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

1. 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).

2. 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.

3. 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.

4. 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.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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’

8. 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

9. 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.

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

15. Regulation 1.15AA(1)(ba) requires the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

16. In the present case, the person with the medical condition is an Australian citizen.[1] Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    [1] see Department of Home Affairs File, review applicant’s Certificate of Australian Citizenship is provided in a certified copy extract.

17. 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 07/012.

18. In the present case, the impairment rating specified in the certificate is … This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r. 1.15AA (1)(c).

19. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.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 r.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.

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

21. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

22. 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 be given to the nature of care actually required by the person needing the care when making such assessment: see at [61].

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

24. The medical evidence before the Tribunal indicates that the resident sponsor, Ms Thi Muoi Truong has dementia, cerebrovascular accident (most recent one in 2009) which has affected her left upper and lower limbs, and sever Osteoarthritis affecting her spine, both hips, knee joints and both of her arms. The Tribunal accepts that Ms Thi Muoi Truong has considerable care needs due to her multiple medical diagnoses. The Tribunal accepts the claim – and supporting medical evidence – that the applicant’s condition has deteriorated significantly since the issuance of a CVAC Certificate concerning her medical conditions over two years ago.

25. The resident sponsor is 90 years old. She came to Australia from Vietnam. She lives with her daughter. Her husband is deceased. The resident sponsor is in receipt of an aged pension.

26. The resident sponsor has 9 children. Seven of her children reside in Socialist Republic of Vietnam while two of her children Ma Nghiem (DOB 1950) and Ma Thu Anh (DOB 1963) are in Australia. The two children living in Australia are Australian citizens or Australian permanent residents.

27. The Tribunal is satisfied that the resident sponsor has nine children, seven still living in Vietnam and two who are Australian citizens or permanent residents. The Tribunal has considered the evidence and written submissions and declarations provided by the resident sponsor’s family members in Australia. The Tribunal has noted their extensive submissions since the time of the application as well as the oral evidence provided to the Tribunal at the hearing by the resident sponsor’s daughter and only carer currently. Of note, the declaration of the resident sponsor’s son claimed that he was unable to provide care due to owning and running a small business which involved him working seven (7) days. He also deposed that he had the care and responsibility for a severely autistic son. These personal circumstances made it next to impossible for him to support and assist his mother.[2]

    [2] see Department File, resident sponsor’s son’s Statutory declaration, see folio [232-234]

28. Other members of the resident sponsor’s family (in Australia) granddaughters and grand son deposed personal matters and on-going concerns which did not allow them to care 24/7 for the resident sponsor and their grandmother.[3] The Tribunal considered the evidence submitted by the grandchildren of the resident sponsor who reside in Australia and their ability to provide care, support and constant monitoring the resident sponsor required and the Tribunal concluded that her grandchildren did not offer the level of ongoing assistance the resident sponsor required – that is a 24/7 monitoring of her situation.

    [3] Other family members’ declarations see folios [237-40], [224-225], [236], [242], [230-31], and son-in-law’s inability [229].

29. The Tribunal notes the extensive care the resident sponsor requires. Her needs as outlined in the medical reports made available to the Tribunal are obviously complex and she needs continual supervision and assistance.

30. At the hearing the Tribunal discussed the caring needs of the resident sponsor with the applicant’s daughter, Ms Thu Anh Ma. The Tribunal has considered her oral testimony. Ms Ma has played a significant role in assisting her mother as her dementia has continued to deteriorate. In her oral evidence, she indicated that she the Power of Attorney and Guardianship over her mother since her health further deteriorated. Despite her dedication and deep love for her mother, Ms Ma contended that she was unable to provide the care the resident sponsor requires as her family’s needs have been neglected but also, her own physical and mental health has in this period begun to deteriorate. According to Ms Ma, it was not any longer easy for her to balance her responsibilities towards her family and husband – that is, assist her husband in the day-time with catering demand of the family’s local business (a bakery) and be 24/7 on call for her mother. The Tribunal noted the medical advice provided by Dr James N.H. Nguyen (the family’s doctor) that the health of the resident sponsor was ‘deteriorating’. Indeed, it stands to reason, in the opinion of the Tribunal that the 24/7 needs of the resident sponsor could not be met by her children and extended family and in particular by the daughter Ms Ma. The Tribunal is satisfied that Ms Ma (the daughter in Australia) can (as the situation presented itself with the sudden deterioration of her mother’s health) only provide very limited assistance to her mother, the resident sponsor.

31. The Tribunal notes that the care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA (1)(e) should not be construed as requiring that the assistance must only be provided by a single person. The Tribunal has considered whether the care the resident sponsor requires can be provided collectively by family members who are Australian citizens or permanent residents residing in Australia. After reviewing the information provided to the Tribunal pertaining to each family member, and particularly noting the complex and increasing needs of the resident sponsor, the Tribunal is satisfied that the existing family members in Australia, both individually and in fact collectively, are unable to reasonably provide the care and assistance the resident sponsor requires.

32. The Tribunal is satisfied, based on the evidence provided - written and oral- by the resident sponsor’s family members but in particular, (her current carer) her daughter, Ms Ma in her oral evidence before the Tribunal and her later written submission, that the assistance the resident sponsor requires cannot reasonably be obtained or provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen. The applicant subsequently meets r.1.15AA(1)(e)(i).

33. The Tribunal also discussed with sponsor applicant’s daughter whether the ‘assistance’ could not be reasonably obtained from welfare, hospital or community services in Australia.

34. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to the obtainability by the person requiring assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant service is to be reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Ahn Vuong v MIAC [2013] FCCA 274 at [34].

35. An Aged Care Assessment Team (ACAT) Assessor, Dr Cecilia Phua, wrote in her assessment letter dated 3 August 2016 that Ms Truong was assessed in 2014 (23 July) and approved for the high level of care – high-level care package, high level respite and residential care. The Tribunal was mindful that further ACAT assessments are not conducted where a client has been approved for the highest levels of care.

36. In the daughter’s evidence before the Tribunal and in her later written submission to the Tribunal concerning the resident sponsor’s ability to access care, it was pointed out that the resident sponsor was dealing with on-going memory loss, with difficulties remembering events that had occurred and had an inability to determine when she required something, for example, sustenance and to relieve herself of her bodily functions. The daughter stated that the resident sponsor needs constant prompting to recollect and had no understanding where she was at times. Though, in a letter from Central East Aged Care Assessment Services dated 3 August 2016 states that the Aged Care Assessment Team had assessed Ms Truong that she had been approved to receive Residential Respite Care at a high level and Home Care Package Level 3 and 4 (also eligible for Level 1 and 2) her daughter, Ms Ma claimed in a statement:

    “…my mother was first assessed by Central East Aged Care Services (CEAS, Department of Health) on 03/08/2016 with initial Home Care Plan Level 3 to 4. She has then been assigned High Level residential respite with Home Care Package Level 4 approval (on 11/2018). This definitely gives me some relief as with such help, the very hard work of taking care of her and working full-time is not all on my shoulders.

    I already took my mother to a few nursing homes and respite care so that she can have the 24/7 care she needs but she always rejects this idea. She insists that she only wants to stay at home and [to] die at home”.

37. Also, in the letter from Dr James N.H. Nguyen provided insight into the medical conditions of Ms Truong and her recent admission to the Monash emergency department on 5 February 2020. The Tribunal was told by the resident sponsor’s daughter, that her mother’s condition had in recent times deteriorated considerably and requiring her to be admitted a week or more in hospital. The daughter also said that her condition being frail (nearer now to death) her mother requires ‘hands on 24/7 care’ something that was not sufficiently available in a local nursing home. Moreover, the resident sponsor would become very distressed at the thought of being ‘abandoned’ in an alien environment, the Tribunal was told. The Tribunal was also told by the daughter, that her mother always adhered to the strictures of Vietnamese family tradition and lifestyle. In other words, the support of family was ‘all-important’. In this respect it is appropriate to observe that the resident sponsor is a traditional Vietnamese elderly woman with very traditional ways of life which have been (for years) very restricted to family surroundings for all intents and purposes. As Ms Ma said the resident sponsor does not want to go into residential care which was considered to be (at this stage) detrimental to her mental health. The Tribunal accepts that the resident sponsor requires 24-hour care because she requires supervision and assistance with toileting at night. The Tribunal also accepts that the resident sponsor prefers to remain at home in her familiar family surroundings.

38. The Victorian and Australian Federal governments provide various services to assist elderly people to continue to reside in their homes. Ms Truong has been assessed as eligible to receive a high-level home care package, and that provides her with assistance 7.5 hours on a weekly basis. The Tribunal accepts that there would be no obtainable welfare or community services that could provide 24-hour assistance (as is required) to Ms Truong. While community assistance is in place for Ms Truong, the Tribunal is not satisfied that such services are sufficient to meet Ms Truong’s increasing personal needs, which include overnight care.

39. The Tribunal also accepts the cultural and language issues present which are necessary considerations when considering the sponsor’s care circumstances. Having considered all the evidence, individually and as whole, the Tribunal is not satisfied that the sponsor can reasonably obtain assistance from welfare, hospital or community services in Australia. Therefore, the applicant satisfies r. 1.15AA(1)(e) (ii).

40. On the evidence presented, the Tribunal is satisfied that care and assistance cannot be reasonably provided to the sponsor resident either by her family or ‘community services’ or a combination of both. Therefore, the Tribunal is satisfied that r.1.15AA(1)(e) (i) and (ii) are met.

41. The Tribunal is satisfied that the applicant (visa) (the resident sponsor’s daughter) is willing and able to provide the sponsor substantial and continuing assistance to fulfill her mother’s particular and increasing needs. There is no evidence before the Tribunal that the applicant is physically or psychologically unable to provide the assistance required and as needed. The Tribunal is satisfied from the evidence of Ms Ma that her sister (the applicant) demonstrates particular personal knowledge of her mother’s circumstances, and particular needs and has the ability to provide the necessary care and assistance and therefore, satisfies the requirements of r. 1.15AA (1)(f).

1. Given these findings the Tribunal concludes that at the time of decision the visa applicant a carer of the Australian relative, being the review applicant, and therefore cl.116.221.

2. 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 116 visa.

   Secondary applicants

3. 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

4. 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 Vlahos
   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.