Vu (Migration)

[2024] AATA 1527

Vu (Migration) [2024] AATA 1527 (27 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Quynh Thi Ngoc Vu

REPRESENTATIVE:  Ms Kim Uyen Pham

CASE NUMBER:  2008023

HOME AFFAIRS REFERENCE(S):          CLF2018/193069

MEMBER:SM Michael Cooke

DATE:27 May 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.212 of Schedule 2 to the Regulations

·cl 836.213 of Schedule 2 to the Regulations

·cl 836.221 of Schedule 2 to the Regulations

·PIC 4009 in cl 836.223 of Schedule 2 to the Regulations

Statement made on 27 May 2024 at 9:43am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – intention to reside permanently in Australia – home care assistance plan carer – sponsor’s son’s health condition – medical certification – sponsor’s cognitive and medical conditions – special cultural and psychological needs – assistance required cannot reasonably be obtained from welfare, hospital, nursing or community services – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 836.111, 836.212, 836.213, 836.221, 836.223; Schedule 4, Public Interest Criterion 4009; rr 1.03, 1.12, 1.15

CASES

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 7 May 2020 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).

2. The applicant applied for the visa on 28 August 2018. 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 Migration Regulations 1994 (Cth) (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.

3. The delegate refused to grant the visa on the basis that cl 836.223 was not met because the applicant did not satisfy PIC 4009.

4. The applicant appeared before the Tribunal on 23 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review. The representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the carer of her sponsoring mother.

   The Hearing

8. The Tribunal first dealt with the issue of the applicant’s issue with PIC 4009. The Tribunal read out the salient parts of the delegate’s decision. It noted that time had passed since the applicant had made the claim which led directly to her visa refusal. In a submission to the Tribunal, she had indicated that her entire attitude to Australia had changed. She told the Tribunal she had become part of the Cabramatta community and enjoyed the Australian way of life – particularly the safety. The Tribunal noted that the Carer visa was a generous gift and granted immediate permanent residency. She could then pursue full citizenship. The Tribunal asked her whether she was an American citizen. She said she was. The Tribunal informed her that Australia also permitted dual nationality if that was her desire long-term.

9. The Tribunal recognized from her oral and written evidence that her accommodation with the Australian lifestyle and the dramatic improvement of her mother’s health had changed her entire view of Australia. The Tribunal asked her, therefore, to inform it formally whether she intended to remain in Australia. She then stated emphatically that she intended to reside permanently in Australia.

10. The Tribunal observed that this was the only issue canvassed in the delegate’s decision. However, a Carer visa had other important requirements. The Tribunal then explored and explained what these requirements were.

11. The applicant drew the attention of the Tribunal to the physical condition of her sponsor mother on arrival from the United States. The Tribunal indicated it had viewed the photos and been shocked (as a layperson) at her mother’s then condition. It then observed that the sponsor (who was present at the hearing) had had a dramatic improvement in her health. For instance, she had now reached 100 years old. The applicant informed that the sponsor’s doctors had indicated to her that - all things considered - she enjoyed good health. She helped her own ability to provide round-the-clock quality care by exercising regularly at the gym. This was when the availability of her government assistant carer permitted her some free time. She also was able to attend and do occasional volunteer work and worship at the Temple during these breaks.

12. The Tribunal noted that the sponsor was regularly assisted by a carer during the hearing. It asked her why the sponsor, therefore, needed the applicant as a carer. The applicant explained that the carer was allowed under the Government home care assistance plan and was available for only for 14 hours per week. Outside these short hours she was completely responsible for her mother’s care.

13. The Tribunal informed her that the public policy behind such assistance was to allow elderly family members to be cared for at home - where feasible. This was because such assistance was often a better pathway for elderly seniors. Help was provided rather than receiving institutionalized care in nursing homes. Apart from the saving to taxpayers it allowed for quality care in the bosom of family members.

14. The Tribunal then outlined the two different circumstances for consideration as to whether the applicant was eligible to be granted a Carer visa. These were whether 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.

15. The first was whether family members could perform the carer task. The applicant addressed this circumstance and said her brother had had a paralysing stroke in 2004 and was incapable of assisting the sponsor. The sponsor’s grandchildren had families and little to no involvement with her from a visitation and carer perspective. The applicant alerted the Tribunal again to the photographic evidence of the confronting state of health of her mother which greeted her years ago - on arrival from America. This was proof of the family neglect.

16. Her mother had been a healthy and active volunteer in the community, but age and familial neglect had produced dire health consequences. The fact that her mother had reached 100 years of age subsequently (and was present in the hearing) - was testimony to the quality of care she had provided since her arrival. She was firmly of the view that her mother would deteriorate without her direct hands-on attention. The Tribunal observed that the information tendered from her doctors confirmed this claim.

17. The Tribunal then explored the issue whether ‘the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia’.

18. The Tribunal alerted the applicant that, though it had to make the final decision in the review in Carer visa cases, its decisions were informed by medical and other professional advice. Importantly, the calculation of whether the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia would be guided largely by such professional advice. Facilities may be available to the sponsor (such as a nursing home) but whether the assistance ‘cannot reasonably be obtained’ involved different circumstances and was a the issue for the Tribunal review.

19. The applicant said in her personal statement that her earnest wish was for her to be granted the Carer visa so she could continue to assist her mother whilst living permanently in the Australian community. Her decided view was that the sponsor could not obtain the assistance and level of care she really needed from elsewhere and she had been getting this care successfully for the last 8 years.

    APPLICANT CLAIMS TO BE CARER

    Whether the applicant has claimed to be the ‘carer’

20. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of the applicant’s mother.

21. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

22. The Tribunal finds that the applicant claimed to be the carer of another person (‘caree’) at the time of application and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen -

23. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.

    SPONSORSHIP

    Are the sponsorship requirements met?

24. Clause 836.213 requires that at the time of application the 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).

25. The Tribunal finds that the applicant is sponsored by the Australian relative as defined and the sponsor has turned 18.

26. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl 836.213.

    APPLICANT IS A CARER

    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.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

28. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative. In the present case, the Australian relative is identified as the applicant’s mother.

29. The Tribunal finds that the applicant is a relative of the Australian relative, having regard to the definitions of ‘relative’ and ‘close relative’ in reg 1.03 - and she is ‘usually resident’ in Australia.

30. Therefore, as the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

31. 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.

32. For a certificate to meet reg 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 or issued by a specified health provider in relation to a review of such an opinion. In this case the health provider was BUPA.

    Findings and reasons:

33. The Tribunal finds that there is a certificate, and the certificate meets the requirements of reg 1.15AA(2), and according to the certificate:

    ·the resident or a member of the family unit has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life.

    ·the impairment has an impairment table rating specified in the certificate.

    ·because of the medical condition, the person 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.

34. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2).

35. Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

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

36. 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.

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

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

38. 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.

39. In the present case, the impairment rating specified in the certificate is 120. This rating exceeds the impairment rating specified by the relevant Instrument and, therefore, meets the requirements of reg 1.15AA(1)(c).

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

40. 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.

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

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

42. 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’.

43. The available evidence before the Tribunal indicates that the sponsor/’caree’ requires extensive assistance due to her medical status.  This is outlined in the BUPA Certificate.

44. The available evidence indicates that the applicant’s elderly brother is disabled from a stroke and his wife is his carer under these circumstances. It appears from the medical evidence of her appalling physical condition in 2015 that none of the sponsor/’caree’s grandchildren had/have participated in or have ‘reasonably provided’ care to their grandmother. The applicant informed the Department earlier of the following in a Statutory Declaration:

    In November 2015, I had to travel from U.S.A. (where I was living) to be with my mother, who was very ill at the time. I was told to come to see my mother for the last time, as the doctor had advised that she would have been gone anytime.

    My brother and his family have indicated that they no longer wished to have anything to do with my mother.

45. The Tribunal finds, therefore, from the available evidence, that ‘the assistance cannot be reasonably provided by another Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen’.

46. The Tribunal notes that the sponsor’s (Mrs Tran’s) geriatrician has advised of the following:

    OPINION

    1. Ms Tran has the specific Mental Capacity to understand and undertake the Sponsorship Obligations.  Ms Tran had appointed Enduring Guardianship to her daughter, Ms Quynh Thi Ngoc Vu 0:1 30.11.15.

    2.Ms Tran is suffering from many cognitive and medical conditions that are causing an impairment of her ability to attend to the practical aspects of her daily life and because of these medical conditions, Ms Tran has and will continue for at least two years to have a need for direct assistance in attending to the practical aspects of her daily life.

    3.Ms Tran requires 24 hours care and close supervision by her family carer at home. She requires a carer to be with her for safety and wellbeing. Currently she is being cared for by her daughter, Ms Vu, since 2015. It is of utmost importance that this caring arrangement be continued. (Tribunal emphasis)

    4.Ms Tran's son has been suffering from stroke for many years. He is currently being cared for by his wife, so he cannot care for his mother, Ms Tran.

    5.Community service/aged care facility are deemed to be inappropriate for Ms Tran due to her cognitive and medical conditions as well as her special cultural and psychological needs.

    6.Ms Tran has signed a Will on 30 November 2015, as well as appointing Ms Quynh Thi Ngoc Yu, as her Enduring Guardian, on the same day. This appointment can be activated.

    7.In the health interests for Ms Tran, I would strongly recommend a Carer Visa be granted to Ms Tran's daughter, Ms Quynh Thi Ngoc Vu, allowing her to stay in Sydney to care for Ms Tran and this would help sustain Ms Tran's morale and prognosis for the next two and many more years.

    Your attention is appreciated.

    Yours sincerely

    Dr Ernest Tam

    Consultant Geriatrician

47. The Tribunal notes from the available evidence that the sponsor/’caree’ (Mrs Tran) does not speak English, has a specific vegetarian diet and cultural and psychological needs as well as being 100 years old. She does enjoy some home care assistance from the Government service provider as part of the Government policy of encouraging home based care - where possible and effective. Otherwise, her geriatrician insists that the assistance she requires must remain the quality assistance provided successfully by her applicant daughter since 2014.

48. The Tribunal is satisfied from the available evidence that the assistance the sponsor requires ‘cannot reasonably be 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)

49. 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.

50. 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.

1. The Tribunal finds from the available evidence that the applicant is both willing and able to provide the ‘substantial and continuing assistance’ required.

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

   Conclusion on ‘Carer’ criterion

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

4. 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

5. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

   ·            cl 836.212 of Schedule 2 to the Regulations

   ·            cl 836.213 of Schedule 2 to the Regulations

   ·            cl 836.221 of Schedule 2 to the Regulations

   ·            PIC 4009 in cl 836.223 of Schedule 2 to the Regulations

   Michael Cooke
   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.