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

1. 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

2. 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.  

3. 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.

4. 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.

5. 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.

6. 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.  

7. 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.

8. 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

9. The applicant provided the Tribunal with a copy of the primary decision.

10. 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.

11. The delegate refused to grant the visa on the basis that cl 836.221 was not met.

12. Clause 836.221 of Schedule 2 to the Regulations provides:

    The applicant is a carer of a person referred to in clause 836.212.

13. Clause 836.212 of Schedule 2 to the Regulations provides:

    The applicant claims to be the carer of an Australian relative.

14. 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.

15. 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.

16. 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

17. The applicant appeared before the Tribunal on 26 September 2022 to give evidence and present arguments, in person.

18. The Tribunal also received oral evidence from the sponsor Ms Trinh who also appeared in person.

19. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. 

20. 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

21. 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). 

22. The Tribunal also engaged in other correspondence with the applicant and the representative in relation to administrative matters associated with this review.

    Post-hearing submissions

23. The Tribunal did not receive any post hearing submissions from or on behalf of the applicant.

    Tribunal decision

24. The Tribunal has had regard to the oral evidence of the applicant and the sponsor, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Subclass 836 visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. 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

27. 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?

28. 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.

29. 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.

30. The Department file has a copy of the sponsor’s Australian citizenship certificate and the Tribunal accepts the sponsor is an Australian citizen.

31. 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.

32. The Tribunal notes there was no information before the Department to confirm the claimed sibling relationship between the applicant and the sponsor.

33. 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.

34. Practically proven is the highest level of confidence of a six-level scale used by the clinic who conducted the test.

35. 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.

36. 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)

37. 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.

38. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).

39. A CVAC has been issued in this case. The CVAC has been issued by a currently registered medical practitioner employed by Bupa who signed the certificate on 18 September 2019. The CVAC assigns the sponsor an impairment rating of 30 under the impairment tables. The doctor who completed the CVAC states that because of her medical conditions, the sponsor has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life.

40. The doctor stated the following in relation to the sponsor’s medical conditions in the CVAC:

    ·Depression, Post Traumatic Stress Disorder and Schizophrenia

    ·Lumbar Disc Injury – points could not be assigned to this table. Nil reports on treatment / stability of the condition.

41. As a result of these medical conditions the doctor who completed the CVAC found the sponsor requires assistance with:

    ·Mobility: requires assistance with transfers with wheelchair and 4WF (four wheeled walking frame), upon standing up from seated position etc. Predominantly using 4WF at home, wheelchair outside home;

    ·Bathing/showering: requires assistance with transfers with wheelchair and 4WF, upon standing up from seated position etc. Shower – seated;

    ·Toileting: continent. Requires assistance with transfers with wheelchair and 4WF, upon standing up from seated position etc;

    ·Dressing / grooming: requires assistance;

    ·Supervising medication;

    ·Supervision for personal safety; and

    ·Transportation.

42. The doctor who completed the CVAC concluded the sponsor is fully dependent on assistance to attend to the practical aspects of daily life, concluding (errors in the original):

    Corroborating evidence form Dr Peter Dzuy Vu (General Practitioner, Springvale Family Healthcare) stated that [the sponsor] has Depression and Anxiety with Psychosis, Post Traumatic Stress Disorder, and Schizophrenia. [The sponsor] needs continual support with daily activities and self-care. She needs prompting with eating, hygiene. Her daily activities ae mostly affected by her poor mental health status, she has ongoing auditory hallucinations, fluctuated mood with frequent shouting out at home, forgetfulness, poor concentration (frequent mistake when cooking her own meals), difficulty in managing long list of medications on her own, not fit to live by herself and in need of fulltime carer. She is socially isolated and unable to travel away from own residence without a support person. She is unable to control her ongoing auditory hallucinations and reported she could ‘hear a man asking me to cross the road, there are cars, but the man in my ear asked me to cross the road’. [The sponsor] has difficulty concentrating on any productive task lasting more than a few minutes. She was asked to perform tasks with multiple steps / instructions – fold the paper, unfold it, write your name and address, draw a circle, then give it to your brother. She could not perform multi steps tasks.  

43. The CVAC is now more than three and a half years old largely due to delays in the primary decision-making process, which took almost three years to be made.

44. According to Department policy, where a CVAC is more than two years old the decision-maker can request that the person with the medical condition undertake a fresh examination and provide an updated CVAC. This is not a legislative requirement however and the Tribunal is mindful such requests will incur additional costs for an applicant or sponsor and can lead to significant further delays in the completion of a review.

45. Given a person with medical conditions that meet or exceed the required impairment rating is likely to be seeing medical professionals relatively frequently, an alternative to requesting an updated CVAC is to ask for recent reports from treating medical professionals.

46. The updated medical information the Tribunal received is a letter from a physiotherapist stating the sponsor attended their clinic on 2 August 2022, but not the reason for or purpose of that visit and a letter from Dr Vu dated 17 September 2022. Dr Vu wrote:

    This is to certify that [the sponsor] is a regular patient of our clinic. She is known to suffer from multiple chronic treatment medical conditions that require ongoing close monitoring and treatment. These include Post Traumatic Stress Disorder associated with Depression, Anxiety and Psychosis, Hypertension, Migraine headache, Lumbar disc bulging and Peptic ulcer disease. She is not able to work due to her disability and has been living on Disability Support Pension benefit since 2015. Her daily living activities are mostly affected by her poor mental health status and back pain. She is known with frequent exacerbation of psychotic symptom including auditory hallucination, shouting out at home, associated with stress, anxiety and depression. She constantly suffers from forgetfulness and poor concentration. She also finds it difficult to manage the long list of her regular medications. She relies on her current carer, her younger brother Daniel … for all of her house works, cooking, washing and transporting as well as supervising her medications. In my opinion, [the sponsor] is not fit to live by herself. Her medical condition and disability are permanent which can only become worsened with age. She is in need for a permanent full-time carer. …  

47. Given the nature and overall impact of the resident’s medical conditions and impairments, her 2019 CVAC impairment rating, viewed in the context of the resident’s medical and health history both before and since the CVAC was completed, the Tribunal did not require the resident to provide an updated CVAC.

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

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

49. 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.

50. In the present case, the person with the medical condition is the sponsor who was granted Australian citizenship on 7 March 2012. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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

51. 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. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.

52. In the present case, the impairment rating specified in the CVAC is 30. This rating equals the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

53. The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.

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

54. 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.

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

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

56. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia.

57. 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].

58. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

    Can the assistance be provided by any other Australian relative?

1. The applicant told the Tribunal he has been the sponsor’s main carer since December 2018 and he continues to care for her everyday needs including preparing meals, doing housework, assisting the sponsor with her personal hygiene, taking the sponsor to medical and other appointments, ensuring she takes her medication at the right time in the correct dosages and assisting the sponsor to communicate with others because her English language and comprehension skills are limited among many other support and care tasks.

2. The applicant told the Tribunal that his other siblings in Australia used to support the sponsor but in 2018 she was admitted to hospital and there was no-one to sign her discharge papers and when he found this out, he immediately booked a flight to come to Australia from the United States of America to support and care for the sponsor. The applicant cooks culturally appropriate food for the sponsor who was born in Cambodia with a Chinese background and who according to her own and the applicant’s evidence has no appetite for ‘Western food’.

3. The applicant said when he arrived in Australia in late December 2018, he found his siblings:

   … that were supposed to look after [the sponsor] had given up on her, and just avoid contact, we couldn’t even get in touch with them to help us with this application, they simply don’t care… .

4. Based on the evidence and information before the Tribunal, including information on the Department file, the sponsor has the following relatives:

   ·Her parents, who were both born in Cambodia but were Vietnamese citizens, are both deceased;

   ·A brother, Mr Kuanna Quang Nhac Trinh, aged 68, who is an Australian citizen living in Melbourne;

   ·A sister, Ms Hoang Tuyet Trinh, aged 67, who is a New Zealand citizen living in New Zealand;

   ·A brother, Mr Vo Quang Trinh, aged 65, who is an American citizen living in America;

   ·A sister, Ms Anh Tuyet Trinh, aged 63, who is an Australian citizen living in Australia; and

   ·A sister, Ms Binh Tuyet Trinh, aged 55, who is a Vietnamese citizen living in Vietnam.

5. This means the applicant is the second youngest of seven full siblings and the sponsor is the third youngest of the siblings. Of those seven siblings, not including the sponsor and applicant, the sponsor and applicant have a brother and sister living in Australia who have been granted Australian citizenship.

6. Information on the Department file indicates the father of the applicant and sponsor had another daughter in 1979 or 1980 to a second wife who was not the mother of the applicant or sponsor or their five siblings. There is no information before the Tribunal to indicate the citizenship, location or other status of this half-sibling.

7. The Tribunal notes the sponsor and applicant also have a sister living in New Zealand who holds citizenship from that country but there is no information before the Tribunal to indicate that Ms Hoang Tuyet Trinh is an eligible New Zealand citizen under the Act.

8. Information about the sponsor, including in her medical reports, on the Department file indicate she has been married and divorced twice and has an adult daughter and son, with the sponsor’s daughter having been adopted by the sponsor. Little independent information is available about these children including their immigration status. The name of the sponsor’s daughter is recorded as Ms Phuong Tram Le in the Form 40 Sponsorship for migration to Australia form signed by the sponsor on 29 January 2019 and noted as received by the Department on 11 March 2019, but the sponsor’s biological son is not recorded on that form. On other documents on the Department file the sponsor’s daughter is recorded as Ms Phuong Cham Le born on [date deleted] June 1995 (currently aged 27) and the sponsor’s son is recorded as Mr Duoc Sang Le born on [date deleted] June 1986 (currently aged 36).

9. Information in the sponsor’s medical reports in the Department file about her adopted daughter, in the form of a report from Dr Tung Nguyen, psychiatrist, of North Richmond Community Health to the sponsor’s referring doctor, Dr Vu, dated 23 July 2014 states (errors in the original):

   Many thanks for referring this twice divorced mother of 2, who is boarding with a family and a student. I will summarise my findings.

   As you know, she has a very traumatic upbringing, both with caregivers and War related experiences. She experienced a lot of abuse, both physical and sexual. She has little supports here. She has never worked since her arrival. There has been a lot of conflict with her adopted daughter and they do not have contact now. She has to serve a Court order to do community work.

10. The sponsor told the Tribunal that she is estranged from her daughter and her two siblings in Australia and has not had any contact with any of them for over 10 years. The sponsor told the Tribunal her siblings are scared of her asking for rice and refuse to contact her and she does not like them. The sponsor’s evidence is the last details she had is that her brother in Australia lived in Sunshine and her sister in Australia lived in Glenroy, both of which are suburbs of Melbourne, Victoria.

11. The sponsor told the Tribunal that she was married and divorced once in Vietnam and married and divorced once in Australia. There are documents on the Tribunal file, including a 2010 court divorce order, that support the sponsor’s evidence in this regard and the Tribunal accepts this evidence. There is no information before the Tribunal about the sponsor’s Australian ex-husband.

12. The sponsor told the Tribunal she found her daughter as a three-day old infant in a rubbish bin, raised her, brought her to Australia but she left the sponsor many years ago and the sponsor does not now know where her daughter is, including whether she is in Australia.

13. The sponsor told the Tribunal her son lives in Vietnam but is very frail and sick with “stomach problems” and does not have long to live. No documents were provided to the Tribunal to support this evidence.

14. The sponsor told the Tribunal she lives in a share house in Springvale with the applicant and a third person who is aged approximately 70 and that third person works every day and the sponsor and applicant do not talk to him.

15. The sponsor has three adult relatives in Australia, being two siblings who are Australian citizens and her adopted daughter. The sponsor’s two siblings in Australia (other than the applicant) live in Melbourne, where the sponsor and applicant live. Based on their addresses last known to the sponsor, they both lived less than an hour away by motor vehicle from the sponsor and yet they provide no assistance to her. The sponsor says this is because she is estranged from those two siblings and from her adoptive daughter. In relation to her two siblings in Australia (other than the applicant) the sponsor is not able to identify a cause of that estrangement, it simply seems she and her two siblings in Australia did not and do not like each other and according to the sponsor they are not a close family, reflective of their dispersal across numerous countries as they took separate journeys to flee communist Vietnam in the late 1970’s or 1980’s. On the evidence of the applicant and sponsor, this leaves the applicant as the only source of assistance for the sponsor.

16. The difficulty for the Tribunal is that estrangement is easily claimed but notoriously difficult to demonstrate or prove. Such claims make it challenging for the Tribunal to make an evidence-based decision about such circumstances.

17. The Department’s policy in relation to such matters reflects the legislative history of the definition of the term ‘carer’ in reg 1.15AA. In its Procedural Instruction on reg 1.15AA the Department’s policy states (emphasis in the original):

    Regulation 1.15AA was amended on 9 November 2009 so that claims by relatives that they are unwilling or unable to assist do not automatically lead to a finding that it would be unreasonable for them to provide the assistance required:

    ·Regulation 1.15AA(1)(e)) was amended to replace the previous requirement to be satisfied that assistance ‘cannot reasonably be obtained from’ relatives in Australia with a requirement that assistance ‘cannot reasonably be provided by’ relatives in Australia.

    ·A s65 delegate can now make a broad assessment of reasonableness by balancing issues such as the nature and extent of the assistance required, the number of relatives in Australia who are potentially available to provide assistance and the reasons given for their claimed inability or unwillingness to assist.

    …

    If there are relatives in Australia, the s65 delegate will need to investigate whether claims that a relative in Australia cannot provide assistance are reasonable by looking at issues such as:

    ·the number of relatives already in Australia

    ·the nature and extent of the assistance required

    ·who is currently providing the required assistance

    ·where the person requiring assistance lives

    ·where any relatives in Australia live

    ·any evidence of ongoing close family relationships

    ·the reasons given as to why relatives in Australia claim to be unwilling or unable to provide the assistance.

    If there are no more than two relatives in Australia and high levels of ongoing assistance are needed, it may not be reasonable for all of the assistance to be provided by those relatives. However, if several close relatives already live in the same vicinity as the person requiring assistance, in many instances it may well be possible to conclude that together (including under combined or rotational arrangements) they could reasonably provide the assistance needed, even if they claim to be unwilling to do this.

18. The Tribunal as presently constituted refers to Departmental Policy as a guide only. It is not to be elevated to the status of law and does not bind the Tribunal. However, it can be of assistance toward ensuring all relevant considerations are taken into account and toward achieving consistency of approach and decision making for specific visas or issues.

19. The approach taken by the Tribunal as presently constituted to assessing the sponsor’s claims of estrangement from relatives in Australia who otherwise could reasonably have been expected to provide some assistance to her is to consider all of the sponsor’s circumstances, including the sponsor’s migration history, medical history, relationships with others (not just the estranged family members) and pro-social circumstances such as employment, membership of clubs or groups, voluntary work, religious worship and other community and social activities and to cross-reference this evidence and information with the evidence of any other witness that is available, in this case being the evidence of the applicant.

20. In the present case the Tribunal accepts that the sponsor:

    ·has been cared for by the applicant since late December 2018;

    ·and her siblings have a consistent history of fleeing communist Vietnam in circumstances that led to them being dispersed across the globe in different countries. At the time of this decision the sponsor and applicant have siblings living in Australia, Vietnam, New Zealand and the United States of America;

    ·has provided documents evidencing her medical history and treatment dating back to 2011. A consistent feature of that history is significant episodes of physical and sexual abuse and psychological trauma experienced by the sponsor with the sponsor diagnosed with schizophrenia and experiencing psychosis primarily in the form of auditory and visual hallucinations, both of which are ongoing. The sponsor’s auditory hallucinations present a significant risk to her health and safety and to that of third parties and has caused the sponsor according to her oral evidence to have three accidents crossing the road as a pedestrian without looking, one of which caused an injury resulting in the sponsor experiencing ongoing pain which continues until the present;

    ·has managed to maintain a positive relationship with the visa applicant and has lived in share houses with others, which since December 2018 includes the applicant, since the sponsor arrived in Australia;

    ·has not been able to work since arriving in Australia; and

    ·is noted in medical reports from Dr Tung Nguyen, psychiatrist:

    Many thanks for referring this twice divorced mother of 2, who is boarding with a family and a student. (Report dated 23 July 2014)

    She attends the temple and socialises with her aunt’s friends. She is reluctant to resume VWAssociation (sic). (Report dated 9 February 2015)

    She shares a house with 2 other couples. (Report dated 18 January 2016)

    She finds some solace in befriending elderly women and listening to Bhuddist (sic) prayers (Report dated 21 November 2016).

21. The applicant gave evidence that he had a comfortable life in the United States of America and outlined his financial circumstances, employment, voluntary work and general history to the Tribunal, including fleeing the Khmer Rouge in Vietnam by walking to Thailand, staying in a refugee camp and ending up in the United States of America in November 1982.

22. The applicant provided evidence of his United States citizenship, which the Tribunal accepts.

23. The applicant told the Tribunal he rushed to Australia in December 2018 when the sponsor had been hospitalised and was due to be discharged from hospital, but there was no-one into whose care the hospital could discharge the sponsor. The applicant’s evidence is when he realised the extent of the sponsor’s care needs, he decided to stay and care for her.

24. The applicant explained to the Tribunal that his siblings are not close to each other, and he is not in contact with his other siblings in Australia or overseas. The applicant told the Tribunal there is no specific incident or incidents that has caused this estrangement in his view it just happened over time where they have in effect become strangers to each other.

25. In the applicant’s written statement dated 14 September 2022 he stated (errors in the original):

    It was [after his arrival in Australia in December 2018] that I found all the family that were supposed to look after [the sponsor] had given up on her, and just avoid contact, we couldn’t even get in touch with them to help us with this application, they simply just don’t care and don’t want to be a part of Kieu’s life anymore, I also believe this is another reason she has trust issues.

    …

    … I dropped everything in my life to care for her because our parent taught as to that caring for a sibling is the best thing you can do in the world, I am disappointed that the rest of the family did not get the memo, but I am here and I will do my best to care for my sister as I am sure if the roles were reversed, my sister would do the same for me.

26. The applicant told the Tribunal the sponsor needs constant care and supervision because the voice in her head tells her to cross the road and she will do so without looking, she is extremely forgetful, she has to take numerous medications which requires his oversight, she frequently wakes most nights distressed by her previous life experiences, she is sad that her other siblings do not care about her and she has chronic pain from her lower back and other injuries. The Tribunal accepts this evidence as it is supported by the information in the medical reports provided to the Tribunal and on the Department’s file including Dr Vu’s most recent September 2022 report which attached a list of 10 medications the applicant does or has been recently taking.

27. The Tribunal accepts this evidence and finds in the sponsor and applicant’s circumstances the assistance the sponsor requires cannot be reasonably provided by another Australian relative.

    Can the assistance reasonably be obtained from welfare, hospital, nursing or community services in Australia?

28. Departmental policy in relation to assessing this consideration is set out in its Procedural Instruction on reg 1.15AA as follows:

    The courts have determined that ‘reasonably obtained’ in relation to community services must be assessed by reference to obtainability by the person requiring the assistance and not by reference to the general availability of the service. This means that officers need to consider any claims that the assistance needed must be of a particular nature, that is, provided by persons speaking specific languages, from specific religious or cultural backgrounds. Several court cases have addressed such factors as the ability to provide a specific cultural diet.

    These cases have established that, although assistance of a specific type (linguistic, religious or cultural) is a relevant factor for consideration and must be taken into account, a distinction can be made between situations where assistance cannot reasonably be obtained because of these factors and situations where the assistance could still be obtained but the person requiring assistance has unreasonably chosen to reject it.

29. The Tribunal discussed in detail with the applicant the efforts the applicant has gone to whilst in Australia to seek assistance for the sponsor, particularly assistance that could support the sponsor to live in her own home rather than move into residential care.

30. The applicant provided evidence, which the Tribunal accepts, of making contact with the following organisations:

    ·Australian Vietnamese Women’s Association;

    ·Anxiety Recovery Centre Victoria;

    ·Action on Disability within Ethnic Communities Inc;

    ·Southern Migrant and Refugee Centre;

    ·GenWest; and

    ·InTouch.

31. The last two listed organisations provide family violence support services, and the Southern Migrant and Refugee Centre does not provide care assistance.

32. There is evidence on the Department and Tribunal files that the sponsor has also received in and outpatient medical services from Monash Health (at Dandenong Hospital and Monash Specialist Consulting), the Melbourne Clinic, Springvale Family Healthcare (the private medical practice Dr Vu provides general practitioner services from), North Richmond Community Health (which includes Dr Nguyen’s psychiatry practice) and six psychological counselling sessions with Mr Bach Yen Nguyen, psychologist, in 2013 and 2014. All of these medical services and procedures appear to have been publicly funded.

33. The applicant told the Tribunal that he did a lot of research online but did not provide any documentary evidence of this.

34. It was evident to the Tribunal during discussions with the applicant that his research and inquiries were conducted from the perspective of trying to find services that could ‘replace’ the assistance that the applicant provides to the sponsor.

35. This is not the relevant assessment the Tribunal has to make. The assessment to be made by the Tribunal is whether the assistance the sponsor in this case requires given the formal assessment of the direct assistance she needs in attending to the practical aspects of daily life can reasonably be obtained from welfare, hospital, nursing or community services in Australia to an extent that the applicant is no longer a carer as that term is defined in reg 1.15AA.

36. It is evident to the Tribunal that the applicant encountered some difficulties dealing with a fragmented system of service provision where he was not sure who could provide what assistance and those who he did find out about that may be able to provide some assistance would not be able to provide the 24-hour, seven day a week care the sponsor needs. Not surprisingly, the applicant did not find any such services available outside a residential care setting which the applicant told the Tribunal he did not explore because he expected the sponsor, who the applicant told the Tribunal receives a Disability Support Pension, would not be able to afford. The applicant’s Bridging B visa has a condition attached that restricts his right to work in Australia to engaging in business visitor activity. The applicant told the Tribunal that he has not worked in his time in Australia but has approximately AUD41,000 in savings in an account similar to a superannuation fund. No documents were provided to the Tribunal in support of the sponsor’s or the applicant’s financial circumstances.

1. Of particular concern to the applicant was that any organisation or carer providing assistance to the sponsor would do so in a culturally appropriate way for the sponsor who according to the representative’s submission dated 15 September 2022:

   … cannot speak English. Born in Cambodia with Chinese background, it is advised that she can only understand Vietnamese and Cambodian, but she is more comfortable with Chiu Chow (Teochew – a Chinese dialect), with this in mind, it would often be near impossible to communicate with medical staff without an interpreter or someone whom understands English and the nature of her illness.

2. A further significant concern for the applicant given the sponsor’s specific presentation of schizophrenia, her traumatic life history and her significant trust issues in those she is not familiar with, is the continuity of care that could be provided to the sponsor. These concerns are supported by the sponsor’s medical history and her oral evidence.

3. The Tribunal accepts the applicant’s concerns about the assistance provided to the sponsor as reasonable in the sponsor’s specific circumstances.

4. The applicant told the Tribunal that he was not aware of the National Disability Insurance Scheme (NDIS) and did not know what services the sponsor’s local council, the Greater Dandenong City Council, could provide to the sponsor.

5. As the sponsor is aged 58 years at the time of this decision the sponsor may be eligible to receive funding from the NDIS. As the sponsor is not aged at least 65 years at the time of this decision she is not eligible to receive aged care services from the Commonwealth, State or Greater Dandenong City Council. Local Council’s in Victoria provide a range of services and supports for people with disabilities including mental health issues and for their carers which are often condition not age dependent. However, local council services are increasingly referral and inclusion services rather than the provision of direct care or assistance.

100.   The applicant’s oral evidence to the Tribunal led to the Tribunal forming the view that the applicant and sponsor rely on the advice and referrals of Dr Vu who is the sponsor’s long term general practitioner to assist them to engage with services that can provide assistance to the sponsor. This is supported by the medical evidence made available to the Tribunal which includes evidence of multiple referrals of the sponsor by Dr Vu to the psychiatric services provided by Dr Nguyen, dating back to 2014. There is also evidence before the Tribunal of the sponsor recently accessing physiotherapy services.

101.   The Tribunal recognises and accepts that the sponsor:

·has complex medical conditions and assistance needs;

·has been receiving psychiatric and psychological treatment for her presentation of schizophrenia and general mental health since at least 2013;

·those conditions and assistance needs will not improve and are likely to worsen over time;

·is appropriately cared for by the applicant including through culturally and linguistically appropriate assistance;

·if not appropriately assisted presents as a danger to herself and others.

102.   The Tribunal is satisfied, notwithstanding the sponsor has not applied to the NDIS for assistance, that the assistance the sponsor requires to attend to the practical aspects of daily life cannot reasonably be obtained from welfare, hospital, nursing or community services.

Conclusion

103.   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) 

104.   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.

105.   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.

106.   The applicant has been caring for the sponsor since late December 2018 and gave evidence that if permitted to do so he will continue to care for her. The Tribunal accepts this evidence.

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

Conclusions

108.   Given these findings, at the time of this decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

109.   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 836 visa.

DECISION

110.   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.

Michael Ison
Senior 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.