The recent case of Nguyen v Minister for Immigration establishes that when assessing the criteria set out under reg 1.15AA (1)(e) in conjunction with reg 1.15AA (1)(b)(iv) of Migration Regulations 1994 with respect to Carer (subclass 836) visa, the decision-maker needs to not only take into account the assistance required temporarily but also the ongoing assistance required for at least two (2) years.
Reg 1.15AA(1)(b)(iv)
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(b) according to a certificate that meets the requirements of subregulation (2):
(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;
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Reg 1.15AA(1)(e)
(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
Background
- The applicant, Ms Nguyen applied for a Carer (Subclass 836) visa to enable her to provide assistance to her mother, Ms Ton (sponsor) who is an Australian citizen.
- The sponsor, Ms Ton had a medical condition that was the subject of a Carer Visa Assessment Certificate provided by Dr Lim who diagnosed her as suffering from chronic bilateral weakness of the lower limbs and atrial fibrillation.
- Ms Ton met the requirements for a carer, as she had “the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years”.
- The Department refused to grant Ms Nguyen a carer visa, and the Tribunal affirmed the same on the basis that Ms Ton shared a household with her son, her youngest daughter, Anh including Anh’s husband and their daughter, and that they could reasonably provide the direct assistance that Ms Ton required.
- The applicant sought judicial review in the Federal Circuit Court of Australia (FCCA) which was unsuccessful, and appealed to the Federal Court.
Issues
The main issue at hand was the Tribunal’s findings regarding the direct care that Ms Ton’s Australian relatives could provide, in that, it had not undertaken any realistic assessment of Ms Ton’s relatives’ future capacity or availability to provide her with the direct assistance she would require.
In the applicant’s application for judicial review, she relied on a single ground:
“The Tribunal’s decision was affected by jurisdictional error, in that, when considering whether “the assistance” for which the applicant’s mother had a need could reasonably be provided by a relative, the Tribunal misconstrued reg. 1.15AA (1)(e), in that the Tribunal treated the “assistance” as being only required at the time of decision, when on the proper construction of reg. 1.15AA(1)(e), “the assistance” was that for which the applicant’s mother had a need at the time of the assistance and for a period of at least two years from the date the Certificate”.
Counter-arguments
- That two years is not linked to the “assistance” but is instead linked to the “medical condition”.
- The assistance to be given is assessed against the medical condition rather than any temporal criteria for which the assistance could be provided.
To the above, the appellant argued the following:
- The “assistance” is “direct assistance in attending to the practical aspects of daily life” for which the resident “has, and will continue for at least 2 years to have, a “need”. (In other words, the “assistance” is that which is “needed” by the resident and will continue to be the subject of such a “need” for at least 2 years from the date of certificate).
- Therefore, the reasonable capacity of another relative or relatives to provide the assistance – the matter dealt in subpar (e)(i) – is to be assessed by reference to the “need” of the resident for assistance over the whole of the period of at least two years from the date of certificate.
Federal Court’s decision
- The “assistance” referred to reg 1.15AA (1)(e) must be a reference to the assistance the person to be cared for needs.
- The Court rejected the analysis that the word “two years” were not linked to “the assistance” but were instead linked to the “medical condition” on the basis that the medical assessor is required to certify that because of their medical condition a person will need to have a need for assistance for a continuing period of at least two years.
- The condition a person suffers from and the nature of the direct assistance that the person will require, its quality and quantity, over a period of not less than two years, are not independent variables.
- The Tribunal must take the assessor’s opinion as to what that person’s need for direct assistance will be over that period to be correct for the purposes of reg 1.15AA(1)(e).
- For these reasons, the Court is satisfied that the primary judge erred in accepting the submissions of the Minister that there is no link between the “assistance” and the period of at least two years for which the direct assistance will be required.
Getting Assistance
If you require assistance in understanding the specific requirements or in the preparation of a Carer visa, it is worthwhile to seek immigration legal advice as to whether your case would have a reasonable prospect of success. At Mckkrs, we are well-trained to handle highly complex matters. Book one of our agents for professional advice by calling 02 4626 1002 or email us at admin@mckkrs.com.au
