Tran (Migration)

[2022] AATA 2713

Tran (Migration) [2022] AATA 2713 (25 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thu Van Tran

REPRESENTATIVE:  Mr Kevin Trinh

CASE NUMBER:  2113924

HOME AFFAIRS REFERENCE(S):          CLF2017/115354

MEMBER:Christine Kannis

DATE: 25 June 2022

PLACE OF DECISION:  Perth

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 25 June 2022 at 10:55am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –Carer Visa Assessment Certificate provided –visa applicant is a carer of the Australian relative – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – relatives of Mrs Truong in Australia cannot, of themselves, reasonably provide the assistance required – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 836.221

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 September 2021 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).

2. The applicant applied for the visa on 6 December 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.

3. The visa was refused on the basis that cl 836.221 was not met because the delegate found the applicant did not meet the requirements in reg 1.15AA(1)(e)(i) and (ii) because sufficient evidence had not been provided to demonstrate that assistance could not reasonably be provided by any other relative, or reasonably obtained from welfare, hospital, nursing or community services in Australia. 

4. The applicant appeared before the Tribunal on 14 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thu Ha Tran, Mr Kevin Tran, Mr Van Binh Tran and Ms Kate GM Tran. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by MS Teams video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The 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 issue in the present case is whether the applicant meets the definition of carer in reg. 1.15AA, for the purposes of satisfying the requirements of cl 836.221.

   Background

9. The visa application was made on the basis that the applicant is the carer of an Australian relative, her mother, Mrs Lan Huong Truong (Mrs Truong), who is an Australian citizen.

10. The applicant is a Vietnamese citizen. She entered Australia on 17 September 2017 as the holder of a Subclass 600 Visitor visa which ceased on 15 December 2017. The applicant currently holds a Bridging visa.  

    Whether the applicant is a carer

11. 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)

12. 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 mother. 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 requirement 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 two 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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.

15. At the time of application, a Carer Visa Assessment Certificate (CVAC) dated 29 December 2017 was provided. The CVAC is signed and dated by the doctor undertaking the assessment on behalf of the authorised medical visa services.

16. Mrs Truong is now 92 years of age. At the time the assessment was carried out she was 88 years of age.  The impairment rating for Mrs Truong was assessed as being at 65 and that because of the medical conditions, she has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life. Given Mrs Truong’s advancing age, the findings made in the CVAC and a letter from Dr Ernest Tam dated 13 May 2021 listing her conditions and medications, the Tribunal considers it reasonable to conclude that her overall condition would not have improved and did not impose a requirement for her to undergo a further assessment.  As such, the Tribunal has taken into account the CVAC dated 29 December 2017 for the purposes of this review.

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 regs 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 applicant meets the requirements of reg 1.15AA(1)(ba).

    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.

21. In the present case, the impairment rating specified in the certificate is 65. This rating is greater than the impairment rating specified by the relevant instrument and therefore the applicant meets the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where s/he is not the subject of certificate) – 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 attending to the practical aspects of daily life for at least two years as a result of the medical condition.

23. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

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

24. 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.

25. Regarding the determination of whether assistance cannot reasonably be provided by another relative who meets the relevant specifications, the relevant enquiry is whether the ‘assistance cannot reasonably be provided by any other relative of the resident’ (emphasis added)[1]  and this allows 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]  Therefore, whether any relatives can reasonably provide the assistance and what a relative is capable of doing are matters for consideration by the Tribunal in determining whether assistance cannot reasonably be provided.

    [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 (reg 5(2)).

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

26. Regarding the determination of whether cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, 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].

27. The CVAC recorded that Mrs Truong has medical conditions including severe dementia, gait issues, chronic cerebrovascular disease, osteoarthritis of knees, hips and back and urinary incontinence. Functional impairment is present in conditions impacting lower limbs, spine, brain function and continence.  She requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervision for medication, supervision for personal safety and transportation. The CVAC recorded that Mrs Truong is fully dependent in activities of daily living and that her mobility is significantly impaired requiring wheelchair and one person assist. It records that she has high falls risks and requires 24 hour supervision and care for her personal safety and she requires assistance in administering medication and management of urinary incontinence.

28. Prior to the hearing the applicant provided extensive documentation which included but was not limited to an Appointment of Enduring Guardian, medical reports, evidence of contacts with Australian Vietnamese Aged Care Services, a statutory declaration dated 8 June 2022 made by Ms Thu Ha Tran and written statements made by some of Mrs Truong’s children and grandchildren with supporting documentation. The written statements and statutory declarations from family members state assistance cannot reasonably be provided by them either, individually. A copy of the Federal Circuit Court decision of Nguyen v Minister for Immigration & Anor [2017] FCCA 339 was also provided.

29. The written evidence before the Tribunal is that Mrs Truong’s husband, Mr Thai Son Tran, lives with her. His daughter, Ms Thu Nga Tran came to Australia in September 2016 to take care of him. Supporting documentation shows approval has been given to him for a Home Care Package Level 2. Ms Thu Nga Tran currently holds a Bridging visa.

30. The Tribunal finds that given Mr Thai Son Tran’s advanced age and health, he cannot reasonably provide assistance to Mrs Truong. Ms Thu Nga Tran is not an Australian citizen, permanent resident or an eligible NZ citizen and cannot be considered in relation to meeting reg.1.15AA(1)(e)(i).

31. In a written statement dated 16 May 2022, the applicant provided the following information:

    • Her mother has multiple medical conditions including dementia, osteoporosis, high blood pressure and urinary incontinence.
    • Her mother does not talk to anyone and is silent all day.
    • Her mother needs someone at her side 24 hours and depends on a caregiver for daily activities.
    • Her mother is in a wheelchair and cannot move the wheelchair herself.
    • When her mother was still conscious, her parents were determined not to go to a nursing home.
    • She purees food for her mother and helps with her personal hygiene and dressing.
    • She sits with her mother and talks to her and watches television with her.
    • She mixes her mother’s medicines with porridge so she can easily take them.
    • She takes her mother for walks in her wheelchair and to her doctor’s appointments. Her mother has appointments for vaccinations, blood tests, general examination and osteoporosis medication injection.
    • Her parents do not like strangers in the home and they both want to live with their children.
    • Her parents received an Aged Care assessment on 28 April 2022 and they were informed that it would take a few months before they would respond however her mother’s current health state means she cannot wait any longer and she needs someone by her side 24 hours.

32. At the hearing the applicant provided evidence consistent with the evidence in her written statement. She told the Tribunal that she changes her mother’s diapers every three hours including at three hourly intervals during the night. She said sometimes she needs to change her clothes during the night also.

33. The Tribunal accepts that the applicant provides care to Mrs Truong including the assistance required as set in the CVAC.

34. The applicant acknowledged that her sisters, Ms Thu Nga Tran and Ms Thu Ha Tran, assist in the care of Mrs Truong however she is her mother’s primary carer. She said Ms Thu Ha Tran is busy with her children and her work and only helps out when she has some free time.

35. In response to the Tribunal asking whether Mrs Truong could be cared for collectively by her children and grandchildren, the applicant said there were three reasons why that was not possible. First, they are busy with their jobs and families. Second, there is a language barrier with the grandchildren and third, she is her mother’s favourite child.

36. The Tribunal asked the applicant whether welfare, hospital, nursing or community services had been sought. She said her younger sister, Ms Thu Ha Tran had made the relevant enquiries. The Tribunal referred her to the Form 47OF in which it was declared that assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist the sponsor had not been sought. The applicant included the following statement on the Form 47OF:

    Due to my mother is very eager to stay in home with my father. She is afraid that in a Nursing home is very lonely

37. The Tribunal noted that the written evidence indicated that My Aged Care/ACAT assessments were not undertaken until April and May 2022. The applicant told the Tribunal that welfare, hospital, nursing or community services had not been sought because she was assisting her mother in all activities of daily living. She said the language difficulties also presented a problem in obtaining these services because her mother only speaks/understands Vietnamese and a Chinese dialect.

38. A written statement dated 19 May 2022 from Mrs Truong’s daughter, Ms Thu Ha Tran, provided the following information:

    • She is a single mother and lives with her two children aged 17 and 15.
    • She has been working casually from 7.30 am to 4.00 pm.
    • She can only visit her mother on weekends or when she has free time.
    • Her two children are full-time students and are busy with their studies. Her older daughter suffers from depression and she is always beside her to take care of her. Medical evidence dated in 2020 was provided to substantiate the depression.  

39. Ms Thu Ha Tran provided an additional written statement dated 20 May 2022 in which she provided the following information which was not materially different to the information in her earlier written statement. She also said:

    • The applicant is single and has no family and so she can take care of their mother more conveniently and easily than the married children. Her brothers, sisters, nieces and nephews are all busy with their work or their study. All of them have to work or have young children and they have no time to visit their parents or grandparents.
    • Her sibling, Mr Van Qui Tran, is estranged from their parents and the family. Mr Van Qui Tran’s wife and two children do not want to make statements, do not agree to co-operate and help them.

40. The Tribunal noted that Ms Thu Ha Tran provided payslips for the periods from 6 April 2022 to 19 April 2022 and from 20 April 2022 to 3 May 2022 which show she was paid for 23.50 hours and 15.50 hours respectively. These hours do not equate to the claimed hours of employment. She told the Tribunal that her employment is unstable and can vary so that sometimes she works fewer hours. She said she also occasionally works in a shop on a cash basis for a friend. Ms Thu Ha Tran told the Tribunal that her daughter (Jessica) attends counselling for her depression. She said her daughter suffers from insomnia and is sometimes awake until 3 am. She said she has to be there for her daughter each night and she estimates she spends 10 hours per week providing this additional care. Following the hearing a letter dated 17 June 2022 from psychologist, Ms Paola Campos, was provided in which she said Jessica has been a consumer of the Child and Adolescent Mental Health Service since 5 May 2020 and during this time she has attended psychotherapy sessions and medication reviews by the Child and Adolescent Psychiatrist. Ms Campos went on to refer to Jessica as “his” and “him” on four occasions. It was not clear whether Ms Campos has been involved in Jessica’s treatment or whether it is ongoing. Accordingly, the Tribunal gives this evidence limited weight. Despite the lack of satisfactory current medical evidence, the Tribunal accepts that Ms Thu Ha Tran’s daughter continues to require additional care from her mother in relation to her depression.  

41. Noting that the applicant had said Ms Thu Ha Tran had made the enquiries about whether welfare, hospital, nursing or community services could assist in the care of their mother, the Tribunal asked her about the efforts made. She conceded that they had delayed in obtaining My Aged Care/ACAT assessments and said that she had been advised that the Level 4 Home Care Package approved for her mother provided only 10 hours per week care. Following the hearing Ms Thu Ha Tran provided evidence that she had just been advised that the Level 4 Home Care Package will provide 14.5 hours per week. She said her mother needs 24-hour care and a Home Care Package will not meet her needs. She said following approval of the Home Care Package she was advised that there is a 6-to-12-month period after assessment to assign the Home Care Package. Documentary evidence verifying this was provided.  Ms Thu Ha Tran also said that her enquiries revealed that there were very few services which would cater to her mother’s language requirements.

1. Ms Thu Ha Tran told the Tribunal despite her parents previously voicing objections regarding residential care, she made enquiries and found a Vietnamese residential care facility. An email dated 16 May 2022 from Australian Vietnamese Aged Care Services (AVACS) confirming receipt of the application form for Mrs Truong was provided. The email advised that there are no current vacancies and her mother’s application was placed on the waiting list. In response to the Tribunal asking whether she had sought further information about the likely waiting time for a vacancy, she said it would be a very long time, probably a few years. The Tribunal has concerns about the truthfulness of this evidence however accepts that there are no current vacancies and there is a waiting list. In addition, Ms Thu Ha Tran said they are waiting for two vacancies because if her parents have to live in a residential care facility, they should go together.

2. The Tribunal asked Ms Thu Ha Tran whether she could provide the assistance her mother requires in conjunction with her siblings, her children, her nieces and nephews. She said she has to work to support her children and has to be available for her daughter and therefore she has only limited time available for her mother. She said her siblings, children, nieces and nephews have busy lives and have limited time available for Mrs Truong. She said her brother, Mr Van Qui Tran, is estranged from the family and he and his two children would not be prepared to provide any assistance. The Tribunal accepts this evidence and finds that he and his children cannot reasonably provide any assistance to his mother.

3. The Tribunal accepts that Ms Thu Ha Tran has work and family commitments and is unable to provide all the assistance required by Mrs Truong but finds that she can reasonably provide some assistance. The Tribunal is mindful that her children are aged nearly 18 years and 15 years and the Tribunal is not convinced that they require an extensive degree of care. 

4. A written statement dated 13 May 2022 from Mrs Truong’s son, Mr Kevin Tran, provided the following information:

   • He is divorced and has a daughter who is a full-time student. She lives with her aunt and him whenever he comes back from Vietnam to visit.
   • He has been co-operating with education providers in setting up educational institutions in Vietnam for a few years now. His working time varies depending on his availability for each task that he is working on. He is currently co-operating with “TAFE NSW, INT,HMIS,TAYDO and ENVITA” both in Australia and in Vietnam. Supporting documentation showing his involvement in these dated from 2007 to 2018 was provided.
   • Most of the time he stays in Vietnam at his sister’s place.
   • He often travels overseas to Vietnam and can only visit his mother if he is in Australia and therefore cannot take care of her due to work commitments.
   • His daughter is busy with her study and only visits her grandmother in her free time or during holidays.

5. In response to the Tribunal asking the reason he cannot assist in the care for Mrs Truong, Mr Kevin Tran told the Tribunal that his work commitments in Vietnam and Australia preclude him providing significant assistance. The Tribunal noted that his Movement Record shows he has not left Australia since November 2021 and the supporting documentation in relation to his work is not current and does not verify his current level of involvement. He said that he is only back in Australia to re-set TAFE NSW and Vietnamese school and college processes following the COVID-19 pandemic.  The Tribunal has concerns about this evidence however notes from his Movement Record that he regularly departs Australia. He told the Tribunal that he currently provides assistance to his mother four to five days a week and stays overnight one to two nights per week. He said when he stays overnight he arrives at his mother’s bedtime (between 8 pm and 9 pm) and assists with her diaper changing and hygiene needs throughout the night.

6. Following the hearing the Tribunal was provided with a letter dated 21 June 2022 signed by Mr Ben Wong, Chief Executive Officer of Smart Connection Company Pty Ltd (Trade as Australian College of Applied Business). Mr Wong said he would like to appoint Mr Kevin Tran as the promoter and partner in Vietnam and Southern-East Asia market for Australian College of Applied Business (Smart Connection Company Pty Ltd). He said Mr Tran will be responsible of all marketing and promotion activities for student recruitment to study their programs in Australia, on behalf of Australian College of Applied Business in the relevant market. He said - Although our going on cooperation had been partly impacted by COVID-19, we have been maintaining consistent communication and seeking for the further development for Australia-Vietnam educational exchanges. Since now all come back to normal we are happy to invite Mr. Kevin TRAN to come back to Australia and we have made the decision to open a branch office in Vietnam under the partnership of Mr. Kevin TRAN. And we are planning the marketing activities in Vietnam. The valid period of this authorization is 21/06/2022—20/02/2025.

7. The Tribunal accepts that Mr Kevin Tran regularly departs Australia (his contention being that this travel is for work purposes) and is unable to provide all the assistance required by Mrs Truong but finds that he can reasonably provide some assistance during periods when he is residing in Australia. However, given his regular travel, this assistance will not be continuous. 

8. A written statement dated 6 May 2022 from Mrs Truong’s son, Mr Van Binh Tran, provided the following information:

   • He is married and has six children, four with his ex-wife and two with his current wife. His wife has full-time home duties and takes care of their two children aged seven and two.
   • His four adult children are aged from 36 to 28. His eldest daughter is a single mother and works full time and cares for her two children. His son is married with two children and works full time. His second daughter is a single mother of a two-year-old. She has full-time home duties and works on a casual basis. His younger daughter is married and has full-time home duties. These four children are busy with their work and families and can only visit their grandmother in their free time or during holidays.
   • He works full time from 4.00 am to 1.00 pm. A payslip for the period from 18 April 2022 to 24 April 2022 shows he worked more than 37 hours and a payslip for the period from 25 April 2022 to 1 May 2022 shows he worked more than 37 hours.  
   • He can only visit his mother on weekends every one to two weeks or on holiday or family gatherings.

9. The Tribunal contacted Mr Van Binh Tran by telephone during the hearing. He said he has young children. He said he gets up for work at 3.00 am and when he gets home he rests and helps with childcare. He told the Tribunal that he visits his mother once every two weeks and he cannot find the time to provide any assistance in relation to her care. The Tribunal accepts that he has family commitments and is unable to reasonably provide any assistance to his mother.

10. A written statement dated 6 May 2022 from Mrs Truong’s granddaughter, Ms Kate GM Tran, provided the following information:

    • She is Mr Kevin Tran’s daughter.
    • She is a full-time student and is also very busy with the architecture society, the tea and coffee society and the puzzle society.
    • She can only visit her grandmother in her free time or on holiday.

11. In response to the Tribunal asking whether she could assist in Mrs Truong’s care, Ms Kate GM Tran said that she is very busy and only visits her grandmother once a month. The Tribunal questioned this however she was adamant that she is too busy and cannot provide any assistance. The Tribunal finds that Ms Kate GM Tran has study and entertainment commitments however is not satisfied such commitments would preclude her from providing some assistance.

12. A written statement dated 6 May 2022 from Mrs Truong’s grandson, Mr Minh Hieu Tran, provided the following information:

    • He is married with two children aged 10 years and nearly two years. His wife has full-time home duties.
    • He works full-time as a subcontractor for Australia Post and his working hours are 5.00 am to 5.00 pm. He also has to look after his own family.
    • He can only visit his grandmother on weekends, every two to three weeks or on holiday or family gatherings.

13. The Tribunal attempted to contact Mr Minh Hieu Tran by telephone during the hearing however the call went to voicemail. Based on the written evidence, the Tribunal accepts that he has work and family commitments and is unable to reasonably provide any assistance to his grandmother.

14. A written statement dated 23 May 2022 from Mrs Truong’s granddaughter, Ms Kim Hong Tran, provided the following information:

    • She is a single mother of one child and does not work. Her child was born on 11 October 2020.
    • She has to look after her child and can only visit her grandmother sometimes or for family gatherings.

15. The Tribunal attempted to contact Ms Kim Hong Tran by telephone during the hearing however the call went to voicemail. Based on the written evidence, the Tribunal accepts that she has family commitments and is unable to reasonably provide any assistance to her grandmother.

16. A written statement dated 23 May 2022 from Mrs Truong’s granddaughter, Ms Kim Hien Tran, provided the following information:

    • She is married with no children.
    • In 2021 she had conducted a training practice in beauty from home with the assistance of her husband. Her training practice time is from 8.00 am to 6.00 pm. She cannot look after her grandmother because of her training practice time hours.  
    • She can only visit her grandmother during holidays or at family gatherings.  

17. The Tribunal attempted to contact Ms Kim Hien Tran by telephone during the hearing however the call went to voicemail. Little documentary evidence has been provided concerning the operation of the training practice and the time that she needs to contribute towards the running of the practice. The Tribunal accepts that she has work commitments but on the evidence before it the Tribunal does not accept that they are so time-consuming as to render her incapable of providing some degree of assistance to her grandmother.

18. A written statement dated 23 May 2022 from Mrs Truong’s granddaughter, Ms Kim Phuong Tran, provided the following information:

    • She is a single mother of two children aged eight years and nearly seven years.
    • She works full time as a bus driver and her hours of employment are 7.00 am to 3.30 pm.
    • She also has to look after her children and can only visit her grandmother on weekends, every three to four weeks or on holiday or family gatherings.  

19. Given Ms Kim Phuong Tran’s hours of employment, the Tribunal did not attempt to contact her during the hearing. Based on the written evidence, the Tribunal accepts that she has work and family commitments and is unable to reasonably provide any assistance to her grandmother.

20. The Tribunal has assessed, based on the evidence in front of it, that limited ongoing assistance could be rendered by relatives of Mrs Truong even in spite of the fact that there are many to choose from. The Tribunal accepts that Mrs Truong requires 24-hour care and that apart from the applicant, the other relatives have commitments which preclude ongoing substantial assistance. Ms Thu Ha Tran has work and family commitments and Mr Kevin Tran regularly departs Australia. The remaining children and grandchildren of Mrs Truong have very limited or no capacity to provide assistance. The Tribunal is satisfied that the assistance cannot reasonably be provided by the relevant relatives either by themselves or in combination with each other. Therefore, the applicant meets reg.1.15AA(1)(e)(i).

21. The Tribunal now considers if the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. When approaching the question of whether the assistance cannot reasonably be obtained from the relevant services, the Tribunal notes that it needs to consider this from the point of view of the Australian relative and not from the point of view of the availability of assistance from those services: Biyiksiz v MIMIA [2004] FCA 814 [23]. In this instance, this would necessarily involve considering matters such as the preferences of Mrs Truong and the appropriateness of the assistance. The evidence included that Mrs Truong has language (Vietnamese and a Chinese dialect) and dietary requirements (pureed and predominantly Vietnamese).

22. Prior to the hearing the Tribunal requested the applicant provide information including details of enquiries made and responses received in relation to assistance sought from welfare, hospital, nursing or community services. In response the applicant’s representative provided:

    ·Confirmation dated 11 August 2021 that Mrs Truong was registered with My Aged Care on that date.

    ·Confirmation dated 17 August 2021 that the applicant was an appointed representative for Mrs Truong with My Aged Care.

    ·An email to “Ha Tran” dated 28 February 2022 from My Aged Care confirming that an assessment had been requested.

    ·My Aged Care letter (undated) recommending personal care and flexible respite services. 

    ·An application for Approval of Care dated 28 April 2022 applying only for “Home Care” signed by Ms Thu Ha Tran.

    ·Letter from Department of Health dated 2 May 2022 advising of the outcome of Mrs Truong’s ACAT assessment that she is approved to receive Home Care Package Level 4.

    ·Completed application for aged care accommodation dated 16 May 2022 for Mrs Truong nominating Ms Thu Ha Tran as the next of kin and nominating Mr Kevin Tran as an additional contact person.

    ·An email dated 16 May 2022 to Ha Tran from AVACS confirming receipt of the application form for Mrs Truong in which Ms Thu Van Tran was nominated as the next of kin and advising that there are no vacancies and her mother’s application would be placed on the waiting list.

    ·Email dated 13 June 2022 from Home Caring care to Ms Thu Ha Tran advising that her parents had been placed in a national queue to wait for their Home Care Packages to be officially assigned to them after their assessments and the waiting time is six to 12 months.

23. At hearing, the Tribunal discussed with the applicant that it could only assess whether the assistance could not reasonably be obtained from the relevant services if enquiries had first been made regarding those services. At the time of hearing there was limited evidence before the Tribunal that the family had meaningfully explored welfare, hospital, nursing or community services for Mrs Truong.

24. However, the Tribunal considered that Ms Truong has been ACAT assessed as being eligible to receive a Level 4 Home Care Package to include domestic assistance, personal care and carer respite. The Tribunal, on the evidence, is satisfied that the at-home service assistance offered to Mrs Truong would not be for 24 hours daily, which based on the CVAC report she needs. The Tribunal is satisfied that a place in a residential facility where Vietnamese is spoken by staff members is not currently available to Mrs Truong and may not be available to her for some years. Therefore, despite its concerns and having considered the evidence individually and completely, the Tribunal is satisfied that the assistance for Mrs Truong cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant meets reg 1.15AA(1)(e)(ii).

25. As set out above, the Tribunal has found that the relatives of Mrs Truong in Australia cannot, of themselves, reasonably provide the assistance required. The Tribunal finds that the assistance required by Mrs Truong cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal has considered whether a combination of the assistance which can be reasonably provided by relatives or reasonably obtained from community services would meet the assistance needs of Mrs Truong. Assuming all the relatives were providing the assistance they were reasonably able to provide and community services were accessed, the Tribunal finds that Mrs Truong would still not have the total assistance required by her. This would likely include significant gaps in her care overnight as well as during the week when all the relatives are working and home care services are not available.

26. When considering all the circumstances of the relatives of Mrs Truong resident in Australia and the reasonably obtainable community services in Australia both individually and cumulatively, 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. Accordingly, the Tribunal finds the requirements of reg 1.15AA(1)(e) are met.

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

27. Regulation 1.15AA(1)(f) requires that the 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 applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

28. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

29. The Tribunal accepts the applicant has provided the majority of all care to Mrs Truong since she arrived in Australia in September 2017 and there is an expectation that she will continue to do this in the future while her mother is alive. The applicant has shown herself to have the skills and willingness to be able to provide the care needed by Mrs Truong.

30. Therefore, the Tribunal finds the 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).

31. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221. The appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

32. 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

    Christine Kannis
    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.