1920335 (Migration)

[2023] AATA 293

1920335 (Migration) [2023] AATA 293 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Danijela Jakovljevic (MARN: 9902396)

CASE NUMBER:  1920335

MEMBER:Justin Meyer

DATE:9 February 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.221 of Schedule 2 to the Regulations

Statement made on 9 February 2023 at 11:31am

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could be provided by relatives and services in Australia – extended family unable to provide care – sponsor’s lengthy absences for employment – assistance with medication – heavy reliance on the visa applicant – health and aged care service limitations – professional and ongoing therapeutic medical advice – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 836.111, 836.211 – 836.213, 836.221; rr 1.03, 1.12

CASES

Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 July 2019 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 January 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because subregulation 1.15AA (1) (e) (ii) as the delegate was not satisfied that the assistance the resident requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

4. The applicant appeared before the Tribunal on 16 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from [the named caree].

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in Australia.

   Whether the applicant has claimed to be the ‘carer’

8. Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant will provide assistance to [the named sponsor] to care for a member of [his] family unit (i.e his wife, [the named caree]).

9. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.

10. The applicant claimed to be the carer of another person (‘caree’) at the time of application; and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen - [the sponsor].

11. For the purposes of this application, I find that the ‘resident’ referred to within the definition of Carer at Regulation 1.15AA is [the sponsor].

12. Documents supplied to support this application demonstrate that the applicant is the nephew of [the sponsor].

13. [The sponsor] and his wife have also been demonstrated to both be Australian Citizens. [The sponsor] has been found to be usually resident in Australia.

14. The Carer Visa Assessment Certificate dated 6 July 2018 provided with this application states that [the caree] is “partially dependent” for assistance with her activities of daily living. In particular, she requires assistance with mobility, preparation of her shower, dressing the lower parts of her body, supervising medication, supervision for personal safety and transportation. There is a subsequent, consistent, certificate of 10 March 2022.

15. Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212.

    Are the sponsorship requirements met?

16. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

    Family relationships

17. The relevant family relationships in this case are:

    ·[Name] (“the sponsor”), [an age] year-old male who is an Australian citizen.

    ·[Name] (“the caree”) [an age] year-old female who is an Australian citizen, and the wife of the sponsor.

    ·[Name] (“the visa applicant”), [an age] year-old male who is a Romanian citizen.

18. The visa applicant is sponsored by the uncle, the spouse cohabits with the Australian relative and is an Australian citizen.

    The claims

19. The sponsor in essence claims that only his nephew can provide the type of care that the caree needs.

    The conditions of the caree

20. As confirmed by a various items of medical correspondence the sponsor suffers from, or experiences:

    • Chronic Bipolar Disorder, anxiety and Schizophrenia
    • Undisplaced radial head fracture
    • Shoulder tendinopathy
    • Bursitis
    • Cervical spine pain
    • CAD
    • PPM
    • HTN
    • Chronic pain
    • GORD
    • High cholesterol

21. This is information is contained in a discharge summary, noting that two physicians were consulted of the [named medical service], signed by [a named doctor] on 16 November 2021.

22. The caree has been taking, or has been prescribed, the following medications (according to the discharge summary) in 2022:

    • Aspirin
    • Sacubitril/Valsartan
    • Rosuvastatin
    • Nebivolol
    • Tapentadol
    • Duloxetine
    • Pantoprazole
    • Meloxicam Paracetamol
    • Voltaren Gel
    • Midodrine
    • Endone
    • Temazepam

23. I note that these medications are for a variety of conditions including include pain relief, sleeping medications, medicines to treat low blood pressure (hypotension), and to treat depression and anxiety.

24. [Psychiatrist A], a Consultant Psychiatrist 25 October 2022 wrote to the Department (as forwarded to the Tribunal) a report at the request of the caree, who has been consulting her since 2008. In summary, [Psychiatrist A] states that:

    ·The caree continues to have ongoing physical and emotional symptoms. She provides an account of persistent sadness, lack of motivation, lack of energy, recurrent panic attacks and significant avoidance symptoms.

    ·This is further complicated by her ongoing multitude of medical conditions which is causing her persistent pain, difficulty in her mobility, inability to manage her household chores and also some limitations in her self-care.

    ·The caree has significant limitations in the earlier of her overall self-care regarding her cooking, tiding up, organising and also the pain is limiting her ability to manage almost all of the household chores which is mostly done by husband or her nephew who is currently living with them.

    ·The caree is not able to drive and she could be very anxious on the road and she became very apprehensive of her inability to control and regulate at times and she is supported by her nephew who does all the driving and also taking her to all medical and other appointments.

    ·The caree is also not able to do many other tasks in her life including shopping and also organising various medical investigations and also visiting her immediate family members. It is her nephew who is providing her all the care and support in relation to her overall psychosocial need.

    ·The caree is having a persistent depressive disorder in relation to her bipolar disorder along with generalised anxiety disorder and also her recurrent panic disorder.  She was advised to have hospitalisation due to the worsening of clinical state, but was not able to organise the hospitalisation during the COVID period.

    ·She was further affected by the untimely sudden death of her son who was living with her. She was extremely grief stricken and became almost house bound and bed ridden. This intense loss aggravated her already fragile functional state and eventually the family decided to relocate as the home was too difficult for her to manage and the memories were haunting her. This is on the background of her chronic pain.

    ·The caree is suffering from chronic bipolar disorder, generalised anxiety disorder and chronic pain disorder and multiple medical conditions. She is having significant impairment in her overall functional capacity in the area of her behaviour, thinking, her mood as well as her overall activities of daily living including self-care, home care, and psychosocial functioning.

    ·She requires ongoing care in managing her functioning of self-care, self-management, mobility, transport, accessing medical transport and home care.

    ·The caree is someone who requires significant care in relation to functioning and her nephew is someone who is available and willing and is able to provide the support and assistance.

    ·The caree takes various psychotropic medications including Duloxetine, Diazepam and various pain medications.

25. The consultant psychiatrist is of the opinion that the caree’s overall quality of life and her medical conditions care would be immensely benefited by having a caring and supportive assistance by her nephew.

26. The caree’s GP, [Doctor A], wrote a medical statement dated 9 November 2022 stating that the caree has been under her care since 2014. The caree has been suffering from multiple chronic medical conditions for many years. She is taking multiple medications for her health. Her medical issues are listed as:

    ·Obesity, stomach stapling

    ·Bilateral knee replacement secondary to severe osteoarthritis.

    ·Schizophrenia, severe depression and anxiety.

    ·Asthma and recurrent bronchitis.

    ·Hemicolectomy (colon cancer in 2009).

    ·Chronic back pain secondary to severe lumbar disc degenerative change.

    ·Cardiovascular diseases including hypertension coronary artery disease (stent surgery) and cardio myopathy.

    ·Urgent urine incontinence.

    ·Orthostatic hypotension.

    ·Barrett's oesophagus and reflux.

27. [Doctor A] believes that the caree’s general health has been progressively worsening in many ways over last few years. She is able to walk independently, however only for short distances due to her suffering from chronic pain in her lower back, hips and knees. Recently, she has been having several falls due to her general weakness and unsteady legs secondary to her multiple chronic medical conditions. She is more dependent on walk aids such as a cane or walk frame. The caree also has suffered from schizophrenia, anxiety and depression for many years and the medications she takes may affect her motivation, energy and enthusiasm and weight. She feels tired easily and tends to become sad and emotionally flat at times. Additionally, her son recently passed away at home which has caused her mental conditions to worsen. She needs ongoing weight loss treatments and physiotherapy to build her physical strength as well as psychiatric care to deal with her mental health. She may need both-knee surgery again in the near future due to bilateral knee prosthesis loosening. Overall, her medical issues are not giving her the level of enjoyment and energy in managing her day-to-day functions. To quote from her report:

    “Her adult children all have their own busy life and they are too busy to take care of her. Obviously, she has to have a carer to assist her daily life including preparing meals, shopping and cleaning house as well as taking her for doctor's appointments.”

    The claimed merits of having the visa applicant assisting in the caree’s care

28. The following person made declarations indicating that they were unable to assist in caring:

    • [Name], sponsor's daughter
    • [Name], sponsor's step-son
    • [Name], sponsor's step-son
    • [Name] (also known by family names [specified]), sponsor's step-daughter
    • [Name], sponsor's sister
    • [Name] (also known as [name]), sponsor's nephew
    • [Name], sponsor's step granddaughter
    • [Name], step granddaughter
    • [Name], step granddaughter
    • [Name], sponsor's step-grandson

29. The sponsor also had a son, [Son A], who died [in] February 2022, aged [age].

30. The sponsor has provided a statutory declaration that none of these relatives either individually or collectively can reasonably provide the care that the caree needs. He states that none of them is willing and able to provide required assistance not even for a short period of time not to mention ongoing long-term basis, and that they do not have the time or personal capacity.

31. It was submitted that based on the statements provided by the sponsor and the relatives, the assistance required cannot reasonably be provided by the Australian relatives of the sponsor/resident on an ongoing, long-term basis because they do not have the time and the capacity necessary for the required and reliable care and that subparagraph 1.15AA(1)(e)(i) is met.

32. It was submitted that the caree’s ability to obtain the care she requires from existing services in Australia is precluded by the nature of the care she requires which includes assistance with various aspects of her daily life including hygiene, medication, supervision, mobility and transport. It was further submitted that she is also precluded by the nature of her mental medical conditions (Chronic Bipolar Disorder, anxiety and schizophrenia) which makes her highly distressed when in contact with other people. In his statement, the sponsor especially notes that the nature of her mental illness (schizophrenia) often makes her aggressive and difficult and that this is one of the reasons why she is precluded from the possible regular assistance from the existing services in Australia.

33. In the light of the above mentioned the submission is that the assistance which might be provided to the caree by existing services is not reasonably obtainable within the meaning of r.1.15AA(1)(e)(ii).

34. The applicant provided his statement to the Department that he has provided the care to the caree while in Australia, since 2017. His evidence is that he lives with the sponsor and the caree and assists her daily with the required care. The applicant is not affected by any physical or other impediment such that it would affect his fitness or suitability to attend to the caree physical daily needs.

35. The submission is that the evidence provided indicate that the applicant is willing and able to provide substantial and continuing assistance of the kind needed by the sponsor and meets the requirements of r.1.15AA(1) (f).

    Evidence in the hearing

36. The visa applicant is [an age] year-old male who is from Romania. He first came to Australia in 2017 under a visitor visa. He visited family in Australia. He had worked previously as [an occupation 1] in [Country 1] for four years. His mother is in [Country 1] and his brother is in Romania. He has uncles and aunts in Australia. His main reason for coming to Australia was to help his aunt, the caree.

37. The caree’s husband and daughter have had a lot of challenges in caring for the caree. His uncle was working and increasingly the caree’s son was working at the time.

38. The caree’s husband has been working as [an occupation 1] often from 4:30 AM until 5 PM or 6 PM . Sometimes he needs to stay overnight while working. He has Sundays off. He has been doing this for 30 years.

39. The only people in the household are the visa applicant and his aunt and uncle.

40. I asked whether it had been discussed in the family whether different family members could assist. The visa applicant said that it had been discussed and that he had agreed to care for his aunt. He started caring in 2017.

41. I asked what the daily routine was. He said he would wake his aunt up and ‘see if she was okay’. He would change her clothing. He would go out and make her ready. He would make sure she had her medications. Previously the caree’s [named daughter] did this.

42. The visa applicant detailed health issues, including problems with her shoulder and his aunt’s depression. He described in detail the injury that is aunt suffered to her shoulders. The vendor applicant said that his aunt stayed mainly at home. She received a pension.

43. Although he did have some time to himself, he would always ensure that his aunt was settled and saw whether she needed anything. He would make a sandwich for example. The visa applicant described the pain in the arms of his aunt and how it gradually becomes worse. He described the issues with getting an MRI for his aunt. He described her heart issues, her depression, her bipolar condition and her arm problem.

44. The relationship with the children was not particularly close.  The visa applicant said [Son A] had passed away and things became worse. The grief had affected his aunt. Her obesity has worsened. Everybody had loved her [Son A]. The family do not see that the caree frequently - perhaps once a year.

45. The visa applicant said his aunt took medication as a mood stabiliser which was very important. He said that on occasion she forgets to take this medication which she needs to do four times a day. He ensured that she did. On occasions her blood pressure was very low.

46. The visa applicant said his wife was anxious and had difficulties having people around her. She was not good with other people. “My Aged Care” assistance led to strangers visiting and caring for her, which she could not adjust to.

47. I asked the applicant how her supported himself, to which he replied that his aunt’s family paid him.

48. The caree gave evidence. She stated that she had lost her brother and her sister in 2020 and 2021. Then her son died in February 2022. She said it was a “stab in the heart and a slap in the face”.

49. The caree said she needed a psychologist and could not get one. Working with a psychologist over the telephone did not work. She said she was still looking for a psychologist. Getting help in [her town] where she lived was “impossible”. The infrastructure was not in place there.

50. The caree said she had become very used to having her nephew care for her. He knew exactly what she needed from the shops. When at the pharmacist he could arrange all of her tablets.

1. The caree said that she would probably be dead if it were not for her nephew. She said that when her sister died, it was “almost the end” of her. Her childhood was not much to speak of. Her youngest brother has [specified conditions].  He is now [age]. He lives elsewhere now, but “we had him living with us”. He had demanded all her time. It had been too much for her. She has him over for special occasions such as birthdays and Easter and Christmas. She receives all of his mail and is his representative. 

2. She spoke of her ‘gastro blockages’ and that she had had bowel cancer in 2000. She had been admitted to hospital five times as a result.

3. When things become too much her nephew would take her out - to the beach for example to relax near the water. Her health had improved.

4. Having part time carers four or five times a day as an alternative (as the delegate discussed) was unrealistic. The caree said she becomes confused. Some days she does not remember her own name. People touching her possessions upsets her. She described herself as pedantic.

5. She took Duloxetine for her nerves three times a day and this was the highest dose possible.

6. She would take the first pill at 8.30am along with her heart tablets. Sometimes she forgets if she has too much in her head. She becomes hallucinatory. Her nephew always remembers and has the pack and plan in front of him.

7. I asked the caree to describe her nephew’s personality. She said: “very easy-going” and “understanding.” He never raises his voice. He has never been in trouble.  

   Evaluation

8. The parties gave consistent evidence in the hearing. The caree is a person who presented as highly reliant on her nephew. She spoke of her issues with anxiety and her physical ailments. She is in her [age range] and my expectation is that her needs will increase over time.

9. The caree’s husband, the sponsor, is attentive to her needs but needs to work as [an occupation 1] and this is a demanding and time-consuming occupation. They are not people of means and I accept that he will need to continue into the future, health permitting.

10. While there are other family members, I accept that they are either estranged from the caree and/or holding down jobs, caring for families and have other demands. I have read each of their statements carefully and listened to the oral evidence here and do not find that realistically they can give a level of care that is described in the regulations (where the caree has a medical condition which is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; where because of the medical condition, the caree has, and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life; and where the assistance cannot reasonably be obtained from Australian welfare, hospital, nursing or community services). Even cumulatively I do not find that tasks performed on an ad hoc basis or even regular basis, when added up, give the care required.

11. The visa applicant presented as a responsible, resilient, and tolerant person. He does not have marital ties. I accept his financial needs are met by his aunt’s family. He knew her health conditions well and I accept he is diligent in helping her.

12. The evidence of the psychiatrist and GP is given strong weight. There is a long term ongoing therapeutic relationship and these professionals know the caree well. I accept their assessment that her long-term needs are best served by her current care arrangement. Professional nursing services would be problematic for the caree for the reason described around her mindset and conditions. I accept that NDIS care, while useful, does not extend to the level of care she needs. There is written evidence of requests for guidance for assistance to various charities and organisations that have not been fruitful.

13. I find the caree is unable to work, suffers from serious conditions and has to spend considerable time on medical appointments and treatments.

14. The Tribunal was left with an impression of a person with considerable anxiety and very dependent on assistance, who was on the edge of despair about her situation. She is heavily reliant on the visa applicant, and likely to remain so.

15. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl 836.213.

    Whether the applicant is a carer

16. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or 'resident'). The term 'carer' is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision. This is the case.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

17. Regulation 1.15AA(1)(a) requires the applicant is a 'relative' of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a 'close relative' or other specified relation). In the present case, the Australian relative is identified as the visa applicant's aunt. She is an Australian citizen usually resident in Australia.

18. Therefore, as the applicant is the nephew of the Australian relative, the applicant is a 'relative' of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

19. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.

20. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument 14/085), or issued by a specified health provider in relation to a review of such an opinion.

21. There is a certificate as required in the regulations, as provided to the Tribunal. The certificate meets the requirements of reg 1.15AA(2).

22. According to the certificate the resident has a medical condition causing impairments of the person's ability to attend to the practical aspects of daily life.

23. The impairment has an impairment table rating specified in the certificate because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life.

24. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

25. Residency status of person with medical condition – reg 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.

26. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

27. 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.

28. In the present case, the impairment rating specified in the certificate is 70. This was issued by Bupa Medical Services on 10 March 2022. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Willing and able – reg 1.15AA(1)(f)

29. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that 'willingness' is concerned with the applicant's state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

30. The term 'substantial and continuing assistance' has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of 'special need relative' in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term 'substantial' is directed to the level of assistance and the term 'continuing' is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative.

31. Although the comments in this case were not made in the context of the definition of 'carer', the Tribunal considers them to be of assistance when considering that definition.

32. For the reasons stated above I find that the visa applicant is both willing and able to provide substantial and continuing assistance required.

33. Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

34. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

35. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

36. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.221 of Schedule 2 to the Regulations;

    Justin Meyer
    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.