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

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

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) [2022] AATA 5236
Case: [2022] AATA 5236
Decision Date: 20 December 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The primary applicant, a Vietnamese national, sought to migrate to Australia to provide care for his mother, an Australian citizen, who in turn cared for her husband, the applicant's father. The applicant's father suffered from multiple health conditions, including long-term depression, dementia, and gouty arthritis, resulting in a 50% impairment rating and a recommendation for a Home Care Package Level 3, involving 8 hours of services per week. The applicant's mother expressed a preference for personal care to be provided by a close family member. The decision under review was made by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 116 (Carer) visa, particularly concerning the requirement that assistance could not reasonably be provided by other relatives in Australia or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also needed to consider the applicant's willingness and ability to provide substantial and continuing assistance.

The Tribunal reasoned that the evidence presented, including a Carer Visa Assessment Certificate, specialist reports, statutory declarations from the applicant's brother and sponsor, and an ACAT assessment recommending a Home Care Package Level 3, indicated that the applicant's father had significant health issues requiring ongoing care. The Tribunal noted the sponsor's preference for family-provided personal care and the applicant's stated willingness and ability to provide such care. Crucially, the Tribunal found that the criteria under cl 116.221 of Schedule 2 to the Migration Regulations 1994 were met.

Consequently, the Tribunal remitted the applications for the Other Family (Migrant) (Class BO) visas for reconsideration by the Minister, with a direction that the criteria for a Subclass 116 (Carer) visa, specifically cl 116.221, were satisfied.

Orders

Orders of the court

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Background

Background to the litigation

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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 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. 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. 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. 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.

Decision

Reasons for decision

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 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 SripathyMemberATTACHMENTMigration Regulations 19941.15AA Carer1.15AA (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.

Ratio Decidendi

Legal Principle Established

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