TYACK (Migration)

[2021] AATA 2817

TYACK (Migration) [2021] AATA 2817 (23 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Ngoc My TYACK

VISA APPLICANTS:  Mr Ngoc Hoai QUACH
Mrs Thi Dung DANG
Miss Bao Duyen QUACH
Mr Bao Thien QUACH

CASE NUMBER:  1920053

HOME AFFAIRS REFERENCE(S):          OSF2015/070908 OSF2016/073589

MEMBER:M. Edgoose

DATE:23 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 23 June 2021 at 12:04pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 – capacity to understand sponsorship obligations – review applicant’s severe range for dementia – visa applicant was not sponsored as required by the legislation – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, rr 1.03, 1.15A; Schedule 2, cls 116.212, 116.222

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 5 July 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 14 April 2015. 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 (Cth) (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 116.222.

3. The delegate refused to grant the visas on the basis that cl 116.222 was not met because the delegate was not satisfied the sponsor had the capacity to understand her sponsorship obligations at time of the decision.

4. The review applicant appeared before the Tribunal on 23 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ngoc Hoai Quach the visa applicant and Mr Van Tao Trinh a neighbour of the review applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The review applicant was represented in relation to the review by her representative. The representative did not take part in the hearing.

6. For the following reasons, the Tribunal has concluded that the under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPONSORSHIP

   Are the sponsorship requirements met?

7. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

8. According to the medical assessment completed on 24 February 2015 by Bupa Medical Visa Services the report on examinee  identified that the review applicant had a number of medical issues including dementia, dizziness and falls, bilateral tympanic membrane perforation, hypertension, osteoporosis, degenerative disease of thoracolumbar spine, multiple vertebral fractures and OA knees. It was mentioned in the report that the review applicant was often found unkept, wearing the same clothes, was not able to clean her house, would often forget to lock doors, take her medication and turn off the stove, miss medical appointments, manage her own bills was unable to remember her own phone and house number. The review applicant was found to have a rating of 20 according to Table 7 – Brain Function of the Social Security Act 1991 rating of permanent conditions. A rating of 20 placed the review applicant in the severe range. Being rated in the severe range states that the person needs frequent assistance and supervision. Given that the review applicant was found to be in the severe range for dementia the Tribunal is not satisfied that at time of application she had the capacity to understand her sponsorship obligations.

9. The review applicant confirmed at hearing that she had a medical assessment on 24 February 2015. The review applicant provided yes and no answers during the hearing except when she claimed her dementia had improved due to her current medication. She claimed at hearing that she understood her obligations. She claimed that she had help with the visa application. At hearing the Tribunal notes that the review applicant was able to answer many of the questions.

10. The Tribunal has given consideration to the submissions made to the Tribunal on 11 May 2021. A letter dated 23 April 2020 from Dr Ernest Tam to Dr Lam Quoc Phan in relation to the review applicant stated that the review applicant was diagnosed in 2013 with mixed type dementia and a list of other medical issues. Therefore, at time of the review applicant’s visa application on 14 April 2015 the review applicant had already been diagnosed with dementia.  

11. The Tribunal has given regard to the joint Statutory Declaration made by Mr Robert John Michael Becker and Ms Thi Thanh Kieu Nguyen dated 16 February 2021 which stated that the review applicant use to share a house with them and their three sons from 2010 until 2012 until the review applicant moved into government housing. It was further stated that the review applicant’s health has dramatically declined and that she is unable to care for herself on a daily basis. The Tribunal gives significant weight to the Statutory Declaration regarding the review applicant’s historical and current circumstances. 

12. The Tribunal has given some regard to the Supplementary Geriatrician Report that Dr Ernest Tam wrote to the Department of Home Affairs dated 18 March 2021 where he stated that the review applicant had been diagnosed with mixed type dementia in 2013 and a list of other medical issues. The Tribunal gives some weight to certain aspects of Dr Ernest Tam’s report however other sections of his report are not relevant to this decision.

13. A further submission made to the Tribunal on 11 May 2021 from Dr Lam Quoc Phan was a reprint of the review applicant’s past medical history, allergies and current medications dated 10 September 2020 and 16 February 2021. Under the past history it mentioned that the review applicant had been diagnosed with Alzheimer’s Disease on 23 May 2013. Further to this a list of the review applicant’s past and current medications. The Tribunal gives some weight to this submission.

14. The Tribunal has given regard to the delegate’s decision dated 5 July 2019. At time of the delegates decision the delegate was not satisfied the review applicant fully understood the nature of the sponsorship Form 40 that she had signed. The delegate also considered the review applicant’s claims, circumstances, and relevant information individually and cumulatively; and the consistency of information provided in relations to the sponsor’s cognitive ability. The delegate was not satisfied the review applicant had the capacity to understand her sponsorship obligations.

15. The Tribunal has given some regard to the typed letter by the review applicant dated 2 September 2020 where she stated that her health continues to be in decline; my health is weak and my memory is fading; and currently suffering from dementia amongst other medical conditions and therefore require the assistance of close family members. The review applicant further mentioned that she has been referred to My Aged care by her community worker and that on 30 June 2020 her application for My Aged Care was rejected. The review applicant also listed her current medication and the medication that she takes for her dementia. At hearing the review applicant informed the Tribunal that she was assisted in the writing of this letter. The Tribunal places significant weight on this submission where the review applicant has informed the Tribunal of her current circumstances and that her health is in decline and that she suffers from dementia.

16. Mr Ngoc Hoai Quach, the visa applicant and son of the review applicant thanked the Tribunal for the opportunity to talk to the Tribunal today. He told the Tribunal that he is really worried about his mother the review applicant. He acknowledged to the Tribunal that his mother has dementia and that at the time of the visa application she was confused. He further claimed that she is no better. The Tribunal gives limited weight to the visa applicant’s oral evidence.

17. Mr Van Tao Trinh a neighbour of the review applicant informed the Tribunal that the review applicant has dementia and that he often helps her, the she lives close to me, she is fragile, and I drive her to doctor appointments. Mr Trinh informed the Tribunal that he and the review applicant live a few apartments apart. She is also friends with my wife and she helps the review applicant. The Tribunal gives some weight to Mr Trinh’s oral evidence.     

18. Therefore, at the time of application, the visa applicant was not sponsored as required by the legislation and does not satisfy cl 116.212.

19. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    M. Edgoose
    Member