Duong (Migration)

[2023] AATA 1864

Duong (Migration) [2023] AATA 1864 (9 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr The Truong Duong

REPRESENTATIVE:  Ms To Quyen (Tina) Tran (MARN: 1466142)

CASE NUMBER:  2013114

HOME AFFAIRS REFERENCE(S):          CLF2018/190890

MEMBER:Justin Meyer

DATE:9 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.221 of Schedule 2 to the Regulations

Statement made on 09 June 2023 at 5:17pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably obtained from any other relative or service providers – specified relatives’ study, work or family commitments, or loss of contact – sponsor’s physical and mental health and cultural considerations – language, food and remaining with family – local Vietnamese-speaking nursing home has waiting list – unable to pay for nurse or carer – applicant’s consistent and straightforward evidence and current care for sponsor – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15AA(1)(e), Schedule 2, cl 836.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 August 2020 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 10 August 2018. 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). 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. Relevantly to this matter, the primary criteria to be met include cl 836.221.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because per subregulation 1.15AA (1) (e) (ii) the delegate was not satisfied that the assistance the resident requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia

4. The applicant appeared before the Tribunal on 2 June 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in Australia.

   Whether the applicant has claimed to be the ‘carer’

8. 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 applicant is the carer of the sponsor.

9. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa 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.

   Whether the applicant has claimed to be the ‘carer’

10. 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 applicant will provide assistance to Ms Nam Thi Tran.

11. For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa 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.

12. The applicant claimed to be the carer of another person (‘caree’) at the time of application; and the ‘caree’ is an ‘Australian relative’ – ie a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen. Ms Nam Thi Tran is an Australian citizen.

13. For the purposes of this application, I find that the ‘resident’ referred to within the definition of Carer at Regulation 1.15AA is Ms Nam Thi Tran.

14. Documents supplied to support this application demonstrate that the applicant is the grandson of Ms Nam Thi Tran.

    Are the sponsorship requirements met?

15. Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

16. Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl 836.213.

    Family relationships

17. The relevant family relationships in this case are:

    ·Ms Nam Thi Tran (“the sponsor”), a 94 year-old female who is an Australian citizen.

    ·Mr The Truong Duong (“the visa applicant”), a 44 year-old male who is a Vietnamese citizen, and a grandson of the sponsor.

    The claims

18. The sponsor in essence claims that only her grandson can provide the type of care that she needs.

    The conditions of the sponsor

19. According to her treating doctor, Dr Loc Ngo  MD, AMEC (per his letter of 27 May 2023), the sponsor has (as written):

    ·left knee osteoarthritis diagnosed on 30/06/2015 the condition has got worse despite treatment

    ·hypertension diagnosed from 10/10/2012 is permanent requires daily antihypertensive tablet with frequent headache and dizziness 

    ·memory loss from 11/09/2015 following death of her husband she has become forgetful assessed by psychological assessment and memory test and examination the condition is progressing without improvement

    ·gastritis diagnosed from 01/10/2013 by typical symptoms of heart burn epigastric pain on permanent zantac the condition is ongoing treatment

    ·depression diagnosed from 11/09/2015 since the death of her husband diagnosed by symptoms. Of depressed mood lethargy sense of hopelessness. Helplessness. Fond remembrance.  

    ·persistent lethargy fatigue. She cannot do any daily activities

    ·memory loss

    ·bilateral rotator cuffs syndrome

    ·cataracts

    The claimed merits of having the visa applicant assisting in the sponsor’s care

20. The applicant made the following written submission on 2 June 2023 (as submitted, and edited):

    The Applicant was born in Vietnam, he was married with two children. In May 2018, The Applicant entered Australia as the holder of visitor visa. He resided with the Sponsor and her family; he commenced caring for his grandmother since then.

    The “Australian relative” Sponsor, was born in 1929 in Xa Ba Trinh, Vietnam. She is a widow with nine children that reside in Australia. Her remaining 3 children live in Vietnam

    The Sponsor resides with Thao Duong, her daughter in Sydenham, Victoria.

    The Applicant and the Sponsor are currently living in the home of the Sponsor’s daughter,

    Thi Thanh Thao Duong and her family. The applicant is solely responsible for the care for Mrs Tran, and provides for all of his grandmother needs. This includes: prepare meals for her, washing and ironing, attending to his grandmother personal hygiene requirement through bathing and toileting, taking Mrs Tran to medical appointments, and providing her with companionship.

    The applicant explained that Mrs Tran is fragile and require assistance when move. She also suffered from memory loss and required assistance with monitoring to ensure that she took her medication and in the correct dosage. Mrs. Tran speaks no English and only converses in Vietnamese. The Applicant advised that he is prepared to continue to act as his grandmother carer for the remainder of Mrs Tran’s life.

    The applicant also advised that given the decline in his grandmother’s mental conditions, and her lack of English language skill, it is important that his grandmother is cared for by a family member who could communicate with her in Vietnamese language.

    The Sponsor attested that his grandmother requiring 24/7 care, to prevent Mrs Tran from falling and taking her to all required medical appointments. He applicant said that he is not receiving any support from any other family members to care for his grandmother other and his aunt, who helps with cooking meals and sometimes bath Mrs. Tran.

    Other than that, Mrs Tran is not receiving any support from welfare, hospital, nursing or community services. The applicant explained the Mrs Tran would react nervously, shakes, feel very uncomfortable when a stranger getting close to her. Due to this, the Applicant had not made any enquires since the refusal of the visa regarding any welfare, hospital, or communities’ services for his grandmother.

    Mrs Tran has 26 adults relatives, as defined by r1.03, who are Australian citizens or permanent residents. 21 have provided supporting letters as why they cannot provide assistance to Mrs Tran, and 5 have not been in contact with her for over a decade. The applicant has provided evidence that he attempted to contact these 5 relatives, but they are not willing to sign the supporting letter that he has prepare for them. Those letters are provided along with this submission.

    Mrs Tran has many adults’ relatives, but none able to provide ongoing care, according to their letters/statutory declaration. The younger adults’ relatives would want to focus on their study or career, whereas the older relatives have work and family commitment. The Applicant as been assisting the daily needs of his failed grandmother activities like feeling, bathing, toileting, lifting, moving, and most importantly companionships. The applicant has been able to provide this assistance to his 94 years old grandmother, and promise to continue to do so until the day she dies.

    The applicant has provided the following evidence in support to his claim that he and his family had tried to access appropriate community and/or residential services for Mrs. TRAN:

    o AMCS Home Care Packages
    o V3 Colbrow Home Care Packages
    o An email from Eloina Zepada from AMCS in regards to not being able to provide
    Vietnamese speaking support workers and they do not offer private brokerage
    services.
    o An email from Thao Duong to Mekong Cairnlea Vietnamese Age care seeking
    information on residential care. Mekong confirmed that there are no vacancies and
    and they are a waiting list.
    o An email from Silver chain with brochure of their home care packages.
    o Schedule of home service fees from Royal District Nursing Service (private service
    provider)

    The Applicant and other family members had not made any further enquiries of, or had tried to access, appropriate community and or/ residential services for Mrs. Tran. The applicant advised that her grandmother didn’t wish to enter the residential care facility, and she reacts negatively each time it was mentioned to her, hence he proposed to care for his grandmother until Mrs Tran’s death.

    The Applicant advised that it is not feasible for Mrs. Tran to access welfare, hospital or community services because of her advanced age, the fact that she only speaks Vietnamese, and can only tolerate Vietnamese food, does not want to be separated from her family, and does not want to be cared by strangers. Further, to this, the family advised that many of the residential care facilities are expensive, and she would not be able to afford such care even with the assistance of the government.

    The Applicant request the Tribunal to considered Mrs Tran circumstances and in particular, her care arrangements since he arrived in Australia in 2018. Throughout this period the applicant has been the sole carer of Mrs Tran and has lived with her at the home of family members. Mrs Tran is now aged 94 years, speaks little or no English, suffers from a number of medical conditions which are consistent with her advanced age and require daily intimate care.

    For the past five years Mrs Tran has been dependent on the applicant for all aspects of her personal care including personal care (toileting, bathing and dressing), preparation of meals, shopping, cleaning of clothes, administration of medications, monitoring of health, and transportation to medical and other appointments. The applicant also provides her with companionship and emotional support. This care is provided on a daily basis.

    We submit that the Tribunal to give significant weight to the cultural considerations for Mrs Tran (including her language, diet, traditions and beliefs). These cultural considerations together with her advanced age, poor health, nature of the care required and personal circumstances. This evidenced to why the assistance cannot reasonably be provided to Mrs Tran by a relevant relative or obtained from welfare, hospital, nursing or community services in Australia. Therefore, the requirements of r.1.15AA(1)(e) are met by the applicant.

    Evidence in the hearing

21. The evidence in the hearing from the applicant was broadly consistent with his written claims (he submitted a three-page statement). The sponsor, I accept, is too advanced in years and frail to give in-person or telephone/video evidence.  

22. The oral evidence provided some additional noteworthy information from the applicant:

    ·He is divorced, with children back in Vietnam. He has no contact with his ex-wife.

    ·He is a former driver of light trucks, delivery vehicles.

    ·His initial purpose in visiting Australia was to see his wider family, and upon arrival he became concerned about the condition of his grandmother.

    ·His grandmother had him as something of a favorite as he is a son of her second son, and sons often receive favoritism in his culture.

    ·It was a very large family – his grandmother had 13 children.

    ·He helps her out of bed every morning. He makes sure she takes her tablets

    ·Her mental consciousness was poor. He tries to help her focus. He tries to make her clean her teeth and reinforces why this will help her health. She has issues with what the point of life was at her age. Yet she is afraid of dying.

    ·His aunt who he shares the house with as well said that if there was someone helping full time it would not be so dangerous for his grandmother.

    ·His aunt could not keep and eye out al the time. She went to work at 5am at a café which she owns and would finish at 2pm. His grandmother can barely serve herself food and take care of personal needs. Her bathing was something she resisted but she has grown more familiar with him helping her. She reacts very negatively towards strangers helping her. She has some incontinence issues which he attends to.  He takes her to the doctor, who is Vietnamese-speaking. He has a license. His grandmother has had a fall in the past where she hit her head.

    ·He helps her each day with honoring her late husband in the traditional way. He makes her breakfast, and turns on the TV for her - she is particular fond of certain Vietnamese movies which she watches constantly.

    ·His grandmother cannot speak English at all and is illiterate in any event.

    ·One of his aunt’s children is living in the house but he is a young man. The daughter left the house.

    ·The broader family are unable to help. They lead active lives, have their own families, as studying at university or are very estranged from the family and do not even respond when they are reached out to.

    ·If is grandmother died, he would return to Vietnam for good. He said he was disappointed with the family conflict in Australia and it had no attractions for him. He had a fondness for his grandmother over the years because of the good way she had treated him, and this gave him his motivation for helping her in the last stages of life.

    ·She was strongly against going into a nursing home. She and her late husband resisted this when he was dying and they were firmly of the custom that they would die at home. Even the Mekong nursing home – a local Vietnamese nursing home she is very much against. In any event it has a considerable waiting list.

    ·I asked who were the other most helpful relatives and he said his aunt Ms Thao. Yet she has her own children to attend to - the youngest is 12 and needs to be picked up from school for example. His aunt’s husband has his own work and is a breadwinner as a chef. Their incomes are not high and hiring a nurse or carer is beyond their means.

    Evaluation

23. In all the Tribunal considered the applicant’s oral evidence to be consistent and straightforward. The Tribunal considers his motivations for remaining in Australia and is of the view that his relationship with his grandmother is close. The Tribunal also finds that the applicant is divorced man without significant family obligations in Vietnam and his remaining in Australia to care for his grandmother is consistent with his current life situation.

24. The Tribunal finds that the sponsor is a very frail woman with considerable number of health conditions and needs constant care and supervision. The Tribunal finds that the applicant is the best placed family member to assist her, and appears motivated, with her best interests at heart.

25. The Tribunal finds that other family members can only provide very limited help as they must work for a living, take care of members of their own nuclear family, are young, are studying full-time and have other obligations. Numerous statutory declarations from the family members state this and I am not in a position to dispute them. The Tribunal also finds that there are several estranged family members who do not wish to have contact with the sponsor let alone help her.

26. The Tribunal has contemplated whether it is a situation where family members cannot help or whether it is that family members will not help. Ultimately the Tribunal finds that in the totality of the circumstances there is no other person can provide care necessary than the applicant. Reasonably this is something that cannot be provided by others due to a lack of ability, time or indeed, will.  

27. The applicant presented as a responsible, resilient, and tolerant person. He does not have marital ties. I accept his financial needs are met by his wider family. He knew her health conditions well and I accept he is diligent in helping her.

28. The evidence of the GP is given strong weight. There is a long-term ongoing relationship and this professional knows the sponsor. I accept the sponsor’s long-term needs are best served by her current care arrangement. Professional nursing services would be problematic for the sponsor for the reasons described around her mindset and conditions. I accept that outside care, while useful for many in the community, does not extend to the level of care she needs. There is written evidence of requests for guidance for assistance to organisations that have not been fruitful. The lack of fruitfulness is a combination of waiting lists, a lack of Vietnamese-speaking aged care facilities, and cultural factors such as the sponsor not meaningfully eating Western food and only eating Vietnamese food. Considering her age and apparent cognitive issues the prosect that this might reasonably change is very slim.

1. The Tribunal was left with an impression of a person with considerable anxiety and very dependent on assistance. She is in the latter stages of the life and is heavily reliant on the applicant, and likely to remain so.

2. In the light of the above the assistance which might be provided is not reasonably obtainable within the meaning of r.1.15AA(1)(e)(ii).

   Certification – reg 1.15AA(1)(b)

3. Regulation 1.15AA(1)(b) requires that a certificate, which meets 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.

4. 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.

5. There is a certificate as required in the regulations, as provided to the Tribunal. The certificate meets the requirements of reg 1.15AA(2).

6. According to the certificate the resident has a medical condition causing impairments of the person's ability to attend to the practical aspects of daily life.

7. The impairment has an impairment table rating specified in the certificate because of the medical condition, the person 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.

8. 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). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

   Residency status of person with medical condition – reg 1.15AA(1)(ba)

9. 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.

10. 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)

11. 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.

12. In the present case, the impairment rating specified in the certificate is 70. This was issued by Bupa Medical Services on 10 March 2022. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

13. The Carer Visa Assessment Certificate dated 11 July 2018 provided with this application states that the applicant is

    “is an 89 year old woman who lives with her daughter's family. She has a background of osteoarthritis of the left knee, memory loss, depression, gastritis, persistent lethargy and hypertension, but besides her arthritis the remainder of these conditions are not relevant to this assessment, or there has been no formal assessment/diagnosis by a specialist. She also reports frequent pain and weakness in her hands, but this has not been previously investigated or managed. This condition cannot be considered as permanent for carer visa assessment purposes given it hasn't been fully treated. While Mrs. Tran is undoubtedly unwell, at this time she does not satisfy the medical requirements for a carer visa.”

14. The applicant under the above certificate had a rating of 10 which was below the required level

15. The Carer Visa Assessment Certificate most recently issued shows that the impairment rating specified in the certificate is 50. This was issued by Bupa Medical Services on 25 February 2022. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

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

16. 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.

17. For the reasons stated above this provision is met.

    Willing and able – reg 1.15AA(1)(f)

18. 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.

19. 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.

20. 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.

21. For the reasons stated above I find that the applicant is both willing and able to provide substantial and continuing assistance required.

22. 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).

23. 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.

24. 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

25. 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

    Justin Meyer
    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.