1928722 (Migration)

[2024] AATA 956

1928722 (Migration) [2024] AATA 956 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Joumana El Halwe (MARN: 1388161)

CASE NUMBER:  1928722

MEMBER:Justine Clarke

DATE:25 January 2024

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 criterion for a Subclass 836 (Carer) visa is met:

·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 25 January 2024 at 4:08pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – applicant had not provided a CVAC that meets the requirements of reg 1.15AA – applicant and sponsor are siblings – sponsor is an Australian relative of the applicant – certificate provided meets the requirements of reg 1.15AA – updated Carer Visa Assessment Certificate provided – sponsor’s needs for assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia – at the time of decision the applicant is a carer of the Australian relative –  applicant is willing and able to provide to the sponsor the substantial and continuing assistance of the kind needed – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5, 65, 360

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cls 836.212, 836.221

CASES

Anveel v MIBP [2013] FCCA 2181

Jajo v MIBP [2013] FCCA 1554

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 on 4 October 2019 by a delegate of the Minister for Home Affairs to refuse to grant the applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. On 6 March 2019, the applicant, who is a national of Lebanon, applied for the visa. At that time, she was [age] years of age. At the time of this decision, she is [age] years of age.

3. At the time that the applicant applied for the visa, 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 this case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa.

4. 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. Clause 836.221 is a time of decision criterion which provides: ‘[t]he applicant is a carer of the Australian relative mentioned in clause 836.212’.

5. The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to these reasons for decision. ‘Relative’ is defined in reg 1.03 of the Regulations. In this case, the Australian relative is [Ms A]. At the time the applicant applied for the visa, [Ms A] was [age] years of age. At the date of this decision, she is [age] years of age.

6. The applicant provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visa to the applicant on the basis that cl 836.221 was not met. This was because the delegate found that reg 1.15AA(1)(b) and (c), within the definition of ‘carer’, were not met.

7. The delegate relevantly stated:

   On 20 June 2019 the Department received a CVAC [that is, a Carer Visa Assessment Certificate] dated 26 March 2019. In the CVAC, it is recorded that [Ms A] received an impairment rating of 10 under the Impairment Tables.

8. The delegate noted the migration agent’s written submission of 20 June 2019, including that:

   [Ms A]’s result was unsuccessful as her medical information was not taken into consideration (she did not have it ready at the time of assessment), therefore [Ms A] is requesting Bupa Medical Visa Services reassess her case with the completed supported documents. [Ms A] attempted to get all of the supporting documents for her assessment, however, some of the doctors that she needed to see were unavailable. She is in the process of making appointments with the doctors to request all of the medical documents she requires for the reassessment.

9. However, by the time the delegate made their decision on 4 October 2019, they stated that there was no further evidence that suggested that the reassessment process was underway and the delegate found that the applicant had not provided a CVAC that meets the requirements of reg 1.15AA(2).

10. On 10 October 2019, the applicant applied to the Tribunal for the review of the delegate’s refusal decision. The applicant was represented in relation to the review.

11. On 7 December 2023, the Tribunal wrote to the applicant, by way of the representative, noting that when the delegate was considering the application for the visa, they considered a CVAC dated 26 March 2019 and that considerable time has passed since that CVAC was issued and further that that CVAC states that [Ms A] received an impairment rating of 10 under the Impairment Tables. The letter invited the applicant to take steps to obtain a new CVAC in respect of [Ms A], noting that it was the applicant’s choice if she wanted to obtain an updated CVAC or not. The letter requested a response by 22 December 2023.

12. On 9 December 2023, the applicant submitted a number of documents in response to the Tribunal’s letter, principal amongst these was a CVAC in respect of [Ms A] dated 17 November 2022. The other documents submitted at this time were a signed letter from [Dr B], dated 10 September 2022 and concerning [Ms A], complete with a list of her medications; a signed letter from [Dr C] of [named] Service, dated 12 May 2022 and concerning [Ms A]; a letter from [Dr D] of [named] Hospital Melbourne dated 14 December 2018 and concerning [Ms A]; and a copy of the bio-pages of the applicant’s Lebanese passport with expiry date in 2033.

13. On 12 December 2023, having reviewed this evidence, the Tribunal sent a further letter to the applicant, again by way of the representative. This letter relevantly stated:

    The Tribunal requests that you provide information and any evidence to support the
    claims that:

    ·the assistance [Ms A] requires—specifically, the direct

    assistance in attending to the practical aspects of daily life—cannot reasonably be provided by any of [Ms A]’s relatives who are Australian citizens, Australian permanent residents or eligible New Zealand citizens;

    ·the assistance [Ms A] requires—specifically, the direct assistance in

    attending to the practical aspects of daily life—cannot reasonably be obtained
    from welfare, hospital, nursing or community services in Australia (including
    any evidence of attempts to access such services); and

    ·you, [the applicant], are willing and able to provide to [Ms A] substantial

    and continuing assistance of the kind she needs.

14. The letter requested that the information be provided in writing by 22 December 2023. The letter also stated, ‘[a]lternatively, if you would prefer to go straight to a hearing to give oral evidence about these matters, please let the Tribunal know’.

15. On 21 December 2023, the representative requested an extension of time in which to respond.

16. Later in the day on 21 December 2023, the Tribunal wrote to the applicant, by way of the representative, to advise that an extension of time had been granted until 25 January 2024.

17. On 3 January 2024, the applicant submitted a number of documents in support of her case. She submitted statutory declarations made by [Mr E], [Mr F], [Mr G] and [Ms H], all made on 22 December 2023. She also submitted various documents in support of various claims made in the declarations such as a ‘to whom it may concern’ letter from [named] Cancer Centre concerning [Mr G]  , dated 22 January 2020 (the accompanying description stated that [Mr G] is the applicant’s nephew); a payslip for [Mr G], dated 18 December 2023; a printout of an ABN for the entity ‘[business name]’ as at 21 December 2023 (the accompanying description stated that this was the ABN certificate for the applicant’s nephew) and certified copies of various Medicare and pension cards (the accompanying description stated that these were for the applicant’s relatives). Other documents submitted at this time were a copy of a ‘DSP’ card, in the name of ‘[Ms A]’ addressed to ‘[Mr E]’ with an expiry date of 28 February 2024 (the accompanying description stated that [Mr E] is the applicant’s brother-in-law) and a copy of the applicant’s digital national police certificate dated 28 December 2023.

18. On 12 January 2024, the applicant submitted a signed letter from [Dr B], dated 8 January 2024. The content of the letter suggests that [Dr B] is the treating general practitioner of [Ms A]. This letter also details [Ms A]’s current medications.

19. On 15 January 2024, the applicant submitted written submissions prepared by the representative and dated 15 January 2024.

20. On 25 January 2024, the applicant submitted a number of medical records. These included a signed and stamped letter from physiotherapist and occupational therapist [Mr I] noting that [Ms A] had attended on 24 January 2024 and eight occasions from 12 February 2018 to 20 August 2019 and detailing his assessment. He recommended that ‘home help be provided to her on continuous basis to ensure that she can perform most of day-to-day activities safely and that provision of care prevents the onset of disability’. Other documents included a signed letter from [Dr C] of the [named] Service dated 24 January 2024 and a variety of older medical records. The representative confirmed by telephone that she would not be submitting any further evidence on 25 January 2024.

21. After reviewing the written submissions and the evidence, the presiding Member determined that a hearing was not required. Pursuant to s 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour based on the material before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue for determination in this case is whether, at the time of this decision, the applicant is [Ms A]’s carer and thus cl 836.221 is met.

24. The Tribunal notes that it has a greater amount of evidence in respect to this issue than what had been before the delegate.

    Whether the applicant is a ‘carer’

25. The applicant claims that she is the carer of [Ms A], who is an Australian citizen usually resident in Australia (‘the resident’).

26. In the primary decision, the delegate was satisfied that [Ms A] is ‘the resident’.

27. The Tribunal records here that it is satisfied, from the evidence before it—including the certified copy of the bio-pages of [Ms A]’s Australian passport, which is on the Department’s file, that [Ms A] is an Australian citizen who is usually resident in Australia.

    Is the applicant ([name]) a relative of the resident (that is, [Ms A])? (reg 1.15AA(1)(a))

28. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative. The term ‘relative’ is defined in reg 1.03 as a ‘close relative’ (also a defined term in reg 1.03) or other specified relation. The term ‘close relative’ includes a sister.

29. The Tribunal notes that, in the primary decision, the delegate stated that it was claimed that the applicant was the daughter of [Ms A]. This is incorrect. The claim is that they are sisters. (See the responses in the Form 47OF—Application for migration to Australia by other family members).

30. The Tribunal notes the extract of the family civil record held by a Lebanonese Government department (both the copy of the original in Arabic and the copy of the English translation) as at 26 December 2017. This document states that both the applicant and [Ms A] have the same mother and the same father.

31. Based on the evidence before it, the Tribunal is satisfied that the applicant is the sister of [Ms A] (the Australian relative) and thus a ‘relative’ of the resident within the meaning of reg 1.03. Accordingly, the requirement in reg 1.15AA(1)(a) is met. 

    Does the certificate meet the requirements? (reg 1.15AA(1)(b) and reg 1.15AA(2))

32. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), state 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.

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

34. In this case, the most recent certificate issued pursuant to reg 1.15AA(1)(b) and reg 1.15AA(2) is the certificate titled ‘Carer Visa Assessment Certificate’ dated 17 November 2022. The certificate provides the name and signature of the examining doctor. It is on the letterhead of Bupa Medical Visa Services. Legislative Instrument IMMI 14/085 specifies Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

35. The certificate specifies that:

    ·     [Ms A] has a medical condition causing physical, intellectual or sensory impairment of her ability to attend to the practical aspects of daily life;

    ·     because of [Ms A]’s medical condition, she has a need for direct assistance in attending to the practical aspects of daily life;

    ·     the impairment has an impairment table rating specified in the certificate; and

    ·     because of [Ms A]’s medical condition, she 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.

36. The Tribunal is satisfied that the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)–(iv) and that the requirements of reg 1.15AA(1)(b) are met.

    Does the person with the medical condition (here, [Ms A]) meet the residency requirement? (reg 1.15AA(1)(ba))

37. 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.

38. As has already been stated, the Tribunal is satisfied from the evidence before it that [Ms A] (the person with the medical condition) is an Australian citizen residing in Australia. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Does the impairment rating meet the requirements? (reg 1.15AA(1)(c))

39. 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.

40. The relevant instrument for these purposes is IMMI 17/126.

41. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

    Does reg 1.15AA(1)(d) need to be satisfied?

42. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

    Can the assistance be reasonably provided by any other relatives or obtained from certain services? (reg 1.15AA(1)(e))

43. 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 NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.

44. With respect to reg 1.15AA(1)(e)(i), it is helpful to note that the term ‘relative’ is defined in reg 1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. A close relative is a spouse or de facto partner of the person; a child, brother or sister of the person; or a step-child, step-brother or step-sister of the person.

45. Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that reg 1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

46. The Tribunal is mindful that whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]–[62]. When making such assessment, consideration should also be given to the nature of care required by the person needing the care: at [61].

47. The CVAC dated 17 November 2022 details the nature of the care required by [Ms A]. [Dr B]’s letters of 10 September 2022 and 8 January 2024 also provide relevant detail. Amongst other things, [Dr B] explained:

    [Ms A] consumes large amounts of medication which make her drowsy and lethargic. [Ms A] asked the doctors at the hospital if there is any operation which could cure her back pain. The answer was no guarantee because she has extreme arthritis and severe disc lesions of the back and it was decided to continue conservative treatment in the form of medication and physiotherapy.

    [Ms A] is unable to look after herself, as a diabetic person she needs to follow a healthy diet for her diabetes, but she is unable to cook. She also gets severe neck and back pain with any slight physical effort. She cannot control her urine and she needs frequent washing and showering. She is unable to have a shower or bath on her own. She is very liable for falling and this occurs sometimes. Besides [Ms A]’s physical impairments, she’s also become depressed, everything around her is depressing her, her sick husband, her sick son. She is always in pain and is also unable to carry on her personal hygiene requirements. …

    Unfortunately, all of [Ms A]’s medical conditions are life long with no possible new treatment or expected improvement in her condition. However, considering all of her medical problems, the presence of [Ms A]’s sister and the help and care she is offering her has made a great difference in the health and wellbeing of [Ms A] and good measurement in preventing further deterioration of her health.    

48. The recent letters from [Mr I] and [Dr C] also gives insight into the nature of the care required by [Ms A].

49. The Tribunal notes that, in the primary decision, the delegate was silent about whether or not the requirement in reg 1.15AA(1)(e)(i) was met. However, the Tribunal notes the evidence that had been before the delegate:

    ·Statutory declaration from [Mr E] ([Ms A]’s husband) made on 5 March 2019 declaring that he is unable to care for [Ms A] because he is disabled and his daughter was taking care of him on a full-time basis. He declared that he needed constant care to complete day-to-day living needs.

    ·Medical certificate, dated 11 February 2019, from Centrelink certifying [Mr A]’s medical condition.

    ·Statutory declaration from [Ms H] ([Ms A]’s daughter) made on 5 March 2019 declaring that she is unable to care for [Ms A] because she cares for her father and her two children under the age of 5 years, declaring that the three of them needed constant care on a full-time basis.

    ·Statutory declaration from [Mr G] ([Ms A]’s son) made on 5 March 2019 declaring that he is unable to care for [Ms A] because he has his own specified heath issues which require constant care.

    ·A ‘to whom it may concern’ statement, dated 5 March 2019, by the applicant attesting to her knowledge of [Ms A]’s husband’s and son’s healthcare needs and that [Ms A]’s daughter is caring for them both, as well as for her own two daughters who are under the age of four years.

1. As has been explained, in this review, further statutory declarations made by a number of [Ms A]’s relatives were submitted. This evidence can be summarised as follows.

   ·     Statutory declaration from [Mr E] ([Ms A]’s husband) made on 22 December 2023 declaring that he does not have ‘the willingness, capacity or the ability to care for my wife with the assistance she requires on a daily basis’ because he is disabled and has multiple illnesses and his conditions have had an impact on hm both mentally and physically. He noted that [Ms A] cared for him from 2011 until 2018, when she needed to cease her carer responsibilities because of her severe back and neck injuries.

   ·     Statutory declaration from [Ms H] ([Ms A]’s daughter) made on 22 December 2023 declaring that her mother requires constant care during the day and night and that she is unable to provide her mother with the care that she needs because she is her father’s carer, and she is also married with four young children aged 9, 6, 3 and 1 years.

   ·     Statutory declaration from [Mr F] ([Ms A]’s son-in-law) made on 22 December 2023 declaring that he cannot provide any support to his mother-in-law because he works full time as a [Occupation 1] and supports his wife to care for their four children aged 9, 6, 3 and 1 years, also noting that his wife is providing daily care to her father.

   ·     Statutory declaration from [Mr G] ([Ms A]’s son) made on 22 December 2023 declaring that he does not have ‘the willingness, capacity or the ability to care for my wife with the assistance she requires on a daily basis’ because he has his own health issues, noting that at age [age], he was diagnosed with cancer and later had his spleen and gallbladder removed, and because he is working full time as a labourer.

2. As noted earlier, in this review, some documentary evidence was submitted in support of some of the claims made in these statutory declarations.

3. It was submitted, in the written submissions of 15 January 2024, that information had been provided from all of [Ms A]’s adult relatives in Australia. The submissions continued:

   Our client has considered the option of her family members in Australia to seek assistance. None of them are able to care for her. They do not have the willingness, capacity and/or the ability to care for the sponsor with the assistance she requires. We have provided supporting documents that clarify the inability to provide fulltime care.

4. Based on the evidence, which the Tribunal accepts, the Tribunal accepts the veracity of the written submissions and finds that, at the time of this decision, reg 1.15AA(1)(e)(i) is met.

5. With respect to reg 1.15AA(1)(e)(ii) (which, it will be recalled, requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia), the delegate made no finding about whether or not the requirement was met.

6. The written submissions of 15 January 2024 contain the following written submission.

   The sponsor has utilised external services. She is uncomfortable in using external services for her daily living needs. She is a Muslim woman whose family has always been proudly self-reliant and private. There will be some services she is able to access such as house cleaning and grocery shopping. She is not able to obtain the assistance that is required from external sources, such as welfare organisation or hospital or nursing home or community services on a full-time basis for other personal day to day caring matters. Although some services are available and utilised, her overall needs are not met. It is her intention to remain in her own home.

7. The Tribunal notes that in the completed Form 47OF for the visa, at question 71, the applicant had been asked:

   Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?

8. The ‘yes’ box was ticked and the name of the organisations were listed as [named] Social Services and [a] City Council. The form also contains the response ‘[f]urther information will be submitted after’.

9. If this matter had proceeded to hearing, it is likely that fulsome details would have been given about the enquiries that had been made of [the] Social Services and [the] City Council. It is possible that enquiries were also made of other welfare, hospital, nursing or community services in Australia, including through the NDIS (National Disability Insurance Scheme).

10. Ordinarily, the Tribunal requires specific detail of all the enquiries that have been made of welfare, hospital, nursing or community services in Australia as to whether the assistance required by the person (here, [Ms A]) can be obtained from such services. However, in this case, the Tribunal did not consider it necessary to hold a hearing simply to hear oral evidence about this issue. The Tribunal reached this view because the evidence is that [Ms A] needs substantial assistance with her personal day-to-day care, including frequent toileting and frequent bathing. The submission that she is a Muslim woman also suggests that it may be culturally inappropriate for her to be assisted with toileting and bathing by a male carer. It will be recalled that [Dr B] states that she cannot control her urine and consequently needs frequent washing and showering—something that she requires assistance with. [Mr I] noted that, at night, [Ms A] needs assistance to go to the toilet. These comments suggest that [Ms A] requires a high level of care—possibly as much as 24-hour care—for this aspect of her care alone. The Tribunal is aware that it would be extremely difficult to find a service to accommodate [Ms A]’s particular personal hygiene care needs that would also enable her to remain living in her own home rather than enter a care facility. It should be remembered that [Ms A] is a middle-aged woman of [age] years rather than an elderly woman.    

11. Having reviewed, considered and accepted all the evidence that has been submitted, the Tribunal is satisfied that the assistance that [Ms A] requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal finds that, at the time of this decision, reg 1.15AA(1)(e)(ii) is met.

12. To conclude, in view of the evidence before it, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

    Is the applicant willing and able to provide the assistance required? (reg 1.15AA(1)(f))

13. 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.

14. 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. 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.

15. As noted above, when the matter was before the delegate, the applicant submitted a ‘to whom it may concern’ statement dated 5 March 2019. The applicant relevantly stated the following:

    I renewed my tourist visa more than once in order for me to support my sister with all her constant health needs.

    I have been taking care of my sister [Ms A] since she fell extremely sick after a couple of weeks of my arrival. …

    … I am trying my best to manage my sister and her daily living needs.

    My sister is a very vulnerable person and she needs my constant daily care and support. When I saw my sister struggling on her own, I decided to stay with her and help her. I felt I had no other choice but to take on the responsibility upon myself to stay with her and look after her.

    …

    I assist my sister with her daily needs such as, administering her medications, escorting her to see her doctor at the hospital. I help her with showering, using the bathroom as well as the toilet. I support her with standing up and sitting so that she does not fall over. I cook and clean for her. I monitor her at night as she has sleeping issue. Most of the time she cannot function at all and remains in bed. I ensure she is safe and I stay by her side just in case she needs anything.

    We are a close knit family and [Ms A] is my older sister we are very close to each other. I feel I have the responsibility as her younger sister to do anything to support her physically and emotionally and to help her overcome all the obstacles she is facing.

    I have been taking care of [our] parents with their mental and physical health issues until they departed this world. Therefore, I am familiar and have a clear understanding on the approaches of dealing with such health issues and have learnt first aid, therefore, I am able to take care of her and can manage and attend to her daily living needs.

    I have been the full time carer for my sister [Ms A] since my first few weeks of my arrival in Australia because she requires my full attention and assistance. 

16. The Tribunal accepts and gives weight to this statement.

17. In this review, it was submitted that

    The Applicant is willing and able to provide ongoing substantial care and support for her sister. As stated in the application, the Applicant is more than willing to assist her sister.

    The Applicant is of good understanding of her sister’s medical conditions. She is currently caring for her. The Applicant further understands her sister’s care needs to be able to provide care she needs. We submit that the Applicant meets this requirement.

    The Applicant is willing to provide her sister with the long-term care and assistance that she requires. She has the knowledge, capacity and capability to provide her sister with the assistance and care needed. As stated above, she is willing to assist with practical aspects of daily life including (but not limited to):

    (1)  bathing;

    (2)  toileting;

    (3)  preparation of food;

    (4)  buying groceries;

    (5)  basic house cleaning;

    (6)  attending medical appointments;

    (7)  taking her outdoors; and

    (8)  emotional support and physical support. 

18. The Tribunal accepts this submission. The Tribunal has no reason to doubt that, at the time of this decision, the applicant is both willing and able to provide substantial and continuing assistance of the kind that her sister [Ms A] requires.

19. 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).

    CONCLUSION

20. 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.

21. 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

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

    ·cl 836.221 of Schedule 2 to the Regulations.

    Justine Clarke
    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.