2114612 (Migration)

2114612 (Migration) [2023] AATA 3586 (25 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2114612

MEMBER:Maxina Martellotta
DATE:25 September 2023
PLACE OF DECISION: Perth
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 25 September 2023 at 8:28am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care reasonably be provided by relatives in Australia – understanding non-verbal communicating – substantial and continuing assistance – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 October 2021 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).
The applicant applied for the visa on 26 November 2018. At that time, Class BU contained three subclasses, being 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. Relevant to this matter, the primary criteria to be met includes cl 836.221(1), which requires that at the time of decision, the primary visa applicant is a carer of an Australian relative of the review applicant. ‘Carer’ is defined in reg 1.15AA.
The delegate refused to grant the visa on the basis that cl 836.221 in Schedule 2 could not be satisfied. The delegate specifically noted that this was because requested information (addressing why the assistance could not reasonably be obtained from welfare, hospital, nursing or community services in Australia, whether the applicant was willing and able to provide the required assistance and why any other relative in Australia could not reasonably provide the assistance) had not been provided by the applicant. The Tribunal notes that the applicant says that they were unaware that additional information had been requested by the Department as they never received the email requesting that information.
The applicant appeared before the Tribunal on 25 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the sponsor], who is the applicant's son and the sponsor. Other evidence considered by the Tribunal included documents provided by the review applicant to the Tribunal in support of their application and documents provided by the visa applicant and review applicant to the Department in support of the visa application. The Tribunal also considered additional medical evidence provided post hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case include whether the assistance could not reasonably be provided by any other relative of the resident and also whether the care for the resident could not reasonably be obtained through various service providers (reg 1.15AA(1)(e)(i) and (ii)).
Background
In this case the application is made on the basis of the applicant providing assistance to her sponsor, [name], to provide care for a member of his family unit, his daughter [Miss A]. For the purpose of the application the delegate found [the sponsor], an Australian permanent resident, to be the sponsor and also the ‘resident’.
The care recipient is [Miss A], who was born in [specified year]. She is currently [age] years of age. She lives in the family home. She is the applicant’s granddaughter and the sponsor’s youngest daughter. The care recipient is also an Australian permanent resident (granted in February 2017).
The applicant was born in [year]. She is a citizen of the United Kingdom. Her visa application is sponsored by her son, [the sponsor]. He acquired Australian permanent residency in February 2017.
[The sponsor’s] oral evidence and documents provided to the Department and the Tribunal confirm and the Tribunal finds that [the sponsor] lives and works in Australia.
Whether the applicant is a carer
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.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (or the resident), 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 applicant’s son ([the sponsor]). This relationship is confirmed by documents, including birth certificates, provided to the Department and to the Tribunal.
The Tribunal is also satisfied from documents provided to the Department that [the sponsor] is an Australian permanent resident usually resident in Australia.
As the applicant is the mother 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)
Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; the impairment has a rating (under the impairment tables) that is specified in the certificate; and because of the condition, the person has, and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life.
In this case [Miss A] (the person requiring care) is the daughter of [the sponsor] (the Australian relative resident). Documents provided on the Department file confirm that relationship. The Tribunal is satisfied and finds that the person with the medical condition is a member of the family unit of the Australian relative resident.
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.
The Tribunal has considered the Bupa Medical Visa Services Carer Visa Assessment Certificate (the CVAC) dated [in] November 2018. IMMI/14/085 specifies that BUPA Australia trading as Bupa Medical Visa Services is the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).
The certificate specifies that:
a)[Miss A] has a medical condition that is causing physical, intellectual, or sensory impairment of her ability to attend to the practicable aspects of daily life.
b)Because of her medical condition, [Miss A] needs direct assistance in attending to practical aspects of daily life.
c)Because of her medical condition, [Miss A] has and will continue to have for at least two years a need for direct assistance in attending to the practicable aspects of daily life.
Regulation 1.15AA(3) provides that the opinion in a certificate from a health service provider is to be taken as correct for the purpose of whether or not the applicant satisfies the impairment criterion.
The Tribunal finds that the certificate provided meets 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.
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. As noted, [Miss A] is an Australian permanent resident (granted in February 2017). She resides in Australia with her family. The requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126 and specifies an impairment rating of 30.
In the present case, the impairment rating specified in the certificate is 50.
The CVAC report confirms that [Miss A] lives with global developmental delay. Extensive investigations have not identified the cause; however, she lives with gross motor development delay with ataxia, which requires constant supervision. This is assessed as a permanent condition. The care recipient requires assistance with her mobility, bathing/showering, toileting, grooming/dressing, and supervision for personal safety. The CVAC concludes that the requirements for a carer are satisfied.
The Department file also contained medical reports of:
a)consultant paediatrician ([Doctor A], October 2017) which identified the following issues: ataxia and foot drop, bulbal signs with impaired speech, language development, drooling, mouth breathing and cerebellar atrophy.
b)Neuropediatric clinic report (2014) confirming consultation by a team of health professionals (paediatric neurologist, general paediatrician, physiotherapist, social worker, speech pathologist and dietician) confirming issues with drooling, dental, mobility, delayed speech and with growth and development.
c)Neuropediatric clinic report (2018) of consultation undertaken by a team of health professionals (paediatric rehabilitation specialist, OT, physiotherapist and social worker) confirming that the care recipient continues to live with gross motor development issues, which impact on her socialisation. She is reported to have difficulties with feeding, tending to swallow food whole, and is susceptible to choking on fluids and small pieces of food.
Updated medical information provided to the Tribunal included:
a)Consultant paediatrician ([Doctor A], October 2020) confirming diagnosis of ataxia of unknown aetiology, severely reduced capability to walk distances, reliance on wheelchair, writing and fine motor skills requiring support due to fatiguability, non-verbal, drooling, emotional regulation difficulties.
b)[Agency 1] ([in] July 2022) confirming diagnosis of global developmental delay, noting that whilst the person requiring care does not have cerebral palsy, applying the Gross Motor Function Classification System, she is assessed as level 2 – difficulty walking long distances, balancing, may walk with assistance, minimal ability to perform gross motor skills requiring a combination of assistive technologies. That report details a range of behaviours and strategies to address and support the behaviours.
c)Report by [Agency 2] (2021) identifying key goals and therapies to improve overall strength and coordination.
d)Post hearing the applicant provided a statement by [Doctor B] dated 7 September 2023 confirming that [Miss A] is non-verbal and suffers from anxiety and is also receiving medication (prn Risperidone) for behavioural disturbance. The statement notes that [Miss A] becomes highly anxious with strangers and states that ideally her care will be provided by family or ‘first degree’ relatives.
Whilst the Tribunal is cognisant that the CVAC was prepared approximately four and half years ago, updated medical information provided to the Tribunal confirms that the medical conditions of the care recipient have not improved and the Tribunal accepts the certificate as still applicable.
This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
Where the person to whom the certificate relates is not the Australian relative resident, but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative resident to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate to attend to the practical aspects of daily life for at least two years as a result of the medical condition.
In the present case, because the Australian relative (resident), [the sponsor], is not the subject of the certificate, reg.1.15AA(1)(d) applies. The issue here is whether [the sponsor] has a permanent or long term need for assistance in providing the direct assistance to his daughter as mentioned in reg 1.15AA(1)(iv).
As noted, the CVAC confirms that [Miss A] lives with a range of significant medical conditions that require daily high level and significant assistance and care. [The sponsor] explained that caring for his daughter is a full-time role. He is self-employed, having established a [company], which requires his full-time attention. He is the sole income earner for the family. This limits his capacity to provide direct assistance daily to his daughter.
In the Tribunal’s assessment, [the sponsor] is a genuine and credible witness. His evidence is consistent with the medical evidence and other evidence provided to the Department and Tribunal regarding his circumstances.
The Tribunal is satisfied that [the sponsor] has a permanent or long term need for assistance in providing care to [Miss A]. As the Tribunal is satisfied that [the sponsor] requires assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv), the requirements of reg 1.15AA(1)(d) are met.
Assistance cannot be reasonably obtained/provided – reg 1.15AA(1)(e)
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.
The nature of assistance [Miss A] requires is described in the CVAC and also in other medical reports. The Tribunal is satisfied that [Miss A] requires a high level of assistance and supervision.
In terms of what type of assistance is required and the necessity for the applicant to provide the assistance, this was detailed in the evidence of the applicant and her sponsor [named].
The applicant
The evidence provided in relation to the applicant is as follows:
a)She has been in Australia since 2017 and lives near the home of her son.
b)Her granddaughter is non-verbal and gets highly anxious with people she does not know. Her granddaughter’s medical conditions require significant and constant care and support. She has high needs for care and support.
c)Prior to her arrival, the main carers for her granddaughter were her son and his wife. It was apparent to her that her son and daughter-in-law needed assistance with the care of their daughter as they were struggling to constantly provide the high level of care required without respite and support from another adult.
d)As her son works full-time, which includes weekends, the role of being the full-time carer is undertaken by her daughter-in-law. That role, however is not sustainable for one person.
e)Her son works six, sometimes seven, days a week. He is also building a new family home. Her daughter-in-law is not employed and as such has been the main carer during the day. That role is a full-time job, and it has been difficult for her to sustain that role as well as manage the household without support and respite from another adult.
f)Her role has been to support her son in meeting the care needs of her granddaughter. This also takes the form of providing direct care to her granddaughter as well as providing respite so her son and her daughter-in-law can take a break as required.
g)On average she is present providing direct assistance support three days a week and over the weekend. On occasions she will provide overnight care.
h)She provides assistance with all aspects of her granddaughter’s care. This includes preparation of meals and constant supervision when her granddaughter is eating, as she swallows food whole and may choke. She assists in getting her up in the morning, as well as grooming and showering. When required, she takes her granddaughter to school and will also pick her up. She provides after school supervision and assistance, which includes taking her to appointments or to therapy.
i)She understands her granddaughter’s needs and temperament. She knows and understands the activities that she enjoys and how best to engage with her. She has a long-standing relationship with her granddaughter and has been providing care, support and respite on a continuous basis since 2017.
j)Her granddaughter feels safe with her because of their relationship. Her granddaughter experiences significant anxiety and does not respond well to people she does not know. Their particular relationship is such that she understands what her granddaughter is communicating and also what her specific likes and dislikes are. This is not something that a worker from a service could replicate.
k)It is not reasonable for outside services to provide the assistance that she provides. This is because those services cannot guarantee consistency in the workers who attend. This would exacerbate her granddaughter’s anxiety and ultimately would not be in her best interests. Her granddaughter’s care needs are best met by family members she knows and trusts and who can provide consistency.
l)Her granddaughter is non-verbal, and it is easier for herself and family to understand her way of communicating. Again, this would not be something that an outside worker could easily engage with and understand.
m)She has an important role in providing direct care to her granddaughter and in particular in providing her son and daughter-in-law support, assistance and respite in meeting the care needs of her granddaughter.
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 (Anveel) at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: Anveel at [61].
Relevantly, the Federal Court has also held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

The Tribunal has considered the evidence provided in the form of submissions, medical documents, the oral evidence provided at hearing and documents that were provided to the Department and the Tribunal.
At hearing the applicant and [the sponsor] provided the following evidence. [The sponsor] is married and lives with his wife and three children. He also has a sibling who lives in Australia. In addition to [Miss A] and the applicant, his relatives are:
·[Wife A].
·[Child A].
·[Child B].
·[Sister A] (sister).
At hearing, the applicant and sponsor individually provided the following evidence:
a)[Wife A] is [Miss A’s] full-time carer, however, she is unable to sustain that role daily without respite and the support of another adult family member. It is not reasonable that she be the person providing full-time care without assistance from another adult person. Her husband is unable to provide that assistance because of his work commitments.
b)[Child A] and [Child B] are both young adults ([ages]) and siblings to [Miss A]. Whilst they still live in the family home, they are both employed full-time and are just starting out in their adult lives. They are both partnered. [Child A] is about to travel overseas for an extended period. Given the level of support that their sister needs, they are unable to reasonably provide the respite and support required.
c)[Sister A] (the applicant’s daughter) lives about a 25-minute drive away. She has [number] children. [Details deleted.] [Sister A] has never provided any care or support to [Miss A]. This is because she is employed full-time and is a single parent and does not have the capacity to provide any assistance.
[The sponsor] provided the following evidence:
a)His work commitments in his business prevent him from providing the care his daughter requires on a daily basis. This means that most of the full-time care is undertaken by his wife. This has not been sustainable due to the high level of care and support that their daughter requires.
b)His mother provides the direct support and assistance that he would otherwise provide but is unable to because of his work and need to financially provide for the family. The types of things that she does vary, but they include bathing, dressing, preparing meals, transport, assisting with personal hygiene and supervision when his daughter is eating.
c)His mother also has an important social interaction and connection with his daughter, which brings out her best and ensures a good quality of life and interaction.
d)His wife and his mother are really the care team and as such they work out between themselves what needs to be done and how they can best meet his daughter’s needs. Whilst he is part of that team in terms of planning, his mother and wife are the two people who provide the majority of daily practical care. Their daughter can communicate activities with them what activities she enjoys and they work towards facilitating those activities.
e)In addition to providing regular support, his mother has also played an important role in providing him and his wife respite.
f)His children are young adults, who are working full-time and exploring their own lives and potential for travel. They are not able to provide the support that his mother provides to the family.
g)If his mother was not there, it would be impossible, and their circumstances would go backwards, especially financially. Whilst his wife is the full-time carer, she was also hoping to return to some form of employment as the cost of living has increased and a second income would be of financial assistance. This would also assist with his wife’s sense of wellbeing.
h)He and his wife do not want to engage a support service to provide the support and respite that his mother provides. This is for a number of reasons. His daughter experiences high levels of anxiety around people she does not know. Support services cannot ensure consistency in the workers who may attend. His daughter would not respond to an outsider. It is hard enough to get her to a specialist because of her anxiety around strangers.
i)He also has concerns about leaving the care of his child with a non-family member. Part of this is due to his own ‘trust issues’, but his mother understands and knows his daughter. She is able interpret what his daughter is communicating. His daughter has a strong bond with his mother.
j)This is particularly the situation as his daughter is going through puberty. It is important that she is supported by female members of the family, particularly when providing assistance with personal hygiene.
k)Engaging an outside service to provide the respite and assistance that his mother provides is not a workable option for their family. His mother and daughter have an amazing bond and ‘why would they’ seek to substitute that with a stranger. The nature of his daughter’s care is something that requires flexibility and this is not something that they could replicate with an outside service as the assistance they need often cannot be planned ahead.
The Tribunal is mindful that whether any relative can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters to be considered when determining whether assistance cannot be reasonably provided: Anveel v MIBP [2013] FCCA 2181 at [61-62]. In making such an assessment, consideration should also be given to the nature of the care required by [Miss A].
In this case, with each of the relatives (with the exception of [Wife A]) it is asserted that it is not reasonable that they provide the assistance to [the sponsor] in the care of his daughter for the reasons described above.
In the Tribunal’s assessment, of particular relevance are the particular care needs and circumstances specific to [Miss A]. In this case, the Tribunal is satisfied that the person receiving care has significant care needs. As noted in the CVAC and (other medical reports) those needs specific to her identified medical conditions include daily assistance with her mobility, bathing/showering, toileting, grooming/dressing, and supervision for personal safety (avoiding choking hazards when eating).
[Miss A] is also non-verbal and has developed her own particular way of communicating her needs and wants, which are understood by close family members and in particular by those adults who have been providing her with support and care. Whilst [Wife A] is described as her daughter’s full-time carer, the intensity of the care required is such that the Tribunal is satisfied that it is beyond the scope of one person alone to assist [the sponsor] in the care of [Miss A]. This requires another adult member of the family who has the skills, time and relationship with [Miss A] to step in and also provide that direct care, either in tandem or on their own. [The sponsor] is unable to be in that role and requires the assistance of his mother to provide that care to his daughter.
The Tribunal is satisfied that it would be unreasonable to expect [Miss A’s] mother to continue as the only care provider. It would also be unreasonable to expect [Miss A’s] siblings or aunt to provide the care required either on a roster or individual basis in light of their respective commitments and life stage, particularly when measured against the high care needs of [Miss A]. The Tribunal is satisfied and accepts the submissions that other family members are unable to reasonably assist in the care of [Miss A].
The Tribunal is also satisfied that due to the particular nature of [Miss A’s] medical conditions that care cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. This is confirmed by the medical statement provided by [Doctor B].
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
Willing and able – reg 1.15AA(1)(f)
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.
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.
The applicant provided the following evidence, which the Tribunal accepts:
a)She is part of the regular scheduling and planning for her granddaughter’s care needs and the three of them meet on a regular basis. This ensures that her granddaughter’s care needs are covered. She is one of the contact adults for her granddaughter’s school.
b)She currently resides in a property nearby, which is about five to 10 minutes away. The plan is, once the new home is built, there will be a studio where she will live and be on site.
c)She has the ability provide the care required and is willing to do so. She understands her granddaughter’s needs and has a particular relationship which enhances the quality of that care.
d)She has sold her home and assets in the United Kingdom and is financially independent. She is committed to remaining in Australia in order to provide ongoing support in the care of her granddaughter. She is her grandmother, and she loves to provide her with the support that she needs.
e)She said she has the physical ability to meet her granddaughter’s care needs. Transporting her granddaughter in and out of the care does not require her to be able to physically pick up her granddaughter as they have the mobility devices and support to allow her to move safely.
f)She has experience of providing care to people with high needs. She nursed her mother who had a stroke and was non-verbal and was unable to move. She has worked within the UK education system with young people with special needs and has direct experience of providing care to children with special needs.
The Tribunal is satisfied 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 on ‘carer’ criterion
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.
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
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.
Maxina Martellotta
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.

[2023] AATA 3586

25 September 2023

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