Luu (Migration) [2023] AATA 3653 (11 October 2023)

Last Updated: 10 November 2023

Luu (Migration) [2023] AATA 3653 (11 October 2023)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Kim Lien Luu

VISA APPLICANTS: Mr Minh Tan Ho
Mrs Thi My Phung Phan
Miss Ngoc Vang Ho
Miss Ngoc Ngan Ho

REPRESENTATIVE: Ms My Yen Tran

CASE NUMBER: 1935680

HOME AFFAIRS REFERENCE(S): OSF2015/001240

MEMBER: Deputy President Justin Owen

DATE: 11 October 2023

PLACE OF DECISION: Sydney

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

Statement made on 11 October 2023 at 2:37pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – care cannot reasonably be provided by any other specified relative or reasonably obtained from service providers – severe and chronic mental health conditions and physical pain – significant assistance needed for activities of daily living – current carer/nominee no longer desires to provide care – no contact with only Australian citizen sibling – no attempts to access assistance through NDIS or elsewhere – insufficient evidence as to unsuitability to receive assistance from anyone but visa applicant – preference for particular service not a cultural reason or barrier to assistance from other provider(s) – decision under review affirmed

LEGISLATION
Migration Regulations 1994 (Cth), r 1.15AA(1)(e), Schedule 2, cl 211

CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. On 17 April 2015, Mr Minh Tan Ho, the first-named visa applicant (the applicant), applied for an Other Family (Migrant) (Class BO) visa. The application was made on the basis of providing assistance to his aunt (his mother’s sister), Ms Kim Lien Luu, who is the resident and sponsor. Ms Luu is also the review applicant for the purposes of this review. The applicant’s wife and two children, Mrs Thi My Phung Phan, Miss Ngoc Vang Ho and Miss Ngoc Ngan Ho are secondary applicants.
2. 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 116.221.
3. On 12 December 2019, a delegate of the Minister for Home Affairs refused to grant the visas. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate found it had not been demonstrated that the care the Australian resident (and review applicant) required, could not reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the applicant was unable to meet reg 1.15AA(1)(e)(ii) of the Regulations. Therefore, the applicant did not meet clause 116.221 of Schedule 2 to the Regulations made under the Migration Act 1958 (the Act).
4. On 18 December 2019, the review applicant lodged an application for review with the Tribunal. On 24 December 2019, she provided the Tribunal with the delegate’s decision record. This is a review of the delegate’s decision.
5. The review applicant appeared before the Tribunal on 11 September 2023 to give evidence and present arguments. The review applicant suffers from a range of mental health conditions and was represented by her friend and existing carer Ms Tiffany Quach who spoke on her behalf. Whilst no formal power of attorney exists, the Tribunal is satisfied that Ms Quach, who has resided with the review applicant since 2016 and is the review applicant’s nominee for her dealings with Australian government agencies such as Centrelink, is the applicant’s carer and was representing the best interests of the review applicant. Post-hearing, the review applicant’s representative provided signed correspondence from Services Australia that confirmed Ms Quach is the review applicant’s nominee. Given the circumstances of this case, and the communication challenges of the review applicant, the Tribunal is satisfied that Ms Quach provided evidence on behalf of the review applicant. The Tribunal also received oral evidence from the applicant, Mr Minh Tan Ho. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
6. The review applicant was represented in relation to the review. The representative attended the hearing.
7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether assistance can be reasonably provided for the purposes of reg 1.15AA(1)(e)(i) or (ii).

BACKGROUND ON THE EVIDENCE

8. The applicant was born on 29 April 1980 in Dong Nai, Vietnam. The applicant is married with two children born in 2008 and 2009, all of whom are included in the visa application.
9. The review applicant was born on 20 December 1965. The applicant’s mother is her sister; therefore the applicant is her nephew. The review applicant’s most updated Carer Visa Assessment Certificate (CVAC) is dated 10 March 2022. It states that the review applicant suffers from chronic and severe mental health conditions, impairing her functioning. She has an impairment rating of 30 under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991).

Whether the visa applicant has claimed to be a ‘carer’

10. Clause 116.211 of the Regulations requires that the visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is a carer of the review applicant, who is the applicant’s aunt.
11. 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 116.211(2). The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
12. 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 reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.
13. Regulation 1.15AA(1)(a) requires the visa applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03, i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s aunt.
14. The Tribunal is satisfied on the evidence before it the applicant is the nephew of the ‘close relative’ who is an Australian citizen usually resident in Australia. The Tribunal notes the evidence in the Departmental file that the close relative (and review applicant) arrived in Australia on 13 January 1994 and was granted Australian citizenship on 10 December 1997. The Tribunal accepts the claim the close relative is ‘usually resident in Australia’.
15. Therefore, as the applicant is the nephew 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).
16. Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.
17. 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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
18. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 10 March 2022. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2). The Tribunal is satisfied that according to the certificate, the resident or member of the family unit of the applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the person who has the medical condition has an impairment rating (of 30) 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 two years, a need for direct assistance in attending to the practical aspects of daily life.
19. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). 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.
20. 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.
21. 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.
22. 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 17/126.
23. In the present case, the impairment rating specified in the certificate is 30. This rating meets the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
24. 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 two years as a result of the medical condition.
25. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
26. 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.
27. The review applicant’s most recent CVAC states the review applicant is partially dependent, requiring assistance with bathing/showering, dressing/grooming, eating/feeding, supervising medication, supervision for personal safety and transportation. The review applicant was diagnosed with chronic and severe mental health issues including schizophrenia and depression. It is also submitted she has constant pain over her neck, head, and right knee. The review applicant has been living with her friend Ms Tiffany Quach, who also claims she wishes to now provide care and support to a family member. The Tribunal notes the medical evidence from Dr Leslie FT Lim, the review applicant’s former psychiatrist, who submitted in October 2019 that the review applicant since 2007 has been isolative and home-bound.
28. The Tribunal notes that the review applicant’s parents are deceased and she has no children. The review applicant has six siblings. She claims three of her siblings reside in Vietnam whilst another resides in Sweden. The Tribunal accepts the claim.
29. There was confusion in the delegate’s consideration, principally due to the provision of erroneous information from the applicant, as to the status of the applicant’s mother Ms Kim Hue Luu, who is another of the review applicant’s siblings. The applicant has previously claimed his mother was the review applicant’s closest relative in Australia. At the hearing the applicant explained that this was an error and his mother in fact lived in Vietnam and had never actually visited Australia. The Tribunal notes the applicant has attempted to correct this information previously and accepts the explanation for the error. The Tribunal accepts Ms Kim Hue Luu is not an Australian citizen or permanent resident.
30. The remaining relative in Australia of the review applicant who is an Australian citizen is her younger sister Ms Thi Thu Hoang Luu. The applicant claimed his aunt Ms Luu did not get on with the review applicant. The Tribunal asked the applicant what attempts had been made to contact Ms Luu. He said he had tried but she was uncontactable. He stated he had last tried to make contact more than ten years ago.
31. Ms Quach on behalf of the review applicant stated that there had been no contact between the review applicant and her younger sister Ms Luu for many years. It was submitted that Ms Luu was married with two sons but was unable to reasonably provide the assistance the review applicant required as she did not like mentally ill people.
32. The Tribunal notes the paucity of evidence before it pertaining to the review applicant’s family generally. The Tribunal notes the lack of evidence concerning the review applicant’s younger sister, and furthermore notes the evidence suggests that she did at some point reside with the review applicant and provide some level of assistance. Nevertheless the Tribunal ultimately accepts the veracity of the review applicant and applicant’s submissions concerning the lack of family members in Australia. The Tribunal accepts that the only Australian relative she has in Australia, who is an Australian citizen, permanent resident or eligible New Zealand citizen, and may be able to provide the assistance she requires is her younger sister Ms Luu. The Tribunal accepts that the relationship between the parties has broken down, and Ms Luu is unable to reasonably provide the review applicant with the considerable assistance she requires.
33. The Tribunal is subsequently satisfied that the assistance the review applicant requires as the Australian resident cannot reasonably be provided by another Australian relative. Accordingly, the requirements of reg 1.15AA(1)(e)(i) are met.
34. The Tribunal has considered whether the assistance cannot be reasonably obtained from welfare, hospital, or nursing or community services.
35. The Tribunal notes that in the applicant’s Form 47OF application form, the box ‘Yes’ was selected to Question 71 that enquires “Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?” The claim made was the review applicant had sought assistance from mental health services, and these services were not obtainable in the long-term. No additional information was supplied with the application.
36. At the hearing, the Tribunal noted that in the decision record the applicant provided, it stated that no attempts had been made to access assistance, and the review applicant had stated she had not sought the help of any public community services as these services were not suitable for her condition. Ms Quach on behalf of the review applicant confirmed this was the case, and stated that this was because the review applicant did not like strangers. The Tribunal asked whether residential care, given the review applicant’s needs, had been sought. Ms Quach on behalf of the review applicant stated in the negative, and repeated the review applicant did not want assistance provided by anyone else. The applicant agreed that the review applicant did not wish for any services she required to be provided by strangers.
37. The Tribunal noted at the hearing that the BUPA Assessment of the review applicant of 10 March 2022 stated the review applicant had not engaged any care services.
38. The Tribunal notes the evidence that the review applicant had a National Disability Insurance Scheme (NDIS) plan approved in November 2019. The Tribunal enquired as to what services had been utilised. Ms Quach on behalf of the review applicant said nothing. She explained that this was because the review applicant did not want to deal with strangers. It was confirmed that no service providers had been contacted.
39. This evidence was supported by the signed statutory declaration of the review applicant in August 2017 which stated, “I have not sought the help of any public community services as it is not suitable for my medical condition. I am afraid of people and I am very anxious of strangers and I am scared for my safety. I do not trust strangers and do not want them to care for me”.
40. The review applicant’s existing carer Ms Quach in her own statutory declaration of 29 August 2023 states “I cannot get help from any services for Kim (the review applicant) as she is afraid of strangers. She had NDIS approval but she has not used it because she often tells me she would kill herself if strangers come to the house or comes close to her as she does not trust anyone”.
41. The claim before the Tribunal by the review applicant, the applicant, as well as the review applicant’s current carer Ms Quach is, as a consequence of the review applicant’s mental health condition, assistance cannot be reasonably obtained from welfare, hospital, or nursing or community services. It has been asserted that the review applicant’s nephew, the applicant, is instead needed to provide care to the review applicant, as he could look after her physically and emotionally. The review applicant’s current carer Ms Quach, who receives carer’s payments for the care she provides the review applicant, states she no longer desires to provide care to the review applicant.
42. In support of the claim that external assistance is not appropriate for the review applicant, the applicant submitted several letters from Dr Leslie FT Lim. Dr Lim was the review applicant’s psychiatrist for a significant period of time. In the correspondence of 13 July 2017, Dr Lim states the review applicant had not been accessing appropriate services and assistance from external agencies and nursing homes as she was “not confident” about their ability to provide her with care specific to her needs. Dr Lim states “I must say however, that such services and assistance agencies are indeed available”.
43. The Tribunal has also noted subsequent correspondence from Dr Lim in December 2021 that states the review applicant “is unable to care for herself and incapable of independent living. She will thus require continuing supervision and care for the foreseeable future”. The applicant also provided a further very brief letter from Dr Lim dated 5 July 2022 that states the review applicant’s illness made her unsuitable for nursing home placement. Dr Lim wrote “There are also no appropriate or suitable community care for her”. The review applicant’s representative informed the Tribunal that Dr Lim has since retired from practice.
44. The Tribunal has considered the claims, supported by Dr Lim’s most recent piece of correspondence, that the review applicant is unsuitable for assistance to be provided to her via both community care or residential care. The Tribunal also notes the correspondence of her GP Dr Thu Dung Dang dated 28 August 2023 that states it would be beneficial for the review applicant to be looked after by someone she knows and speaks her language; and his earlier correspondence of 31 January 2020 that states there is no appropriate level of community care for her condition, and she is unsuitable for nursing home placement.
45. The Tribunal accepts the review applicant is suffering from a significant mental health illness. The Tribunal notes the various medical correspondence submitted over the last decade as to the review applicant’s mental state which indicates she suffers from a major depressive disorder. The Tribunal has taken into account the correspondence of 25 February 2015 of her psychologist Ms Huy Anh Nguyen who states the applicant requires a full-time carer and help in her daily function tasks. The Tribunal accepts that this has precluded her from employment and made her dependent upon others, including Ms Quach for many years.
46. The Tribunal has considered the correspondence of Dr Lim and Dr Dang and their submissions that the review applicant is unsuitable to receive the assistance she requires from welfare, hospital, or nursing or community services, including that of residential care. The Tribunal notes that the correspondence of Dr Lim lacks any evidence as to on what basis such a conclusion has been drawn. The correspondence on each occasion is spare and limited to no more than a few paragraphs. There is no evidence before the Tribunal as to Dr Lim’s treatment of the review applicant over the years and how they have drawn these conclusions. The Tribunal would also note Dr Lim’s initial claims, at a time when the review applicant was already facing mental health challenges, that such services and external assistance was in fact available. The Tribunal considers it uncontroversial that the review applicant requires considerable assistance of some kind to undertake her daily living given her significant mental health conditions. The Tribunal notes however that the actual medical evidence on which Dr Lim has based his correspondence, and their stated opinion, is not before the Tribunal. The Tribunal notes the correspondence of Dr Dang (28 August 2023 and 8 December 2021) that lists the applicant’s current medications as well as their past medical history. It does not however outline the basis for the opinion as to why the applicant is wholly unsuitable to receive assistance from anyone other than a family member, namely her nephew. The correspondence does not satisfy the Tribunal that the applicant is unable to receive the assistance she requires from welfare, hospital, or nursing or community services, including that of residential care. The Tribunal has in such circumstances, and given the paucity of objective evidence actually supporting such an assertion, does not accept the claim that the review applicant is wholly unsuitable to receive assistance from welfare, hospital, or nursing or community services, including that of residential care, based upon her mental health condition.
47. The Tribunal notes that, the NDIS approved Plan in 2019 and her personal medical treatment notwithstanding, the evidence before it is that the review applicant has not attempted to obtain the assistance she requires through welfare, hospital, nursing or community services. There is no evidence or claim that the NDIS Plan, whatever the services available, has ever been actioned by the review applicant or her current carer Ms Quach. The Tribunal would note this Carer visa application was lodged in 2015. In 2019 Dr Lim was asserting, four years after the lodgement, that services were in fact available to the review applicant. Nothing was however done to access those services for a significant period of time. The Tribunal considers the failure to make even any basic enquires (the NDIS Plan notwithstanding) as to whether the assistance the review applicant requires was available from welfare, hospital, nursing or community services at any time since the lodgement of the application in 2015 speaks to a preference to receive these services from a friend or family member, not that those services were not reasonably obtainable.
48. The Tribunal notes that the claim of the review applicant and Ms Quach that the review applicant has not made any attempts to obtain the assistance she require through welfare, hospital, or nursing or community services as she has special needs, and needs a family member – namely her nephew – to provide those services to her. The submission is that she needs that required assistance to essentially be obtained from a family member – namely her nephew – in the home. The Tribunal considers the review applicant has expressed a preference for such services to be provided by her nephew.
49. The Tribunal notes that there is no corroborative evidence before it of the review applicant making any efforts to obtain care and assistance from community, government, hospital and welfare organisations, including residential care given her circumstances, beyond the application for an NDIS Plan and her personal medical treatment.
50. Despite the applicant’s pressing need for care, it is clear that few attempts were made whatsoever to obtain the care and assistance from community, government, hospital and welfare organisations the review applicant requires, beyond her personal medical care from her GP and medical specialists, at the time of application. The Tribunal has considered the evidence before it and is not satisfied that any genuine efforts have been undertaken to obtain assistance from any Australian community, government, hospital and welfare organisations, beyond both the application for an NDIS Plan in 2019, more than four years after this Carer visa application was lodged, and of course her ongoing treatment from her GP and medical specialists, at the time of decision. On the basis of this absence of enquiry, the Tribunal is not satisfied that the services the review applicant requires are not reasonably obtainable from community, government, hospital and welfare organisations.
51. It is submitted that the review applicant requires 24/7 care. The Tribunal accepts that the review applicant’s mental health needs are significant, and she requires considerable support. Ms Quach and the applicant both stated in their oral testimony that the review applicant needs 24/7 care. The Tribunal asked, in such circumstances, what attempts had been made to access residential care? Ms Quach stated the review applicant does not want residential care. The Tribunal pointed out that all options for care must be thoroughly investigated with supportive evidence. As discussed earlier in this decision record, it is submitted that the review applicant is unsuitable for residential care due to her specific mental health issues. Ms Quach, the review applicant and the applicant as the review applicant’s nephew have all expressed a clear preference for the review applicant to receive care from her nephew, the applicant. The parties have asserted that the applicant is the most suitable person to provide the increasing care the review applicant requires.
52. The Tribunal has considered all the evidence before it concerning what attempts to obtain the assistance the review applicant requires from any welfare, community, hospital or nursing services have been made. The Tribunal has considered this in the context of the review applicant’s health needs as highlighted in the CVAC, and the other medical evidence submitted from the review applicant’s treating medical professionals.
53. The Tribunal acknowledges that the review applicant as the Australian resident may have a strong preference to receive care from the applicant in her own home. The Tribunal notes that reg 1.15AA(1)(e)(ii) requires that care must be sought in order to determine that there is no assistance that is able to be reasonably obtained from welfare, hospital, nursing and community services in Australia.
54. The Tribunal discussed the review applicant’s needs for assistance at the hearing. The Tribunal asked why these services could not be obtained from external welfare, hospital or nursing or community services. The argument is the review applicant is unsuitable for any assistance to be provided by anyone other than the existing carer, Ms Quach or a family member, namely the review applicant’s nephew. The parties are opposed to the review applicant entering residential care, despite the claims she requires 24/7 assistance.
55. The Tribunal notes that the evidence before it strongly suggests that no attempts have been made to obtain any of the services the review applicant, as the Australian resident, requires at any time between the time of application and the time of decision beyond her ongoing medical treatment and the application for an NDIS Plan that was granted in 2019 but never actioned.. The Tribunal notes that to meet the criteria for the grant of this visa, the review applicant is required to illustrate that this assistance cannot be reasonably obtained through welfare, hospital, or nursing or community services. The Tribunal acknowledges an NDIS Plan was applied for and granted in 2019 but no support has subsequently been sought through the plan.
56. Given the paucity of attempts that have been made to enquire into and obtain the services the review applicant requires from from community, government, hospital and welfare organisations, the Tribunal is not satisfied that these services are not reasonably obtainable.
57. The Tribunal is not satisfied from the very limited evidence before it that the assistance the review applicant as the Australian resident requires cannot be reasonably obtained from welfare, hospital or nursing or community services. On the evidence before it, due to the lack of any genuine enquiries into what services are available, the Tribunal is unable to come to a level of satisfaction that the services required cannot be reasonably obtained. There is no evidence from agencies or service providers confirming that they cannot provide suitable assistance, or that the availability of care they provide does not cover the care required by the review applicant as the Australian resident. Quite simply, the Tribunal is not satisfied that any meaningful attempt has been made to obtain the services the Australian resident, the review applicant, requires. The Tribunal has come to this conclusion taking into account the medical evidence that has been submitted which purported that such services were unsuitable for the review applicant. For the reasons stated previously, the Tribunal does not accept the conclusions drawn from this advice.
58. The Tribunal accepts the review applicant as the Australian resident has a preference for the services she requires to be obtained from her nephew, the applicant, rather than from external services. The Tribunal notes the correspondence from Dr Dang, the review applicant’s GP, who stated the review applicant would benefit from receiving the assistance she requires from someone that speaks Vietnamese. The Tribunal has considered the issue of cultural reasons for the applicant to provide the care the review applicant requires. The Tribunal notes however that a mere preference for a particular service is to be distinguished from a cultural reason. In Hon Anh Vuong v MIAC [2013] FCCA 274, the Court found that the applicant’s mere preference to be cared for by his children rather than by strangers was not a barrier to his obtaining welfare assistance and therefore was not a matter that the Tribunal was required to consider further in its determination of reg 1.15AA. There is no evidence before the Tribunal of culturally specific services being sought by the review applicant in reasonably obtaining the assistance she requires from welfare, hospital or nursing or community services. Quite simply, there is no evidence of the review applicant seeking to obtain this assistance from any other providers, whether they are culturally appropriate and speaking Vietnamese providers or not. On such evidence before it, the Tribunal considers the review applicant, as the Australian resident, has a preference to be cared for by her nephew, the applicant, rather than via obtaining external welfare, hospital, nursing or community services. The Tribunal considers the review applicant’s desire for this care to be obtained from her nephew is clearly a preference, rather than for any specific cultural reason.
59. The Tribunal also notes Lam v MIBP [2013] FCCA 1263, where the Court confirmed it is for the applicant to satisfy the Tribunal that the relevant services are not reasonably obtainable. The Tribunal accepts the review applicant as the Australian resident may have a preference to obtain the services she requires from the applicant. There is no evidence before the Tribunal however that this preference is a barrier to the review applicant reasonably obtaining welfare, hospital, or nursing or community services assistance. Given there is no evidence of any effort that has been undertaken to obtain the services she requires (beyond the NDIS Plan), the Tribunal is not satisfied that the services the review applicant requires are not reasonably obtainable. The Tribunal is not satisfied that the Australian resident’s preference for her nephew, the applicant, to provide her with care services is a barrier to her reasonably obtaining those services via welfare, hospital, nursing or community services.
60. The Tribunal has considered the evidence before it pertaining to the efforts undertaken by the review applicant to obtain assistance from welfare, hospital, nursing or community services. The Tribunal accepts the review applicant would prefer for the care required to be provided by her nephew, the applicant. The Tribunal is not however satisfied that the care required is not reasonably obtainable from available welfare, hospital, nursing or community services. In the absence of the review applicant undertaking what it considers are reasonable steps to enquire into and attempt to obtain such services, the Tribunal cannot be satisfied that these services and this care is not reasonably obtainable from welfare, hospital, nursing or community services in Australia.
61. The Tribunal considers on the evidence before it that there have been no attempts made to obtain welfare, hospital, nursing or community services beyond the application to the NDIS made some four years ago and the applicant’s ongoing medical treatment from her GP and specialist. The Tribunal has considered the claim of the applicant and Dr Lim and Dr Dang that the review applicant is unsuitable to receive the assistance she requires from welfare, hospital, nursing or community services. The Tribunal is not satisfied on the limited medical evidence before it that the review applicant is unsuitable to receive the assistance she requires from such services. The review applicant has some significant care needs but, based on the evidence before it, the Tribunal is not satisfied that the assistance she requires is not available either from welfare, hospital, nursing or community services, particularly at the residential level.
62. On the basis of such little corroborative and supportive evidence concerning attempts to access such assistance, the Tribunal is not satisfied that the assistance the review applicant requires cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e)(ii) are not met.
63. The Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are not met.
64. Given these findings, the Tribunal concludes that at the time of decision, the applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl 116.221.
65. For the reasons above, the 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 visa applicant meets prescribed criteria for the visa sought.
66. The evidence before the Tribunal is that the applicant was born on 29 April 1980. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 114 (Aged Dependent Relative) visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991. As such, the applicant is not an ‘aged dependent relative’ as defined in reg 1.03 for cl 114.211 of Schedule 2 to the Regulations.
67. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 115 (Remaining Relative) visa as the applicant’s near relatives, as defined in reg 1.15(2), reside in the same country as the applicant. The applicant’s wife Ms Thi My Phung Phan and his daughters Miss Ngoc Vang Ho and Miss Ngoc Ngan Ho, all secondary applicants in this application, each reside with the applicant in Vietnam. At the time of application and the time of decision, the applicant is not the remaining relative of an Australian relative, as he has a spouse and two daughters who are Vietnamese nationals. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 115.211.

Secondary applicants

68. The applications of the secondary applicants Ms Thi Phung Phan, Miss Ngoc Vang Ho and Miss Ngoc Ngan Ho were refused by the delegate on the basis that the applicant’s visa had been refused. As the Tribunal has affirmed the delegate’s decision and found that the applicant does not meet the relevant criteria for the grant of the visa, the Tribunal affirms the decision to refuse the applications of the secondary applicants.
69. The secondary applicant Ms Thi Phung Phan does not meet cl 116.321 as she is not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.
70. The secondary applicant Miss Ngoc Vang Ho does not meet cl 116.321 as she is not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.
71. The secondary applicant Miss Ngoc Ngan Ho does not meet cl 116.321 as she is not a member of the family unit of a person who satisfies the primary criteria for the grant of the visa.
72. There is no evidence, and no claims before the Tribunal, that the secondary applicants meet the primary criteria for the grant of Other Family (Migrant) (Class BO) visas.

DECISION

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

Justin Owen
Deputy President
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.