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

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).
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.
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.
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.
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…

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 2713
Case: [2022] AATA 2713
Decision Date: 25 June 2022

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa), made by a Vietnamese citizen who is the daughter of an Australian citizen. The applicant sought to demonstrate that she met the definition of a "carer" under regulation 1.15AA of the Migration Regulations 1994, which is a requirement for satisfying clause 836.221 of Schedule 2 to the Regulations. The court was required to determine whether the applicant met this definition.

The legal issues before the court were whether the applicant was a "relative" of the Australian resident, and whether a Carer Visa Assessment Certificate (CVAC) provided was sufficient to establish that the Australian resident had a medical condition causing significant impairment and a continuing need for direct assistance. The court also had to consider whether this assistance could reasonably be provided by other relatives or obtained from Australian services, and if the applicant was willing and able to provide such assistance.

The court found that the applicant, as the daughter of the Australian resident, satisfied the requirement of being a "relative" under regulation 1.15AA(1)(a). Furthermore, the court considered the CVAC dated 29 December 2017, which assessed the Australian resident's impairment rating at 65 and indicated a continuing need for direct assistance for at least two years. Given the resident's age and medical history, the court deemed it reasonable to accept this certificate without requiring a further assessment. The court concluded that the applicant met the definition of a carer under regulation 1.15AA and therefore satisfied clause 836.221.

Consequently, the court remitted the application for reconsideration by the Minister, with the direction that the criterion under clause 836.221 of Schedule 2 to the Regulations had been met. The remaining criteria for the Subclass 836 visa were to be considered in the reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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 Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s 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) 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. 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. 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. 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.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant meets the definition of carer in reg. 1.15AA, for the purposes of satisfying the requirements of cl 836.221.Background 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. 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 Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.Applicant is a relative of the resident – reg 1.15AA(1)(a) Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s 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) 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. 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. 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. 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.

Decision

Reasons for decision

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 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 RegulationsChristine KannisMemberATTACHMENTMigration 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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