2009447 (Migration)

[2023] AATA 3585

2009447 (Migration) [2023] AATA 3585 (10 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

VISA APPLICANTS:  Mrs Thi Trinh Ngo
Mr Khuong Chat Nguyen

CASE NUMBER:  2009447

MEMBER:David Crawshay

DATE:10 October 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 10 October 2023 at 11:50am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance cannot be reasonably provided by any other relative or obtained from service providers – dementia and possible Parkinson’s disease likely to continue to deteriorate – fully dependent for activities of daily living – one child appointed as guardian and administrator – part-time aged care package – visa applicant’s extended care during COVID pandemic – in her absence, other relatives’ cyclical caring arrangement sustainable but exhausting – insufficient information or documentation about relatives’ situations and potential care – visa applicant not eligible for other subclass visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(e)(i), Schedule 2, cl 116.221

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 27 March 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 29 August 2016. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the visa applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied that the first-named visa applicant (hereafter referred to as the visa applicant) was the carer of the resident, who is also the sponsor and review applicant. Specifically, the delegate was not satisfied that the resident’s care needs could not reasonably be met by members of her family on a collective basis, particularly in conjunction with potential support from the relevant services within Australia. A copy of the decision record was provided to the Tribunal by the resident.

4. The resident, as review applicant, appeared before the Tribunal on 14 September 2023, although she did not give evidence. An order dated 15 June 2023 from the Victorian Civil and Administrative Tribunal was submitted showing that Ms Le Em Thi Ngo (otherwise known as Cindy) had been appointed as guardian and reappointed as administrator of the resident. Under the order, Cindy had been given the power to make decisions about where the resident was to live. Based on this order, the Tribunal accepts that Cindy is able to act on the resident’s behalf for the purposes of the conduct of the review. Cindy gave evidence and presented arguments at the hearing. The Tribunal also received oral evidence from the visa applicant, from another daughter of the resident, Ms Tram Thi Ngo, and from a grandson of the resident, Mr Van Bon Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant is a carer of the review applicant at the time of this decision.

   Whether the visa applicant is a “carer”

7. Clause 116.221 requires that at the time of decision, the visa applicant is a 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.

   Assistance cannot be reasonably obtained/provided – r.1.15AA(1)(e)

8. 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. However, before the Tribunal can make findings about whether this assistance cannot reasonably be provided by the appropriate relatives or obtained from the relevant services or a combination of both, it must assess the level and particulars of the assistance required by the resident.

9. In a Carer Visa Assessment Certificate (CVAC) dated 16 December 2021, the resident was said to have the following medical conditions that may impact her capacity to self-care:

   ·Dementia; and

   ·Possible Parkinson’s disease.

10. In relation to the functional assessment of the conditions, the assessing doctor made the following findings. The doctor found that conditions impacting lower limbs had a mild functional impairment. She was said to have walked in a slow, shuffling gait and needed a person to assist. It was noted that she had been given a provisional diagnosis of Parkinson’s disease. Because the condition had not been “fully managed”, the condition was only awarded “limited points”.

11. The doctor also found that there had been an extreme functional impairment on the resident’s brain function. Specifically, the resident was found to be suffering from an Alzheimer’s dementia, with which she was diagnosed in 2016. She was said by her GP to have been getting “progressively forgetful, confused, aggressive towards her family members, has nightmares and has very unsettled nights”. She was able to recall some personal details at the CVAC appointment such as her name and part of her date of birth, but was unable to say that day’s date, where she was or the reason for the visit. She was said to have had difficulty following two-part instructions and finding her jacket zip when instructed to undress.

12. The resident’s overall rating was 35 points.

13. The resident was found by the examining doctor to be fully dependent in relation to the activities of daily living – being mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervising medication, supervision for personal safety and transportation. The CVAC stated that she had been awarded Aged Care package level 4 and had an aged care worker to supervise her during the day, four-days-a-week for up to 12 hours-a-week. It stated that her daughters also care for her and assist with her showering, toileting, preparing her meals, medication and finance management.

14. A letter from the resident’s GP dated 2 September 2023 stated that the resident was suffering from worsening dementia with paranoid thought and hallucination, having “sleepless nights” and “talking screaming all night”. A letter from her psychiatrist dated 14 September 2023 stated that the resident needed 24-hour care. The psychiatrist said that, while the resident’s treatment had been optimised, it was unlikely that she would get better; instead, her condition would likely continue to deteriorate over time. The psychiatrist said that he understood that the visa applicant had been caring for the resident during an extended period of time during the COVID-19 pandemic when she was in Australia. The psychiatrist said that his understanding was that the resident’s other family members all had jobs and family to care for, and it had been difficult for the resident to get “appropriate and consistent care”. The psychiatrist said that it was better for patients with dementia to have familiar faces and carers.

15. At hearing, the Tribunal asked Cindy how many times the resident’s carer would be called upon to assist overnight, and she replied that it varied from one-or-two times-a-night to sometimes 10 times-a-night. She said that the resident is coughing a lot and has vivid dreams that cause her to have an emotional reaction. She said that they have to help the resident to walk around when she wants to.

16. The Tribunal confirmed with Cindy that the resident receives three hours of aged care servicing each weekday. When asked whether respite care had been explored, she said that the resident refused to have respite care, and that they did not like the idea of it anyway. She said that they had discussions about it six years ago when “her mind was still clear”, but she said that she did not want to go elsewhere.

17. The Tribunal asked the visa applicant (who had been in Australia since early-July 2023) what the caring arrangements comprised. She replied that she would help to massage the resident early in the morning and that, at 8:30am, she would wash her face and toilet her before preparing breakfast. She said that she would administer her medications. The visa applicant said that they live near to a lake and so she would take the resident there and talk to her if it was sunny. She said that she would take her to the window if it was a rainy day. She said that the resident would have lunch at 1:00pm and then have a rest for one-and-a-half hours. After this, she would give her fruit and massage her before giving her dinner at 6:00pm. At 7:00pm, she would administering the resident’s medication before putting her to bed at 8:00pm. She said that she would sometimes need to help out two-to-three times during the night. She said that if the resident was yelling or shouting, she would calm her down.

18. When asked whether other members of the family assisted, the visa applicant said that they would assist if not working. When asked if this was a regular or ad hoc arrangement, she said that if she really needed help, then she would call on Cindy. She said that otherwise people would drop around when they were free.

19. The Tribunal has also considered documents on the Department and Tribunal files. In this regard, it has had regard to a letter dated 4 September 2023 from Cindy, in which she stated that she had been appointed as the resident’s guardian and administrator. She said that she fully supported caring for the resident at Quyen’s house which had been fully fitted out and modified to cater for the resident’s home care needs. She said that she liaises with the resident’s health and care professionals to ensure on-time treatment. She said that she organises disability transport. She said that she was available 24-hours-a-day to any caregiver, even during work hours – an arrangement that has the support of her employer (her employer wrote a letter of support dated 4 September 2023). Cindy stated that she shares the responsibility of round-the-clock care with her siblings, with one of her siblings present at any given time.

20. The Tribunal has considered other such letters from the resident’s Australian-based children. In a letter of 28 August 2023 from Ms Quyen Thi Ngo, a daughter of the resident, she stated that members of the resident’s family have engaged in a “cyclic caregiving arrangement for the benefit of our mother”. In a letter of 28 August 2023, Mr Vu Van Ngo confirmed that the resident’s family has committed to keeping the resident at home “taking turns to provide care for [her] during her advanced years”. Mr Nhiem Van Ngo (letter dated 28 August 2023), Ms Thi Chi Ngo (letter dated 5 September 2023), Ms Tram Thi Ngo (letter dated 5 September 2023), Ms Thi Kim Loan Ngo (letter dated 5 September 2023), Ms Thi Hang Ngo (letter dated 4 September 2023) and Mr Long Van Ngo (letter dated 29 August 2023), claim to have been taking part in her care. Ms Thi Phuong Ngo (letter dated 5 September 2023) claims that she is unable to care for the resident and has suspended her responsibility for caring. Ms Thi Nhi Ngo (letter dated 5 September 2023) claims not to care for the resident because she has recently arrived in Australia and was establishing herself in employment.

21. The Tribunal has considered the information in front of it, including the information above. Based on the contents of the CVAC and on the letters from her GP and psychiatrist, it finds that the resident is suffering from dementia which was having an extreme effect on her ability to function. Based on the CVAC, it finds that the resident may also be suffering from Parkinson’s disease, although it also notes that this condition was not mentioned in any other document, including the aforementioned letters from her treating health professionals.

22. That said, the Tribunal finds that the assistance required by the resident is nonetheless constant and all-encompassing, comprising the full suite of activities and over a 24-hour period. It finds that the resident benefits from 15 hours of assistance-per-week from aged care service providers during the hours from around 9:00am until around 12:00pm. It finds based on letters from the resident’s children, especially from her guardian and administrator Cindy, that she has otherwise been cared for by nine of her family members on a cyclical basis. It finds that the visa applicant has been assisting during her time here.

23. Having made findings about the level and extent of assistance required by the resident, the Tribunal now turns to consider whether this assistance cannot reasonably be provided by the resident’s family members or obtained from the relevant services within Australia.

24. In her letter of 4 September 2023, Cindy relevantly stated as follows:

    I believe my siblings and I are all exhausted, but we are all determined to care for our mother at home.

25. At hearing, the Tribunal asked Cindy whether the way of providing assistance to the resident (during the last period when the visa applicant was not in Australia from January 2022 to July 2023) was unsustainable. She replied that it was sustainable, but that the family agreed at a meeting that everyone was very tired.

26. The Tribunal asked Cindy whether any consideration had been given to introducing the resident’s grandchildren to the caring arrangement given that she had told it that one of these grandchildren, Mr Van Bon Ngo, had sometimes looked after the resident. It suggested that even if they were not trained in the skills for caring, they could be trained by their parents. Cindy replied that Bon, as the resident’s oldest grandchild, had been brought up in the Vietnamese culture and understood that the young must look after their parents. She said that even her three children could be asked to give assistance to her and would do as they were told, but would have no understanding of why they would carry out the tasks and would not feel the responsibility to look after the resident. She stated that the resident’s grandchildren either have jobs or study full-time or both.

27. The Tribunal challenged Cindy’s statement about the resident’s grandchildren not feeling responsibility for caring for the resident, putting to her that this was a sweeping statement that did not account for the wishes or ability of these grandchildren. She responded that when her children perform a task like taking the resident to the toilet, they “do not want to stay behind for hours”. While noting that her view may be based on the experience of her own children, the Tribunal asked about her nieces and nephews (i.e. the resident’s other grandchildren). Cindy responded that while, generally speaking, they offer some assistance, they do not stay there for three-to-five hours so that their parents can have a break. She said that the only grandchild to assist is Bon; the other cannot.

28. At this point, the Tribunal put to Cindy that there were at least 20 grandchildren who could assist their parents or their aunts or uncles during the time when those people care for the resident. Cindy agreed that there were plenty of grandchildren, but most have jobs and she does not want them to take time to care for the resident because she wants them to concentrate on their jobs.

29. The Tribunal had the opportunity to interview one of the resident’s grandchildren, Bon, who said that he provided assistance to the resident with English translation after she arrived. He said that he was very close to the resident and wanted to support her as best as he could. He said that he had taken time off to care for her on several occasions. Bon said that he was a community leader and has a strong conviction for caring for older people. He said that he knew what was required – it was important for people like the resident to feel like they are surrounded by people who speak the Vietnamese language and understand the culture, as well as routine. He said that the resident needs to feel the comfort of family around her. He said that it was the moral responsibility of her grandchildren to look after her.

30. Bon said that he supported having the resident at home but he saw that it was not possible for his aunts and uncles to continue going on like they are, as they all have full-time work and he was concerned for them. He said, for example, that two of them were truck drivers and this presented a risk. He said that his own mother was an operator and his second-eldest aunt a process worker.

31. When asked what he thought about his cousins (i.e. the resident’s grandchildren) providing assistance, Bon said that he was a senior scientist and had a brother who was not living in Australia. He said that his other siblings have jobs, but they all visit her. He said that his other cousins were younger than him and his siblings. He said that they have jobs but look after the resident after work and on the weekends. He gave the example of his cousin, Jennifer (confirmed as Jennifer Ngo, daughter of Mr Nhiem Van Ngo) whom he said looked after the resident.

32. The Tribunal interviewed a daughter of the resident, Tram, who told it that they all loved their mother because she cared for them and sacrificed her life for them. She said that they try to take care of her for her last stage of life. She said that it would be the best solution to allow the visa applicant to help the resident in the last stages of her life.

33. Based on the information in front of it, the Tribunal finds that the assistance required by the resident is currently being provided through a combination of aged care service providers providing 15 hours of care-per-week and family members (comprising all-but-two of the resident’s Australian-based children and, since early-June 2023, the visa applicant).

34. In terms of whether the assistance cannot reasonably be provided by the resident’s Australian relatives, the Tribunal has considered Cindy’s statement at hearing that the cyclical caring arrangement (as it existed when the visa applicant was not in Australia) was “sustainable” but that her siblings claimed to be very tired in a family meeting. It finds that this statement is broadly consistent with the contents of her letter of 4 September 2023, wherein she stated that she believed “my siblings and I are all exhausted, but we are all determined to care for our mother at home”. It considers that it must put weight on both these pieces of information as they appear to have been given by her in a clear and straightforward manner.

35. However, her claim that her siblings were tired or, in the case of her letter, “exhausted”, invites the question as to what extent Cindy can speak on their behalf. After all, she gave evidence in the form of a letter from her employer which stated that it “fully support[ed]” her with her caring responsibilities and it is not clear whether these siblings enjoy this level of support. Indeed, several of her siblings described a situation where they have had difficulties in striking a balance between their job on the one hand and their caring obligations in respect of the resident on the other for financial reasons (as in the case of, for example, Nhiem’s letter of 28 August 2023) or because of the effort involved (as in the cases of, for example, Quyen’s letter of 28 August 2023 and Phuong’s letter of 5 September 2023).

1. The Tribunal has also considered information from the resident’s psychiatrist via his letter of 14 September 2023 that her condition is likely to continue to deteriorate over time. This adds a further layer of complexity as the caring needs of the resident – as extensive as they already are – are likely to further increase over time.

2. Based on the information in front of it, including the above information, the Tribunal finds that the present caring arrangement between the Australian-based children of the resident is able to continue albeit with what is likely to be considerable physical and emotional strain and, in some cases, some financial strain and potentially some risk given that some of the resident’s children work in transport and factory settings. It further accepts that this strain is likely to increase given the likelihood that the resident’s caring needs will increase.

3. A next question to ask is whether there are other relatives of the resident who would be able to supplement the assistance already provided by the resident’s children in order to lessen the physical, emotional and financial strain experienced by them and the potential for risk given their jobs. In this regard, it is worth noting that, according to a spreadsheet provided on behalf of the resident by her representative, she has 28 grandchildren. The spreadsheet provides some information about the occupations of these grandchildren which is supplemented in some cases by the contents of letters written by the resident’s children and in most cases by statutory declarations submitted at the Department stage.

4. Of these 28 grandchildren, all but two were said by Cindy to have turned 18 years of age. Additionally, one grandson was said to live in Taiwan, and one granddaughter in Queensland. Two of the grandchildren are the children of the visa applicant – one of whom lives in Vietnam and one in Australia (although his visa status is not known). Accepting these claims to be true, there are therefore 22 additional relatives of the resident who may be able, at least physically, to be called upon to assist her either directly or indirectly by assisting their parents, aunts or uncles.[1] The youngest are in their late-teenage years and early twenties whereas the oldest are over 40 years of age. One is a high school student, some are university students, others are undertaking apprenticeships, others still are in the health, banking and administration fields. Most are listed in the spreadsheet as living in the east and south-east of Melbourne (including 10 in [Suburb] where the resident is located), although some work in other parts of Melbourne including in and around the CBD.

   [1] These 22 grandchildren comprise: Bon Nguyen; Linda Vibal; Kevin Nguyen; Minh Bang Le; Trang Biviano; Van Tinh Nguyen; Van That Nguyen; Kim Lien Huynh; Erin Nguyen; Melissa Ngo; Anthony Ngo; Michael Le; Rebecca Le; Jennifer Ngo; Tommy Ngo; Martin Bui; Matthew Bui; Jason Bui; Stephanie Ngo; Vivian Ngo; Tammy Ngo; and Samantha Nguyen,

5. The Tribunal has considered testimony given by Cindy at hearing regarding the attitudes of the resident’s grandchildren about assisting the resident and their ability to do so. Specifically, it has considered two statements given by her. Firstly, that while her own children may be called upon to carry out assistance, they had no understanding of the tasks and felt no responsibility for caring for the resident. Secondly, that most of the resident’s grandchildren have jobs and she wants them to concentrate on their jobs.

6. However, the Tribunal finds the first of these statements by Cindy to be speculative and unsupported by information from the resident’s grandchildren themselves, at least as it relates to the resident’s grandchildren as a whole. After all, one of these grandchildren, Bon, claimed at hearing to have been providing assistance to the resident. Furthermore, Bon claimed that one of his cousins, Jennifer, had also been looking after the resident. Cindy’s statement is given very little weight as a result, and the Tribunal finds that it is not representative of the intentions of the resident’s other grandchildren.

7. The Tribunal finds the second of these statements to be merely a preference on Cindy’s part that does not address by itself why the resident’s grandchildren cannot reasonable provide assistance to her, even if they have jobs. This is especially so as while some information has been provided about the personal lives of the resident’s grandchildren including their jobs, this information is insufficient by itself to show that these grandchildren would be prohibited from or limited in providing assistance because of their jobs or other facets of their lives. This statement is also accorded limited weight.

8. It may very well be the case that not all grandchildren are able to provide the assistance that is required by the resident, either by themselves or in conjunction with their parents, aunts or uncles. It may also be the case that others still will be limited in their ability to offer such assistance – the case of Vu’s youngest daughter Tammy who is still in high school might be such an example although even this is not clear. However, the Tribunal does not have enough information from or on behalf of the resident’s 22 grandchildren (as listed in the footnote) demonstrating that they would not be able to collectively supplement the assistance that had been provided to the resident (as it existed before the arrival of the visa applicant) in a way that would allow that arrangement to continue in a reasonable fashion, even given the likely deterioration in the resident’s condition. While claims have been made as to why some of these grandchildren would be unable to provide assistance (such as in Nhi’s letter dated 5 September 2023), these claims remain largely unsupported by documentary information, including from the grandchildren themselves. These claims are given little weight as a result.

9. The Tribunal is ultimately faced with a lack of information about why it would be unreasonable for the resident’s grandchildren to provide the assistance to her. This lack of information is significant because a lack of insight from the resident’s grandchildren into the role that they had been playing in the resident’s care formed one of the bases upon which the delegate made her decision. The resident, Cindy and the visa applicant have therefore been on notice of this being an issue in the review since when the delegate made her decision on 27 March 2020 – or more than three-and-a-half years ago.

10. The Tribunal has considered if a caring arrangement involving some or all of the resident’s grandchildren in addition to her Australian-based children would be unreasonable given the resident’s condition and her needs. It has specifically considered the claim by her psychiatrist in his letter dated 14 September 2023 that the best solution for the resident would be for the visa applicant to be allowed to come to Australia to care for her. This claim appears to be based on an earlier claim in that letter that the resident has found it “difficult” to get “appropriate and consistent” care given that her family members “all have jobs to do and family to care for”. However, this is not borne out by the letters given by her family members, which have, to varying degrees, stated that they have been able to provide the assistance to the resident in concert with each other albeit that this caring arrangement has had effects of them. The Tribunal is not satisfied that the resident’s psychiatrist has sufficiently explained why the care that she has received from her Australian-based children has not been appropriate or consistent. Nor has he adequately explained why having the resident’s grandchildren involved in the existing care arrangement either directly or indirectly by assisting their parents, aunts or uncles would mean that she will not receive appropriate or consistent care. These claims are given little weight.

11. The Tribunal has lastly considered if a caring arrangement involving some or all of the resident’s grandchildren in addition to her Australian-based children would be unreasonable because of the resident’s preference or attitude about how she should be cared for or by whom she should be cared. Specifically, it has considered the contents of a letter dated 27 August 2023 from the National President of the Vietnamese Community in Australia wherein he stated that resident “only trusts” the assistance given by visa applicant. It finds that this claim is not supported by other information, including from the resident’s children who make no mention of this. It gives this claim very little weight.

    CONCLUSION

12. The Tribunal has considered the information in front of it in relation to the ability for the resident’s relatives, including some or all of her 22 grandchildren in Melbourne who have turned 18, to provide the necessary assistance along with the assistance that is already being obtained from the relevant services within Australia. For the reasons given above, it has not been demonstrated that the assistance required by the resident cannot reasonably be provided by these relatives.

13. Therefore, the requirements of r.1.15AA(1)(e)(i) are not met.

14. Given these findings, at the time of decision the visa applicant is not a carer of the resident, and therefore does not satisfy cl.836.221.

15. There is no evidence that the visa applicant satisfies any other subclass in Class BO. The evidence before the Tribunal is that the visa applicant is 50 years old. It finds that the visa applicant is not entitled to the grant of Subclass 114 (Aged Dependent Relative) visa as she is not old enough to be granted an age pension under the Social Security Act 1991. As such, the visa applicant is not an “aged dependent relative” as defined in r.1.03 for cl.114.211 of Schedule 2 to the Regulations.

16. The Tribunal finds that the visa applicant is not entitled to the grant of Subclass 115 (Remaining Relative) visa. In her Form 47OF dated 28 August 2016, the visa applicant listed two children who were residing in Vietnam and were not Australian citizens, Australian permanent residents or eligible New Zealand citizens at that time. As it is a requirement for the visa applicant to have no near relatives other than near relatives who are usually resident in Australia and are Australian citizens, Australian permanent residents or eligible New Zealand citizens, she was not a “remaining relative” at the time of application as that term is defined in r.1.15. She is therefore unable to meet cl.115.211.

17. The Tribunal finds that the secondary visa applicant does not satisfy any of the primary or secondary criteria for the grant of any of the visas in Class BO. In relation to cl.116.321, the secondary visa applicant is unable to continue to be a member of the family unit of the visa applicant because she is not the holder of a Subclass 116 visa.

    DECISION

18. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    David Crawshay
    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.