, in addition to her son, her husband has two brothers in Australia, aged in their late 60’s and early 70’s.  The Tribunal heard evidence at hearing that the relationship between her husband and his brothers has broken down since around 5 years ago. She also mentioned that they each have two adult children but she had no details of their circumstances as she claims not to be in contact since the relationship between the families broke down.  While no corroborative evidence of this was provided, the Tribunal is prepared to accept that there is no information before it to suggest that these relatives have played a role assisting the review applicant in caring for her husband. It is also not clear whether these relatives, as the brothers in law and niece/nephew in law of the review applicant are relevant ‘relatives’  within the meaning of that term in 1.03 for the purposes of this requirement in r.1.15AA(3)(e)(i).  Whether they are or are not, the Tribunal accepts on the evidence before it the assistance cannot reasonably be provided by any of these individuals.

21. Regarding assistance from welfare, hospital, nursing or community services in Australia, the Tribunal is satisfied that Mr Thanh Binh Nguyen now receives 8 hours per week of home  care services under a Level 3 Aged care package. The letter from the care provider refers to the assistance provided with meal preparations, domestic cleaning, accompanying to appointments, social support and transport.  This is substantially consistent with the review applicant’s evidence and that of her son,  regarding how the care services are used.  Both told the Tribunal that Mr Nguyen does not allow the carers to assist with personal care and resists strangers in the house.  Despite this, the review applicant acknowledged that she is assisted by the care services now accessed and uses them to help her. 

22. However, having regard to his care needs, it accepts that the 8 hours of services per week is insufficient to meet the care assistance the review applicant requires to assist her husband.  The Tribunal acknowledges his reluctance for personal hygiene care to be provided by a stranger, particular given the long  history of having had this care provided to date by family members and his particularly vulnerable mental health state and history of trauma.  In these circumstances the Tribunal is satisfied that his preference for personal care to be provided by a close family member is relevant[3] and, notwithstanding the support services the person requiring care presently receives from community services,  it is satisfied that the required care cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

    [3] The Tribunal notes that case law indicates cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, though an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

23. For the above reasons, 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.

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

24. 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.[4] The term ‘substantial and continuing assistance’ has been the subject of judicial consideration in the context of the related, earlier definition of ‘special need relative’ in the Regulations.[5]

    [4] Xiang v MIMIA [2004] FCAFC 64

    [5] Perera v MIMIA [2005] FCA 1120

25. Having regard to the caselaw guidance and the evidence before it, including the review applicant, and witnesses’ persuasive and substantially consistent testimony at hearing, the Tribunal is satisfied that the applicant is willing and able, in the sense contemplated by those terms, to provide the review applicant substantial and continuing assistance of the kind needed.  

26. The main concern the Tribunal had on this issue was that the primary visa applicant, like his brother in Australia, has a wife and young children and therefore responsibilities of his own, and this may make the caring role unsuitable for his circumstances. It explored this with each of the witnesses at the hearing and has considered their responses and arguments. They each, consistently, distinguished the situation of the son in Australia from that of the primary visa applicant. Thanh Nahn Nguyen has established and long term employment in Australia and the family agreed that it is unreasonable for him to relinquish this to assist his mother. The nature of his work, as a driver, also renders him unable to provide assistance to her overnight. On the other hand the primary visa applicant is willing to come to Australia specifically for the purpose of providing assistance to his mother.  He proposes to sell the family property and will have some savings to bring until the family is established. They planned to establish a separate household for the visa applicants and his parents; the second named visa applicant would eventually find employment to financially support the family and they would share care for the children.  The Tribunal accepts that the visa and review applicants have appropriately considered and planned the arrangements necessary to ensure the primary visa applicant is able to provide the required assistance in a manner that is most suitable for the family. It accepts, on the basis of the oral evidence provided, that the primary visa applicant, as the eldest son in the family considers it his obligation and duty to care for his parents and he is willing to do so.  The visa application form indicated the primary visa applicant completed a home care certificate some years ago and the parties gave oral evidence he has some past work experience involving a caring role. He demonstrated knowledge of his father’s care needs and the role expected of him to assist his mother.   In his oral testimony he stated he knows and loves his parents and this is sufficient for him to be able to provide the assistance required for their care, and because he is his son, his father will accept him as a carer.  On the basis of the evidence before it, the Tribunal is satisfied that the primary visa applicant is willing and able to provide the assistance required.

27. Therefore, the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

28. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl 116.221.

29. 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

30. 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.

    Meena Sripathy
    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.