El Masri (Migration)

El Masri (Migration) [2022] AATA 2557 (17 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Fatme El Masri
Mr Mahmoud El Masri
REPRESENTATIVE:  Mr Ahmad Shady (MARN: 1575106)
CASE NUMBER:  1837078
HOME AFFAIRS REFERENCE(S):          CLF2017/40353
MEMBER:Jennifer Cripps Watts
DATE:17 April 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 17 April 2022 at 12:45pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – certification – permanent or long-term need for assistance – cognitive impairment – direct assistance not provided by resident – financial assistance only – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221
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 (the delegate) on 4 December 2018 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 26 May 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). 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. To meet the secondary criteria, if any member of the family unit satisfies the primary criteria the other members of the family unit are eligible for the grant of the visa if they satisfy the secondary criteria and their applications are made before the Minister has decided to grant or refuse to grant the visa to the first person.
The delegate refused to grant the visas on the basis that cl 836.221 of Schedule 2 to the Regulations was not met because the applicant did not meet the requirements of a carer as defined in reg 1.15AA of the Regulations.
On 18 December 2018, the applicants applied for merits review and provided the Tribunal with a copy of the primary decision record which sets out the primary criteria that was not met by the applicant, and the reason the second named applicant did not meet the secondary criteria, and the reasons why.
The applicants appeared before me on 24 November 2021 to give evidence and present arguments. The sponsor, Mr Mohamad Ali El Masri, and his wife Ms Donia El Boubli (Donia). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic Lebanese and English languages.
The hearing was held by MS-Teams video and the adults in the family were present together at home, as was their registered migration agent. There was an interpreter who assisted, but at times the applicant’s wife, whose first language is English, explained and clarified things for ease of communication. Donia was considered to be helpful and credible and it was appropriate, in the circumstances, to adopt an informal approach to the family members giving their evidence. The applicants’ representative attended the Tribunal hearing.
For the following reasons, the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of carer, as it is described in reg 1.15AA of the Regulations, for the purpose of meeting cl.836.221. The elements of reg 1.15AA are cumulative; if one element is not met, the applicant does not meet definition of ‘carer’ for the purpose of satisfying cl.836.221 of Schedule 2 to the Regulations.
The sponsor is Mr Mohamad El Masri, he is an Australian permanent resident. The applicant is his mother; the second-named applicant is his father. The sponsor’s son, Osman, is an Australian citizen who was born in 2015. The applicants citizens of Lebanon, and are his paternal grandparents.
Relating to the sponsor, he is referred variously to as ‘sponsor’, ‘relative’, ‘resident’ and ‘Australian resident’ in this decision.
The delegate’s finding, and the substantive issue on which the visa was refused, is that the applicant did not met reg 1.15AA(d) because the applicant did not demonstrate that the resident has a permanent or long-term need for assistance, as it is referred to in reg 1.15AA(1)(b)(iv) of the Regulations.
At the time the delegate made the decision to refuse the visas, they were satisfied that the Australian relative provided financial assistance to his son Osman, who is the person identified in the Carer Visa Assessment Certificate (the certificate), but not satisfied the resident provided direct assistance attending to the practical aspects of Osman’s daily life.
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.
The term ‘direct’ assistance in reg 1.15AA(1)(b)(iv) refers to a person’s need, on the basis of their medical condition, for ‘direct assistance in attending to the practical aspects of daily life’. Osman is the person who is the subject of the certificate. Where the ‘resident’ (in this case his father) is not the person who is the subject of the certificate, it is the resident who must have a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph reg 1.15AA(1)(b)(iv).
Whether the applicant has claimed to be the ‘carer’
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.
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 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s son.
On the evidence, I am satisfied that the Australian relative is an Australian permanent resident and that the applicant is his mother.
Therefore, as the applicant is the mother of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the Australian relative 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. A certificate, meeting the requirements, as they are specified of the relevant instrument was provided with the visa application, dated 2017. An updated and current certificate was requested and one has been provided for a medical assessment of Osman undertaken in January 2022.
I have considered the information in the most recent certificate, which I am satisfied is legally valid. Information in the certificate includes that:
·a member of the resident’s family unit, his son Osman, has a medical condition causing impairments of his ability to attend to the practical aspects of daily life, and
·an impairment that has an impairment table rating is specified in the certificate, and
·because of the medical condition, Osman has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of his daily life
For these reasons, I find that the certificate provided in support of the review application meets the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters in reg 1.15AA(1)(b)(i)-(iv).
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 condition, Osman, was born in Australia in 2015; he is an Australian citizen who has lived in Australia since birth.
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 Legislative Instrument IMMI 17/126. The minimum impairment rating specified by the Minister is 30.
In the present case, the impairment rating specified in the certificate dated January 2022 is 50. This rating exceeds the impairment rating specified by IMMI 17/126.
The requirements of reg 1.15AA(1)(c) are met.
Resident’s need for assistance (not the subject of certificate) – reg 1.15AA(1)(d)
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the resident to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv), attending to the practical aspects of daily life of the person who is the subject of the certificate, for at least 2 years, as a result of the person’s medical condition.
In the present case the resident is not the subject of the certificate. The resident is the father of the person who is the subject of the certificate, his son Osman.
In the primary decision record, which was provided with the review application, it is explained why the delegate was not satisfied reg 1.15AA(1) was met. Essentially, the applicant needs to demonstrate that it is Osman’s father (her son, an Australian permanent resident) who has a permanent or long-term need for assistance in providing the direct assistance (emphasis added) mentioned in reg 1.15AA(1)(b)(iv).
It is not in dispute that Osman has a medical condition causing impairments of his ability to attend to the practical aspects of daily life and that he will have a need for direct assistance attending to the practical aspects of his daily life for at least 2 years. The requirements of reg 1.15A(1)(b) have been met, for the reasons given earlier in this decision.
In the most recent certificate, dated January 2022, on the basis of Osman’s medical condition, he requires ‘ongoing total supervision by his family for all practical aspects of daily life due to his cognitive impairment’. What can reasonably be considered to be direct assistance for the practical aspects of daily life for Osman, as they are indicated in the certificate, includes the following matters:
·always requires supervision while walking around the house he lives in with the family due to ‘disinhibited wandering … with no consideration for potential dangers’
·requires supervision and support for mobility
·cannot recognise the need for daily hygiene, he sits on the floor of the shower while his mother cleans him (noting that there was oral evidence that the applicant also attends to Osman’s showering)
·requires nappy changing five times a day as he has not been able to be toilet trained
·is incapable of dressing or grooming himself
·does not have the cognitive capacity to eat independently
·is totally dependent on his parents
·sleeps with his grandparents every day due to risk of wandering (Donia gave oral evidence that they try to keep his night time routine as normal as possible, but after they put Osman to bed, he gets up and goes into the grandparents’ room and they let him sleep there)
·must be supervised in the back seat of the car as a matter of safety for himself and others in the car
I have considered the information in the certificate, on the basis of Osman’s impairment, described as ‘extreme functional impact affecting his brain function … (and) communication function’, which includes details of:
·Osman’s current living arrangements being with his family (mother, father, brothers and grandparents)
·informal family support at home; no external support within the house (noting that this is submitted to be for religious reasons)
·his receipt of an NDIS package for allied health therapy, including speech pathology and occupational therapy
·his attendance at a supported school 5 days a week, Monday to Friday 9:00am to 2:30pm
·that Osman is fully dependent and his condition is permanent (or at least 2 years)
·Impairment rating of 50 (above the minimum of 30, and above the 2017 assessment of 40)
·always requires supervision while walking around the house he lives in with the family due to ‘disinhibited wandering … with no consideration for potential dangers’
·requires supervision and support for mobility
·cannot recognise the need for daily hygiene, he sits on the floor of the shower while his mother cleans him (oral evidence that the grandmother does this as well)
·requires nappy changing five times a day as he has not been able to be toilet trained
·is incapable of dressing or grooming himself
·does not have the cognitive capacity to eat independently
·is totally dependent on his parents
·sleeps with his grandparents every day due to risk of wandering (they put him to bed but he gets up and goes into the grandparents’ room, oral evidence)
·must be supervised in the back seat of the car as a matter of safety for himself and others in the car
I discussed Osman’s usual or typical daily arrangements and activities with his mother at the hearing and the evidence she gave was consistent with what has been stated in the certificate relating to the assistance and support Osman needs and receives. Osman’s father, the sponsor, gave oral evidence at the hearing. His evidence was generally consistent with the statutory declaration he provided in 2018 and details of Osman’s needs and care as they were described by Donia at the Tribunal hearing.
At the time of application, the resident provided a statutory declaration, sworn on 23 April 2018, in which he declared, ‘I work full time to support my family’ and includes that he does as much as he can. A written submission in support of the application, provided by the applicants’ registered migration agent and authorised representative, included that it is the sponsor’s wife who is the full time carer of Osman. After the application was assessed, the delegate concluded that the sponsor was providing financial assistance, but not the direct assistance required to meet the requirement of reg 1.15AA(1)(d). This is the material issue on which the delegate decided the applicant did not meet the criteria for the grant of the visa and the reason why the visa was refused.
It was important to get a clear idea of the sponsor’s work arrangements and understand the nature of any assistance he provides to Osman. These matters were discussed with the resident and his wife when they gave their oral evidence at the Tribunal hearing. For context, the family’s circumstances since Osman was born in 2015 are included below.
Osman and his twin brother were born in August 2015. Osman is described, in a report from his paediatrician that accompanied the visa application, as ‘…a boy with severe hypoxic ischemic brain injury from a near miss S/OS or infective episode at 5 months old of age’; an acquired brain injury (which occurred in January 2016). His grandmother, the applicant, travelled to Australia soon after holding a visitor visa for the purpose of helping with the care of her three grandchildren who, at the time, were under the age of three. On 26 May 2017, the applicants lodged the application for carer visas that are the subject of this review. The applicant has remained onshore since October 2017 holding a bridging visa B relating to the carer visa refusal.
The resident lives in Green Valley with his wife, children and his parents. At the hearing I was informed that the resident and his wife are expecting another baby in May 2022. Up until mid-2017, the resident was working full time as a truck driver which involved time away from his family, sometimes overnight. Since mid-2017 he says he has been working part time as a truck driver, locally, about 20 hours a week. He said he made the decision to change his work arrangement about about 18 months after his mother arrived so he ‘can stay close to the house, in case anything happens I can go to the house’. He was asked if he has needed to go to the house and said ‘sometimes’. He said he does not have regular work hours and that he works when they need him, sometimes starting at 6, 7 or 8am. He said he earns about $500 a week and that his brother helps him financially, clarifying that to mean that he gives him money. He said it is hard to make plans due to his work commitments but, for example, if his wife is sick and cannot pick Osman up from school, he picks Osman up and drives there with his mother. Evidence has been provided indicating that Osman, who is now six, started school earlier this year, in 2022.
The resident was asked why he said he no longer works full time, with his wife and both his parents living with him. He responded that sometimes they have appointments, for example doctor’s appointments, and he needs to look after the children. He added that his mother (the applicant) does not know how to ‘go around and buy food’, that he has to do it and then she cooks for the family. He said if there is an emergency, he is close to home and he helps his mother. He said his wife takes the children, including Osman, to appointments because his mother does not drive or speak English, but she usually goes with them to supervise Osman in the car and keep him safe because Osman has trouble sitting still and he takes his seatbelt off.
Osman’s mother, Donia, gave evidence consistent with that of her husband. Donia said that she and the applicant do the school drop offs and pick ups and that the applicant accompanies her for safety because Osman has to be supervised at all times; she said he takes off his seatbelt, has no ability to assess risk or understand danger, which is especially concerning around cars and traffic. His lack of consideration for ‘potential dangers’ is described in the certificate as ‘disinhibited wandering’.
The nature of Osman’s medical condition and the requirement for direct assistance are certified and described in the January 2022 certificate. In summary, Osman’s medical condition is ‘acquired brain injury with severe cognitive delay’ and the direct assistance he needs is described as, ‘requires ongoing total supervision by his family for all practical aspects of daily life due to his cognitive impairment’, including managing his therapies and medical appointments. It is specified in the certificate that Osman requires assistance with mobility, bathing and showering, toileting, dressing and grooming, eating and feeding, medication, personal safety and transportation; and that he is ‘fully dependent’. Consistent evidence was given by the resident, his wife and the applicant, that it is primarily the Donia and the applicant who attend to Osman’s special needs in the home and on car trips.

The evidence of the types of assistance and support the resident provides was given mainly in the oral evidence at the Tribunal hearing, as it has been mentioned above. The sponsor continues to provide financial assistance from his salary as a part time truck driver. He said that his brother also gives him money to help out. The family receives Centrelink payments and Osman has an NDIS plan with funding of a bit less than $37,000 for the current 12 month period to April 2022.
Having carefully considered the evidence before me, it appears that the direct assistance needed by Osman, as it is specified in the certificate, is still not provided by the resident for the most part, notwithstanding that he has worked part time since mid-2017. Evidence was given, consistently, that indicates the resident helps with the children and assists his parents and sometimes takes Osman to and from school. However, the evidence indicates strongly that almost all the direct assistance is provided by Donia and the applicant.
It is included in the certificate, and accepted on that basis, that Osman requires supervision and direct assistance 24 hours a day. Osman sleeps with his grandmother, she attends to his personal needs at home, plays with him and goes with him in the car to ensure that he and the other passengers are safe. Osman attends physiotherapy, occupation therapy and speech therapy. He is visually impaired and requires regular visits to a paediatric ophthalmologist and a neurologist. Donia takes Osman to his medical appointments and does most of the driving to and from appointments and school.
I am satisfied that the resident provides financial assistance. However, I consider the nature of the assistance he provides overall to be auxiliary, rather than direct. By that, I mean that the resident is on hand to provide additional or supplementary direct help and support, but it appears that the things he is called on to do, such as shopping and driving to appointments when he is available, or looking after his other children, to be assistance provided to his wife and his mother. In effect, the assistance the resident provides to Osman, while certainly very helpful to the family as a whole, is predominantly indirect assistance.
The sponsor and his wife had given oral evidence relating to Osman’s NDIS plan, the Centrelink payments they both receive and Osman’s enrolment at school in 2022. Shortly before the hearing was concluded, I informed the applicant that I would like additional evidence provided and that I would send a letter with details. On 1 December 2021, a letter was sent to the applicants requesting they provide Osman’s current NDIS plan, bank statements where all NDIS and Centrelink payments credited for the years 2018/2019 and 2020/2021; and confirmation of enrolment at Mainsbridge School for Osman in 2022.
In response, on 15 December 2021, the applicant provided:
·An acceptance letter for Osman offering him a place at the Mainsbridge School, Warwick Farm, in their Intellectual Disability support class in 2021, and acceptance of the offer signed by Donia El Boubli, Osman’s mother. The applicant offered to provide more current evidence of Osman’s enrolment at the school in 2022. It was not requested because I did not consider it to be necessary. I accept that the intention at the hearing was that Osman would start school in 2022.
·Commonwealth Bank statements for Miss El Boubli for the period October 2017 to September 2021, which include fortnightly credits to the account from Australian Government Families, and NDIS and pension payments.
·Osman’s current NDIS plan, dated 30 April 2021, total funded supports of $36,661.15 to 30 April 2022, when the plan will next be reviewed
The sponsor provided evidence with the visa application that his full time work as a truck driver meant that he was limited as to the role he could play in providing direct assistance to Osman. He says he now works part time as a truck driver and it does not seem that his circumstances, in terms of his availability to provide direct assistance to Osman, have changed greatly since the decision to refuse the applicants’ visas was made, other than the claim that he works less hours at the time of this decision than he did when the decision was made to refuse the visa.
Written submissions
On 31 August 2021, written submissions were received which were sent by the migration agent in error; they related to a different case. He realised the mistake shortly after the submission was sent and liaised with the Tribunal to ensure the submission was disregarded. They related to another matter with the same applicant name and this was brought to my attention prior to the Tribunal hearing on 24 November 2021. The submission that was sent in error, and has been disregarded in its entirety. On the same day, 31 August 2021, written submissions in this case, number 1837078, were received and the submissions have been considered.
The written submissions include that Osman is an Australian citizen by birth, who has an Australian family on his mother’s side, and that he has never departed Australia; that Osman was the subject of the 2017 certificate and, on the basis of the findings made, reg 1.15AA(1)(b), (ba) and (c) are met. I have made findings that each of these subclauses is met, for the reasons given earlier in this decision.
It is further submitted that ‘if the certificate is for someone other than the resident, accordingly subclause (d) does not apply’ … ‘Subclauses (e) and (f) are where the contention arises, and this is where we provide our extensive submissions’.
The submission included information, with some accompanying documentary evidence, in support of the applicant’s claim that they meet regs 1.15AA(1)(e) and (f). The issues relating to the requirements of these subclauses were explored with the applicant, sponsor and witness when they gave oral evidence at the Tribunal hearing. However, unless the applicant meets reg 1.15AA(1)(d), it is not necessary to go on to make findings relating to the additional subclauses because reg 1.15AA cannot be satisfied unless all elements are met.
The substantive issue on which the applicant’s visa was refused is that reg 1.15AA(1)(d) was not met, (extracted from the Regulations) …
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:
(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)’
In this case, the resident is the sponsor, Mr Mohamad Mohamad Ali El Masri. The direct assistance mentioned in subparagraph (b)(iv) relates to Osman, his son. It is Osman who is the subject of the certificate. It is the sponsor, who is the resident and relative of the applicant, that the applicant must establish has a permanent or long-term need for assistance in providing the direct assistance (to Osman).
The submission that ‘subclause (d) does not apply’ has been considered. The submission that reg 1.15AA(1)(d) does not apply is incorrect. In the circumstances of this case, there is no question in my mind that Osman requires the direct assistance as it is described in reg 1.15AA(1)(b)(iv), on the basis of the information in the certificate, which I have found to be legally valid. However, reg 1.15AA(1)(d) must still be met relating to the resident.
The certificate provided relating to a medical assessment undertaken in January 2022 includes, on the basis of Osman’s medical condition, that Osman is a person requiring ‘ongoing supervision by his family for all practical aspects of daily life due to his cognitive impairment’. The direct assistance for the practical aspects of daily life Osman requires is detailed in the certificate, and are included earlier in this decision.
At the Tribunal hearing, I discussed Osman’s usual or typical daily arrangements and activities with his mother The oral evidence she gave was consistent with what has been stated in the certificate relating to the direct assistance and support Osman needs and receives. The sponsor also gave oral evidence at the hearing. The evidence he gave was consistent with the statutory declaration he has provided, Osman’s needs and care as they were described by Donia and in written evidence from the applicant. It is acknowledged that the certificate includes reference to Osman being totally dependent on his parents. However, the statement in the certificate that Osman is ‘dependent’ on his parents is a different matter to finding that the sponsor provides the direct assistance Osman requires.
The sponsor has, on the oral evidence given, reduced his work hours from full time to part time, about 20 hours a week. However, there is little evidence to support a finding that the sponsor provides direct assistance to Osman, except on occasion when his wife or mother are not available. Even then it appears to be relating to driving and grocery shopping for the family and looking after the children. It is commendable that the sponsor engages in these activities. However, the assistance the sponsor provides, other than when there is an emergency such as his wife being sick, while helpful relating to family members who live in the home, is assistance that has the complexion of secondary, not primary, assistance.
For the reasons given, I am not satisfied that the resident, or Australian relative, requires assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv) and therefore the requirements of reg 1.15AA(1)(d) are not met.
Given the finding that the applicant does not satisfy reg 1.15AA(1)(d), at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore the applicant does not satisfy cl 836.221 of Schedule 2 to the Regulations.
Conclusion
For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa. In respect of the other visa subclasses there is no claim made, or material provided, which would permit a finding that the applicant meets any other prescribed criteria for the visa sought.
Secondary applicant
The applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa. The secondary applicant is a member of the family unit of the applicant; he is her husband. There is no evidence before me that the secondary applicant is a member of the family unit of a person who has been granted and holds a subclass 836 visa. He does not therefore meet the secondary criteria as it is required at the time of decision.
The decision to refuse the visa of the second named applicant is also affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Jennifer Cripps Watts
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.

[2022] AATA 2557

17 April 2022

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