AL-SABIRI (Migration) - [2023] AATA 1668

AL-SABIRI (Migration) [2023] AATA 1668 (31 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Wasfi AL-SABIRI
Ms Dalia AL-SABIRI
Ms Ilana AL-SABIRI
Ms Sara AL-SABIRI
Ms Afrah Mohanad BATTY
REPRESENTATIVE:  Miss Sai Priya Sivalohan
CASE NUMBER:  1903440
HOME AFFAIRS REFERENCE(S):          CLF2017/122746, CLF2019/5404
MEMBER:Mila Foster
DATE:31 May 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 first named applicant meets the following criteria for a Subclass 836 (Carer) visa:
·cl 836.212 of Schedule 2 to the Regulations
·cl 836.221 of Schedule 2 to the Regulations

and that the second, third, fourth and fifth named applicants meet the following criterion for a Subclass 836 (Carer) visa:
·cl 836.311 of Schedule 2 to the Regulations

Statement made on 31 May 2023 at 10:08am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance could not reasonably be provided by relatives in Australia – strict Mandean religious practice – welfare, hospital, nursing or community services in Australia – member of the family unit – secondary applicant dependent on the family head – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.221, 836.311, 836.321; rr 1.03, 1.05, 1.12, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Bader v Minister for Immigration and Border Protection [2018] FCCA 485
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

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 5 February 2019 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 20 December 2017. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. In the present case, the first named applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa on the basis he is the carer of his mother, Rasmia Fezaa. The primary criteria for that visa include cl 836.212 which requires that the applicant claims to be the carer of an Australian relative and cl 836.221 which requires that the applicant is a carer of a person referred to in cl 836.212. The other applicants applied for the visa on the basis that they were members of the family unit of the first named applicant being his wife (the fifth named applicant) and his children (the second, third, and fourth named applicants).
The delegate refused to grant the first named applicant the visa on the basis that cl 836.221 was not met because there was insufficient evidence to show that assistance of the kind required by Mrs Fezaa could not reasonably be provided by other relevant relatives in Australia. As the first named applicant did not meet a primary criterion for the visa the delegate refused to grant the other applicants visas.
The applicants were invited to appear before the Tribunal on 23 September 2022 to give evidence and present arguments. The first, fourth and fifth named applicants gave oral evidence at the hearing.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The primary issue in the present case is whether the first named applicant is the carer of his mother.
The evidence before the Tribunal includes Department of Home Affairs files relating to the visa application,[1] Department movement and ISCE records, documentary evidence provided on review, a written pre-hearing submission made by the representative, and the oral evidence given at the hearing.
[1] CLF2017/122746 (DF1), CLR2019/5404.
Background and summary of claims
It is claimed that the applicants are Swedish citizens – that the first and fifth named applicants were born in Iraq and acquired Swedish citizenship by naturalisation; the second, third and fourth named applicants were born in Sweden and are Swedish citizens by birth. The applicants have been living in Australia since they arrived here on visitor visas on 4 October 2017.
It is claimed Mrs Fezaa was born in Iraq, settled in Australia in 2006 and acquired Australian citizenship in 2009.
It is claimed that Mrs Fezaa is a widow – that her husband and the first named applicant’s father, Mjali Sami, died in Australia on 29 September 2017.
It is claimed that Mrs Fezaa requires full time care due to various medical conditions.
Mrs Fezaa previously sponsored her daughter, Nadia Al-Sabiri, to provide her with assistance but, it is claimed, her daughter is no longer able to care for Mrs Fezaa due to her own medical condition.
It is claimed that the first named applicant is willing and able to provide Mrs Fezaa with the care she needs. It is claimed that other members of Mrs Fezaa’s family in Australia are not able to care for Mrs Fezaa and she cannot obtain the assistance she requires from services in Australia.
Whether the first named applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the first named applicant is the carer of his mother, Mrs Fezaa.
For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. The definition of ‘relative’ in reg 1.03 includes a parent.
The Tribunal does not have before it the first named applicant’s birth certificate. The Tribunal has before it what the first named applicant claims is his Iraqi identity card. The identity card is issued to Wasfi Al-Sabiri, it states that his ‘Father’s Name and Grandfather’s Name’ is Sami Maie, and that his mother’s name is Rasmia Salim. The Tribunal has before it what is claimed is Mrs Fezaa’s Certificate of Iraqi Nationality and her husband’s/the first named applicant’s father’s Iraqi identity card. The Iraqi Nationality Certificate is issued to Rasmia Fezaa Salim and states that her father is ‘Salim Fezaa’. It is claimed that Mrs Fezaa subsequently omitted using ‘Salim’. The Iraqi Identity Card is issued to Sami Al-Sabiri and states that his ‘Father’s Name and Grandfather’s Name’ is Sami Mjali, and that his wife’s name is Rasmia Salim Fezaa. The first named applicant has also presented what he claims is his Swedish citizenship certificate and Swedish passport issued to Wasfi Sami Maie Al-Sabiri and Wasfi Al-Sabiri, respectively. It is claimed that when it came time to be issued the passport the first named applicant was asked whether he wanted his full name or to shorten it and he chose the latter.
The visa application form asked the first named applicant to indicate whether he had been known by another name. He did not indicate that he had. Question 18 of the sponsorship form asked Mrs Fezaa whether she had been known by any other name, she replied ‘no’. Nevertheless, in light of the above-mentioned documents and the explanations for the variation in the names on the documents, the Tribunal accepts that the first named applicant has also been known as Wasfi Sami Maie Al-Sabiri and that Mrs Fezaa has also been known as Rasmia Fezaa Salim. The Tribunal thus finds on the basis of the first named applicant’s Iraqi identity card that Mrs Fezaa is his mother.
The Tribunal has before it the Australian citizenship certificate issued to Mrs Fezaa on 21 May 2009 and finds on that basis that she is an Australian citizen.
In light of the above, the Tribunal finds that Mrs Fezaa is an Australian relative of the first named applicant and hence at the time of application the first named applicant claimed to be the carer of an Australian relative. The first named applicant therefore satisfies the requirements of cl 836.212.
Whether the first named 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’). In this case the first named applicant claims he has been his mother’s carer since he arrived in Australia on 4 October 2017.
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 an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident).
The Tribunal has found that the first named applicant is the relative of Mrs Fezaa who is an Australian citizen. According to Department records, Mrs Fezaa has spent 136 days outside Australia since she arrived here on a permanent visa in September 2006. The Tribunal is satisfied on that basis that Mrs Fezaa is usually resident in Australia. Therefore, the first named applicant 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 requirements of reg 1.15AA(2), states that: the 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. A certificate which meets the requirements of reg 1.15AA(2)(a) was issued by Bupa, the health provider specified in IMMI 14/085, in relation to Mrs Fezaa on 8 January 2018. Therefore, the certificate meets the requirements of reg 1.15AA(2).
According to the certificate Mrs Fezaa has medical conditions – osteoarthritis in both knees, depression, short breath on minimal exertion and bilateral swollen lower limbs, and incontinence. According to the certificate, the medical conditions cause impairments of her ability to attend to the practical aspects of daily life. Further, that overall Mrs Fezaa is partially dependent on assistance for her activities of daily living requiring assistance with mobility, needs some assistance with dressing/grooming, bathing/showering, supervision of medication, supervision for personal safety and transportation.
The impairments have an impairment table rating specified in the certificate. The certificate states that because of the medical conditions, Mrs Fezaa has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal notes that the certificate was issued more than five years ago. Additional medical evidence before the Tribunal, particularly recent medical reports from Mrs Fezaa’s treating doctors, indicate that her medical conditions, especially her physical conditions, have deteriorated since the certificate was issued and hence that her need for care has increased. Mrs Fezaa now uses a wheelchair virtually all the time due to declining mobility and requires incontinence diapers.[2] The medical evidence indicates that Mrs Fezaa is now fully dependent on assistance in attending to the practical aspects of daily life and this will continue into the future.
[2] Letter from Dr Long Chau dated 16 May 2022 and letter from Prof Lewis Chan dated 5 August 2021.
Thus, 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.
In the present case, the person with the medical conditions is Mrs Fezaa who 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.
In the present case, the impairment rating specified in the certificate is 35. This rating exceeds the impairment rating of 30 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 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, Mrs Fezaa, is the resident 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 NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
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].
It is claimed that Mrs Fezaa has 26 adult relatives in Australia (apart from the first named applicant) consisting of three children, six siblings, two grandchildren and 15 nieces and nephews. The Tribunal has inferred from the evidence before it that the relatives are Australian citizens. It is claimed and the Tribunal is prepared to accept that one of Mrs Fezaa’s children and five of her nieces and nephews have no contact with her. The Tribunal finds that assistance of the kind Mrs Fezaa needs cannot reasonably be provided by Australian relatives who have no contact with her or are minor children.
Statutory declarations and supporting documentation were provided from the remaining 20 family members who claimed they were unable to assist Mrs Fezaa for various reasons which include that they have their own medical conditions, are too old, are caring for another family member, are working, are studying, and/or have other family commitments. Given the assistance Mrs Fezaa requires and the reasons her relatives are unable to provide that assistance, the Tribunal finds that no one relative nor her relatives as a group can reasonably provide that assistance.
In relation to community services, the Federal Court has held that ‘reasonably obtained’ 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 oral evidence given by the first named applicant at the hearing indicated that Mrs Fezaa had preferences in relation to how the assistance she required would be provided, in particular that she did not want that care to be provided by a stranger in her home or in a nursing home. Mere preferences are not relevant when considering whether the assistance Mrs Fezaa requires are reasonably available from services in Australia. However, her general practitioner states that she has anxiety to strangers which would make it difficult for her to obtain assistance from welfare services.[3]
[3] Letter dated 16 May 2022.
Further, it is claimed that Mrs Fezaa is a strict adherent of the Mandean religion and as such her food must be prepared in accordance with the religion’s rituals and therefore her meals would need to be prepared by a follower of the Mandean religion. Letters from Mandean community groups and religious leaders in Australia confirm Mrs Fezaa’s strict religious practice and the religion’s requirements in the preparation of food. Letters and emails have been presented from service providers in Sydney contacted by the first named applicant and other family members advising that they do not have Mandean employees.
For the above reasons the Tribunal is satisfied that the assistance Mrs Fezaa needs cannot reasonably be provided by a relevant relative or relatives, or obtained from welfare, hospital, nursing or community services in Australia. 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 is 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 first named applicant claims he has been providing his mother with the assistance she needs since he arrived in Australia and that he is willing and able to continue to provide that assistance. If the first named applicant has been providing substantial assistance to Mrs Fezaa of the kind she needs since October 2017 that is a strong indicator that he is willing and able to provide substantial and continuing assistance to his mother.
At the hearing the Tribunal questioned the first named applicant’s claim that he had been providing his mother with all the assistance she has needed. The Tribunal noted, amongst other things, a medical report which appears to have initially been provided in support of Nadia Al-Sabiri’s Carer visa application which stated that Mrs Fezaa wanted her daughter to care for her rather than her two sons in Australia because she was ashamed due to ‘cultural barriers’ to have her sons bath or shower her.[4] The first and the fifth named applicants stated that, except initially, the first named applicant alone had been providing Mrs Fezaa with all the assistance she needed. The first named applicant claimed his mother permitted him to wash her because they always had a special bond. He stated that as the fifth named applicant had been an aged care worker in Sweden,[5] she initially provided some assistance mainly by showing him how to provide certain care to his mother but he had cared for his mother since. However, the documentary evidence tells a different story.
[4] DF1, f. 95.
[5] In a Form 80 form submitted in connection with the visa application, the fifth named applicant stated that she had trained and worked as an aged care worker in Sweden.

According to a form completed on behalf of Mrs Fezaa on 20 November 2017 and submitted in support of the visa application,[6] the first and fifth named applicants provided Mrs Fezaa with 24-hour assistance including bathing, cooking, toileting, medication, and changing dressing. This is consistent with the claim that the fifth named applicant initially provided assistance with Mrs Fezaa’s care.
[6] DF1, f.103.
However, a Bupa Carer Visa Report of 8 January 2018 identified the fifth named applicant and one of Mrs Fezaa’s brothers as Mrs Fezaa’s support people. This indicates that the fifth named applicant was continuing to assist Mrs Fezaa three months after the first named applicant claimed he began caring for his mother.
Further, in a statutory declaration made on 12 February 2018 the first named applicant stated that he assisted his mother by making doctor’s appointments; taking her to doctor’s appointments, shopping, and social activities. He said he collected her mail, translated for her and gave her her medication. He also stated that his wife bathed his mother, changed her clothes, cooked for her in accordance with the Mandean religion, cleaned and tidied the house, took her blood pressure, did washing and other duties. He said he and his wife dedicated all their time to taking care of Mrs Fezaa. This information indicates that 4 months after the first named applicant claims he began caring for his mother, the fifth named applicant was continuing to provide substantial assistance to Mrs Fezaa.
The documentary evidence indicates that the fifth named applicant continued to assist Mrs Fezaa in the years that followed. According to a letter dated 20 January 2020 from one of Mrs Fezaa’s doctors, the fifth named applicant attended a medical appointment with her.[7] Statutory declarations made by neighbours and friends of Mrs Fezaa in October 2021 attested to both the first and fifth named applicants caring for Mrs Fezaa.[8] And significantly as recently as 21 May 2022, the first named applicant stated in a statutory declaration that he cooked, cleaned, shopped, and took his mother to doctor’s appointments and that his wife assisted with his mother’s personal needs such as showering, changing diapers, and getting dressed.
[7] See letter of Dr Nader Bakhit dated 20 January 2020.
[8] Statutory declaration made by Kesra Serian on 20 October 2021, Suha Nasir Shanan on 28 October 2021, and Maria Rauth made on 16 October 2021.
In light of the documentary evidence, the Tribunal does not accept that the first named applicant alone has been caring for Mrs Fezaa and that the fifth named applicant only initially provided some assistance to meet Mrs Fezaa’s needs. The Tribunal finds that the documentary evidence and the fifth named applicant’s skills as an aged care worker indicate that she is able and has been providing substantial and continuing assistance to Mrs Fezaa of the kind she needs. The Tribunal has concluded on the evidence before it that the fifth named applicant has been assisting Mrs Fezaa with her personal hygiene needs in particular and the first named applicant has mainly been assisting Mrs Fezaa with her other needs.
Nevertheless, noting that substantial and continuing assistance can be provided by more than one person[9] and based on the assistance the first named applicant has been providing to Mrs Fezaa since he arrived in Australia, the Tribunal finds that the first named applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. Accordingly, the first named applicant meets the requirements of reg 1.15AA(1)(f).
Conclusion
[9] Bader v Minister for Immigration and Border Protection [2018] FCCA 485 at [40].
Based on the above findings, the Tribunal concludes that the first named applicant is, at the time of decision, a carer of the Australian relative referred to in cl 836.212. The first named applicant therefore satisfies cl 836.221.
Having found that the first named applicant satisfies cl 836.212 and cl 836.221, the appropriate course is to remit his application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.
Secondary applicants
The delegate refused to grant visas to the second, third, fourth and fifth named applicants on the basis that they did not meet cl 836.321 because the first named applicant did not satisfy the (primary) criteria for the Subclass 836 visa. Clause 836.321 is a secondary criterion that must be satisfied at the time of decision. It requires the applicant to continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa. Relevantly, cl 836.311 is a secondary criterion which requires that the time of application the applicant is a member of the family unit of a person who has applied for an Other Family (Residence) (Class BU) visa, and on the basis of information in the application appears to satisfy the criteria in Subdivision 836.21, and the Minister has not decided to grant or refuse to grant the visa to that person.
‘Member of the family unit’ is defined in reg 1.12. Broadly speaking, the regulation provides that a person is a member of the family unit of another person (the ‘family head’) if the person is the spouse or de facto partner of the family head; or, in certain circumstances, the person is the child or grandchild of the family head.
The first and fifth named applicants claim they are spouses. The Tribunal has before it a marriage certificate which states that they were married on 23 April 2000 and their marriage was registered in Iraq on 27 April 2000. Having regard to the definition of ‘spouse’ in s 5F of the Act, the marriage certificate and the totality of the evidence before it, the Tribunal is satisfied that the first and fifth named applicants were spouses at the time of application. Thus, the fifth named applicant was a member of the family unit of the first named applicant at the time of application.
According to extracts from the Swedish population register relating to the second, third and fourth named applicants, the first named applicant is their father. They are thus the children of the first named applicant. Based on the extracts the second, third and fourth named applicants were aged 4, 11 and 15 respectively at the time of application. A child of the family head who has not turned 18 is a member of the family unit of the family head: reg 1.12(2)(b)(i). Thus, the second, third and fourth named applicants were members of the family unit of the first named applicant at the time of application.
The criteria in Subdivision 836.21 include cl 836.212 which the first named applicant has met. Further, on the basis of information in the application the Tribunal is satisfied that the first named applicant appears to satisfy the other criteria in 836.21.
The Tribunal therefore finds that the second, third, fourth and fifth named applicants meet cl 836.311.
The definition of ‘spouse’ in s 5F includes a requirement that the parties are not living separately and apart on a permanent basis. At the hearing the first named applicant gave contradictory evidence about his and the fifth named applicant’s current living arrangements. The first and the fifth named applicants stated that Mrs Fezaa wanted the first named applicant to stay with her overnight. The first named applicant initially stated that he and his wife were living with his mother at his mother’s home in Sadleir while their daughters were living at Mount Pritchard due to lack of space (at his mother’s home). However, the first named applicant subsequently stated that his wife was in fact living with his daughters at Mount Pritchard and their future plan was to find a bigger property where all of them (which the Tribunal understood included his mother) could live together. He did not explain why he initially stated that his wife was living with him at his mother’s home if she was not. Further, his oral evidence is contradicted by documents he presented to the Tribunal - on 29 October 2020 he submitted a Change of Contact Details form stating he had a new residential address in Mount Pritchard and he gave the Mount Pritchard address as his address in a statutory declaration submitted after the hearing.[10] The Tribunal has concluded that the Mount Pritchard property has been the first named applicant’s residential address since about October 2020 and that he has lived there with the fifth named applicant and their children but that he and the fifth named applicant also stay at his mother’s home in order to care for her. The Tribunal is satisfied that the first and fifth named applicants are not living separately and apart on a permanent basis and is satisfied on the totality of the evidence that the fifth named applicant is the spouse of the first named applicant at the time of decision. Hence the fifth named applicant continues to be a member of the first named applicant’s family unit.
[10] Statutory declaration made on 8 November 2022.
The second and third applicants are now aged 9 and 17 and hence continue to be members of the family unit of the first named applicant. However, the fourth named applicant has turned 20. A child who has turned 18 but has not turned 23 and is dependent on the family head or the spouse or de facto partner of the family head will be a member of the family unit of the family head: reg 1.12(2)(b)(ii). It was claimed on review that the fourth named applicant had been a student until last year when she could no longer pay her university tuition and has remained dependent upon the first named applicant who has been financially supported by his Australian relatives. The Tribunal notes that upon applying for the Carer visa, the applicants were granted bridging visas without work rights. Documentary evidence submitted after the hearing in support of the claim that the fourth named applicant is dependent on the first named applicant included statutory declarations from the first and fourth named applicants, members of the first named applicant’s Australian relatives, bank statements, and documents relating to the fourth named applicant’s studies.
The Tribunal is satisfied on the evidence before it, including a letter from the Swedish Board of Student Finance advising the fourth named applicant that it would cease funding her studies as she no longer met residency requirements, that the fourth named applicant was a full-time student until she ceased her studies last year because she could no longer pay her tuition. The Tribunal is not satisfied that the applicants have been entirely transparent about their financial circumstances. A statement for the fourth named applicant’s bank account covers only a one-week period in October 2022. According to the statutory declarations, the first named applicant receives regular amounts of cash from various Australian relatives. Bank statements for an account in first named applicant’s name show irregular cash deposits which vary significantly in amounts from under $100 to over $1000. The deposits do not correspond to the regular cash payments it is claimed he receives from his relatives. While it is possible or even likely that not all the cash the first named applicant claims he received from his relatives was regularly deposited into his bank account, the source of the large cash deposits is not apparent. Further, there are numerous transfers from the second and fifth named applicants including large amounts over $1000. Statements for bank accounts held in their names have not been presented. Nevertheless, on the totality of the evidence before the Tribunal and having regard to the definition of dependent in reg 1.05A, the Tribunal is satisfied that the fourth named applicant is dependent on the first named applicant and hence continues to be a member of his family unit.
Although the Tribunal is satisfied that the second, third, fourth and fifth named applicants continue to be members of the family unit of the first named applicant, the Tribunal cannot find that they meet cl 836.321 because the first named applicant is not the holder of a Subclass 836 visa nor is it appropriate to make a finding on the criterion given it has decided to remit the first named applicant’s visa application for further consideration. Instead, having found that the second, third, fourth and fifth named applicants meet cl 836.311, the appropriate course is to also remit their applications for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.
DECISION
The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 836 (Carer):
·cl 836.212 of Schedule 2 to the Regulations
·cl 836.221 of Schedule 2 to the Regulations
and the direction that the second, third, fourth and fifth named applicants meet the following criterion for a Subclass 836 (Carer):
·cl 836.311 of Schedule 2 to the Regulations
Mila Foster
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.