2213297 (Migration) - [2023] AATA 2814

2213297 (Migration) [2023] AATA 2814 (17 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Ms Jennifer Nguyen (MARN: 2117717)
CASE NUMBER: 2213297

MEMBER:David Barker
DATE:17 August 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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 17 August 2023 at 5:37pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could reasonably be provided by relatives and services in Australia – attempts to obtain care from agencies – functional rapport with the sponsor – health and support needs of family members – limited capacity of care services – decision under review remitted
LEGISLATION
Migration Act 1958, s 65
Migration Amendment Regulations 2009 (No. 13) (SLI 2009, No.289) Schedule 3
Migration Regulations 1994, Schedule 2, cls 836.111, 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
Jajo v MIBP [2013] FCCA 1554
Lin v MIMIA [2004] FCA 606
Perera v MIMIA [2005] FCA 1120
Sefesi v MIBP [2016] FCCA 975
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 6 September 2022 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 5 June 2019. At that time, Class BU contained 3 subclasses, Subclass 835 (Remaining Relative), Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative): item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied the requirements of reg 1.15AA(1)(e) were met, as they were not satisfied the evidence demonstrated that the assistance required by the first named visa applicant’s mother cannot reasonably be provided by any other relative in Australia, or obtained from welfare, hospital, nursing or community services in Australia.
The applicants appeared before the Tribunal on 28 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Brother A] and [Sister A], respectively the brother and sister of the first named visa applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
BACKGROUND
The applicant, [named], is a Vietnamese national born in [specified year]. She is married to her spouse, [Husband A], being the second named visa applicant. They have 2 daughters, [names and years of birth], who are respectively the third and fourth named visa applicants. [Husband A] and his daughters (the secondary applicants) have applied for the visa on the basis of their membership of the family unit of the primary visa applicant [named] (the applicant).
The application is sponsored by the applicant’s mother, [the sponsor], an Australian citizen residing in Australia who is also the person who requires care because of functional difficulties resulting from medical conditions affecting her.
The applicant has [number] siblings in Australia, including [siblings named].
On 17 September 2021, the applicant was requested to provide evidence to demonstrate that the assistance required by her mother could not reasonably be obtained from welfare, hospital, nursing, residential care facilities or community services in Australia. The Department’s request also stipulated that all options for assistance including in-home and residential care should be investigated to determine whether the assistance required can be sourced from services in Australia.
On 18 October 2021, the Department requested further evidence from the applicant addressing why the relatives of her mother could not reasonably provide assistance to her. The Department’s request specifically requested a separate statutory declaration with supporting documents from the relatives of the applicant’s mother including those whose identity had not been disclosed in the application. It was requested that the statutory declarations should include: Whether the relative could provide any of the required assistance to the applicant’s mother; Whether the relative had previously provided any of the required assistance to the applicant’s mother; and Why the relative cannot provide all or any part of the required assistance to the applicant’s mother.
The applicant was requested by the Department to provide a declaration listing all the relatives of the applicant’s mother in Australia. The applicant was advised that relatives of the applicant’s mother in Australia included relatives who had turned 18 years old and who were an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. It was also explained that relatives would include partner/spouse, child, parent, brother, sister, stepchild, stepparent, stepsister or stepbrother, grandparent, grandchild, aunt, uncle, niece, nephew, step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew of the applicant’s mother.
The applicant provided further evidence to the Department which included a declaration in response on 12 November 2021, as set out in the delegate’s decision record. It was declared that the applicant’s mother has [number] adult relatives in Australia (spouse, [number] children, [number] grandchildren, [number] siblings, [number] nieces/nephews). [Number] ‘in-laws’ were also declared, which the delegate noted did not need to be scrutinised when assessing if the requirements of reg 1.15AA(e)(i) are met, as ‘in-laws’ do not meet the definition of ‘relative’ in reg 1.03.
Statutory declarations relevant to reg 1.15AA(e)(i) were also filed with the Department from the following relatives of the applicant’s mother:
·[names of specified relatives and dates of declarations].
On 12 November 2021 the Department also received the following documents, relevant to whether required assistance could not reasonably be obtained from welfare, hospital, nursing, residential care facilities or community services in Australia:
·[Email responses from named care agencies and dates of responses]
·Medical letter from [Doctor A] dated 3 November 2021
·Statement from the applicant.
On 25 January 2022 the Department made a further request for information, specifically a statutory declaration from [three named relatives], with evidence as to why they could not reasonably provide assistance to the applicant’s mother. The applicant was also informed that the evidence received to date from 6 of the relatives ([names specified]) was not sufficient to support their claims that they could not reasonably provide assistance to the applicant’s mother.
On 25 January 2022 the Department also made a further request for evidence to demonstrate that the required assistance could not reasonably be obtained from welfare, hospital, nursing, residential care facilities or community services in Australia. The Department’s request also stipulated that all options for assistance including in-home and residential care should be investigated to determine whether the assistance required can be sourced from services in Australia.
Relevant to whether the required assistance could not reasonably be obtained from welfare, hospital, nursing, residential care facilities or community services in Australia, on 15 February 2022 the Department received:
·Email response from [a welfare] Organisation dated 2 February 2022
·Email response from [another care organisation] dated 31 January 2022
·Brochures/pamphlets of price guides from service providers, for example, Baptist Care at home
·Information regarding the services provided by [named agencies]
·Table of the estimated cost of each service provider
·[Bank 1] statement in the name of the applicant’s mother for the period 1 June 2021 to 30 November 2021.
On 6 September 2022 the delegate refused the application on the basis that the delegate could not be satisfied that either reg 1.15AA(1)(e)(i) or reg 1.15AA(1)(e)(ii) was met.
Evidence before the Tribunal
The applicant applied for review of the decision to the Tribunal on 9 September 2022.
On 23 May 2023 the Tribunal wrote to the applicant, inviting her to a hearing on 28 June 2023. Prior to and after the hearing the Tribunal received submissions and documentary evidence in support of the review application including:
·representative submissions, dated 17 June 2023, 22 June 2023, 29 June 2023 and 3 July 2023
·Bupa carer visa assessment report and certificate
·Aged care assessment report
·Aged care and home care service contact
·Doctor reports
·List of the applicant’s mother’s family members in Australia
·Photographs of daily activity of the applicant’s mother
·Timetable of routine daily care
·Supporting statement from the applicant’s daughters (secondary applicants)
·Statutory declaration from [Sister B]
·Statutory declaration from [Brother A]
·Copies of emails enquiring as to availability of aged care and home care service providers.
Tribunal hearing
Evidence from [name] (the applicant)
The applicant confirmed that she and the secondary applicants reside in the same residential premises as her mother and father and that she remains the primary provider of care required by her mother. The applicant indicated that a home care service, [Care Service 1], has been engaged from March 2023 to provide 7 hours per week support to her mother, which comprises assistance with cleaning. Further to this, from June 2023 the assistance with cleaning was reduced to 4 hours per week to allow the provision of a massage service to her mother one hour per week. The applicant indicated that the services provided through [Care Service 1] utilise all of the available funding through the Level 3 home care package her mother has been approved to receive.
The applicant explained that the Level 3 package was approved in or around July 2019, but as their enquiries indicated that would only provide for around 7 hours per week support and her mother requires support on a 24-hour, 7-day per week basis the family had misunderstood what was available through the homecare package and thought that they would be required to themselves fund the remaining hours per week of support their mother requires. As a consequence the family decided to not use the funding available through the Level 3 package and instead relied on the support the applicant was willing to provide to both her mother and father. The applicant explained that prior to a decline in her father’s health, he was providing most of the day-to-day support that her mother had required since coming to Australia.
The applicant gave evidence that before her parents came to Australia they resided with her and the secondary applicants in Vietnam and that she had looked after her parents for many years. The applicant gave evidence that she was comfortable with the role of looking after her parents when they lived together in Vietnam, as they had in turn cared for her and her siblings when they were children and that it is a cultural expectation that children will reciprocate required care and support as parents age and decline in their health. The applicant indicated she willingly took on the role of providing assistance required by her mother here in Australia and understands that her siblings and other relatives in Australia are either uninterested, unwilling or constrained through their own familial responsibilities and commitments to provide the assistance her mother requires.
As to whether the family have investigated obtaining aged care and respite care services for her mother, the applicant said that they do not think it is in her mother’s best interests to go into permanent aged care, as she suffers from diabetes and also dementia, amongst other medical conditions and as a result in the family’s view it is more likely than not her health and well-being would be severely compromised through the anxiety, confusion and difficulties with factors such as diet and orientation which would arise from her being separated from family members that she is familiar with and going into an unfamiliar aged care residential setting. The applicant gave evidence that the family had investigated respite care options, but that their mother was unwilling to contemplate such an arrangement where there was no facility willing to accept both her and the applicant’s father for a concurrent respite placement.
The applicant gave evidence that her mother is unwilling to eat Western-style food and has a clear preference for food prepared by her (the applicant) over that which may be prepared by her siblings. The applicant indicated that she is aware of and used to her mother’s routines, dietary needs, medications, allergies and the sorts of activities that increase her well-being and comfort on a daily basis. She said that these sorts of things have essentially remained consistent since the time her parents were in Vietnam.
In relation to supervising her mother’s medication intake the applicant gave evidence that there is one type of medication her mother needs to take between 10 am and 12 midday and that she does not think any of her siblings would be available to ensure her mother takes this medication at that time. The applicant says her mother also has difficulty sleeping because of pain and will frequently call her during the night, in response to which the applicant massages her mother which helps her get back to sleep. She said she has provided her mother with this sort of assistance for many years. As to other sorts of assistance her mother requires on a daily basis, the applicant indicated that as well as preparing food that is appropriate for her diabetes condition that her mother is comfortable eating and prompting her to take her medication, she also assists with dressing, toileting and other personal hygiene tasks and accompanies her to her doctors’ appointments, church and other social activities. She said the pain her mother experiences from her physical impairments significantly restricts her ability to attend to her own activities of daily living but that she is increasingly confused and forgetful because of her dementia condition and requires frequent prompting with regard to personal hygiene and related issues.
In response to a question about who provides the assistance her mother requires the applicant said the required assistance is provided by her. As to why the assistance cannot reasonably be provided by any of her siblings or other of her mother’s relatives who are in Australia, the applicant said of her [siblings], one [brother] lives in Brisbane and the other brothers live in [Sydney locations] and whilst she has [number] sisters living within reasonable proximity of where she resides with her parents, they are either busy with their work or have children of their own which take up their time.
The applicant gave evidence that her mother is also very set in her ways and that this seems to be even more so as the dementia impacts her. She said that her mother does not get on well with all of her relatives and also is not comfortable eating food prepared by some of the relatives who have lived in Australia for some time now as they do not prepare food in the way her mother prefers.
In response to a question about how the applicants support themselves financially in Australia, the applicant indicated her husband is working [full-time] and this provides adequate funds to meet their regular expenses and that their daughters are both full-time students.
Evidence from [Sister A] (the applicant’s sister)
The applicant’s sister gave evidence that she resides around 10 minutes’ drive from the applicant and her parents and that she is married with [number] children, aged [ages] years. [Sister A] gave evidence that she suffers from Hepatitis B and a slipped disc and is unable to lift heavy objects. [She] gave evidence that she does not have paid employment, but that her own parenting commitments and back condition constrain her ability to assist her mother with a range of her activities of daily living which require physical support. She indicated her mother also requires assistance with toileting throughout the day and night and that it is just not practical for her, or her sisters, who have jobs and their own children to look after, to provide the level of assistance their mother requires.
[Sister A] indicated that her mother’s hearing difficulty and lack of English language skills compromise her ability to communicate her needs effectively and that makes it difficult for anyone that does not know her and her care needs well to provide her with the assistance she requires. [Sister A] gave evidence that the applicant understands their mother’s care needs and gets on well with their mother. She indicated that the applicant’s husband works, which provides for their family’s necessary expenses and that the situation where the applicant can look after their mother is in the best interests of their mother.
As to what prevents any of her siblings or other relatives providing her mother with the assistance she requires [Sister A] gave evidence that her [Sister B] runs her own company and also has health problems that constrain her capacity to assist their mother. Her [Brother A], also runs his own company and has [number] school-age children to look after. Her brother [Brother B] resides in Queensland and another brother [Brother C] works full-time managing a retail business. Her [Sibling A] runs a business and also has 3 school-age children to look after. [Sister A] confirmed her mother very much prefers the applicant’s cooking and is generally quite set in her ways.
Evidence from [Brother A] (the applicant’s brother)
The applicant’s brother gave evidence that he resides in [a suburb] approximately a one-hour drive from where his mother lives with the applicant. He indicated he is married and has [school-age] children, aged [ages] years. [Brother A] indicated that he is a legal practitioner and a director of 2 companies. He indicated that in conjunction with his business role he shares the care with his wife of their [children] which does not leave him adequate time to provide assistance required by his mother. [He] explained that his mother suffers from dementia and also significant hearing loss. He told the Tribunal that this results in difficulty in understanding and responding to her immediate needs but that the applicant has a good connection to their mother and a deep understanding of her needs.
In relation to constraints affecting his siblings’ ability to provide care required by their mother, Brother A] said his [sister] suffers from a significant health condition which along with her role as a director of a business, constrains her ability to provide assistance to their mother and that he has a brother living in Queensland and that one of his [other] brothers is divorced with the care of 2 school-age children and another brother is constrained by his work commitments.

[Brother A] gave evidence that the applicant has always been very close to their mother which he considers to be an important factor and that her availability to provide the required assistance in conjunction with her husband providing an income for their family makes her the best candidate from the family to provide the care required by their mother. He told the Tribunal that his other [sisters] both have school-age children to care for.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is a carer of her mother, the sponsor, as an Australian relative of the applicant.
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 to be a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03; that is, a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s mother.
Clause 836.111 of Schedule 2 to the Regulations defines the term ‘Australian relative’ for the purposes of a Carer visa to mean:
a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
In the present case, the Australian relative and sponsor for the visa is identified as the applicant’s mother. The Department file contains a copy of the sponsor’s Australian citizenship certificate, issued in 2014. The Department file has a copy of an ‘Excerpt of Birth Certificate’, issued by the Republic of Vietnam in May 2019, which indicates the applicant is the biological child of [the sponsor] (mother) and [her named] father). The Tribunal is satisfied as to the accuracy of these records and accepts the sponsor is an Australian citizen and the sponsor and applicant are mother and child respectively, therefore the sponsor is an Australian relative of the applicant.
As the applicant is the daughter of the Australian relative, the applicant is a ‘relative’ of the resident (or sponsor) 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; 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.
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. The health provider specified for the purpose of reg 1.15AA(2) of the Regulations in IMMI 14/085 is Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services (Bupa).
The Tribunal has before it a certificate dated [in] April 2019 signed by a medical advisor who carried it out on behalf of Bupa Medical Visa Services. The certificate states that [the sponsor] has medical conditions which impact her capacity for self-care, a total impairment rating of 75 under the impairment tables has been assigned, and because of the condition, the person has, and will continue for at least 2 years to have, a need for personal care and attention on a daily basis to carry out routine bodily functions.
The Tribunal notes that some years have passed since this certificate was issued, however the Regulations do not specify any time period or currency for a certificate. More recent information before the Tribunal, by way of a report prepared by [Doctor B], dated 8 June 2023, states that he was the geriatrician who prepared a report, dated [in] February 2019, which was submitted to Bupa in association with the Carer visa application. [Doctor B] indicates that the applicant’s mother continues to suffer from the conditions identified in his previous report and that she remains fully dependent on her family carer for her mobility and activities of daily living. [Doctor B] reports that the applicant’s mother: requires a walking frame or a 4-wheel walker for walking with assistance; that urinary incontinence is an increasing problem; and that she has been approved for a Home Care Package, “which is significantly inadequate for her dementia and fulltime 24 hour care and attention by her family carer”. [Doctor B] identifies the applicant as the family carer referred to in his report and opines that the applicant’s mother will continue for at least 2 years to have a need for direct assistance in attending to the practical aspects of her daily life.
The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)–(iv). The more recent medical evidence confirms the conditions and associated functional impairment affecting the applicant’s mother have not resolved or reduced. 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 the person who has the medical condition to be an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
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, which states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.
In the present case, the impairment rating specified in the certificate is 75. 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 a 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 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 attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia. The requirement in relation to Australian relatives of the resident (reg 1.15AA(1)(e)(i)) was amended with effect from 9 November 2009, so that the relevant enquiry is whether the ‘assistance cannot reasonably be provided by any other relative of the resident’ (emphasis added).[1] The purpose of the amendment was to allow decision-makers to reach a conclusion that assistance could reasonably be provided even where relatives in Australia claim to be unwilling or unable to provide assistance.[2] Therefore, whether any relatives can reasonably provide the assistance and what a relative is capable of doing are matters for consideration by the Tribunal in determining whether assistance cannot reasonably be provided.
[1] Amended by Migration Amendment Regulations 2009 (No. 13) (SLI 2009, No.289) Schedule 3, items [1]–[3] to apply to visa applications made on or after 9 November 2009 (reg 5(2)).
[2] The Explanatory Statement accompanying Migration Amendment Regulations 2009 (No. 13) (SLI 2009, No.289).
Care may be provided collectively by more than one relative. In Jajo v 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.
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]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].
Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: 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 type of assistance to be considered is the assistance referred to in the certificate provided by the health service provider, namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition (reg 1.15AA(1)(b)(iv)).[3]
[3] Sefesi v MIBP [2016] FCCA 975 at [21].
As mentioned above, the delegate refused the visa on the basis of not being satisfied on the information and evidence provided that the assistance the resident requires cannot reasonably be provided by other relatives in Australia or service providers in Australia.
The medical conditions affecting the applicant that may impact her capacity to self-care are detailed in the Bupa carer visa assessment report as follows:
a)Dementia, Mild to Moderate, Cerebral Atrophy;
b)Old Poliomyelitis left leg with wasting, Genu Valgum, Pes Cavum deformity, Instability and falls, Poor mobility;
c)Degenerative disease both shoulders;
d)Cervical spinal spondylosis;
e)Osteoarthritis both knees;
f)Osteoporosis;
g)Multiple vertebral fractures, degenerative disease of thoracolumbar spine;
h)Urinary incontinence;
i)Bilateral hearing impairment;
j)Hepatitis B;
k)Hyperlipidaemia;
l)Hypertension.
As to the activities of daily living which the applicant’s mother is identified in the Bupa carer visa assessment report as requiring assistance with and upon which she is fully dependent, these are as follows:
a)Mobility
b)Bathing / showering
c)Toileting
d)Dressing / grooming
e)Eating / feeding
f)Supervising medication
g)Supervision for personal safety
h)Transportation.
The applicant’s mother is also identified in the Bupa carer visa assessment report as having functional impairment present in conditions: limiting exertion and stamina, impacting upper limb function, impacting lower limbs, impacting the spine, impacting brain function and impacting continence. In summarising these factors the Bupa carer visa assessment report states that the applicant’s mother has multiple medical and complex conditions with disabling cognitive impairment resulting in very poor mobility due to which she requires full assistance in her activities of daily living. She has been mostly wheelchair bound and her elderly husband, who has been providing full-time care, is himself ageing and requiring more assistance. She has [number] children in Sydney who help out with her care, but they are unable to provide full-time care. The report concludes that the applicant’s mother satisfies the requirement for a carer.
It is contended that the applicant’s mother is used to the care and support from the applicant, who has been providing care for her mother 24 hours per day, 7 days per week over the last 4 years since shortly after her arrival in Australia. It is contended that the applicant is aware of her mother’s needs and that the applicant provides the required care with love that could not easily be replaced by an alternative service. It is instructed that, before the applicant’s mother migrated to Australia in 2008, she lived with the applicant’s family, and the applicant was also the main carer for her mother prior to her mother’s migration. The 2 daughters of the applicant have also lived with their grandmother since birth, creating a strong family connection. They are willing to help the applicant take care of their grandmother for the rest of her life, which is also the wish of the applicant’s mother.
In submissions received by the Tribunal and evidence provided at hearing in relation to whether the assistance cannot be reasonably provided by another Australian relative the following contentions are made:
a)The applicant’s mother’s spouse is [age] years old and suffers from medical conditions such as chronic low back pain and dementia. He is totally blind in [one] eye and vision impaired in the right eye, and has osteoporosis and other geriatric diseases. Therefore, it is unreasonable for him to provide full-time care for his wife.
b)The applicant provides full-time care for both of her parents and it is crucial to consider the applicant’s role in providing vital support for both of her parents. For many Vietnamese people, the best approach to life is a family approach. Being family-oriented is a positive trait that can enrich a person’s life emotionally, professionally and spiritually.
c)The applicant’s siblings and her mother’s siblings as well as their other family members are unable to provide the required level of assistance for her. The fact that several family members reside nearby does not mean that they are willing and able to provide the support required by the applicant’s mother.
In light of the dementia illness affecting the applicant’s mother, I consider the familiarity and connection felt between the applicant’s mother and the applicant to be a very important consideration. This is due to the extent of the assistance required by the applicant’s mother and the way in which her capacity to both communicate with but also effectively form a functional rapport with a person, who may be otherwise reasonably expected to provide required assistance, is compromised by the dementia and hearing impairment affecting the applicant’s mother.
It is apparent the applicant’s mother has a significant number of relatives in Australia, however upon reviewing information contained in the statutory declarations and other evidence before the Tribunal, I am satisfied that it is not reasonable for the applicant’s mother’s siblings to provide the required assistance as they themselves are elderly and frail and have their own support needs. For similar reasons I am satisfied that the applicant’s father, due to his own advanced age and frail health, is no longer able to provide the assistance required by his wife.
Noting the nature and extent of the assistance required by the applicant’s mother, I am not persuaded that the children or grandchildren of the applicant’s mother’s siblings, who may not otherwise be excluded from consideration due to their education, employment or own familial responsibilities, have a pre-existing close enough connection to the applicant’s mother such that they would have a capacity to provide the sort of personal assistance the applicant’s mother requires.
As to the children and grandchildren of the applicant’s mother, I am satisfied that those living in Queensland cannot reasonably provide the assistance required and that those residing in the Sydney region are effectively constrained from providing the required assistance due to either their own health conditions, or their employment, business or own familial responsibilities.
In submissions received by the Tribunal and evidence provided at hearing it is contended, in relation to whether the assistance cannot be reasonably obtained from welfare, hospital or nursing or community services:
a)The applicant’s mother was assessed by My Aged Care Assessment Service in June 2019 as eligible to receive permanent residential care at a high level, the home care package Level 3. However, the services are not suitable for the applicant’s mother as she only wants the applicant to be her main carer. Although the service providers might be well equipped to meet the medical needs of the applicant’s mother, the care required by her goes beyond that. The person, in this case, is an elderly Vietnamese woman who cannot communicate effectively in English. As she has aged, she cannot overcome a language barrier to communication, and she is increasingly reverting to her native language.
b)Moreover, the applicant’s mother has become so accustomed to Vietnamese food and she cannot physically eat other types of food, including foods provided at the nursing homes. She likes eating very simple Vietnamese dishes, such as soups, congee and boiled vegetables. The applicant instructed that she has to cut food into small pieces for her mother. It was submitted that not many aged care or home care services can fulfill the needs of the applicant’s mother.
c)It was also submitted that, if the applicant’s mother were to live in a nursing home, she would be removed from the rest of her family, including her husband, children and grandchildren. Her level of loneliness and mental deterioration could constitute a severe enough circumstance to require substantial and continuing assistance. The submission asserts that the applicant’s mother should not be subjected to this kind of separation from her family. Furthermore, the applicant’s mother expected to obtain care from her children. In Vietnamese culture, the family is regarded as being responsible for the care of all its elderly members.
d)The family sought service from several home care and aged care services, where the applicant’s mother would be able to communicate with the staff and other residents. However, the current waiting list for entry and care at these centres could take up to several years, which is by any measure an unreasonable waiting time for someone the age of the applicant’s mother and with her medical conditions. The applicant’s mother was refused entry due to the level of services required and the number of residents at the facility.
e)Further to the services detailed in the Department application, the family have more recently sought additional services from several home care services within reasonable proximity to where the applicant’s mother resides. Detail as to the name and response of these agencies is as follows:
i.[Care Service 2] (Their response: not able to deliver the service the sponsor is requiring.)
ii.[Care Service 3] (Their response: no home care services available.)
iii.[Care Service 4] (Their response: no capacity to meet the specific requests the sponsor is requiring.)
iv.[Care Service 5] (Their response: home care packages not available.)
v.[Care Service 6] (Their response: no physiotherapist or staff to supply medical massage at the times requested, facility is full, no more empty beds currently; offered to add the applicant’s mother to a waiting list.)
vi.[Care Service 7] (No response.)
vii.[Care Service 8] (No response.)
f)The applicant’s mother is currently receiving home care services from [Care Service 1]. However, from June 2023, they only provided 4 hours per week of cleaning, on Monday (2:15–4:15 pm) and Thursday (2:00–4:00 pm) and one hour per week of remedial massage on Wednesday (from 9:00–10:00 pm). The service provided does not meet the requirements of the applicant’s mother as she constantly needs someone at night who can do remedial massage before sleep or even during the night.
g)The aged care assessment recommendation from the government-approved Level 3 package for the applicant’s mother in July 2019 stipulated that the family would need to go from Level 1 to 2 in order to go with Level 3. The family cannot go straight to the Level 3 package. The government only offered Level 1 in February 2020, which amounted to only 1 to 1.5 hours per week support and Level 2 in October 2020.
h)In order to get the Level 3 package, the applicant’s mother and her family sought support from several Level 1 and 2 home care and aged care services, where she would be able to communicate with the staff and other residents, however the waiting list for entry and care was several years’ long. During the acute period of the COVID-19 pandemic the family exercised caution regarding the potential exposure of the applicant’s mother and father to the pandemic, but resumed investigating the possibility of obtaining assistance from suitable providers. Subsequently, upon the acceptance of the Level 3 package, the family engaged with multiple home care and aged care service providers, ultimately opting for the services provided by [Care Service 1], which they have continued to use up to the present time.

In considering the evidence and submissions in relation to whether the required assistance cannot be reasonably obtained from welfare, hospital or nursing or community services, it is apparent that some assistance is currently being sourced from available community services but that the level of assistance is manifestly insufficient to meet more than a very limited amount of the type of assistance detailed in the Bupa carer visa assessment report. This is not due to the family of the applicant’s mother being unwilling to access available community services but rather the extent to which the amount of services which can be accessed is constrained by the funding through the Level 3 home care package that the applicant’s mother is eligible to receive. I consider reasonable the family’s contention that they are not able to afford to themselves fund the level of assistance, should assistance of the required type be available through community or nursing or welfare services.
I am also satisfied that the family have provided a reasonable and plausible explanation for why they consider residential aged care would not be in the best interests of the applicant’s mother due to its more likely than not having a significant adverse effect on her health and well-being due to the range of factors outlined elsewhere in these Reasons, which comprise the interaction of cultural factors and the medical conditions affecting the ability of the applicant’s mother to transition from a loving and caring familial environment to an unfamiliar setting where she is separated from her spouse and other family members. In forming this view, I am aware that cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable,[4] but that the person’s mere preference for a particular service is to be distinguished from a cultural reason.[5] In the particular circumstances of this case, it is the confluence of cultural factors and the medical conditions, including the hearing impairment and dementia, affecting the applicant’s mother which in my view provide plausible circumstances whereby the required assistance cannot reasonably be obtained from welfare, hospital or nursing or community services.
[4] Hon Anh Vuong v MIAC [2013] FCCA 274 citing Biyiksiz v MIMIA [2004] FCA 814 and distinguishing Lin v MIMIA [2004] FCA 606.
[5] Hon Anh Vuong v MIAC [2013] FCCA 274 at [33]–[34].
On the basis of the evidence now before the Tribunal and for the reasons outlined above, I am 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 the applicant to be 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 enquiry 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 2 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 has been in Australia since 2019 and has resumed providing the assistance required by her mother since that time. This was a resumption of assistance she was providing to her mother in Vietnam, prior to her mother’s migration to Australia in 2008. The applicant gave credible evidence at hearing with respect to looking after her mother and her intention and suitability to do so is corroborated by the evidence at hearing of her siblings and also in the statutory declarations provided to the Department and Tribunal. I accept and so find that the applicant is both willing and able to provide the substantial and continuing assistance required by her mother.
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).
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 visas to the Minister to consider the remaining criteria for a Subclass 836 visa, including in respect of the secondary applicants.
DECISION
The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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.
David Barker
Member

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