1620069 (Migration) - [2018] AATA 2377

1620069 (Migration) [2018] AATA 2377 (8 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1620069
MEMBER:David Barker
DATE:8 May 2018
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 08 May 2018 at 2:39pm
CATCHWORDS
Migration – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – Visa applicant seeks to provide care to her nephew – Review applicant an Australian relative – Valid Carer Visa Assessment Certificate – Impairment rating of 30 – Autism spectrum disorder – Other care options available – Whether review applicant has explored other funding and service options – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.12, 1.15AA, Schedule 2, cls 116.211, 116.212, 116.221, 116.321
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh v MIAC [2013] FCCA 274
Nguyen v MIBP [2015] FCCA 3254
Sefesi v MIBP [2016] FCCA 975
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Immigration on 19 September 2016 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 8 October 2015. The delegate refused to grant the visas on the basis that cl.116.211 and cl.116.221 to the Migration Regulations 1994 (the Regulations) was not met because the applicant did not meet the definition of carer, as defined in r.1.15AA(1)(f). As a result, the applicants could not satisfy the criterion for a carer visa set out in cl.116.211 and 116.221.
The review applicant appeared before the Tribunal on 24 January 2018 to give evidence and present arguments.
The review applicant was represented in relation to the review by her registered migration agent.
The Tribunal also received some oral evidence by telephone from the first-named visa applicant (the visa applicant). However, due to difficulties taking clear evidence from her over the telephone connection with Nigeria, the Tribunal gave the visa applicant time following the hearing to provide a written response to questions put to her during the hearing and also questions from the Tribunal which were passed on to her by the migration agent.
At the hearing on 24 January 208 the Tribunal put the review applicant on notice of an issue arising in the review relating to whether the visa applicant can meet cl.116.212, which requires the application to be sponsored by the Australian relative mentioned in cl.116.211. The Tribunal explained that the delegate had not addressed the issue, which arose from her being the person who is identified as the visa applicant’s sponsor, whereas her son is the person identified as the person requiring care. The Tribunal invited the review applicant and their representative to provide submissions in relation to this issue following the hearing.
On 7 February 2018, the Tribunal received further submissions and documentary evidence from the review applicant’s representative.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The review applicant was born in Nigeria and is currently [age] years old. She first came to Australia in 1997 on a skilled work visa and was subsequently granted Australian citizenship in 2000. She has three children from her marriage, which she declares ceased in or around 2015. She declares there was domestic violence in the marriage and that her ex-husband and the natural father of her three children is not permitted entry into her home. The review applicant's three children are [Child 1] aged [age] years, [Child 2] aged [age] years and [Child 3], currently [age] years of age. [Child 3] has a diagnosis of autism spectrum disorder. [Child 3] is the person who is nominated, at Question 65, as the Australian relative needing care in the visa application. The review applicant declares [Child 3]’s natural father has no involvement in his care.
In a BUPA Medical Visa Services Carer Visa Certificate Assessment, dated [July] 2015, [Dr A] assessed [Child 3] as suffering from a total impairment rating of 30. [Child 3] was diagnosed as suffering from autism spectrum disorder.
The visa applicant is a Nigerian national and is currently [age] years old. She is the younger sister of the review applicant and the aunt of [Child 3]. The visa applicant has four [children], who were the second-, third-, fourth- and fifth-named visa applicants. The Tribunal has however noted that on 7 February 2018 it received a Form 1446 Withdrawal of a visa application, in which the visa applicant indicates she no longer wishes to include her [children] (the second-, third-, fourth- and fifth-named visa applicants) in her visa application. The Tribunal notes this document appears to be undated but does appear to be signed by the relevant applicants.
The Department delegate’s decision record, a copy of which was provided with the review application, states [Child 3]’s mother, the review applicant, is currently unemployed and in receipt of a carer pension and that [Child 3] was attending a special school.
The delegate’s decision record reports that when interviewed by a Departmental officer on 19 September 2016, the visa applicant was unable to provide satisfactory answers with regard to [Child 3]’s medical condition. The delegate noted that the visa applicant stated that [Child 3] had autism but could not provide detailed information with regard to the kind of assistance that would be required from her, or about the length of time this assistance would be required. The delegate noted that the visa applicant stated she intends to work as [an Occupation 1] while she is in Australia. The delegate expressed the view that this indicated the visa applicant lacked knowledge about the assistance that is required by [Child 3], as outlined in the medical certificate submitted with the visa application. Further to this, the delegate noted that when asked about the length of time her assistance would be required, the visa applicant said she believed that [Child 3] will be able to talk and do things on his own as he grows older.
The delegate noted the applicant said she would support herself and her children in Australia, whilst she was assisting [Child 3], through continuing to work as [an Occupation 1]. She is reported to have said that her income from this work in conjunction with her savings would be enough to send her [children] to university in Australia. In response to a question as to why the review applicant was not able to provide [Child 3] with the care he needs, the visa applicant is reported to have told the Department that her sister needed a nanny to look after [Child 3].
When explaining the decision to refuse the visa application, the delegate was not satisfied that the visa applicant meets the requirements for a carer visa. Further to this the delegate stated they were convinced that the assistance required can be reasonably provided by the review applicant, as she is unemployed, and that the review applicant would be able to attend to her day to day activities as [Child 3] attends kindergarten at a special school where there are trained individuals to attend to his needs. The delegate found the applicant, due to her lack of any previous experience or skills in providing care and her lack of knowledge of what would be involved in providing the care required by [Child 3], could not satisfy the criterion for a carer visa set out in cl.116.211 and cl.116.221.
Prior to the hearing, the Tribunal received:
·     submissions from the review applicant’s representative;
·     statutory declarations from the review applicant and visa applicant;
·      photographs of the visa applicant;
·     a support letter from [Mr A], occupational therapist, dated 12 January 2018;
·     a psychological report from the Neuro Developmental Disorders Clinic, [Hospital 1], dated 8 April 2010, regarding the review applicant’s elder son [Child 1];
·     a letter from a psychologist from [a] Community Health Centre, dated 2 June 2017, regarding the review applicant;
·     [Child 3]’s National Disability Insurance Scheme (NDIS) care plan, dated 19 December 2017;
·     Pricing information from ‘Hireup’ NDIS care provider, dated September 2017.
The Tribunal provided time following the hearing for the review applicant to provide further submissions, including any written submissions from the visa applicant, due to the telecommunication difficulties which constrained her ability to give evidence during the hearing.
On 7 February 2018, the Tribunal received further documents from the visa applicant’s representative including:
·     statutory declaration and submissions from the representative;
·     statutory declarations and response to questions from the visa applicant;
·     a Form 1446 Withdrawal of a visa application;
·     a report of [a] consultant paediatrician, dated 9 August 2016, regarding the review applicant’s eldest son, [Child 1].
CONSIDERATION OF CLAIMS AND EVIDENCE
At the time the visa application was lodged, the Other Family (Migrant) (Class BO) visa contained three subclasses: Subclass 114 (Aged Dependent Relative), Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa.
The Carer visa permits a person who, or whose member of a family unit, has a medical condition causing a significant level of impairment and, because of that medical condition, has a need for direct assistance to attend to practical aspects of daily life, to sponsor a relative to provide the care needed. Both the sponsor and the person who has the medical condition must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
Sponsorship
Clause 116.211 of the Regulations requires that the visa applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the visa applicant seeks to provide care to her nephew, [Child 3]. The application is sponsored by [Child 3]’s mother, the review applicant, who is the sister of the visa applicant.
Clause 116.212 requires that the applicant is sponsored by the Australian relative mentioned in cl.116.211, or by a cohabiting spouse or partner of the Australian relative.
It is somewhat unclear as to who is the Australian relative mentioned in cl.116.211. The general rule is that if the visa applicant claims to be his carer, then [Child 3] needs to be the sponsor.
Can the review applicant be the sponsor?
As has been noted above, cl.116.212 requires that the applicant is sponsored by the Australian relative.
The Tribunal accepts that the visa applicant and review applicant are siblings and therefore relatives as defined in cl.116.111 and r.1.03 of the Regulations. There is also no doubt that the review applicant is an Australian citizen usually resident in Australia.
However, although the review applicant is the sister of the visa applicant, her sponsorship is not encompassed by cl.116.212 because the Australian relative referred to in cl.116.212 is the same Australian relative referred to in cl.116.211, i.e. the person requiring care. Therefore, the ‘Australian relative’ referred to in this case is [Child 3].
The term ‘carer’ is defined in r.1.15AA of the Regulations and is set out in the attachment to this Decision. This definition contemplates care being given to either the Australian resident relative or a member of their family unit. The Tribunal notes that nephew, son, aunt and mother are all included in the definition of ‘relative’ in r.1.03 of the Regulations. It is apparent from the oral evidence and submissions made by the visa and review applicants that the visa applicant’s intention is to assist her sister, the review applicant, with regard to looking after [Child 3]. This would infer the visa applicant is seeking to care for the review applicant, as the Australian relative, through assisting her to look after a member of her family unit, namely, [Child 3].
The combined effect of cl.116.112 and r.1.15AA(1)(b)(i) is that either the sponsor requires the care or that the sponsor requires assistance in the care of a member of the sponsor’s family unit. The definition of a member of a family unit is defined in r.1.12 and relevantly includes a child of the person. To meet the criteria to be a member of the family unit, a person must, amongst other things, usually reside in the same household and be dependent on the family head. The Tribunal is satisfied [Child 3] resides with his mother, the review applicant, on a full-time basis.
On the evidence before it, there are two conclusions open to the Tribunal in respect of cl.116.211. On the one hand, if the Tribunal finds that the visa applicant claims to be the carer of her nephew, [Child 3], he would be the Australian relative for the purposes of cl.116.211. However, if the Tribunal makes this finding, the visa applicant cannot meet cl.116.212 because the application is not sponsored by this relative.
Alternatively, the Tribunal has considered whether it is open to find that the visa applicant has claimed to be the ‘carer’ (as that term is defined in r.1.15AA) of the review applicant, and the review applicant is the Australian relative for the purposes of cl.116.211.
The Tribunal has noted the actual responses provided on the visa application form, as discussed above. However, as is also discussed above, it has noted that this latter approach is consistent with the evidence of the visa applicant and review applicant, in relation to the visa applicant’s intention to assist the review applicant in providing for the care needs of [Child 3] so that she can more effectively attend to the needs of [Child 3] and her other two children, the eldest of which is reported to suffer from attention deficit hyperactivity disorder (ADHD). On this basis, the visa applicant meets cl.116.212 as the application is sponsored by the review applicant.
Whether the visa applicant has claimed to be a ‘carer’
Clause 116.221 requires that, at time of decision, the applicant is a ‘carer’ of the Australian relative mentioned in cl.116.211.
As is noted above, paragraph (b) of the definition of carer in r.1.15AA(1) permits the person requiring care to be the Australian relative resident or a member of the family unit of the resident. ‘Member of the family unit’ is defined in r.1.12, and r.1.15AA(1)(b)(ii) of that definition refers to a child of the family head who has not turned 18 and is not engaged to be married or does not have a spouse of de facto partner.
The Tribunal is satisfied that the person who is the subject of the carer visa certificate, namely [Child 3], resides with his mother, the review applicant, and is currently [age] years of age and manifestly not partnered; he is therefore a member of the family unit of the review applicant, who is the Australian resident.
Therefore, the Tribunal finds that at the time of application the visa applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.116.211.
Whether the visa applicant is a ‘carer’
Clause 116.221 requires that at the time of decision, the visa applicant is the carer of the Australian relative (or ‘resident’). The term ‘carer is defined in r.1.15AA of the Regulations, which is set out in the attachment to this Decision.
Applicant is a relative of the resident – r.1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03, i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s sister.
A Declaration of Age, made in the High Court of Lagos State on 28 January 1997, regarding [the review applicant] declares her birth certificate was lost and that she believes she was born on [date of birth]. This document identifies her parents as [names deleted].
A Declaration of Age, made in the Magistrate Court of Lagos State on 11 September 2015, regarding [the visa applicant], declares she was born on [date]. This document identifies her father as [name deleted] and her mother as [name deleted].
[Bio data deleted].
[Bio data deleted].
[Bio data deleted].
The Tribunal is satisfied on the basis of the evidence on file that the review applicant and visa applicant are sisters.
Therefore, as the visa applicant is the sister of the Australian relative, the visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirement of r.1.15AA(1)(a).
Certification – r.1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of r.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.
For a certificate to meet r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister, or issued by a specified health provider in relation to a review of such an opinion.
The Carer Visa Assessment Certificate which has been provided by BUPA Medical Services is dated 23 July 2015. An assessment of 30 points has been assigned by the examining medical advisor on the Impairment Rating Tables, within the meaning of subsection 23(1) of the Social Security Act 1991. The medical examiner also found that [Child 3] has a medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; a need for direct assistance in attending to the practical aspects of daily life because of his medical condition; and because of the medical condition, the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.
The Tribunal finds that the certificate provided meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
Residency status of person with medical condition – r.1.15AA(1)(ba)
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.
In the present case, the person with the medical condition, [Child 3], is an Australian citizen. Accordingly, the requirement of r.1.15AA(1)(ba) is met.
Impairment rating – r.1.15AA(1)(c)
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.
In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirement of r.1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)

Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, r.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 r.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.
In the present case, the Australian relative (the review applicant and mother of [Child 3]) is not the subject of the certificate. However, the Tribunal is satisfied that the review applicant has a permanent or long-term need for assistance in providing the direct assistance mentioned above and therefore meets the requirements of r.1.15AA(1)(d).
The review and visa applicants claim the direct assistance the review applicant requires to provide the direct assistance mentioned in r.1.15AA(1)(b)(iv) to [Child 3] needs to be understood in the context of the other parenting responsibilities she has.
Assistance cannot be reasonably obtained/provided – r.1.15AA(1)(e)
Does [Child 3] require direct assistance in attending to the practical aspects of daily life because of an identified medical condition?
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.
The review applicant told the Tribunal that it is mainly [Child 3] who needs help. She said her eldest son, [Child 1], suffers from ADHD, which both limits his ability to assist her and indeed adds to the parenting demands that are upon her on a daily basis. She said she is a single parent and has responsibility for looking after her three sons most of the time. She said the children’s natural father has no involvement in the care of [Child 3], but that he does have contact with her other two children, with her younger son spending time at his father’s home on weekends every second or third weekend. She said there are no formal court orders regarding access and that there is no longer an apprehended violence order in place, but that the children’s father does not enter her home because of the history of domestic violence. The statutory declaration from the review applicant, dated 19 January 2018, explains that the reference in [Child 3]’s NDIS plan to him having fortnightly contact with his father is not accurate.
The review applicant told the Tribunal she gets a lot of professional help. She said the advice from the health professionals she and [Child 3] are linked with reinforces the need for [Child 3] to have regular, consistent routines in his daily life that are applied in a structured way. The review applicant said she cannot, on her own, provide the consistency that [Child 3] needs because she has other things that she needs to do, including looking after her other two children.
The review applicant said if she had help from the visa applicant, she could have relief and they could work together and exchange roles, thereby improving the consistency and structure of the routines for [Child 3] around things such as morning, evening and bedtime routines, going out into the community and toileting. She said at the present time she cannot take [Child 3] out by herself into the community because of his tendency to run off. The review applicant said sometimes [Child 3] is in his own world and at other times he screams or laughs. She said he is on a special diet and has had some improvement in his behaviour over recent years but that he remains non-stop and very hyperactive. She said it is very difficult for [Child 3] to understand what is said to him. The review applicant said [Child 3]’s care needs and the difficulty responding to them will increase as he gets older, especially after he reaches puberty.
The statutory declaration from the review applicant, dated 19 January 2018, declares that [Child 3] requires daily assistance with showering, dressing and making sure he is clean after toileting. She declares [Child 3] needs supervision when outside of the home and that he makes a mess when eating. She declares [Child 3] attends a special school daily and also gets occupational and speech therapy regularly. In this declaration, she provided consistent information regarding her view she does not get enough support from the Australian community, in particular government services. She emphasises the amount of support allocated through [Child 3]’s NDIS plan is not consistent with the BUPA assessment of his care needs and the concerns she has about the quality of the support services she is able to access through the scheme.
The support letter from [Mr A], occupational therapist, dated 12 January 2018, states [Child 3] suffers from autism spectrum disorder, level three, requiring very substantial support. [Mr A] states [Child 3] receives regular occupational and behaviour clinician support from Lifestart, with a focus upon assisting him and the review applicant to develop his independence with daily living skills and routines at home. Mr [Mr A] states the review applicant’s ability to provide [Child 3] the structure and consistency he requires at home is constrained by her needing to also focus on her two other children. He states the frequency of support required is not feasible from a support worker service, given the current allotment of three to five hours of support per week. He states there would be additional benefits from there being a carer living in the review applicant’s household.
The Tribunal notes that the type of assistance to be considered is the assistance referred to in the certificate provided by the health service provider, namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition (r.1.15AA(1)(b)(iv)). In Sefesi v MIBP [2016] FCCA 975 (Sefesi v MIBP), the Court held that the Tribunal is not required to turn its mind to the ‘nature and scope’ of the assistance required; rather the Tribunal is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider. Bearing in mind the principle outlined in Sefesi v MIBP, the Tribunal accepts the nature and scope of [Child 3]’s impairment as a consequence of the autism spectrum disorder he suffers from and that his current care needs remain consistent with those outlined in the BUPA Medical Visa Services Carer Visa Certificate Assessment that was prepared in July 2015.
The extent of direct assistance required by the review applicant (the Australian relative)
The Tribunal asked the review applicant about the challenges she faces looking after her eldest son [Child 1], who is now aged [number] years, because of the ADHD he suffers from. The Tribunal asked her this question as it is necessary to understand the quantum demands upon the review applicant so as to consider the issue of whether assistance, of a type consistent with that identified in the BUPA Medical Visa Services Carer Visa Certificate Assessment, cannot be reasonably obtained by other relatives in Australia, or obtained from welfare, hospital, nursing or community services in Australia.
The review applicant said [Child 1] is currently in Year [grade]. She said [Child 1] has concentration difficulties and that it is hard for him to learn and that he can be oppositional and aggressive in his behaviours. She said [Child 1] was receiving support from a psychologist in 2017 and has also had contact with other medical specialists and health professionals over a number of years. The review applicant said it puts an extra drain on her energy when she needs to explain things repeatedly to [Child 1] and also deal with his argumentative behaviour. She said [Child 1] lacks insight into how overwhelming his reactions can be when he becomes argumentative and oppositional. She provided consistent information with regard to [Child 1] in her statutory declaration, dated 19 January 2018. Medical and neuropsychology reports provided with the review application confirm the review applicant’s elder son, [Child 1], suffered from benign epilepsy as a child and around [age]years was diagnosed with ADHD and learning difficulties.
A letter from [Ms B], clinical psychologist, dated 2 June 2017 states the review applicant was referred to her service due to feeling overwhelmed, exhausted and stressed by multiple life stressors. [Ms B] states the review applicant was a victim of domestic violence in her marriage and was dealing with multiple stressors associated with the breakdown of that relationship and parenting her three children as a single mother. She states the review applicant’s stress was exacerbated by the care needs of her eldest and youngest son, with the former suffering from ADHD and the latter from an autism spectrum disorder.
The review applicant said taking both [Child 3] and [Child 1] to their different therapy appointments is time-consuming and also constrained her ability to give some time to her other child, [Child 2]. She said she has no other relatives in Australia and that it would be invaluable to have support from the visa applicant.
In the written statement provided by her following the hearing the visa applicant states the review applicant needs care in looking after herself and [Child 3].
The Tribunal accepts the review applicant has three children in her care, two of whom have diagnosed conditions, being [Child 3], who has an autism spectrum disorder, and [Child 1], who has ADHD. The Tribunal notes [Child 1] is in Year [grade] in secondary [school]. Whilst understanding the stressors this places upon him and the review applicant and after reviewing the available medical and psychology reports about [Child 1]’s functioning, the Tribunal has formed the view that [Child 1] is at the present time managing the transition into early adulthood in a reasonable manner. The Tribunal accepts there are stressors associated with parenting [Child 1], but is not satisfied the evidence demonstrates they significantly impact upon the review applicant’s capacity to provide direct assistance to [Child 3], of a type identified in the BUPA Medical Visa Services Carer Visa Certificate Assessment.
Whether the assistance mentioned in paragraph 1.15AA(1)(b)(iv) cannot reasonably be provided by any other relative of the resident who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen – R.1.15AA(1)(e)(i)?
For visa applications made on or after 9 November 2009, the Tribunal is required to consider whether any relatives can reasonably provide the assistance and what a relative is capable of doing in order to form a view as to whether assistance cannot reasonably be provided. In Anveel v MIBP [2013] FCCA 2181, the Court confirmed that as r.1.15AA(1)(e)(i) is stated in the negative, the focus of the Tribunal must be on the reasons as to why the relatives cannot provide the care. Consideration should also be given to the nature of care actually required by the person needing the care when making such an assessment.
The Tribunal accepts the review applicant has no relatives in Australia that could provide her with assistance looking after [Child 3]. The Tribunal has considered whether [Child 3]’s father can reasonably provide assistance and whilst the Tribunal is not satisfied there is evidence to demonstrate why [Child 3]’s father could not allocate some time to assist in providing for his son’s care needs, the Tribunal is not satisfied he would be capable of doing so, given his reported history as a perpetrator of domestic violence. Therefore, the Tribunal is satisfied that r.1.15AA(1)(e)(i) is met at the time of application and the time of decision
Whether the assistance cannot reasonably be provided from welfare, hospital, nursing or community services in Australia – r.1.15AA(1)(e)(ii)?
In terms of community services, the Federal Court in Biyiksiz v MIMIA [2004] FCA 814 has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh v MIAC [2013] FCCA 274 at [34]. The Tribunal is aware there has been no explicit judicial consideration on whether the assistance can be obtained from more than one community service organisation for the purpose of r.1.15AA(1)(e)(ii). However, on the basis of decisions made by the Court in Nguyen v MIBP [2015] FCCA 3254, the Tribunal is satisfied that the assistance can be obtained from a plurality of sources, including from more than one community service organisation, depending on the particular circumstances of the case.
The review applicant gave evidence that she does get funds to pay for support services to assist her in looking after [Child 3], through the NDIS. In response to a question from the Tribunal, the review applicant clarified that she was not getting assistance to care for [Child 3] through the NDIS at the time she sponsored her sister to come to Australia on a carer visa, and that the delegate was unaware of the availability of support to her and [Child 3] from this source. The Tribunal asked the visa applicant about whether she thought she would need to access ongoing support for [Child 3] through the NDIS plan if the visa applicant was granted the carer visa. She said the NDIS funding commenced in September 2016. She said there are two parts to the funding, including access to health professionals, which works well and is something she would keep using. She said the other part is the access to support workers, which she may use the available funds to access until the visa applicant arrives in Australia. She said she could then request a review of the plan, or just not use any funds that remained for the support workers.
The Tribunal asked the review applicant about what sort of services for [Child 3] she could arrange through his NDIS plan. She said the NDIS funding commenced in September 2016. She said there are two parts to the funding, including access to health professionals and funds to pay directly for support services. The review applicant said the funding could be used to pay for periods of respite care for [Child 3] and also to engage support to assist with creating consistency in his daily activities. She said the plan looks good on paper and perhaps if she could access one hour of support per day to help with maintaining consistency in [Child 3]’s routines it may be more beneficial.
The review applicant said at the present time [Child 3]’s NDIS plan only provides for around four hours of support per week and that she has to book a minimum of two hours per session from the current care provider she is purchasing services from. She said that because it is hard to get a consistent support worker, the overall service that is provided is inadequate and just a waste of money. In response to a question from the Tribunal as to what steps she had taken to ask for a review of [Child 3]’s NDIS plan, in light of her concerns, the review applicant said she mentioned to the coordinator of the service provider she is currently linked with that she was not getting a consistent support worker and that their service was a waste of money. She said the service provider had advised her that she could look for an alternate care provider, but that she has not to date followed this advice.
In response to a question as to whether the information from the BUPA Medical Visa Services Carer Visa Certificate Assessment, which was undertaken in July 2015, was incorporated into the planning process for [Child 3]’s NDIS plan, the review applicant said she did not mention the BUPA assessment during the NDIS plan preparation process.
The Tribunal asked the visa applicant about whether she thought she would need to access ongoing support for [Child 3] through the NDIS plan if the visa applicant was granted the carer visa. She said the access to health professionals works well and is something she would keep using. She said she may use the available funds to access the support workers until the visa applicant arrives in Australia. She said she could then request a review of the plan, or just not use any funds that remained for the support workers.
The Tribunal has noted the opinion provided by [Mr A], occupational therapist, who states the level of support required to create the consistency in daily routines for [Child 3] is not available through the currently available community based support services which are funded through the NDIS. The Tribunal accepts the support referred to by [Mr A] is of a direct assistance type that is envisaged by r.1.15AA(1)(b)(iv). The Tribunal further accepts that at the time the application for a carer visa was lodged in October 2015, the evidence before the Tribunal indicates that [Child 3]’s need for assistance with many aspects of daily living, including personal hygiene, toileting, grooming, feeding, supervision and transport could not reasonably be provided from welfare, hospital, nursing or community services in Australia.
The Tribunal is not however persuaded the direct assistance [Child 3] requires, as identified in the BUPA Medical Visa Services Carer Visa Certificate Assessment, cannot reasonably be provided from welfare, hospital, nursing or community services in Australia. This is because since the time of application [Child 3] has started receiving support through the NDIS. The Tribunal accepts the current pattern of service delivery to [Child 3] is not optimally meeting his or the review applicant’s needs. However, the Tribunal finds the review applicant has not sought to clarify through exploring the review options available to her through the NDIS scheme whether a more appropriate amount of NDIS funding, or a more appropriate pattern of service delivery, would be reasonably obtainable. In forming this view, the Tribunal noted the review applicant has not sought a formal review of [Child 3]’s NDIS plan, nor clarified if changing the support service provider would improve delivery of the required assistance to more effectively meet [Child 3]’s needs.
On the evidence, the Tribunal is not satisfied that the review applicant has actively sought to access to all relevant community and health services that may be reasonably obtainable. While she may have found some of the services currently engaged to assist [Child 3] unsatisfactory, this does not mean that other service providers, or availing herself of available NDIS review processes, would not more effectively meet the identified needs. The Tribunal concludes that the review applicant has dismissed the option of accessing alternate or seeking additional support services, provided through the NDIS or by other community and health providers on the basis that they will not be adequate.
Having considered the totality of the evidence before it, the Tribunal is not satisfied that at the time of this decision, the assistance required by the review applicant cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Accordingly, the Tribunal finds that the requirement of r.1.15AA(1)(e)(ii) is not met.
As the Tribunal finds that r.1.15AA(1)(e) is not met, the Tribunal finds that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl.116.221.

As the requirement of r.1.15AA(1)(e) is not met, it is not necessary for the Tribunal to consider if the visa applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed as required by r.1.15AA(1)(f).
For the reasons above, the visa 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 applicant meets prescribed criteria for the visa sought, as the visa applicant is not old enough to be granted an age pension under the Social Security Act 1991 (and would therefore not meet the criteria for a Subclass 114 visa).
Secondary applicants
In respect to the second-, third-, fourth- and fifth-named visa applicants, the Tribunal notes their wish not to be included in this review and to withdraw their visa applications. Irrespective of this, the Tribunal has not considered whether they are each a ‘member of the family unit’ for the purposes of cl.116.321. As the first-named visa applicant does not satisfy the primary criteria and therefore cannot be granted a Subclass 116 visa, the secondary visa applicants cannot satisfy cl.116.321.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
David Barker
Member

ATTACHMENT
Migration Regulations 1994
1.15AA Carer
1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.