respondent. The Tribunal affirms the Delegate's decision to refuse the Other Family (Residence) (Class BU) Subclass 836 visa because the applicant failed to satisfy cl.836.212: the sponsor was not 'usually...
Key principles
The Tribunal affirmed the Delegate's refusal because the applicant did not satisfy cl.836.212: the sponsor was not 'usually resident' in the same household as the person in need...
The correct legal test for 'usually resident' requires dual factors of physical residency and intention; continuity of association together with an intention to return and an...
Because the applicant failed to meet the primary criterion in cl.836.212, the Tribunal did not proceed to grant the Subclass 836 visa; alternative visa subclasses were also not...
Issues before the court
Was the sponsor 'usually resident' in the same household as the person in need of care at the time of application, as required by cl.836.212 and...
If the residency criterion were met, could assistance reasonably be provided by another relative or obtained from welfare, hospital, nursing or...
Plain English Summary
The Tribunal upheld the refusal of a carer (Subclass 836) visa because, at the time of application, the sponsor (the Australian relative) was not 'usually resident' in the same household as the person needing care. The Tribunal applied established tests for 'usual residence'—physical presence plus intention to reside—and, after assessing documents and oral evidence, found the sponsor only moved into the relevant house after the visa was refused. Consequently the primary statutory requirement for the carer visa failed and the application was refused.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,685 words · generated 19/07/2026
What happened
This is an AAT (Migration & Refugee Division) rehearing on remittal of a carer visa refusal. The applicant, Mrs Thi Ve Nguyen (Vietnamese citizen), applied for an Other Family (Residence) (Class BU) Subclass 836 carer visa on 28 May 2014 to remain in Australia to care for her mother, Mrs Hoa (Australian citizen). The Delegate refused the application on 17 October 2014 because the sponsor (the applicant's sister) was not 'usually resident' in the household of the person in need of care at the time of application; that finding meant the applicant did not satisfy cl.836.212 and associated regulation requirements (Statement of Decision [1]–[6]).
Cited legislation
No linked legislation citations have been extracted yet.
The Tribunal initially affirmed that refusal on 23 February 2016 but accepted material suggesting the sponsor was 'temporarily' residing elsewhere and was usually resident at the Forest Lake house (Statement of Decision [7]). The Federal Circuit Court set aside that AAT decision on 28 February 2017 as legally unreasonable in aspects, principally because the Tribunal's reasoning on the 'obtainability' of institutional care was deficient (Statement of Decision [9]). The Federal Court allowed the Minister's appeal and remitted the matter to the Tribunal for rehearing on 20 September 2017 (Statement of Decision [10]).
On remittal, the Tribunal conducted a fresh hearing on 4 December 2018 (with interpreter assistance) and received oral evidence from the applicant, the sponsor and the sponsor's daughter. The Tribunal again found that the sponsor was not 'usually resident' in the Forest Lake household at the time of application in May 2014, concluding that the sponsor only established usual residence there in November 2014 after the visa refusal. The Tribunal therefore found cl.836.212 was not satisfied and affirmed the Delegate's refusal on 18 December 2018 (Statement of Decision CONSIDERATION [6], [15], [22]–[24]; DECISION [26]).
Why the court decided this way
The decision turned on the statutory meaning of 'usually resident' in the context of the carer visa criteria (cl.836.212 together with r.1.15AA(1)(b)(i) and the definition of 'member of the family unit' r.1.12(4)(d)(ii)). The Tribunal applied established authority that 'usually resides' is tested by dual factors: physical residency (where one 'eats and sleeps' and the usual abode) and intention (continuity of association and intention to return). The Tribunal expressly relied on Koitaki (HCA authority on residence), Scargill, Ignatious and Hidalgo, and the Hafza formulation about continuity of association and intention to return (CONSIDERATION [4]–[5]).
Applying that test, the Tribunal scrutinised the contemporaneous documents (application form, sponsorship form, Carer Visa Assessment Certificate dated 16 May 2014) which listed the sponsor's address as Ellen Grove and the mother and applicant as living at Forest Lake; it analysed statutory declarations and a 2015 submission that told a story of temporary relocation due to marital difficulties; and it heard oral evidence in December 2018 (CONSIDERATION [6]–[9], [11]–[16]).
Critical features of the Tribunal's analysis were credibility and consistency. The Tribunal found the 2015 documentary narrative relied upon at the first Tribunal review to be inconsistent with earlier documentary material and later oral testimony. The Tribunal regarded the 'marital troubles/temporary relocation' explanation as fabricated for visa purposes and placed little weight on the 2015 declarations and the sponsor's later statutory declaration (CONSIDERATION [12]–[16], [20]). It accepted limited facts (the sponsor visited often, provided some financial help and attended shopping and care activities) but found no intention to return to live at Forest Lake in May 2014. On those factual bases the Tribunal concluded the sponsor lacked the requisite 'usual residence' and so the primary statutory criterion for the Subclass 836 visa failed (CONSIDERATION [22]–[23]).
Because cl.836.212 was not satisfied, the Tribunal did not grant the visa and did not make a positive finding on r.1.15AA(1)(e) (whether assistance could reasonably be provided by other relatives or services), although that issue had been the focus of earlier judicial review (CONSIDERATION [3], [23]–[24]; judicial history [9]–[10]).
Before and after state of the law
Before this rehearing, the legal framework and precedent for assessing 'usually resident' had been well-established in Australian law: Koitaki supplies the classical 'where he eats and sleeps' test and subsequent authorities emphasise that a person may be resident in more than one place but residence persists if there is continuity and an intention to return (CONSIDERATION [4]–[5]). The AAT's initial decision adopted a favourable interpretation for the applicant (finding the sponsor usually resident despite different addresses), but was set aside on judicial review because of lacunae in reasoning concerning the obtainability of institutional care (Federal Circuit Court and Federal Court interventions summarised at Statement of Decision [9]–[10]).
After the AAT rehearing, the law as applied in this matter remains consistent with established authorities: 'usually resident' requires both factual residence and intention; documentary inconsistency and adverse credibility findings justify a conclusion that the resident criterion was not met. The rehearing confirms that factual scrutiny of documentary evidence, contemporaneous application forms and behaviors around the application date are decisive. It also reinforces that tribunals must provide adequate reasoning on contested issues such as 'obtainability' when previously scrutinised on appeal (see case history at Statement of Decision [9]–[10]).
This decision does not change statutory law but illustrates the practical application of precedent to the facts: credibility, contemporaneity of evidence, and intention are crucial.
Key passages with plain-English translation
"dual factors of physical residency and intention are essential elements in the notion of 'usually resides'" (CONSIDERATION [4]).
Plain English: To be 'usually resident' you must both actually live in a place (eat, sleep, have your usual abode there) and intend for it to be your home; both elements matter.
"The Tribunal finds that the sponsor was not usually resident in the house of her mother at the time of application in 2014." (CONSIDERATION [6])
Plain English: On the facts, the sponsor was not living as a regular resident in the mother's house when the visa was applied for.
"The Tribunal finds that the applicant was not usually resident in the same household as her mother at the time of application. Therefore cl.836.212 is not met." (CONSIDERATION [23])
Plain English: Because the sponsor and the person needing care were not usually living in the same household, the applicant failed the main legal requirement for the carer visa.
"The Tribunal ... finds that the story about the sponsor's marital troubles was fabricated for the purpose of the visa application." (CONSIDERATION [15])
Plain English: The Tribunal did not believe the narrative used to explain why the sponsor lived elsewhere; it considered that story made up to help the visa case.
What fact patterns trigger this precedent
Cases where the applicant for a carer visa relies on a sponsor who has multiple addresses or claims a temporary absence from the household at the application date.
Situations where contemporaneous application documents list different residential addresses for the sponsor and the person needing care, and credibility of later statutory declarations or submissions is contested.
Cases where the sponsor claims to be the 'head' of a household despite living elsewhere and where proof of intention to return is ambiguous or unsupported.
Instances where the Tribunal must weigh documentary contemporaneous evidence (application forms, medical certificates) against later statements and oral testimony.
Any case where the 'usually resident' inquiry is determinative of a primary statutory criterion for family-based visas under Schedule 2 cl.836.212 and related regulations.
If a sponsor genuinely lived at the cared-for person’s address at the application time, or had clear contemporaneous evidence of intention to return and continuity of residence, this precedent would not assist an affirmance of refusal.
How later courts have treated it
This decision sits in a chain of decisions where higher courts scrutinised the Tribunal’s earlier reasoning. The AAT’s first affirmation was set aside by the Federal Circuit Court for legal unreasonableness in reasoning about obtainability of institutional care (Statement of Decision [9]). The Federal Court then allowed the Minister’s appeal and remitted the case, finding the Tribunal had erred in construing r.1.15AA(1)(e) (Statement of Decision [10]). On remittal, the Tribunal applied the settled principles on residence and delivered a carefully reasoned factual assessment focused on contemporaneous evidence and credibility; the Tribunal’s rehearing outcome illustrates the deference given to well-supported factual findings on remittal so long as the Tribunal articulates a proper path of reasoning (CONSIDERATION [3], [6], [14]–[16], [22]).
Practitioners should note that federal courts will require the Tribunal to provide clear, logical findings when addressing statutory tests such as r.1.15AA(1)(e) and the 'usually resident' enquiry. Where the Tribunal fails to provide adequate reasoning, appellate courts may set decisions aside (observed in the judicial history of this matter at Statement of Decision [9]–[10]).
Still-open questions
'Obtainability' (r.1.15AA(1)(e)): The Tribunal did not finally decide in the applicant's favour on whether care could not reasonably be provided by other relatives or services because it found the primary residency criterion unmet (CONSIDERATION [3], [23]–[24]). The precise application of r.1.15AA(1)(e) where cultural and linguistic needs (e.g. preference for Vietnamese food and a Vietnamese speaker) are asserted remains a live area, given the Federal Circuit Court's earlier criticism of insufficient findings on that question (Statement of Decision [9]).
Weight to later statutory declarations versus contemporaneous documents: This decision emphasises that contemporaneous application material and conduct around the relevant date are decisive. However, how tribunals should weigh late-produced evidence that may explain or contradict contemporaneous records remains fact-sensitive and a recurring issue.
The threshold between a factual 'temporary absence' and loss of 'usual residence': While the Tribunal used continuity and intention to return as determinative, borderline scenarios where absences are lengthy but accompanied by strong evidence of intention to return may continue to produce litigation.
Credibility and fabrication findings: This case shows significant consequences flow from findings of fabrication. Appellate courts will continue to examine whether such findings were rationally open from the material and adequately reasoned.
For practitioners: when preparing carer visa applications, ensure contemporaneous documentary consistency about addresses and living arrangements, provide contemporaneous evidence of intention to reside (if relevant), and address with evidence any linguistic, cultural or 24-hour care needs that might make institutional care 'unobtainable' in Australia.
Judgment (13 paragraphs)
[1]
Nguyen (Migration) [2018] AATA 5731 (18 December 2018)
DECISION: The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
[4]
MIGRATION - Other Family (Residence) (Class BU) visa - Subclass 836 (Carer) - Federal Circuit Court remittal - relative of an Australian resident - assistance provided by an Australian citizen relative - assistance from welfare, hospital, nursing or community services - physical residency and intention - usually resident in the home of the relative - decision under review affirmed
This is an application for review of a decision made by a Delegate of the Minister for Immigration on 17 October 2014 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a Vietnamese citizen born in Vietnam in 1962, who has been caring for her mother, Mrs Hoa, in Vietnam and Australia, since September 2013. Mrs Hoa is an Australian citizen born in Vietnam in 1927. She first arrived in Australia in 1989, sponsored by her oldest daughter, the sponsor, who was born in Vietnam in 1949 and arrived in Australia in 1981 as a refugee from a camp in Malaysia.
As noted, the sponsor, Mrs Huyen, and the visa applicant (the applicant), Mrs Ve, are sisters. Mrs Hoa, their mother, has been assessed as having an impairment rating of 70 and requires ongoing care. The applicant first arrived in Australia on 7 March 2014 on a three-month Visitor visa, and was sponsored by her sister to remain in Australia to care for their mother, Mrs Hoa.
The applicant applied for the visa on 28 May 2014. 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 (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.836.212 and cl.836.221.
The Delegate refused to grant the visa because the Delegate was not satisfied that the person in need of care, the applicant's mother, Mrs Hoa, was usually resident in the household of the sponsor. The applicant was assessed as not meeting and therefore , as required by cl.836.212 and cl.836.221. The Delegate specifically refused on the ground that the applicant did not meet cl.836.221. The Delegate noted that for the purposes of this application the resident referred to in the legislation is the sponsor.
[13]
Clause 836.212, a primary criterion to be satisfied at the time of application, requires that the applicant claims to be the carer of an Australian relative. As noted, Regulation 1.15AA(1)(b)(i) requires that the Australian citizen relative (being the resident or a member of the family unit of the resident) has a medical condition; Regulation 1.12(4)(d)(ii) defines as a member of the family unit a person who is usually resident in the family head's household; and for the purposes of this application the resident referred to in the legislation is the sponsor.
There are two issues in the present case. Firstly, whether the sponsor was living in the household of her mother, the person in need of care, at the time of application and therefore the applicant meets the carer definition in r.15AA(1)(b)(i). If so, the second issue arises of whether assistance cannot be reasonably 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 (r.1.15AA(1)(e)).
The Tribunal noted at the outset of the hearing that a great deal of evidence, argument and judicial analysis had gone to addressing the issue of whether assistance could be reasonably 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 (r.1.15AA(1)(e)). The Tribunal advised that it would be taking a fresh look at the application for review, including the residency issue.
Regarding this issue, the Tribunal has had regard to relevant case law, and notes that dual factors of physical residency and intention are essential elements in the notion of 'usually resides': Scargill v MIMIA[2003] FCAFC 116 ('Scargill'); Ignatious v MIMIA[2004] FCA 1395; and Generally speaking an individual's place of residence is to be determined by reference to where he 'eats and sleeps and has his settled or usual abode'; ; at 249, endorsed in at [17].
Parties
Applicant/Plaintiff:
Hafza
Respondent/Defendant:
Director General of Social Security
Cases Cited (2)
(1941) 64 CLR 241
(1985) 6 FCR 444
AI Analysis
Outcomerespondent
Disposition:
The Tribunal affirms the Delegate's decision to refuse the Other Family (Residence) (Class BU) Subclass 836 visa because the applicant failed to satisfy cl.836.212: the sponsor was not 'usually resident' in the same household as the person in need of care at the time of application (DECISION [26]; CONSIDERATION [23]).
The Delegate noted in the decision record that in her application form the applicant stated that the relative with the medical condition and requiring her care was her mother, Mrs Hoa, who lived at a Forest Lake, Qld address. The applicant listed her own residential address as the Forest Lake address. She listed the address of the sponsor, her sister, as an address in Ellen Grove, a nearby suburb. In the Carer Visa Assessment Certificate dated 16 May 2014, the residential address of the person in need of care, Mrs Hoa Nguyen, was listed as the Forest Lake address, and the doctor noted that she was was cared for by (the applicant), her daughter, who lived with her. On her sponsorship form the sponsor listed her address as the Ellen Grove address, and the address of the applicant as the Forest Lake address. The Delegate concluded that the sponsor was not a resident, at the time of application and the Delegate's decision, at the Forest Lake house where her mother and sister lived.
The applicant applied for review of the Delegate's decision to the Tribunal, which affirmed the decision on 23 February 2016. The Tribunal accepted sworn testimony provided in statutory declarations and at hearing, and information in a submission provided by T Lawyers, the parties' representative, that the sponsor was only 'temporarily' residing in Ellen Grove, and her principal place of residence was the house in Forest Lake. On the basis of its acceptance of this claim made by the parties at the time, the Tribunal found that the applicant met r.1.15AA(1)(b)(i). The Tribunal found that the sponsor and Mrs Hoa, who has the medical condition, despite having different residential addresses at the time of application and when the Delegate made the decision, were 'usually resident' in the same household. The Tribunal found that the visa applicant was the carer of a member of the family unit of the resident who has a medical condition.
The Tribunal, however, found that the applicant did not meet r.1.15AA(1)(e). The Tribunal was not satisfied, on the evidence and argument provided, that assistance could not reasonably be provided to Mrs Hoa by a relevant relative, or obtained from welfare, hospital, nursing or community services, in Australia. On this basis, the Tribunal found that the applicant did not meet cl.836.221.
The applicant appealed to the Federal Circuit Court, where the decision was set aside, by Justice Howard, in a decision made on 28 February 2017. Justice Howard concluded that the decision reached by the Tribunal was legally unreasonable: that its conclusion that the relatives could take care of Ms Hoa 'involved illogical reasoning'; and that the Tribunal fell into jurisdictional error by 'not providing material findings of fact or a proper path of reasoning' on the issue of the 'obtainability' (sic) of institutional care for Ms Hoa given her preference for only Vietnamese food and 'specific requirements of 24 hour 7 day a week intense personal care to be provided by a Vietnamese speaker'.
The Minister appealed to the Federal Court, which upheld the decision of the Federal Circuit Court to set aside the Tribunal's decision, and remitted the review application to the Tribunal. Justices Flick, Barker and Rangiah JJ, in a judgment made on 20 September 2017, concluded the Tribunal had committed jurisdictional error in construing and applying r.1.15AA(1)(e), and 'the Federal Circuit Court was correct in reaching the conclusion that the Tribunal had so erred'.
A hearing scheduled for 6 September 2018 was postponed at the request of the parties. One of the applicant's representatives, Ms Tieu of T Lawyers, was having a baby and unable to attend. A hearing scheduled for 9 October 2018 was postponed at the request of the parties because another representative from T Lawyers, Mr Boccabella, had a longstanding overseas commitment.
The applicant appeared before the Tribunal on 4 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the applicant's sister; and the sponsor's daughter, the niece of the applicant. The person seeking a carer, Mrs Hoa Nguyen, the mother of the applicant and sponsor, and grandmother of the sponsor's daughter and applicant's niece, attended the hearing but did not give evidence. 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 by two registered migration agents, as noted, Ms Pamela Tieu and Mr Lorenzo Boccabella, from T Lawyers, who both attended the hearing.
Early in the hearing Ms Tieu complained about the interpreting, on the grounds that not all information spoken by the applicant and sponsor was being conveyed to the Tribunal. The Tribunal advised that if the applicant wished, the hearing could be adjourned while another interpreter, probably from the Telephone Interpreter Service and over the phone, was obtained. The Tribunal advised that that it could not guarantee that this interpreter would be as highly credentialed as the interpreter attending in person. Ms Tieu advised that the problem was that some of what the parties were saying was not being interpreted. The Tribunal noted that the interpreter was passing on the information that the Tribunal was seeking, that directly answered the questions. Mr Boccabella advised the parties that they were entitled to put their case fully, but that they should speak in short sentences with breaks for the interpreter. Tribunal confirmed to the parties that they would be given all the time they needed to say everything they wanted to.
The Tribunal suggested that the hearing proceed, with the Tribunal and whomever was responding to questions or making statements taking particular care to speak in short segments of speech and pause often, to allow the interpreter to interpret everything. The Tribunal advised that if and when concerns arose, the Tribunal would repeat the question and allow the respondent to clarify her response. The parties agreed to proceed on this basis. The Tribunal took care to ask questions in simple, direct language, and on key issues such as the parties' living arrangements, confirmed responses with the parties. On several occasions the Tribunal re-worded and repeated questions, to ensure they were understood.
The Tribunal advised the applicant that she could seek an adjournment and consult with her representatives at any time. There was one adjournment during the hearing, which was not at the request of the parties. Mr Boccabella requested and was granted time to provide a further submission after the hearing. This was received by the Tribunal on 11 December 2018.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal further notes that the Court has acknowledged that a person may simultaneously be resident in more than one place. However, once a person has established a home in a particular place, even involuntarily, a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place, together with an intention to return and an attitude that the place remains home: Hafza v Director General of Social Security[1985] FCA 164; (1985) 6 FCR 444 at [449]- [450].
The Tribunal accepts that since November 2014, after the Delegate's decision in October 2014 to refuse the applicant a carer visa because the sponsor was not living in the house of her mother, Mrs Hoa, the sponsor has been living in the house of her mother, Mrs Hoa. For the reasons set out below, the Tribunal finds that the sponsor was not usually resident in the house of her mother at the time of application, in May 2014.
As noted, on her application form the applicant stated that her sister did not live with her or her mother at their Forest Lake, Queensland address. She declared that the relative with the medical condition and requiring her care, her mother, Mrs Hoa, lived at the Forest Lake address. She listed her own residential address as the Forest Lake address. She listed the address of the sponsor, her sister, as an address in Ellen Grove, a nearby suburb.
Further, in a Carer Visa Assessment Certificate dated 16 May 2014, the residential address of the person in need of care, Mrs Hoa, is listed as the Forest Lake address, and the doctor noted that she was cared for by (the applicant), her daughter, who lived with her. On her sponsorship form, the sponsor listed her residential address as the Ellen Grove address, and the residential address of the applicant as the Forest Lake address. At the time of application, the parties did not claim that the sponsor usually resided in the house at Forest Lake, where Mrs Hoa lived.
A written submission provided by T Lawyers, signed on 6 December 2015, and statutory declarations signed by the parties and supporters (Mrs Hoa, the sponsor, the sponsor's friend with whom she lived in Ellen Grove; the applicant, and Mrs Hoa's granddaughter), most signed on the same day, 30 November 2015, were provided for the first Tribunal review. These documents contain the following claims, which revolve around a story about the sponsor's marital troubles. They support the contentions: that the Forest Lake house has been the sponsor's principal place of residence since 2004, apart from a two-year break from mid-2010 to March 2012, when she lived in Sydney; that the sponsor was 'usually resident' in the Forest Lake house in 2014, despite her temporary relocation in another suburb; and that even while living in another suburb, she remained the household head, financially and emotionally, of the household at Forest Lake.
The sponsor and her then husband came to Brisbane from Sydney to open a restaurant in 2004, and jointly leased a house in Forest Lake, where they lived with their daughter Margaret and Margaret's children.
Mrs Hoa was living with another daughter in Sydney but came to Brisbane in 2005 to live with the sponsor in Forest Lakes because the Sydney daughter had mental health issues and was unable to care for her.
When the restaurant business failed in 2010, the sponsor returned to live and work in Sydney. During her two years there she visited the Forest Lake house, in Brisbane, often.
When the sponsor returned from Sydney in 2012 and moved back into the Forest Lake house she and her husband went through a period of marital discord, arising from the failure of their restaurant. Her husband agreed to move out of the house, but didn't get around to it.
Because the sponsor didn't want to force her husband to leave after over 30 years of marriage, but couldn't stand living in the same house with him, she moved out, around December 2013, into a house that her friend was renting in Ellen Grove. This move was intended to be temporary, but her husband proved recalcitrant and remained living in the Forest Lake house, so she was not able to return.
The sponsor's friend whom she moved in with did not charge the sponsor any rent or board money, because she understood the sponsor was paying rent at Forest Lake for herself and her mother, and supporting the household at Forest Lake by purchasing items such as vegetables, meat, fish, and toilet paper. The sponsor's husband, while living in the house, contributed at most only a rental contribution of $82 a week.
After the applicant moved into her friend's house in Ellen Grove, she returned to the Forest Lakes house every weekend, staying from Friday evening to Monday morning.
When the visa application was refused, the sponsor's husband, shamed by the result of his recalcitrance, left the Forest Lakes house to live in Redbank Plains, enabling the sponsor to return, in November 2014, to live in the Forest Lake house with her mother and sister.
The sponsor supported Mrs Hoa financially. Although Mrs Hoa had an age pension from Centrelink, it was insufficient because Mrs Hoa spent her money travelling to Vietnam, purchasing traditional and Western medicines, paying for a physiotherapist and other daily necessities including incontinence nappies.
The sponsor was unable to care for her mother because she had work commitments and failing health caused by her advancing years and bad back.
In summary, the submission and statutory declarations provided to the first Tribunal review claimed that the sponsor was the 'family head' of the Forest Lake household, providing financial and emotional support to her mother, sister, daughter and grandchildren who lived there, and moving out herself only temporarily because of marital troubles.
As noted, submissions and declarations and other evidence provided for the current review focussed on the issue of whether care and assistance could not reasonably be provided to Mrs Hoa by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia. Mrs Hoa, in a statutory declaration signed on 3 December 2018, did however claim: 'I have been living with my eldest daughter (the sponsor) at Forest Lake since 2005 ever since I arrived in Brisbane. (The sponsor) has provided me with accommodation and food'.
For the reasons discussed below, the Tribunal places little weight on Mrs Hoa's statutory declaration of 3 December 2018 or on the submission and statutory declarations signed in November and December 2015.
At the hearing on 4 December 2018, the sponsor and the applicant provided the following information in oral testimony.
Mrs Hoa never lived with a daughter in Sydney; when she lived in Sydney, she lived alone.
Mrs Hoa did not move to Brisbane in 2005. She did not move to Brisbane until 2013. Before this, she visited Brisbane, but maintained her home in Sydney.
The sponsor and her husband divorced in 2006.
The sponsor did not move into the Forest Lake house where her husband and daughter were living when she returned to Brisbane from Sydney in late 2012; she moved into a friend's house in Ellen Grove.
The sponsor paid rental of $100 a week for the room she rented at the Ellen Grove house from late 2012 to November 2014.
The sponsor's husband, the applicant's brother-in-law, was not living in the Forest Lake house when the applicant and her mother arrived from Vietnam on 7 March 2014. He had moved to Redbank Plains before this date.
The applicant's brother-in-law, the sponsor's husband, visited the Forest Lake house occasionally to 'check up on things', including his mother-in-law, to whom he is close, during 2014, and has continued to do so.
The sponsor visited her mother and sister at the Forest Lake house between March and November 2014, after work and on weekends, but did not stay at the Forest Lake house overnight, or for entire weekends, during this time.
Mrs Hoa has contributed financially to her rental and living costs at Forest Lake. The sponsor has power of attorney over her mother, and manages her Centrelink income.
From the evidence provided specifically by the applicant: (that the sponsor's husband, the applicant's brother-in-law, was not living in the Forest Lake house when the applicant and her mother arrived from Vietnam on 7 March 2014; that the applicant's brother-in-law, the sponsor's husband, visited the Forest Lake house occasionally to 'check up on things', including his mother-in-law, to whom he is close, during 2014, and has continued to do so; and that the sponsor visited her mother and sister at the Forest Lake house between March and November 2014, after work and on weekends, but did not stay at the Forest Lake house overnight, or for entire weekends, during this time), the Tribunal has concluded that the story built around the sponsor's marital troubles, explaining the sponsor's different residential address from Mrs Hoa, was fabricated for the purpose of the visa application.
The Tribunal does not accept the story and claims made in the declarations provided by the parties and the submission from T Lawyers in 2015, and, albeit more vaguely, in Mr Boccabella's post-hearing submission, that the sponsor was residing only temporarily in a separate residence because of 'marital troubles'. The Tribunal finds that the sponsor has resided, in the sense of being a 'usual resident', in the same house as her mother only since November 2014, after the visa application was refused.
Mr Boccabella argued at hearing, and in his post-hearing submission, that the sponsor was the head of the household at Forest Lake and recognised as such, in a metaphorical, emotional and financial sense, despite living at a different address. Regarding this claim, the Tribunal questioned the applicant, the sponsor and the sponsor's daughter, regarding the claims made in the 2015 submissions and declarations that the sponsor paid rental for herself and her mother at Forest Lake in 2014, while not living there, and paid as well the day-to-day living expenses of the household. The Tribunal pointed out at hearing that the sponsor was in her late sixties in 2014, with health problems including a bad back, and working full time in a low-paid occupation to repay over $100,000 in debts from the failed restaurant business. The Tribunal asked why the sponsor's siblings, or children, or husband, did not contribute at least financially to caring for Mrs Hoa. The parties responded that other family members were suffering mental illness; too busy; preoccupied with their own families; unwilling; or not in receipt of sufficient income to help. The Tribunal found these responses unconvincing, and does not accept that Mrs Hoa did not receive some emotional and financial support from her other two daughters and three grandchildren or former son-in-law in Australia, in 2014.
The sponsor acknowledged at hearing that she has had power of attorney over her mother's finances, and that she has collected her mother's age pension for her from Centrelink. The Tribunal asked the sponsor what expenses she had to pay herself, that were not covered by her mother's money. The Tribunal pointed out that the medications Mrs Hoa was taking, for cholesterol and hypertension, were not particularly expensive (being on the pharmaceuticals benefits list and Mrs Hoa being the holder of a Seniors Health Care Card); that incontinence nappies, to which the parties referred several times, were not particularly expensive; and that the applicant had advised that Mrs Hoa had no special dietary requirements. The sponsor responded that additional expenses included personal services such as physiotherapy. The Tribunal accepts that the sponsor has contributed to costs such as physiotherapy, but no evidence was provided, and the Tribunal does not accept, that she paid all, or the bulk of, these costs from her own income.
The Tribunal accepts that the sponsor and her husband jointly rented the house in Forest Lake in 2004, and that she was a joint head of the household until 2010, when she left to work in Sydney. The Tribunal finds that after she left, her husband was the head of the household, and that after he left in early 2014, the sponsor's daughter, Margaret, (who was 33 years old in early 2014 and turned 34 in September 2014), was the head of the household. The Tribunal notes that Margaret testified at hearing that she organised help for her grandmother at the Forest Lake house, including from Mrs Hoa's other granddaughter Helen, before the applicant arrived from Vietnam. No evidence was provided beyond the sponsor's claim that she paid, from her own income, rental at the Forest Lake house before she returned to live there in November 2014. No evidence was provided, beyond the parties' claims, that she paid from her own income all the costs of food and other household items consumed at Forest Lake.
The Tribunal accepts that the sponsor, as the oldest daughter who sponsored her mother and sisters from Vietnam, has taken a leading role in organising care for her mother. The Tribunal accepts that the sponsor visited her mother often and went shopping with her mother and the applicant and helped care for her mother, before moving in to live with them at the Forest Lake house in November 2014. The Tribunal finds it implausible, however, and does not accept that other family members did not also visit and purchase personal items and help care for Mrs Hoa. Margaret, Mrs Hoa's granddaughter, impressed the Tribunal as solicitous of her grandmother. The Tribunal also notes that the applicant testified that her brother-in-law is close to his mother-in-law, visited regularly if not often in 2014, and, at the time of decision, continues to visit, to 'check up on things'. The Tribunal accepts from the evidence provided that the sponsor played an older sibling role in the family, but does not accept that she was the head of the household at Forest Lake and recognised as such after she left for Sydney in 2010, and before she returned in November 2014.
At the conclusion of the hearing Mr Boccabella asked the Tribunal if it had any remaining concerns. The Tribunal advised that it was concerned by the inconsistencies between the claims made in the T Lawyer's submission and statutory declarations provided in November and December 2015, and in oral evidence provided at hearing. Mr Boccabella argued that it was human nature to be inconsistent, and that recollections vary over time. The Tribunal does not accept this argument. The applicant was quite clear in her evidence provided at hearing that the sponsor's husband, her brother-in-law, was not living in the house at Forest Lake when she arrived from Vietnam with Mrs Hoa in March 2014; that he had moved out, to Redbank Plains, before her arrival in the country. As noted, the Tribunal finds that the story about the sponsor's marital troubles was fabricated for the purpose of the visa application.
Mr Boccabella further argued, in his submission of 11 December 2018, that the legislation could be interpreted as not requiring the sponsor to be usually resident in the household where the person in need of care, Mrs Hoa, resided. The Tribunal does not accept Mr Boccabella's suggested alternative interpretation. The Tribunal accepts, as set out in the Delegate's decision, that the legislation requires the sponsor to be a member of the household and usually resident in the household of the person in need of care.
The Tribunal finds that the sponsor had a continuity of association with the house in Forest Lake at the time of application in 2014 because her mother, sister, daughter and grandchildren lived there, but does not find that this was a continuity of residence. No evidence was provided, and the Tribunal does not accept, that the sponsor had any intention of returning to live at the Forest Lake house until the visa application was refused on the ground that she did not live there.
The Tribunal finds that the applicant was not usually resident in the same household as her mother at the time of application. Therefore cl.836.212 is not met.
As the applicant has been found not to meet cl.836.212, she does not meet the criteria for a Subclass 836 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. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 838 (Aged Dependent Relative) visa as there is no evidence that the applicant is dependent upon the Australian relative as required by the definition of 'aged dependent relative' in r.1.03. Therefore cl.838.212 is not met. The Tribunal further finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa as the applicant's near relatives, as defined in r.1.15(2), reside in the same country as the applicant. The applicant has a husband and four children who are Vietnamese citizens living in Vietnam. As such, the applicant is not a 'remaining relative' and therefore is unable to meet cl.835.212.
DECISION
The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.