Trinh (Migration) - [2023] AATA 1949

Trinh (Migration) [2023] AATA 1949 (17 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Daniel Quang Trinh
REPRESENTATIVE:  Mr Quan S Do, Endless ILA Pty Ltd t/a Visa Stream
CASE NUMBER:  2117939
HOME AFFAIRS REFERENCE(S):          CLF2019/10220
MEMBER:Michael Ison
DATE:17 May 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the visa applicant meets the following criteria for the grant of the visa:
·clauses 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations.

Statement made on 17 May 2023 at 5:31pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant and sponsor are siblings – sponsor is an Australian relative of the applicant – certificate provided meets the requirements of reg 1.15AA – rating equals the impairment rating specified by the relevant instrument – assistance cannot reasonably be provided by other relatives – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – applicant is willing and able to provide to the sponsor the substantial and continuing assistance of the kind needed – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.213, 836.221

CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
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 10 November 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 Act).
Background
The applicant is Mr Daniel Quang Trinh who is a 56-year-old national of the United States of America after having been born in Cambodia. Mr Trinh is referred to as the applicant in these reasons for decision.
The applicant visited Australia as the holder of either a Subclass 676 Tourist visa or Subclass 976 Visitor visa between the following dates:
·19 March 2006 to 2 April 2006;
·20 August 2006 to 23 November 2006;
·3 December 2006 to 17 December 2007;
·27 December 2007 to 29 December 2007.
On 28 December 2018 the applicant was granted a (Class UD) (Subclass 601) Electronic Travel Authority visa that was valid to 29 March 2019. The applicant arrived in Australia on 29 December 2018 as the holder of that visa.
On 26 February 2019 the applicant applied for an onshore Carer (Residence) (Class BU) (Subclass 836) visa while in Australia on the basis that the applicant is a relative of his sponsor Ms Kieu Tuyet Trinh, who the applicant states is his sister. It is the refusal to grant the applicant a Carer visa that is the subject of this review.
Ms Trinh is…

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 Trinh (Migration)

Details

AGLC: Trinh (Migration) [2023] AATA 1949
Case: [2023] AATA 1949
Decision Date: 17 May 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant, Mr Daniel Quang Trinh, sought to be recognised as a carer for his sponsor, Ms Kieu Tuyet Trinh, who is an Australian citizen and claimed to be his sister. The delegate had refused the visa on the basis that the applicant did not meet the criteria under clause 836.221 of Schedule 2 to the Migration Regulations 1994, specifically that the applicant was not a carer of an Australian relative.

The Tribunal was required to determine whether the applicant was a "carer" of an Australian relative as defined by the Regulations. This involved assessing whether the applicant was a "relative" of the sponsor, whether the sponsor had a medical condition causing impairment requiring assistance, and whether such assistance could not reasonably be provided by other relatives or welfare services. The Tribunal also needed to consider whether the applicant was willing and able to provide the necessary substantial and continuing assistance.

The Tribunal found that the applicant and sponsor were siblings, satisfying the requirement that the applicant was a relative of an Australian relative, based on DNA test results. It also accepted that the sponsor had an impairment rating of 30, as evidenced by a Carer Visa Assessment Certificate, and that this impairment necessitated ongoing assistance. Crucially, the Tribunal considered evidence of inquiries made by the applicant to various disability and family violence services, concluding that these services were unable to provide the specific, ongoing, and substantial assistance required by the sponsor. The Tribunal therefore concluded that the criteria for the visa had been met.

The Tribunal remitted the decision for reconsideration, finding that the delegate had erred in not adequately investigating the availability of alternative care and support services for the sponsor and in not being satisfied of the sibling relationship due to a lack of documentary evidence at the time of the initial decision.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 November 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 Act).Background The applicant is Mr Daniel Quang Trinh who is a 56-year-old national of the United States of America after having been born in Cambodia. Mr Trinh is referred to as the applicant in these reasons for decision. The applicant visited Australia as the holder of either a Subclass 676 Tourist visa or Subclass 976 Visitor visa between the following dates:·19 March 2006 to 2 April 2006;·20 August 2006 to 23 November 2006;·3 December 2006 to 17 December 2007;·27 December 2007 to 29 December 2007. On 28 December 2018 the applicant was granted a (Class UD) (Subclass 601) Electronic Travel Authority visa that was valid to 29 March 2019. The applicant arrived in Australia on 29 December 2018 as the holder of that visa. On 26 February 2019 the applicant applied for an onshore Carer (Residence) (Class BU) (Subclass 836) visa while in Australia on the basis that the applicant is a relative of his sponsor Ms Kieu Tuyet Trinh, who the applicant states is his sister. It is the refusal to grant the applicant a Carer visa that is the subject of this review. Ms Trinh is a 58-year-old national of Australia who had Australian citizenship conferred on her on 7 March 2012. Ms Trinh is referred to as the sponsor or the resident in these reasons for decision. According to a Carer Visa Assessment Certificate (CVAC) issued on 18 September 2019 the sponsor has been assessed as having an impairment rating of 30 under the relevant Impairment Tables. On 15 March 2019 the applicant was subsequently granted a Bridging A (Subclass 010) visa that was valid to 26 April 2019 when the applicant was granted a Bridging B (Subclass 020) visa, which the applicant continues to hold at the time of the decision. The applicant’s Bridging B visa has condition 8115 (must not work other than by engaging in a business visitor activity) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached. The primary decision of a delegate of the Minister The applicant provided the Tribunal with a copy of the primary decision. The applicant applied for the visa on 26 February 2019. 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 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 delegate refused to grant the visa on the basis that cl 836.221 was not met. Clause 836.221 of Schedule 2 to the Regulations provides:The applicant is a carer of a person referred to in clause 836.212.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant is a carer of the sponsor as an Australian relative of the applicant. 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.Is the applicant a relative of the resident who is the Australian relative? 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 sponsor. Clause 836.111 of Schedule 2 to the Regulations defines the term ‘Australian relative’ for the purposes of a Carer visa to mean:… a relative of the applicant who is an Australian citizen, an Australian permanent resident or an elgibile New Zealand citizen. The Department file has a copy of the sponsor’s Australian citizenship certificate and the Tribunal accepts the sponsor is an Australian citizen. The applicant claims to be the sibling (brother) of the sponsor but was not able to provide birth certificate or similar information to verify this claim. The Tribunal notes there was no information before the Department to confirm the claimed sibling relationship between the applicant and the sponsor. On 26 September 2022 the applicant provided the Tribunal with a report from Sonic Genetics dated 18 July 2022 on a DNA test undertaken by the applicant and sponsor. The report stated (emphasis in the original):Full sibship relationship is practically proven. …Half sibship relationship is practically proven. Practically proven is the highest level of confidence of a six-level scale used by the clinic who conducted the test. The Tribunal accepts this evidence and finds that the applicant and sponsor are siblings and therefore the sponsor is an Australian relative of the applicant. As the applicant is the brother of the Australian relative, the applicant is a ‘relative’ of the resident (or sponsor) within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).Certification – reg 1.15AA(1)(b) Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

Decision

Reasons for decision

On 15 March 2019 the applicant was subsequently granted a Bridging A (Subclass 010) visa that was valid to 26 April 2019 when the applicant was granted a Bridging B (Subclass 020) visa, which the applicant continues to hold at the time of the decision. The applicant’s Bridging B visa has condition 8115 (must not work other than by engaging in a business visitor activity) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached. The primary decision of a delegate of the Minister The applicant provided the Tribunal with a copy of the primary decision. The applicant applied for the visa on 26 February 2019. 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 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 delegate refused to grant the visa on the basis that cl 836.221 was not met. Clause 836.221 of Schedule 2 to the Regulations provides:The applicant is a carer of a person referred to in clause 836.212. Clause 836.212 of Schedule 2 to the Regulations provides:The applicant claims to be the carer of an Australian relative. The term ‘carer’ is defined in reg 1.15AA. Clause 836.212, being in clause 836.21 of the Regulations is a time of application criteria. Clause 836.221, being in clause 836.22 of the Regulations is a time of decision criteria. The delegate found the applicant was not a carer of the sponsor because the delegate was not satisfied that a full investigation into the availability of residential care for the sponsor or in-home welfare or community facilities or nursing services had been made. The delegate also did not determine whether the sponsor is an Australian relative of the applicant due to a lack of information such as birth certificates being provided in support of the application.The Tribunal hearing The applicant appeared before the Tribunal on 26 September 2022 to give evidence and present arguments, in person. The Tribunal also received oral evidence from the sponsor Ms Trinh who also appeared in person. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review by a migration agent, Mr Quan S Do of Endless ILA trading as Visa Stream. Mr Do is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing in person. Pre-hearing submissions The Tribunal received a submission dated 26 September 2022 on behalf of the applicant on the morning of the Tribunal hearing by email, which had the following documents attached:·A seven-page submission from the applicant’s representative;·A two-page typed statement from the applicant;·Letter from Ms Eden Law, physiotherapist, dated 5 September 2022;·Deoxyribonucleic acid (DNA) test results report from Sonic Genetics dated 18 July 2022;·A two-page medical report about the sponsor from Dr Vu of Springvale Family Healthcare dated 17 September 2022. The report also attached a list of medications prescribed to the sponsor; and·A chain of emails from March 2022 to and from Action on Disability within Ethnic Communities Inc, Anxiety Recovery Centre Victoria, GenWest (a family violence service) and InTouch (also a family violence service).

Ratio Decidendi

Legal Principle Established

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