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

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).
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.
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.
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.
The applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the carer of her sponsoring mother.
The Hearing
The Tribunal first dealt with the issue of the applicant’s issue…

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 Vu (Migration)

Details

AGLC: Vu (Migration) [2024] AATA 1527
Case: [2024] AATA 1527
Decision Date: 27 May 2024

CaseChat Overview and Summary

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as the carer for her sponsoring mother, who was the applicant's mother. The dispute before the Administrative Appeals Tribunal (AAT) involved the applicant's eligibility for the visa, particularly concerning her intention to reside permanently in Australia and her capacity to provide care.

The Tribunal was required to determine whether the applicant was a genuine carer for her mother, considering the mother's health condition and the availability of other care services. A key issue was the applicant's initial refusal for the visa, which had been based on her perceived lack of intention to reside permanently in Australia. The Tribunal also needed to assess whether the assistance required by the sponsor could reasonably be obtained from other sources, such as welfare or community services, and whether the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal acknowledged that the applicant's circumstances and perspective had changed significantly since the initial refusal. She expressed a strong and emphatic intention to reside permanently in Australia, having become integrated into the local community and appreciating the safety of Australian life. While the Tribunal noted the sponsor's remarkable improvement in health and the provision of some government-assisted care for 14 hours per week, the applicant maintained that she was solely responsible for her mother's care outside these hours. The Tribunal considered the public policy behind the Carer visa, which aims to facilitate home-based care for elderly family members.

Ultimately, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister. The Tribunal directed that certain criteria for the Subclass 836 visa, including those relating to being a carer and meeting specific regulatory requirements, were to be considered met.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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 RegulationsMichael CookeSenior MemberATTACHMENTMigration 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 The issue in the present case is whether the applicant is the carer of her sponsoring mother.The Hearing 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. 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. 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. 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. 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. 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.