Gurung (Migration)

Gurung (Migration) [2023] AATA 3759 (21 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Manoj Gurung
REPRESENTATIVE:  Mr Tonnou Ghothane, Ghothane Lawyers
CASE NUMBER:  1827217
HOME AFFAIRS REFERENCE(S):          CLF2017/41121
MEMBER:Michael Ison
DATE:21 June 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 21 June 2023 at 5:04pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – CVAC certification – fully dependent – assistance cannot reasonably be provided/obtained – other relatives – children – grandchildren – welfare, hospital, nursing or community services – specific cultural needs – Nepalese Buddhist – insufficient inquiries about the assistance that may be available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.212, 836.213, 836.221, 836.321
CASES
1822388 (Migration) [2022] AATA 4346
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 September 2018 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).
Background
The applicant is Mr Manoj Gurung who is 46 years of age and is a national of Nepal. Mr Gurung is referred to as the applicant in these reasons for decision.
The applicant first arrived in Australia on 11 March 2017 as the holder of a Visitor (Class FA) (Subclass 600) visa that was valid to 11 June 2017.
On 2 June 2017 the applicant applied for an Other Family (Residence) (Class BU) (Subclass 836) (Carer) visa while in Australia on the basis that the applicant is a relative of his sponsor, Mr Em Bahadur Gurung, who is the applicant’s father. It is the refusal to grant the applicant the Carer visa that is the subject of this review.
The applicant provided the Department with the certificate of relationship issued by the Lekhnath Municipality in Nepal showing the names of his parents. The certificate was signed and stamped by a relevant legal officer. This demonstrates to the Tribunal’s satisfaction that the sponsor Mr Em Bahadur Gurung is the applicant’s father.
Mr Em Bahadur Gurung is 83 years old and had Australian citizenship conferred on him on 27 April 2004. Mr Em Bahadur Gurung is referred to as the resident and also the sponsor in these reasons for decision.
On 23 June 2005 the applicant married Ms Shanti Devi Gurung and provided a copy of their marriage certificate to the Department. The Tribunal accepts that Ms Shanti Devi Gurung and the applicant are legally married.
The applicant has two children from his marriage to Ms Shanti Devi Gurung being [Child A] who is [age] years old and [Child B] who is [age] years old. The applicant provided a copy of their birth certificates to the Department. The Tribunal accepts that [Child A] and [Child B] are the applicant’s children.
The applicant’s wife and two children were not included in the applicant’s Carer visa application and remain in Nepal.
On 2 June 2017 the applicant was granted a Bridging A (Subclass 010) visa that was valid to 4 October 2018 when the applicant was granted a Bridging B (Subclass 020) visa, which was valid to 7 May 2019.
On 7 May 2019 the applicant was granted a further Bridging A (Subclass 010) visa, which the applicant continues to hold at the time of this decision. The applicant’s Bridging A visa has condition 8101 (No work) from Schedule 8 of the Migration Regulations 1994 (the Regulations) attached.
The primary decision of a delegate of the Minister
The applicant provided the Tribunal with a copy of the primary decision.
The applicant applied for the visa on 2 June 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 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.
Clause 836.221 provides:
The applicant is a carer of a person referred to in clause 836.212.
Clause 836.212 provides:
The applicant claims to be the carer of an Australian relative.
‘Australian relative’ is defined in reg 1.03 and for an applicant means a relative of the applicant who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
‘Carer’ is defined in reg 1.15AA which is reproduced in paragraph 43 of these reasons for decision.
The delegate refused to grant the visa on the basis that cl 836.221 was not met. The delegate made this finding because the delegate found reg 1.15AA(1)(e)(i) (assistance cannot reasonably be provided by any other relative of the resident) had not been met because it had not been demonstrated to the delegate’s satisfaction that it would be unreasonable for the resident’s Australian relatives, which include a son and a daughter, to provide the care he requires either individually or on a collective basis.
Postponement of the Tribunal hearing scheduled for 30 September 2022
On 17 August 2022 the Tribunal sent a letter inviting the applicant to attend a hearing on 30 September 2022 by video to give evidence and present arguments relating to the issues arising in the applicant’s case.
On 28 September 2022 the Tribunal received an email from the applicant through a previous and not current representative requesting that the hearing be postponed. The previous representative, who was appointed by the applicant on 20 September 2022, requested an adjournment for a period of ten weeks to allow the representative sufficient time to properly prepare the applicant’s case for presentation to the Tribunal. In addition, the applicant requested an in-person hearing rather than a video hearing. The Tribunal agreed to these requests.
In the above email the previous representative stated he would be submitting the following evidence in support of the applicant’s application for review but such a submission was not received by the Tribunal:
·Statements from applicant, father, and siblings that explain why his other relatives cannot reasonably aid or care for the applicant and / or his aged father
·Current BUPA examining doctors report and other health professionals
·Character references
·Outcome of the My Aged Care discussions held between family and My Aged Care team however the family does not have a written report from those discussions. This needs to be obtained
·Evidence that indicates that assistance cannot be reasonably be obtained from any welfare, hospital, nursing, or aged care support providers in his local area, that meet his needs
·My Aged care assessment
·Any other supporting documents that are deemed to support the visa application by Mr Manoj Gurung
·Carer needs analysis for the aged father
Tribunal hearing 7 December 2022 cancelled by the Tribunal
On 29 September 2022 the Tribunal sent a letter inviting the applicant to attend an in-person hearing on 7 December 2022 to give evidence and present arguments relating to the issues arising in the applicant’s case. Due to circumstances beyond the Tribunal’s control the Presiding Member was unable to conduct the hearing on that day and the hearing was cancelled.
Postponement of the Tribunal hearing scheduled for 27 February 2023
On 30 November 2023 the applicant was invited to appear before the Tribunal on 27 February 2023. Due to the re-occurrence of a long-standing medical issue for the applicant’s then representative, the applicant and his then representative were unable to appear on 27 February 2023, only notifying the Tribunal of that on the morning of the hearing.
Postponement of the Tribunal hearing scheduled for 18 April 2023
On 1 March 2023 the Tribunal invited the applicant to appear before it on 18 April 2023. On 5 April 2023 the applicant’s previous representative advised the Tribunal he was ceasing his practise as a migration agent due to ongoing illness and requested an adjournment of the Tribunal hearing for “at least” one month. The Tribunal agreed to this request.
On 11 April 2023 the applicant appointed his current representative to represent him in relation to this review.
The Tribunal hearing 8 May 2023
The applicant appeared before the Tribunal on 8 May 2023 to give evidence and present arguments, in person.
The Tribunal also received oral evidence from the resident and sponsor of the applicant, his father Mr Em Bahadur Gurung, also in person.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
The applicant was represented in relation to the review by Mr Tonnou Ghothane of Ghothane Lawyers, who is a migration lawyer. Mr Ghothane is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether he could understand the interpreter and whether he had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated he could understand the interpreter satisfactorily and did not have any objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.
Pre-hearing submissions
The Tribunal received the following submissions on behalf of the applicant from his previous and current representatives prior to the Tribunal hearing, with the main, but not all, documents attached to each submission noted:
5 November 2018
·email dated 5 November 2018 from the applicant’s then representative informing the Tribunal of the applicant’s current contact phone number and that the applicant has departed Australia on 4 November 2018 and will be returning on 4 April 2019.
12 August 2021
·email dated 12 August 2021 from the applicant’s then representative informing the Tribunal that the applicant wishes to obtain an updated Carer Visa Assessment Certificate (CVAC) from Bupa and will notify the Tribunal once the appointment with a doctor employed by Bupa is confirmed.
22 November 2021
·email dated 22 November 2021 from the applicant’s then representative providing the personal information and the consent of the resident to obtain an updated CVAC from Bupa. The email states the representative will update the Tribunal once the further information is received from Bupa.
20 September 2022
·Appointment of a migration agent as the applicant’s new representative.
29 November 2022
·The applicant’s then representative requests a Tribunal hearing date in mid-February 2023.
11 April 2023
·Appointment of migration lawyer Mr Ghothane as the applicant’s representative.
4 May 2023
·a ten-page written statement from the representative, dated 5 May 2023;
·a carer’s certificate from Dr. Elnahrawy from Australian Eye Specialists, certifying that the applicant accompanied the resident for a medical appointment on 14 April 2023 inclusive;
·medical prescription of Ophthalmic Drops for the resident from Dr. Elnahrawy, issued on 14 April 2023;
·a letter from the resident’s general practitioner Dr. Kolli, dated 17 April 2023, outlining the resident’s medical conditions including hypertension, diabetes, chronic back pain, anaemia and obesity and supporting the need of the resident to have the applicant as his carer; and
·an email dated 18 April 2023 from the representative to Bupa Medical Visa Services urgently requesting that the updated CVAC be provided.
The Tribunal confirmed with the representative at the commencement of the Tribunal hearing that the submission received by the Tribunal on 4 May 2023 was the only submission provided to the Tribunal by the representative.
The Tribunal also engaged in other correspondence with the applicant and the representative in relation to administrative matters associated with this review.
Post-hearing submissions
The Tribunal received the following submissions on behalf of the applicant from the representative after the Tribunal hearing, with the main, but not all, documents attached to each submission noted:
29 May 2023
·a one-page written statement from the representative, dated 29 May 2023;
·an Australian passport of Mr Amrit Gurung, valid to 14 September 2025;
·an Australian passport of Ms Anita Gurung, valid to 17 September 2025;
·payslips of Ms Anita Gurung, for the periods of 03/04/2023 to 16/04/2023, 17/04/2023 to 30/04/2023 and 01/05/2023 to 14/05/2023;
·a two-page statutory declaration declared by Ms Anita Gurung on 23 May 2023;
·an untranslated and translated birth registration certificate for [Child B], issued by Office of Local Registrar, Ministry of Federal Affairs and Local Department, Government of Nepal, dated [in] 2017, showing the resident is her grandfather and the applicant is her father;
·a Bridging C (Subclass 030) visa grant notice issued to Mr Binod Gurung from the Department of Home Affairs, dated 8 February 2023, with visa condition 8101 (no work) attached;
·a Nepali passport of Mr Binod Gurung, valid to 8 October 2024;
·a certificate of relationship issued by Office of Lekhnath Municipality, Nepal, dated 8 June 2015, showing Mr Binod Gurung’s close family members: his wife Mrs Radha Kumari Gurung, his daughter [Child C] and his son [Child D];
·a one-page statutory declaration declared by Mr Binod Gurung on 23 May 2023;
·an Australian passport of the resident, valid to 4 February 2024;
·an untranslated and translated birth registration certificate for [Child A] issued by Office of Local Registrar, Ministry of Federal Affairs and Local Department, Government of Nepal, dated 9 August 2015 showing the applicant is her father;
·a Nepali passport of the applicant, issue of date: 23 April 2014 and expiry of date: 22 April 2024;
·a certificate of relationship issued by Office of Lekhnath Municipality, Nepal, dated 5 February 2017, showing the applicant’s close family members: his father Mr Em Bahadur Gurung, his wife Mrs Shanti Devi Gurung and his daughter [Child A];
·a one-page medical report about the resident from Dr Kolli, dated 19 May 2023 outlining the resident’s medical history and medication list;
·an Australian passport of [Child E], valid [to] September 2020;
·a translated birth registration certificate for [Child E] issued by Office of Pokhara Sub-Metropolitan City, Nepal, dated [in] 2007, showing he was born on [date]; the resident is his grandfather and Ms Anita Gurung is his mother;
·an Australian passport of [Child F], valid [to] December 2020;
·a birth certificate of [Child F] issued by Registry of Births Deaths and Marriages of Victoria, dated [in] 2009, showing she was born on [date] and her mother is Ms Anita Gurung;
·an untranslated and translated birth registration certificate of [Child D] issued by Office of Local Registrar, Ministry of Federal Affairs and Local Department, Government of Nepal, dated [in] 2015, showing [Child D] was born on [date], the resident is his grandfather and Mr Binod Gurung is his father;
·an untranslated and translated birth registration certificate of [Child C] issued by Office of Local Registrar, Ministry of Federal Affairs and Local Department, Government of Nepal, dated [in] 2015, showing [Child C] was born on [date], the resident is her grandfather and Mr Binod Gurung is her father; and
·a family tree of the resident.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicant and the resident, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Subclass 836 Carer visa, the documents provided to the Department in support of that application and copies of communications between the Department and the applicant.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW AND QUESTIONS FOR DETERMINATION
The relevant law and questions for determination by the Tribunal in relation to the grant of a Carer visa were set out by Deputy President Redfern in 1822388 (Migration) [2022] AATA 4346, amended for present purposes, as follows.
The purpose of the carer visa is to allow an Australian citizen, permanent resident or eligible New Zealand citizen with a medical condition causing a significant level of impairment to sponsor an overseas relative to Australia to provide the assistance the sponsor needs in attending to the practical aspects of their daily life. The Carer visa is available to both offshore and onshore applicants. The applicant applied for the visa when he was onshore and, as such, the relevant visa subclass is the Subclass 836 (Carer) visa.
The primary criteria to be met by the applicant for the Subclass 836 Carer visa are contained in cl 836.2 of Schedule 2 to the Regulations. The criteria in cl 836.21 must be satisfied at the time of application and the criteria in cl 836.22 must be satisfied at the time of the decision. Clause 836.212 of Schedule 2 to the Regulations requires that the visa applicant claims to be the carer of an Australian relative. For the purposes of a 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 term relative is defined in reg 1.03 and includes a ‘close relative’, which is also defined in reg 1.03 and includes a parent.
Clause 836.213 of Schedule 2 to the Regulations requires that the applicant is sponsored by an Australian relative, who has turned 18, is a settled Australian permanent resident and is usually resident in Australia. Regulation 1.20 provides that a ‘sponsor’ of an applicant for a visa is a person who undertakes the obligations stated in sub-regulation (2). The applicant is sponsored by his father, Mr Em Bahadur Gurung, who on 29 May 2017 signed a Form 40 document headed ‘Sponsorship for migration to Australia’, which includes undertakings that the sponsor will meet the obligations in sub-regulation (2). Based on all the information before the Tribunal, the Tribunal finds the sponsor is an Australian citizen who usually resides in Australia.

The Tribunal finds that the requirements of cl 836.213 are met.
Clause 836.221 requires that the applicant must be a carer of the Australian relative at the time of decision.
The term ‘carer’ is defined in reg 1.15AA of the Regulations as follows:
(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.
Regulation 1.15AA(3) provides that the Minister, in this case the Tribunal, is to take the opinion in a certificate that meets the requirements of sub-regulation (2) on a matter set out in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies the criteria that the applicant is a ‘carer’. This certificate is the CVAC.
In this case, based on the primary decision of the delegate and the Tribunal’s findings about the personal identification information provided, the issue that requires determination is whether the Tribunal is satisfied that the assistance the resident (or sponsor) needs cannot reasonably be provided by a relative (who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen) other than the applicant or that this assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia or a combination of the two.
Notwithstanding this, and for completeness, the Tribunal’s findings in relation to all of the relevant requirements in reg 1.15AA(1) of the Regulations are set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant is the carer of the resident.
APPLICANT IS A CARER
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is a carer of a person referred to in cl 836.212. Clause 836.212 provides that the applicant claims to be the carer of an Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in paragraph 43 of these reasons for decision.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant to be a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s father for the reasons set out in the background of this decision. The Department file contains details of the resident’s grant of Australian citizenship and a copy of the biometric page of his Australian passport. The Tribunal finds the resident is an Australian citizen and the applicant is a ‘relative’ of the resident.
The Department file also contains details of the resident’s personal circumstance which the Tribunal accepts. The Tribunal finds that the resident is usually resident in Australia.
Therefore, as the applicant is the son 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 requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).
A CVAC has been issued in this case. The CVAC has been issued by a registered medical practitioner employed by Bupa who signed the certificate on 22 May 2017.
The resident in this review has been assessed as having an impairment rating of 30 under the relevant impairment tables. The CVAC states that the resident has lower limb osteoarthritis and cramping, chronic back pain, dizziness and balance issues. The medical doctor who completed the assessment noted:
Mr GURUNG’s lower limb and chronic back pain are consistent with his former service as a Paratropper in the British Army and his conditions and limitations will only worsen with age. His lower limb issues, combined with his dizziness (likely to also be a consequence of his service) result in an increased falls risk. Although some formal support services are in place for Mr GURUNG, they are insufficient for his current and future care needs and he requires someone to care and supervise him on a full time basis.
The examining medical doctor’s functional assessment of the resident found he had functional impairments in three of 15 listed functional areas being impairments to his lower limbs, spine and hearing and ears.
The examining doctor also stated the medical conditions the resident has result in the need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision or monitoring because the resident may be a danger to themselves or another and the resident’s care needs were assessed as being permanent (at least 2 years).
The CVAC specifically notes that the resident usually lives alone, and that the applicant has moved in to take on caring duties, the resident receives assistance from District Nursing services, the resident is unable to work or drive and requires assistance with mobility, bathing and showering, eating and feeding, supervising his medication, supervising his personal safety and with transport. The overall level of dependence for assistance with the activities of daily life were assessed as “fully dependent”.
The resident’s CVAC is now more than six years old. The representative submitted to the Tribunal that the resident has applied for a further medical assessment and CVAC but that has not been provided to the Tribunal at the time of this decision.
According to Department policy, where a CVAC is more than two years old the decision-maker can request that the person with the medical condition undertake a fresh examination and provide an updated CVAC. However, this is not a legislative requirement.
Given a person with medical conditions that meet or exceed the required impairment rating is likely to be seeing medical professionals relatively frequently, an alternative to requesting an updated CVAC is to ask for recent reports from treating medical professionals.
The applicant provided updated medical reports for the resident, his father, including the reports and documents listed in paragraphs 31 and 34 of these reasons.
Dr Kolli reported in a letter dated 17 April 2023 that he supports the applicant being granted a visa to care for the resident because the resident “… is alone here and needs to be looked after, and mostly the close relatives like son is much better as he can live peacefully without any stress.” (sic)
Dr Kolli’s 19 May 2023 report lists the resident’s medical history and prognosis as:
·10/12/2010 – hypertension;
·21/07/2015 – anaemia, iron deficiency
·21/07/215 – diabetes type 2
·25/08/2106 – anaemia, iron deficiency
·19/08/2019 – anaemia, iron deficiency
·25/03/2022 – generalised anxiety disorder
·25/03/2022 – major depression
·21/02/2023 – right cataract removal and intraocular lens implant
Prognosis of the above ailments no immediate life threatening (sic), needs to take medications which can keep under control. Needs assistance due to old age in daily activities.
Dr Kolli listed the resident’s current medications which include daily medications for depression and anxiety, blood pressure, diabetes and ulcers.
Dr Kolli’s reports do not mention the lower limb osteoarthritis and cramping, chronic back pain, dizziness and balance issues that were the basis of the sponsor’s impairment rating of 30 in the 2017 CVAC. What Dr Kolli’s reports do reveal is that since the 2017 CVAC the sponsor has been diagnosed with major depression and generalised anxiety disorder and had cataract surgery this year.
Collectively, those reports demonstrate to the Tribunal’s satisfaction that none of the resident’s medical conditions have improved, none are likely to improve given the resident’s age and stage of life and since the CVAC the resident has been diagnosed with a significant mental health condition in the form of major depression, although the basis on which this diagnosis was made and when has not been provided to the Tribunal.
Given the nature and overall impact of the resident’s medical conditions and impairments, his 2017 CVAC impairment rating, viewed in the context of the resident’s age, medical and health history both before and since the CVAC was completed, the Tribunal did not require the resident to provide an updated CVAC.
The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the Tribunal finds the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the Tribunal finds that 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 is the resident who the Tribunal finds is an Australian citizen. The applicant provided the Tribunal with a copy of the biometric page of the resident’s current Australian passport which is valid to February 2024.
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. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.
In the present case, the impairment rating specified in the CVAC is 30. This rating equals the minimum impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia.
Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to the second limb of reg 1.15AA(1)(e) 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].
Assistance cannot be obtained by any other relative of the resident
In relation to the first limb of reg 1.15AA(1)(e), the resident has three sons, Mr Ale Gurung, Mr Binod Gurung and the applicant and a daughter, Ms Anita Gurung who live in Australia.
In the submission to the Tribunal dated 29 May 2023 the representative submitted (errors in the original):
Mr Gurung, the sponsor is 84 years of age.
He joined Gurkha British army when he was 18 years old. He served for 15 years. While at the army, he ate Nepali food for 15 years. The British army allowed Gurkha to eat Nepali food and not Western.
He has lived his life in loneliness after he arrived in Australia in 1990.
He does not have any friends.
He lived alone for 10 years in [Address 1]. The lifestyle was to go to work and come home. He did not make any friends at work and neither outside work. The place is 129 km away from [Address 2] and takes 1 hour and 34 minutes to reach Werribee.
He has lived most of his life loneliness.
He was happy for when his daughter, Amrita Gurung came to Australia in 2007.
He was also happy to have his youngest son, Ale Gurung migrated to Australia. Due to the nature of his son, relationship between father and son was worse. The generation gap may have been the reason in deteriorating relationship. The matter was worsened further when his son went against the wish of Mr Gurung and married Vietnamese lady. In modern world, it is accepted to marry between different nationalities, but Mr Gurung is very traditional given the fact that he was born in 1939. In addition, when Mr Gurung excluding his son from the Will dated 2014, it was the last straw in their relationship. There is no communication between them. We firmly believe that due to the strained relationship between gather and son, son is unwilling to provide assistance.
The other happiness came when his other son, Binod Gurung came to Australia in 2019. He came to Australia for temporary visit and eventually live in Nepal. It is for this reason that this son cannot prove him assistance. In addition, he has not provided any assistance till now. He lives in [Address 3]. It is 25.6 km away from Werribee and takes approximately 33 minutes to reach Werribee.
His health is deteriorating day by day. He has started to lose his memory, hearing and eyesight.
Ms Gurung is 43 years of age, married, has two children and lives in Hoppers Crossing approximately 10-minutes by car from the resident’s (and applicant’s) home.
Ms Gurung provided a statutory declaration declared on 5 May 2018 in which she described her personal circumstances at the time as follows:
·Has two children then aged [age] and [age] years;
·Works as a community care worker, part-time;
·Prior to the applicant arriving in Australia would assist the resident from time to time by cooking meals and doing grocery shopping for him;
·Due to her commitments to her children and work can no longer assist her father;
·Culturally the resident would prefer to receive assistance from a son rather than a daughter;
·The resident would not allow a daughter to provide personal care to him;
·The resident requires 24-hour care seven days a week and it is not possible for Ms Gurung to provide this level of care.
Ms Gurung provided an updated statutory declaration declared on 23 May 2023 in which she described her personal circumstances at the time of this decision as:
·Now lives in Point Cook, at an address that is 11 to 15 minutes by car from the resident’s address;
·Has two children now aged [age] and [age] years;
·Her [age]-year-old son studies [Discipline 1] at [University 1] but does not work and three days a week she drives him to and collects him from a train station near their Point Cook home as part of her son’s commute to his university in the eastern suburbs of Melbourne;
·Her son does not provide any assistance to the resident;
·Her daughter is in year [level] at secondary school and Ms Gurung drives her to and collects her from school each school day as well as taking her to tutoring classes, swimming lessons and Nepali language classes on a weekly or regular basis;
·Works as an endorsed enrolled nurse for Barwon Health North in a permanent part-time role but works five days a week and up to 80 hours per week and has 50 minute commutes to and from work each day;
·Came to Australia in 2007 and lived with her father until 2014, moving out when she was granted permanent residence and needed a four bedroom residence for her family while the resident’s home is only three bedrooms;
·In 2015 the resident had abscess surgery and she visited him monthly;
·In 2017 the resident’s health deteriorated and she was concerned about him but then the applicant arrived in Australia in March 2017 to provide care for their father, the resident;
·Visits the resident once every two months; and
·Does most of the housework including all the family cooking and payment of bills for her own family.

The applicant provided extracts of the biometric pages of the Australian passports of Ms Gurung and her children confirming they are each Australian citizens, although both children’s passports expired in 2020. As a point of clarification only, those passports reveal that Ms Gurung’s son does not turn [age] years of age until mid-[month] 2023 and therefore at the time of this decision is [age] years of age and her daughter does not turn [age] until [month] 2023 and therefore at the time of this decision is [age] years of age.
The definition of relative in reg 1.03 includes a grandchild. As both grandchildren are Australian citizens the Tribunal must consider what assistance, if any, they could provide to the resident.
Ms Gurung claims she spends 100 minutes per day commuting to and from her work, spends 30 minutes three days a week transporting her son and up to 40 minutes per day transporting her daughter. This means three days a week Ms Gurung spends nearly three hours driving and two days a week spends just over two hours driving each day.
Ms Gurung provided payslips for the pay periods 3 April 2023 to 16 April 2023, 17 April 2023 to 30 April 2023 and 1 May 2023 to 14 May 2023. Ms Gurung claims she works up to 80 hours per week and that those payslips record that Ms Gurung worked for 76 hours, 70 hours and 68 hours per week in each period respectively.
The Tribunal notes the payslips are for a period of two weeks, or a fortnight, and not weekly as Ms Gurung seems to claim. In the first pay payslip Ms Gurung worked 72 ordinary hours and four hours overtime totalling 76 hours or 38 hours per week. In the second payslip Ms Gurung worked 70 ordinary hours and no overtime or 35 hours per week. In the third payslip Ms Gurung worked 60 ordinary hours, worked no overtime and had a day’s personal leave without pay of eight hours, totalling 68 hours or 34 hours per week.
It is not obvious to the Tribunal based on the information provided to it that Ms Gurung’s circumstances of working between 34 to 38 hours per week, managing a household and raising two children aged [age] and [age], even with the extensive driving she does three to five days per week, that she cannot provide any assistance to her father the resident who lives only 11 to 15 minutes away other than a social visit once every two months. This is not to say that Ms Gurung could become the resident’s primary source of assistance or care or that she could replace the assistance that the applicant provides to the resident or that the resident would prefer or accept any assistance she may be able to provide in preference to that provided by the applicant.
Based on the evidence before it, the Tribunal finds Ms Gurung could contribute to the assistance her father the resident reasonably requires, mainly on weekends or when she is not working, particularly given her professional skills as a nurse and close proximity to the resident’s residence.
It is also not obvious to the Tribunal that Ms Gurung’s son could not contribute to the assistance the resident reasonably requires given his close proximity to the resident and the only commitment the Tribunal has been informed he has is his tertiary studies with classes three days a week. The Tribunal does not expect a [age]-year-old nephew of the resident to provide substantial assistance to the resident but there is no evidence before the Tribunal that indicates Ms Gurung’s son cannot for personal, cultural, practical or other reasons provide any assistance to the resident.
Based on the evidence before it, the Tribunal finds Ms Gurung’s son, who is a grandson of the resident, could contribute to the assistance the resident requires, when he is not attending university classes or studying.
As Ms Gurung’s daughter is only [age] years of age the Tribunal finds that she cannot contribute to the assistance the resident requires.
Mr Ale Gurung, whose date of birth is not disclosed in any document on the Department’s file, is married, also with two children and according to the last known address provided to the Tribunal, lives in Braybrook, approximately a 40-minute drive by car from the resident’s (and applicant’s) home. On 29 May 2023 the applicant provided the Tribunal with a family tree for the resident which includes birth dates for the resident and his children, except the entry for Mr Ale Gurung does not have a birth date.
Mr Ale Gurung provided a statutory declaration declared on 11 April 2018 which described his personal circumstances at the time as being aware of his father’s deteriorating health and need for daily assistance but (errors in the original):
·Due to my personal circumstances where I have to give time to my family, especially my [age] years old son and also I have to go to work from 9.00 am to 5.00 pm every Monday to Friday at Best Bag
·I am not able to contribute my time in providing care and assistance to my father.
The statutory declaration was typed with some blank spaces left for details to be filled in that had not been filled in.
In the cover email to his 29 May 2023 submission the representative submitted (errors in the original):
Unfortunately, Ale Gurung is unwilling to provide any support to Em Bahadur Gurung as he has not been in connection. In initial Primary application, Ale Gurung did not even provide full Statutory Declaration. After the hearing, Manoj Gurung. Binod Gurung. Anita Gurung and Em Bahadur Gurung tried to contact Ale Gurung but to no success. Mr Ale Gurung was not cooperative. It would be futile for him to have as carer if he was not cooperative now.
The consideration for the Tribunal is not what assistance relevant Australian relatives are willing or able to provide but what assistance they could provide so that the Tribunal can properly assess whether the assistance required by the resident could reasonably be provided by relevant Australian relatives or reasonably be obtained from welfare, hospital, nursing or community services in Australia or some combination of those sources of assistance.

100. During the Tribunal hearing the resident told the Tribunal that Mr Ale Gurung is not his son but his brother’s son and therefore is the resident’s nephew, but he sponsored him to come to Australia. The Tribunal sought clarification because it appears the resident sponsored Mr Ale Gurung to come to Australia on the basis Ale was his son. On 9 May 2018 the resident declared a statutory declaration listing his relatives that were living in Australia as:
1.Anita Gurung – Daughter
2.Manoj Gurung – Son
3.Ale Gurung – Son

101. In a written statement to the Department dated 14 May 2018, the resident wrote (errors in the original):
I arrived in Australia in the year 1990. My two children Ale Gurung and Anita Gurung are Australian Citizens, both of them are married with children and have family and work commitments and have been living separately.
…
My son Ale Gurung is of no help to me, as of today, he has not provided me any kind of assistance and I do not think he will do in the future. He may have empathy towards me but we, as a father and son, do not have harmonious relationship. 1 believe he started drifting apart after he realized the two beneficiaries in my "Will" are his brothers Binod Gurung and Manoj Gurung. At the time when the "Will" was made in 2014, Ale Gurung was settled in Australia and his brothers were working in Dubai, UAE so I made the "Will" with a view to benefit his disadvantaged brothers. Beside family matter, he also has commitments towards his family and work.

102. The Tribunal asked the resident that if Mr Ale Gurung is not his son but is his nephew, then why was it an issue that he was not included in the 2014 will made by the resident, a copy of which was provided to the Tribunal. The resident told the Tribunal the firm of solicitors who prepared the will for him told him to include Anita but he did not include either Anita or Ale.
103. The resident’s family tree provided to the Tribunal after the hearing lists Mr Ale Gurung as “Adopted Son – Nephew”. A nephew is included in the definition of a ‘relative’ in reg 1.03 and therefore irrespective of whether Mr Ale Gurung is one or more of the resident’s son, adopted son or nephew if he is an Australian citizen or permanent resident living in Australia then the Tribunal must consider what assistance, if any, that relative can provide. The evidence before the Tribunal, which it accepts, is that Mr Ale Gurung is an Australian citizen.
104. The Tribunal is unable to quantify, nor is it necessary for it to do so, what assistance Mr Ale Gurung may reasonably be able to provide to the resident, even if he is unwilling to do so. The Tribunal has considerable doubt that Mr Ale Gurung is unable to provide any assistance to the resident given his relatively close proximity to the resident but accepts that he has refused to engage with or assist the applicant or resident.
105. The resident told the Tribunal that he has been married twice, with both wives now being deceased. The resident told the Tribunal that he has three children only, all with his second wife in Nepal: the applicant, Ms Anita Gurung and Mr Binod Gurung. This was confirmed in the resident’s family tree provided to the Tribunal after the Tribunal hearing.
106. After the Tribunal hearing the applicant provided the Tribunal with a copy of a Bridging Visa Grant Notice for a Bridging C (Subclass 030) visa granted to Mr Binod Gurung on 8 February 2023 as a result of an unsuccessful application by Mr Binod Gurung to have a Bridging C visa issued which does not restrict his work rights in Australia.
107. As Mr Binod Gurung holds a Bridging C visa at the time of this decision the Tribunal finds he is not an Australian citizen, Australian permanent resident or eligible New Zealand citizen in accordance with the requirements of reg 1.15AA(1)(e)(i) and therefore the contribution he can, or cannot make, to the assistance required by the resident is not relevant to the Tribunal’s assessment of the application for a Carer visa by the applicant.
108. During the Tribunal hearing the Tribunal sought to confirm with the resident the composition of his family by informing the resident that he had been married twice and has six children including Mr Ale Gurung and also Mr Pratik Gurung, aged approximately 33 and Mr Niresh Gurung aged 22. [Sentence redacted].
109. The applicant gave evidence in this regard that was consistent with the evidence of his father, the resident.
110. The Tribunal indicated who it thought the mothers were of the six people the Tribunal thought from information on the Department file were children of the resident. The resident told the Tribunal the name of his first wife and that she died without having any children, the name of his second wife who is the mother of the applicant, Anita and Binod and that [information redacted].
111. The Department file states:
·the applicant declared he is one of the resident’s four children (including Ale) in his application for the Carer visa and that he was one of the resident’s five children when the applicant applied for a Visitor visa in 2007;
·Ms Anita Gurung declared she was one of the resident’s five children when she migrated to Australia in 2007;
·The fifth child of the resident declared by Ms Anita Gurung in her visa application to be one of her siblings was Mr Niresh Gurung; and
·Mr Pratik Gurung claimed to be the resident’s son when applying for a Child (Subclass 101) visa in 2002 and that visa application was sponsored by the resident, but the application was refused in 2006 without Pratik’s identity or parentage being confirmed.

112. There is no information before the Tribunal that either Mr Pratik Gurung or Mr Niresh Gurung are in Australia or have ever been granted Australian citizenship or Australian permanent residency. Therefore, the Tribunal finds that Mr Pratik Gurung and Mr Niresh Gurung are not Australian citizens, Australian permanent residents or eligible New Zealand citizens in accordance with the requirements of reg 1.15AA(1)(e)(i) and therefore the contribution they can each make or not make to the assistance required by the resident is not relevant to the Tribunal’s assessment of the application for a Carer visa by the applicant.
113. The Tribunal did not have access to the files for the visa applications the Departmental notes or concerns were based upon and was unable to provide meaningful detail about those applications to the resident or the applicant during the review as a result. For these reasons, the Tribunal makes no adverse findings and draws no adverse inferences against the applicant or the resident in relation to the previous information allegedly provided by the resident or the applicant or Ms Anita Gurung to the Department in relation to Mr Pratik Gurung or Mr Niresh Gurung.
114. The applicant confirmed during his oral evidence to the Tribunal that he is married and has two daughters, [Child A] and [Child B], and his wife and children remain in Nepal with the applicant last seeing them in 2018-19 when he and his father, the resident, returned to Nepal to visit family and resolve some property related court cases. The Tribunal accepts this evidence. As the applicant’s wife and children are in Nepal their circumstances are not relevant for present purposes.
115. The Tribunal finds that it is not convinced that Ms Anita Gurung, her [age]-year-old son and Mr Ale Gurung cannot provide any assistance to the resident as Ms Gurung, Mr Ale Gurung, the resident and the applicant have each claimed.
Assistance cannot be obtained from welfare, hospital, nursing or community services in Australia
116. The resident in his statement to the Department dated 14 May 2018 stated (errors in the original):
After receiving request letter from immigration Department, my daughter Anita Gurung contacted few community care services by sending email but until today (14^th of May 2018) She has not received response from them. She also visited one home care service provider from where she obtained some information. Based on the information, whatever we learned so far are all discouraging, they informed my daughter that it is hard to find someone/carer within my culture and community (Nepalese, Buddhist religion), there was no guarantee that I shall be provided with level 4 care (24/7) care, the process involves minimum six months of waiting period for my medical assessment to determine the level of assistance required and also the price for the level 4 care is expensive. I am looking to get 24/7 service or Level 4 service so that I will have someone by my side 24/7. As my previous experience with the carers/nurses (during my scalp abscess wound caring) was not so pleasant and with the above mentioned discouraging information, I am finding it difficult to arrive into a decision.
On the other hand, I have my own son providing me necessary assistance 24/7. My son Manoj Gurung is not only my carer, he is my friend, my accompany and my life- support. I may get the care and assistance from other providers but I believe I would not get the inner peace and comfort with living and getting care and support from my own son.

117. The Tribunal discussed with both the resident and the applicant the assistance and care the resident requires and the assistance the applicant provides to his father, the resident. Their evidence in this regard was detailed, consistent between each other and consistent with the assessment of the resident’s impairments set out in the 2017 CVAC and medical conditions set out in subsequent medical reports. The Tribunal accepts this evidence.
118. The Tribunal accepts that since arriving in Australia in March 2017 the applicant has been living with the resident and has been providing assistance to the resident 24 hours a day, seven days a week and that the resident’s care needs and complexity have increased over time as confirmed by the medical reports provided since the 2017 CVAC.
119. The resident told the Tribunal about his specific cultural needs as a Nepalese Buddhist and the applicant told the Tribunal about the cultural context of his obligation to assist and care for his father, the resident. The Tribunal also accepts this evidence. It was clear to the Tribunal during the Tribunal hearing that the resident and applicant hold each other in great affection, have a close relationship and that the applicant provides assistance that is culturally appropriate and required by the resident, who appears very grateful for the applicant’s assistance and for the applicant being in Australia, living with him and being his carer.
120. The Tribunal does not expect the resident, at age 83 and with his known medical conditions, to personally make inquiries about what assistance he may be able to obtain from welfare, hospital, nursing or community services in Australia.
121. The Tribunal also does not expect given the resident’s age, cultural needs, communication skills and medical conditions that any inquiries about what assistance may be available to the resident from welfare, hospital, nursing or community services in Australia would include inquiries or an application for the resident to move into residential based care.
122. There are a broad range of services that can assist someone needing assistance to remain living in their own home. The Tribunal asked the applicant whether, since his sister’s inquiries in 2018, any other inquiries had been made about what services or assistance may be available to the resident from welfare, hospital, nursing or community services in Australia. The applicant told the Tribunal no further inquiries had been made to his knowledge.
123. The applicant told the Tribunal since he arrived in Australia the resident has not received any in-home care and he is not aware of anyone in the family receiving a carer payment in relation to the resident.
124. The applicant also told the Tribunal his father, the resident, had not registered with the Commonwealth Government’s My Aged Care program and that he, the applicant, was not aware of the website where the resident could register and be assessed to find out if he is eligible for subsidised aged care.
125. A cursory examination of the publicly available internet website for the My Aged Care program reveals it is a program of providing assistance for people aged 65 years or older and can provide a wide range of cost subsidised (or free) help in the home for those assessed as eligible including home care such as cleaning and washing, meals and food preparation, personal care and assistance such as bathing, hygiene and grooming, home or garden maintenance, home and mobility modifications, social outings, transport support, physiotherapy and occupational therapy, psychological support, nursing support for assistance with medications and medical conditions and related services and support.
126. The Tribunal acknowledges, respects and understands that the resident prefers and values the assistance care and support he receives from his son, the applicant, in his home and that he wants his son to be granted a Carer visa so the applicant can continue to provide this assistance until the applicant is no longer able to live at home. The applicant’s evidence is he loves his father, has a deep and for the applicant a significant cultural obligation to care for and assist his father, the resident, and he feels fulfilled in doing so. The Tribunal accepts this evidence.
127. The difficulty for the Tribunal in this case, whilst acknowledging the devotion to and care for his father that the applicant has, and the resident’s satisfaction with and gratitude for the assistance his son, the applicant, provides to him, for the applicant to be eligible to be granted a Carer visa the Tribunal must be satisfied that the assistance the resident requires cannot reasonably be provided by any other relative who is an Australian citizen or Australian permanent resident or reasonably be obtained from welfare, hospital, nursing or community services in Australia or some combination of those sources.

128. The absence of any inquiries since 2018 about what assistance the resident may reasonably be able to obtain from welfare, hospital, nursing or community services in Australia means the Tribunal is not satisfied it can make a positive finding that the assistance the resident requires cannot reasonably be obtained from those sources in Australia.
Overall conclusion on reg 1.15AA(1)(e)
129. The Tribunal has found on the evidence before it that it is not convinced that Ms Anita Gurung, her [age]-year-old son and Mr Ale Gurung cannot provide any assistance to the resident as Ms Gurung, Mr Ale Gurung, the resident and the applicant have each claimed.
130. The Tribunal has also found that the absence of any inquiries since 2018 about what assistance the resident may reasonably be able to obtain from welfare, hospital, nursing or community services in Australia means the Tribunal is not satisfied it can make a positive finding that the assistance the resident requires cannot reasonably be obtained from those sources in Australia.
131. The Tribunal does not find nor expect that any single person or service would be able to replace or replicate the assistance the applicant provides to the resident. Regrettably for the applicant and the resident that is not a criterion for the grant of a Carer visa.
132. Overall, the Tribunal is unable to find that the assistance the resident requires cannot reasonably be provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. The Tribunal is also unable to find that the assistance the resident requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia or by a combination of the relevant relatives and any available services (if any) working cooperatively to provide the assistance the resident requires. This means the applicant does not meet the requirements of reg 1.15AA(1)(e).
Willing and able – reg 1.15AA(1)(f)
133. 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.
134. For completeness only, the Tribunal accepts the oral evidence of the applicant that he has been providing the assistance the resident needs since March 2017 and that he remains willing – and is able – to do so.
135. The Tribunal finds that the applicant is both willing and able to provide to the Australian relative (the resident), substantial and continuing assistance of the kind the resident needs and meets the requirements of reg 1.15AA(1)(f).
Conclusion on ‘Carer’ criterion
136. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the resident or sponsor, and therefore does not satisfy cl 836.221 of Schedule 2 to the Regulations.
137. For the reasons above, the applicant does not meet the criteria for a Subclass 836 visa.
Other visa subclasses
138. Visa Class BU also contains two other subclasses of visa in addition to Subclass 836 Carer visa: Subclass 835 Remaining Relative visa and Subclass 838 Aged Dependent Relative visa.
139. The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 Remaining Relative visa as the applicant’s near relatives, as defined in reg 1.15(2), reside in the same country as the applicant. The applicant’s evidence, which the Tribunal accepts, is that his two children remain resident in Nepal. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.
140. The evidence before the Tribunal is that the applicant was born on [day deleted] of June 1977 and is 46 years of age. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 Aged Dependent Relative visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991 (Cth). Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.
DECISION
141. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Michael Ison
Senior Member

[2023] AATA 3759

21 June 2023

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