Truong (Migration) - [2021] AATA 1161

Truong (Migration) [2021] AATA 1161 (19 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Thi Muoi Truong
VISA APPLICANTS:  Ms Kim Van Ma
Mr Thanh Gia Du
CASE NUMBER:  2009138
HOME AFFAIRS REFERENCE(S):          2016/038674 OSF2016/038674
MEMBER:Peter Vlahos
DATE:19 February 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
·cl.116.221of Schedule 2 to the Regulations;

With the direction that the secondary applicant meets the following criteria for Subclass 116 (Carer) visa:
·cl. 116.321 of Schedule 2 to the Regulations;

This Statement was made on 19 February 2021 at 7.45 am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa –Subclass 116(Carer)– certificate provided meets the requirements of r.1.15AA(2) – rating exceeds the impairment rating specified by the relevant instrument – cultural and language issues –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 376
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 116.211, 116.221, 116.321

CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Ahn Vuong v MIAC [2013] FCCA 274
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 30 March 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 6 July 2016. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.321.
The delegate refused to grant the visas on the basis that cl.116.211 was not met because the delegate was not satisfied the applicant met the definition of ‘carer’ in relation to the mother.
The review applicant appeared before the Tribunal on 1 February 2021 to give evidence and present arguments. It was noted at the Tribunal that the review applicant Mrs Thi Muoi Truong (the mother) was in a wheelchair and suffering from an advanced form of ‘dementia’ and was represented at the hearing by her daughter Ms. Thu Anh Ma.
The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
In making its findings, the Tribunal has considered the documents contained in the Department of Home Affairs and Tribunal files as well as…

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 Truong (Migration)

Details

AGLC: Truong (Migration) [2021] AATA 1161
Case: [2021] AATA 1161
Decision Date: 19 February 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant, Ms. Truong, sought to migrate to Australia to care for her mother, who is an Australian resident. The Tribunal's decision was made by Member Peter Vlahos.

The primary legal issues before the Tribunal were whether the visa applicant met the definition of a 'carer' under Regulation 1.15AA of the Migration Regulations 1994, and whether a secondary applicant, Ms. Ma's son, met the criteria for the visa. This involved assessing whether the provided Carer Visa Assessment Certificate satisfied the requirements of Regulation 1.15AA(2) and whether the applicant was a relative of the Australian resident, and if the medical condition of the Australian resident necessitated the applicant's care.

The Tribunal found that the applicant, being the daughter of the Australian resident, met the requirement of being a 'relative' under Regulation 1.15AA(1)(a). Furthermore, the Tribunal was satisfied that the Carer Visa Assessment Certificate, issued on 23 July 2014, met the requirements of Regulation 1.15AA(2). The certificate indicated that the Australian resident had a medical condition causing impairment, specified an impairment rating of 50, and confirmed a continuing need for direct assistance for at least two years. The Tribunal also found that the sponsorship for the primary applicant included sponsorship for family members, satisfying the criteria for the secondary applicant.

Consequently, the Tribunal remitted the applications for reconsideration with a direction that the criteria for the Subclass 116 (Carer) visa under cl.116.221 and cl.116.321 of Schedule 2 to the Regulations were met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The secondary applicant is Ms Kim Van Ma son. The Tribunal is satisfied that the sponsorship mentioned in cl.116.221 of the person who satisfies the primary criteria includes the sponsorship of the family members. Consequently, the second applicant meet cl. 116.321.DECISION The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:·cl.116.221 of Schedule 2 to the Regulations;With the direction that the secondary applicant meets the following criteria for a Subclass 116 (Carer) visa:·cl. 116.321of Schedule 2 to the Regulations Peter VlahosMemberATTACHMENTMigration 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

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE In making its findings, the Tribunal has considered the documents contained in the Department of Home Affairs and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the Carer Visa Assessment Certificate dated 3 August 2016 which was provided to the Department and Tribunal by Ms Ma. Whether the visa applicant is a ‘carer’ Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s mother. Therefore, as the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of r.1.03 and meets the requirements of r.1.15AA(1)(a). Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of r.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. For a certificate to meet r.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 specific health provider in relation to a review of such an opinion. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate which was issued on 23 July 2014. The Tribunal is satisfied that the Certificate meets the requirements of 1.15AA(2). The Tribunal is satisfied that according to the Certificate the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to the practical aspects of daily life. The Tribunal is satisfied that an impairment rating (of ‘50’) is specified in the Certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least 2 or more years, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.