Ha (Migration)

Ha (Migration) [2021] AATA 3838 (15 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Van Tao Ha
CASE NUMBER:  1820123
HOME AFFAIRS REFERENCE(S):          CLF2016/42222
MEMBER:Justin Owen
DATE:15 July 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.

Statement made on 15 July 2021 at 10:34am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably obtained from welfare, hospital, nursing or community services – sponsorship requirements – sponsor’s capacity to fulfil the undertakings – mental capacity at the date of application – Enduring Guardianship made before application – doctor’s recanting of earlier evidence – no attempts to obtain welfare, hospital, nursing or community services – home care package offer withdrawn – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 836.213, 836.221, 836.227, 838.212; 1.03, 1.15, 1.20
Social Security Act 1991
CASES
Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38
Biyiksiz v MIMA [2004] FCA 814
Gibbons v Wright [1954] HCA 17
Hon Anh Vuong v MIAC [2013] FCCA 274
Lam v MIBP [2013] FCCA 1263
Lo v MICMSM [2020] FCA 895
Sefesi v MIBP [2016] FCCA 975
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 10 July 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).
The applicant applied for the visa on 13 July 2016. 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.
The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant had demonstrated that the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore, the applicant did not meet r. 1.15AA(1)(e)(ii) and was unable to meet the requirements of a Carer as defined in regulation 1.15AA. The delegate furthermore refused to grant the visa on the basis that cl 836.227 was not met because the delegate was not satisfied the sponsorship could be approved, as the delegate was not satisfied the sponsor was able to understand the requirements of the undertaking that must be given by the sponsor.
The applicant appeared before the Tribunal on 2 June 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, the applicant’s mother Mrs Thi Gai Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Are the sponsorship requirements met?
Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).
Clause 836.227 requires that the sponsorship mentioned in Clause 836.213 has been approved by the Minister and is still in force.
Delegate’s decision
The applicant was born in Vietnam on 22 June 1959. He is the son of the sponsor and Australian resident, Mrs Thi Gai Nguyen born 12 May 1936 who he seeks provide care to. The applicant is married but states in his application form that his partner will not be migrating with him. The applicant has three adult children, including a daughter who resides in Australia and is an Australian citizen, plus two sons who reside in Vietnam and are Vietnamese nationals.
In the decision record the applicant provided the Tribunal, the delegate noted on 13 July 2016 the applicant lodged a Carer visa application, including a Form 40 ‘Sponsorship for migration to Australia’, purportedly signed by the sponsor Mrs Thi Gai Nguyen. Also submitted at this time was medical evidence which attested to the sponsor’s medical diagnosis of Alzheimer’s Dementia.
The delegate noted the Carer Assessment Visa Certificate (CVAC) dated 29 June 2016 which rated the sponsor 60 points, including 30 points for Alzheimer’s Dementia and noted the sponsor “takes one step instructions, if explained slowly with her body language” The certificate went on to state that the sponsor was “Not orientated in time and place and has difficulty remembering her daughters.”
The delegate stated that they had concerns the sponsorship could not be considered to be in force if the sponsor did not have the capacity to understand the sponsorship undertaking, and if there was no legal authority in place conferring power on an appointee to make health and lifestyle decisions pertaining to the sponsor.
The applicant subsequently provided, after requests by the delegate, an Enduring Power of Attorney purportedly signed on 5 May 2016 and an Appointment of Enduring Guardian, again purportedly signed on 5 May 2016. The delegate was not satisfied that the Enduring Guardianship was signed by the sponsor prior to her diagnosis with Alzheimer’s Dementia and was therefore not satisfied the appropriate legal authority was in place.
The delegate, after considering the evidence and submissions provided by the applicant, was not satisfied the sponsor had the capacity to understand her sponsorship obligations at the time of application. Subsequently, the delegate was not satisfied the sponsorship was in effect at the time of decision and refused the application as not satisfying cl.836.227.
Tribunal’s consideration
The Tribunal notes the delegate in refusing the applicant’s visa on 10 July 2018 stated ‘Having considered all of the evidence provided in support of the carer visa application, I am not satisfied that the sponsor has the capacity to understand his sponsorship obligations at the time of application. Subsequently, I am not satisfied that the sponsorship obligation is in effect at time of decision. It therefore follows that the applicant is not sponsored as required by the legislation, and therefore does not satisfy clause 836.227 in Schedule 2 of the Regulations on the date I made my decision.
Regulation 1.20 defines a sponsor as ‘a person who undertakes the obligations stated in subregulation (2), which in the case of a Carer visa, are ‘to assist the visa applicant, to the extent necessary, financially and in relation to accommodation, for two years.’
The Tribunal notes that since the delegate’s decision, there has been relevant judicial consideration of the matter of sponsorship undertakings in a Carer visa application. In Babar v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 38 (“Babar”), the Full Court of the Federal Court held at [36] that:
‘In applying that requirement [to give undertakings], no issue arises which involves an assessment of the capacity of the person to fulfil the undertaking if required. As already mentioned, giving the undertaking simpliciter is sufficient. [bracketed words added].
On the basis of Babar, the Tribunal accepts the proposition that the giving of an undertaking is sufficient for a person to be a sponsor. No requirement for an assessment of that person’s capacity to fulfil the undertakings exists. All that is required is that the visa applicant is sponsored by the Australian relative who has turned 18 years of age and that the sponsor gives the undertaking. The ability of the sponsor to fulfil the undertaking is not an issue for the Tribunal’s consideration.
The Tribunal notes that whilst on the basis of Babar, it does not need to make an assessment of the sponsor’s ability to fulfil the sponsorship undertakings, it believes, whilst noting the unclear present state of judicial authority on the matter (see Rares J in Lo v MICMSM [2020] FCA 895), it is required in the present matter, as it is in all matters where sponsorship undertakings are given, to be satisfied that the sponsor had the capacity to understand the undertakings and to give the undertakings. The Tribunal submits that this involves a consideration of the sponsor’s mental capacity at the date of application.
The Tribunal, on the evidence before it, particularly the testimony of the sponsor at the Tribunal’s hearing, believes the sponsor had capacity to understand and give the undertakings as sponsor at the time of application.
The sponsor attended the Tribunal hearing of 2 June 2021 and provided oral testimony. The Tribunal had the opportunity to question the sponsor and ask questions about her condition, the role the applicant had played in assisting her, why she was not utilising external services and assistance and the applicant’s ability to be supported financially and in terms of accommodation among other things. Some of the Tribunal’s questions were very specific in nature. The sponsor’s responses to the questions were relatively clear and, whilst the sponsor very occasionally required some clarification of questions, the Tribunal does not consider such responses unusual. The Tribunal found the sponsor to be an elderly woman – clearly suffering from Dementia and in need of assistance but nevertheless with an awareness of her needs, surroundings and, importantly for the Tribunal’s review, her understanding that she was the sponsor of the applicant, and her awareness that she had given an undertaking at the time of application.
The Tribunal found the sponsor and Australian resident Mrs Nguyen in her oral testimony at the hearing to have a reasonable understanding of her situation and role as the sponsor of the applicant. In response to the Tribunal’s questions she was able to provide basic details and stated that she recalled signing various forms and documentation in support of the applicant’s application. The sponsor was able to provide coherent responses as to why she did not want to utilise residential aged-care and preferred her son, the applicant, to provide care. The sponsor was able to describe how she met her obligations as the sponsor and provided financial and accommodation support to the applicant. Whilst diagnosed with Dementia, the Tribunal, following the Babar decision, accepts that the sponsor gave an undertaking to sponsor the applicant at the time of application.
The Tribunal accepts that the sponsor was diagnosed with Alzheimer’s Disease at the time of application. That finding is not disputed by the applicant. This diagnosis in itself does not in the Tribunal’s opinion mean that she did not have the capacity and was unable to understand her undertakings and to give such an undertaking as sponsor at the time of application.
There is a common law presumption of capacity. The Tribunal notes in NSW there is no single definition of mental capacity, rather the legal definition of capacity depends in each case on the type of decision being made or the type of transaction involved: Gibbons v Wright [1954] HCA 17 The assessment of whether an individual has the mental capacity to give an undertaking or make other decisions in their life is subjective. There is a presumption of mental capacity, however, if an individual’s mental capacity is in doubt, the assessment of whether a person has the mental capacity to make particular decisions depends on the issues put before them. Simply because a person may be suffering Alzheimer’s Dementia or some other intellectual disability does not mean that they do not have the mental capacity to make certain decision in their lives.
In the current matter, the Tribunal notes that the CVAC referred to other medical reports that do not appear to have been looked at by the delegate, and do not appear in the Department file. The Tribunal notes the CVAC furthermore provided no opinion as to the sponsor’s mental capacity to give the sponsorship undertakings.
Based on the testimony and responses to questions provided by the sponsor at the hearing, the Tribunal finds that the sponsor had capacity at the time of application to both understand and give the undertakings as sponsor of the applicant.
On the evidence before the Tribunal, the Tribunal is satisfied that the sponsor had mental capacity when signing the Form 40 (D1, Folio. 23) on 6 July 2016 and she understood the undertaking which she gave.
Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl.836.213.
Clause 836.227 requires that at the time of decision, the sponsorship mentioned in cl.836.213 is still in force.
At the hearing the sponsor confirmed in oral testimony that she continued to wish to sponsor the applicant. As the Tribunal has previously stated, it found the sponsor a reasonably lucid witness with a genuine understanding of her undertaking as sponsor. The Tribunal accepts she has the capacity to continue to provide the undertaking at the time of decision.
There is furthermore no evidence before the Tribunal that the sponsorship has been withdrawn. The Tribunal finds the sponsorship continues to be in force at the time of decision.
The Tribunal has considered whether the sponsorship should be approved by the Minister. The Tribunal notes that sponsorship approval was described by the Full Federal Court in Babar at [at 39] as a discretion in respect of which there is no reference to content in the Regulations. The Babar decision makes it clear that the Tribunal would be in error to apply the Department’s policy set out in PAM3. With no prescribed matters or lawful policy guidance to consider, the Tribunal has considered the evidence before it of the ability of the sponsor to provide adequate accommodation and financial assistance to the applicant for the period of at least two years after the grant of the visa. At the hearing the applicant stated that the sponsor gets about $945 per fortnight in Centrelink payments whilst he also receives $800 per fortnight from his siblings. The understanding appears to be that his siblings are providing him with these regular monies so he has adequate accommodation, financial assistance and is subsequently able to remain as a carer for their mother, the sponsor. The Tribunal accepts that the adequate accommodation and financial assistance the sponsor is to provide for a period of at least two years after the grant of the visa is being provided through both the financial support of the sponsor’s Centrelink pension and the monies provided by his siblings. The Tribunal accepts the applicant’s siblings have income-earning capacity and his accommodation and financial needs will be met by both his siblings and the sponsor through her Centrelink pension.
In making this decision pertaining to the sponsorship, the Tribunal notes its concerns pertaining to some of the evidence submitted to the Tribunal and the delegate previously which was purportedly in support of the submission that the sponsor had capacity to give the undertaking. The Tribunal has found the sponsor had capacity at the time of application, and continues to do so at the time of decision, based upon the sponsor’s testimony – and her response to the Tribunal’s questions - at the Tribunal hearing. The Tribunal has found the sponsor, an Australian resident, had capacity despite some of the other evidence submitted by the applicant in support of this assertion which the Tribunal considers was misleading or, more concerningly, concocted and contrived.
The Tribunal notes the applicant supplied to the delegate, after a request by the delegate on 1 December 2016, an Enduring Power of Attorney purportedly signed by the sponsor and witnessed by a legal practitioner on 5 May 2016. Nearly a year later, on 14 November 2017, the applicant was requested to provide an Appointment of Enduring Guardianship, which was submitted by the applicant on 4 December 2017. This form was again purportedly signed by the sponsor on 5 May 2016. The Tribunal, finding it highly unusual that the sponsor would have signed both forms on the same day and both forms only provided – almost a year apart – after specific requests from the delegate, asked the applicant when the forms were signed. He claimed the sponsor had signed both on 5 May 2016. The Tribunal, noting the paperwork submitted was only an application to the NSW Civil and Administrative Tribunal (NCAT), asked if the forms had ever been submitted and an Order made. The applicant obfuscated and stated he had hired legal representation to submit the applications. He intimated that he assumed the forms had been lodged. The Tribunal found the applicant’s evidence concerning the forms evasive and disingenuous. The Tribunal notes there is no evidence of any formal Enduring Power of Attorney or Enduring Guardianship ever made by NCAT. The Tribunal is of the opinion the forms were backdated and signed well after 5 May 2016, and only after the delegate’s request to the applicant to provide any information of the appointment of an Enduring Power of Attorney or Guardianship. The completed forms were then sent to the delegate without ever being lodged with NCAT. The Tribunal discussed the matter with the applicant at the hearing, The Tribunal considers that the applicant provided such information to the delegate on the basis that it would refute the delegate’s concerns as to the sponsor’s capacity. The Tribunal considers these forms were signed and backdated after the delegate’s invitation to the applicant t provide evidence of the sponsor’s capacity. Clearly there is no evidence they were ever submitted to NCAT for the actual making of a formal Order. The Tribunal nevertheless has found on the evidence before itself – namely the oral testimony of the sponsor herself – that the sponsor had capacity to give the undertaking at the time of application, and which continues at the time of decision.
The Tribunal therefore finds for the reasons above, the applicant satisfies cl.836.227 at the time of decision.
Correspondence from Dr Van Nghia Nguyen
Whilst the Tribunal has concerns concerning the Enduring Power of Attorney and Enduring Guardianship as discussed in paragraph 34, the Tribunal’s more serious concern pertains to correspondence that the applicant supplied prior to the hearing from the sponsor’s GP, Dr Van Nghia Nguyen.
On 19 May 2021 the applicant supplied a copy of a letter, purportedly dated and signed on 5 July 2016 from Dr Nguyen stating “On consultation Mrs Nguyen is aware she is sponsoring her son Ha Van Tao on a carer visa and she fully understands her sponsorship obligations and undertakings’. In the applicant’s representative’s written submissions of 19 May 2021 it was stated that this confirmed Mrs Nguyen was aware, on consultation, of her sponsorship obligations and undertakings.

The Tribunal, finding it unusual that such correspondence had not been supplied earlier to the delegate or the Tribunal, contacted Dr Nguyen’s surgery on 1 June 2021 and sent via facsimile a copy of the 5 July 2016 correspondence asking Dr Nguyen to verify the correspondence, that it was genuinely issued by him and not a counterfeit, and the date of the letter was correct. After initially stating he did not wish to take a telephone call from the Tribunal and would not be available to discuss the correspondence at the Tribunal’s hearing the following day, Dr Nguyen stated the letter was issued by him and terminated the call. Dr Nguyen then contacted the Tribunal immediately after to advise that the medical certificate issued by him concerning the sponsor on 5 July 2016 had been altered, namely that he had not written the second part of the letter and that the text concerning the Carer visa application had been added to his original letter. On the basis of this confirmation by Dr Nguyen, the Tribunal had considerable concerns as to the authenticity of the correspondence.
At the hearing the Tribunal questioned the applicant at length about the correspondence. The applicant confirmed the paragraph in the correspondence about the sponsor’s sponsorship of the applicant and fully understanding her sponsorship obligations and undertakings was in the original letter of 5 July 2016 and was in the letter when he obtained it in July 2016.
Given the Tribunal’s considerable concerns pertaining to the veracity of Dr Nguyen’s July 2016 correspondence and the clear suggestion the document had been falsified, the Tribunal put the information to the applicant at the hearing under s.359AA. The Tribunal invited the applicant to consult with his representative and informed him he could comment on or respond at the hearing or subsequently in writing. The Tribunal adjourned the hearing whilst the applicant consulted his representative. The Tribunal supplied the applicant with the copies of the correspondence as well as the Case Notes pertaining to the Tribunal’s communication with Dr Nguyen.
After the hearing resumed, the applicant stated he would comment or respond in writing.
On 4 June 2021 the Tribunal received an email from the applicant’s representative, including correspondence from Dr Nguyen dated 3 June 2021. Dr Nguyen in his correspondence recanted his previous statement the letter had been altered and the information concerning the sponsor fully understanding her sponsorship obligations and undertakings. In his letter to the Tribunal he stated the letter of 5 July 2016 as supplied by the applicant was in fact the original letter written by him and its contents correct. He states ‘I confirm the letter was not a fake document and had not been altered in any way. He states the applicant’s family “kept the original letter and presented it to me today’ and apologised for any confusion and doubts about the authenticity of the correspondence.
In a review, it is up to the Tribunal as to how much weight it gives to any evidence and to make relevant findings of fact. The Tribunal is not bound to accept evidence provided as true but is required to consider the evidence submitted and if relevant take it into account. The expertise/qualifications of the person giving the evidence is also a relevant consideration in weighing the evidence but the Tribunal is not bound to accept evidence from a qualified professional as true. In considering the submitted evidence if the Tribunal is of the opinion that it has been fraudulently obtained or is misleading, the Tribunal can decide to not give the evidence any weight or minimal weight.
The Tribunal is not satisfied with this response by Dr Nguyen. The Tribunal does not accept his claim the correspondence is in fact genuine and his earlier pronouncement the letter was non-genuine and had been altered was wrong. The Tribunal notes in his correspondence that the applicant’s family has presented the letter to him “today”, being 3 June 2021. The Tribunal considers the more likely scenario is that the applicant has contacted Dr Nguyen and persuaded him to change his earlier evidence to a version more favourable to the applicant. The Tribunal does not accept the change in evidence is the result of “confusion”. The Tribunal, given its firm opinion the applicant’s GP Dr Nguyen has provided false evidence to the Tribunal, gives his correspondence purportedly from 5 July 2016 and relating to the sponsor fully understating her sponsorship obligations and undertakings no weight. The Tribunal has given the correspondence no weight because it is not satisfied the correspondence is genuine and considers it has been deliberately altered for the purposes of the Tribunal’s review. The Tribunal furthermore notes the importance of medical evidence in its deliberations and the need for such evidence to be accurate, honest and reliable. The Tribunal considers Dr Nguyen’s recanting of his earlier evidence, and the strong likelihood of Dr Nguyen supplying misleading/fraudulent evidence to the Tribunal, is a matter of significant concern. The Tribunal will be formally passing on its concerns to the Health Care Complaints Commission.
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.
Regulation 1.15AA(1)(a) requires the applicant is 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 mother. The Tribunal is satisfied on the evidence before it the applicant is the son and therefore a ‘close relative’ of the Australian relative who is an Australian citizen or permanent resident 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 r.1.03, and meets the requirements of r.1.15AA(1)(a).
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 r.1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal is satisfied that a valid Carer Visa Assessment Certificate was issued on 29 June 2016. The Tribunal is satisfied that the certificate meets the requirements of r.1.15AA(2). The Tribunal is satisfied that according to the certificate the resident or member of the family unit of the visa applicant has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life. The Tribunal is satisfied that the applicant has an impairment rating (of 60) specified in the certificate. The Tribunal is satisfied that because of the medical condition, the person has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.
The Tribunal finds that the certificate provided does meet the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.
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 an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
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 07/012.
In the present case, the impairment rating specified in the certificate is 50. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of r.1.15AA(1)(c).
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.
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to the obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].
The Carer Visa Assessment certificate (CVAC) dated 29 June 2016, recorded that the sponsor had lived with her niece who was her primary carer for the past two years but was now moving out, and the applicant was caring for her. It states she had been cared for 24-hours a day the past two years and had medical conditions including advanced mixed dementia, gait issues, depression and incontinence. Functional impairment is present in conditions impacting brain function, hearing and the ears, vision and eyes and continence. She requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervision for medication, supervision for personal safety and transportation and was fully dependent.
The applicant has provided statutory declarations from family members of the Australian resident, the sponsor, that state assistance cannot reasonably be provided by them either individually or collectively to the applicant.
The Tribunal notes the oral testimony of the applicant that his siblings in Australia provide $800 to him in cash a fortnight, money that is ostensibly to assist in the care of the sponsor as well as provide for the applicant.
The daughter of the Australian resident and sponsor, a 55 year old woman by the name of Ms Loc Thi Ha states she is unable to provide assistance to her mother as she is caring for her daughter full-time who suffers from frequent epileptic attacks and seizures, requiring constant care and support.
The son of the Australian resident and sponsor, a 57 year old man by the name of Mr Van Tai Ha states he suffers from long-term chronic depression, has been under long-term treatment and is not medically fit to look after his mother.
Another daughter of the Australian resident and sponsor, a 64 year old woman named Ms Thi Dao Ha states she is in remission from breast cancer treatment whilst she is also caring for her own husband who is suffering from dementia. She states she is unable to look after her mother.
The third daughter of the Australian resident and sponsor, Ms Thi Ngoc Duc Ha states she runs a full-time beauty business specialising in nails. She states it operates 7 days per week. She claims to also be looking after her daughter, Miss Lily Nguyen, who is a university student. Miss Nguyen has also provided a statutory declaration stating she is studying full-time and working part-time. She states she does not have the time to provide assistance to her grandmother, the sponsor and Australian resident.
The Tribunal is satisfied that the assistance the sponsor and Australian resident requires cannot reasonably be provided by a relevant relative. The applicant meets reg. 1.15AA(1)(e)(i).
The Tribunal notes that for the applicant to meet reg.1.15AA(1)(e)(ii), the assistance the Australian resident requires cannot be reasonably obtained from welfare, hospital or nursing or community services.
Prior to the hearing the applicant’s representative provided a written submission, stating that assistance could not be reasonably obtained from such services. The submission provided documentary evidence that the sponsor had undertaken an Aged Care Assessment (ACAT) in May 2018 and placed in the queue for access to a Home Care Package Level 4. The submission stated that the sponsor had not been assigned a home care package and was still in a queue waiting. The submission stated furthermore that even if the package were to become available, it would be inappropriate for the sponsor as she required 24 hour a day care as she had dementia and was incontinent. The submission stated the sponsor did not want to be looked after by strangers and was very attached to the applicant, him having cared for her for the past five years.
The Tribunal also notes correspondence that the applicant previously provided from the sponsor’s psychologist in December 2016, stating that the sponsor was fearful of being placed in a residential aged care home as they would not be able to meet her cultural needs.
At the hearing the Tribunal enquired as to what other actions had been undertaken to obtain any welfare, hospital, nursing or community services for the sponsor. The applicant stated that he provides 100% of the services that the sponsor requires, and repeated the sponsor needs 24 hour a day care. The applicant stated in response to the Tribunal’s questions that he and the sponsor had not attempted to obtain any other welfare, hospital or nursing or community services either at the time of application in 2016 and up until the time of decision.
The Tribunal asked why no attempts had been undertaken and why any services potentially available had not been accessed or utilised. The applicant responded that the sponsor only felt comfortable with care being provided by himself. He stated that she was fussy and preferred him to provide for her needs in areas such as cooking.
The Tribunal asked the applicant if any attempts had been made to obtain services delivered by Vietnamese speakers or culturally appropriate for someone Vietnamese. The applicant stated that no attempts had been made. He said the reason was his mother the sponsor was fussy and not comfortable with anyone providing services from outside the family. The applicant added that no attempts were made as his mother wanted to stay with him. He subsequently added that he had “looked” at some services but didn’t attempt to access any.
Noting the claim the sponsor needs 24 hours a day care, and the claim the care cannot be provided by other family members, the Tribunal enquired about residential aged-care. The applicant responded that he made no enquires about the sponsor going into residential aged-care as she was fearful of going in there and being mistreated. The applicant stated the sponsor refused to go into any residential aged-care. He stated that she feared becoming a victim and noted the concerns relating to COVID-19 in aged-care facilities. The applicant also raised the sponsor’s language needs as being an issue with residential aged-care.
Late into the Tribunal’s hearing the applicant stated he believed he sent request forms to obtain different services for the sponsor. He stated that he could only however obtain between two and four hours care a day maximum for the sponsor when she needed care around the clock. He thought he had sent off these forms in 2018. The Tribunal asked the applicant for any evidence of these requests. None was available. The Tribunal asked who the requests were sent to. He thought they were to service providers in Cabramatta and suggested his sister may have sent them. No evidence has been provided of any such requests being made for the sponsor. The Tribunal is not satisfied that any such attempts have been made.
The Tribunal had the opportunity at the hearing to discuss with the sponsor the matter of the provision of services. In response to the Tribunal’s questions, the sponsor said she did not wish to use services obtained from welfare, hospital, nursing or community services because she didn’t like strangers and was worried that they would harm her.
The Tribunal has considered the evidence before it in relation to whether the assistance the sponsor and Australian resident requires cannot reasonably be obtained from welfare, hospital, nursing or community services.
The Tribunal acknowledges that the Australian resident and sponsor may have held a preference to receive care from her son in her own residence. The Tribunal notes that r.1.15AA(1)(e)(ii) requires that care must be sought in order to determine that there is no assistance that is able to be reasonably obtained from welfare, hospital, nursing and community services in Australia.
The Tribunal does not accept on the evidence before it that the assistance the sponsor and Australian resident requires cannot be reasonably obtained from welfare, hospital, nursing and community services, given the paucity of any genuine attempts to acquire such services.
On the Form 47OF at question 71 which asked the applicant ‘Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?’ The response box is ticked in the affirmative, with the name of organisation simply given as ‘Geriatrician’. The box ‘No’ has been selected in response to the question ‘Can your relative obtain long-term assistance from this organisation?’ The Tribunal notes that no actual organisations or providers of welfare, hospital, nursing and community services are named as having been approached for assistance to assist the sponsor.
The applicant has claimed the Australian resident and sponsor’s needs could not be reasonably obtained through access to welfare, hospital, nursing or community services. To meet the criteria, the applicant is required to illustrate that this assistance cannot be reasonably obtained through welfare, hospital, or nursing or community services. Given virtually no attempts, the Aged Care Assessment of May 2018 aside, have been made over almost five years to enquire into and obtain such services, the Tribunal is not satisfied that these services are not available.
The Tribunal accepts the claim that the applicant is providing many of these services and this care to his mother, the Australian resident and sponsor, and has done so since his arrival in Australia in 2016. The Tribunal suspects the applicant’s family members are also providing a degree of assistance, but for the purposes of this review, the Tribunal accepts the applicant has been the primary and significant provider of care and support. The question for the Tribunal however remains, is this assistance reasonably obtainable through welfare, hospital or nursing or community services? In the absence of any significant attempts to obtain such services over the last four years (the May 2018 ACAT notwithstanding), the Tribunal gives the applicant’s claim that such care is not reasonably obtainable limited utility.

The only evidence before the Tribunal of an attempt to acquire welfare, hospital or nursing or community services for the sponsor and Australian resident was the ACAT that was approved on 24 May 2018. The sponsor was provided with referral codes to enable her to access recommended services including flexible respite; centre-based respite; allied health and therapy services; social support individual; social support group; residential permanent and residential respite high-care services. On this same date the sponsor and Australian resident received approvals for a Home Care Package Level 4; and a Residential Respite High Care and Residential Permanent.
The Tribunal asked the applicant if any of the services the sponsor had been approved for had been utilised. He said that they had not. The Tribunal, noting over three years had elapsed since the Home Care Package level 4 approval with Medium priority, queried whether the sponsor was now utilising this package. The applicant claimed the Home Care Package Level 4 approval for the sponsor was still on a waiting list. The Tribunal, noting that the average waiting time between a Home Care Level 4 approval with Medium priority was only 9-12 months as at May 2021: asked the applicant to provide evidence the sponsor was still on the waiting list. Post-hearing the applicant provided a My Aged Care summary for the sponsor that stated: Home Care Package Level 4 Withdrawn on 29 July 2020. The applicant’s representative however stated that this document was “evidence that the Sponsor is still waiting for services from ACAT”.
The Tribunal, noting the discrepancy between the statement of the applicant’s representative and the My Aged Care statement concerning the Package being Withdrawn, subsequently made multiple attempts to clarify the situation through the applicant’s representative. The applicant’s representative informed the Tribunal in writing on 18 June 2021 that Aged Care had in fact withdrawn the sponsor’s approval for a Home Care Level 4 package. The applicant has claimed he and his family do not understand why it was withdrawn. The applicant’s representative wrote that Aged Care officials would write to the applicant and explain why the Home Care Package Level 4 approval was withdrawn. The applicant’s representative said this correspondence would be passed on to the Tribunal the following week.
The applicant’s representative subsequently sent to the Tribunal a copy of a letter dated 29 July 2020 from the Commonwealth Department of Health to the sponsor, his mother. The correspondence noted the sponsor had been assigned a Home Care Level 4 package on 2 June 2020. The correspondence stated this home care package had now been withdrawn because the sponsor needed to have chosen a home care provider and entered into a Home Care Agreement by 28 July 2020. The Department stated in its correspondence that as they had not been informed by a home care provider that the sponsor had entered into a Home Care Agreement for a Level 4 package, that package had now been withdrawn.
The Tribunal considers this correspondence is indicative of a failure to genuinely seek care that was reasonably obtainable from welfare, hospital, nursing and community services in Australia. The total failure of the sponsor and applicant to undertake any action to enliven the Home Care approval suggest that undertaking an ACAT and obtaining a Home Care package were in likelihood more done to illustrate an attempt to acquire services for the purposes of the applicant’s Carer visa application, rather than a genuine attempt to obtain services that could provide the assistance the sponsor requires. The correspondence clearly illustrates the failure of the applicant and sponsor to make any attempt to reasonably obtained from welfare, hospital, nursing and community services the sponsor requires. The Tribunal furthermore notes the claim by the applicant that the sponsor was still on the waiting list for her Home Care Package Level 4 at the hearing of 2 June 2021 and had been so for over three years. The Tribunal considers the claim was false, demonstrated by the Department’s correspondence of 29 July 2020 and provided by the applicant.
The applicant’s representative has claimed in an email dated 25 June 2021 (though only received by the Tribunal on 13 July 2021) that the sponsor did not receive the letter dated 29 July 2020 from My Aged Care. It is claimed that even if the sponsor had received such a letter, she would not have understood the contents of the correspondence. It is stated that it was only after the Tribunal hearing that the sponsor asked her daughter to contact My Aged Care for an update. At this point she was placed back onto the waiting list.
The Tribunal is not satisfied with the explanation for the lack of any meaningful action to utilise any of the approved services, including the Home Care Level 4 package approved after the ACAT. The Tribunal quite simply does not accept the claim that the sponsor did not receive the My Aged Care’s correspondence of 29 July 2020. The sponsor and her family on the evidence were aware that the sponsor had been approved for a Home Care Level 4 package after her ACAT and subsequent approval in 2018. The sponsor was informed that she was on a waiting list. The Tribunal finds it implausible that the sponsor and her family would subsequently take no action to enquire into the status of the approval, if they were genuinely attempting to obtain assistance the sponsor requires from welfare, hospital, nursing and community services. If nothing was received by the sponsor after the approval, it is reasonable to expect the sponsor and her family would at the very least have undertaken some level of inquiry to ascertain the status of the approval, if the sponsor and her family were genuine about utilising the services. The Tribunal does not accept the sponsor and her family did not receive the My Aged Care correspondence.
The Tribunal similarly does not accept the argument that even if the correspondence was received, the sponsor would not have understood it. The Tribunal notes that the applicant claims to have resided with the sponsor at the time the Department wrote to the sponsor concerning the Home Care package. Evidence has been provided that the sponsor’s daughter (who lives in Sydney) also has ongoing contact with her mother, the sponsor. Translating and interpreter services are available for those that have difficulties understanding English through My Aged Care for the cost of a local telephone call: The Tribunal considers there were multiple options available to the sponsor to understand the correspondence received from My Aged Care. The Tribunal gives the claim no weight, and considers it an attempt to obfuscate the fact that the sponsor and her family have taken virtually no action to reasonably obtain from welfare, hospital, nursing and community services the assistance the sponsor requires.
The Tribunal furthermore notes the applicant has also provided the Tribunal a copy of a letter dated 3 June 2021, addressed to the sponsor, thanking her for advising My Aged Care that she needs a Home Care Package and she was being placed in the national priority list. The applicant’s representative states that the sponsor asked her daughter to contact My Aged Care after the Tribunal hearing to get an update on her My Aged Care package. The Tribunal gives these actions little weight as evidence of an attempt to reasonably obtain from welfare, hospital, nursing and community services the sponsor requires obtain services, and considers the actions have been motivated as a result of the Tribunal’s concerns rather than a genuine attempt to procure services. The Tribunal notes that the sponsor was approved for a Home Care Package in 2018. In June 2020 she was assigned a Home Care Level 4 package. No attempt was made by the sponsor to avail herself of these services. The approval was subsequently withdrawn. After the Tribunal raised the matter almost a year later, the sponsor and her family have finally again contacted the Department to advise the sponsor needs a Home Care Package. The failure of the sponsor (with the applicant) to utilise any of the sponsor’s original approvals from May 2018 speaks to, in the Tribunal’s opinion, the lack of any genuine attempt to acquire the assistance the sponsor requires from welfare, hospital, nursing and community services in Australia that was reasonably obtainable.
The Tribunal notes the lack of a consistent explanation as to the status of the Home Care Level 4 package approval. The Tribunal is of the opinion that even if the approval was withdrawn, this does not change the Tribunal’s conclusion concerning the lack of any meaningful attempt to acquire services from welfare, hospital, nursing and community services in Australia. The Tribunal notes the failure of the applicant to illustrate any enquiries into what services are available for the sponsor. The Tribunal is unable to come to a level of satisfaction that the services required cannot be reasonably obtained. The applicant’s seemingly lack of any engagement with the ACAT and knowledge of the genuine status of the Home Care Level 4 package approval speaks, in the Tribunal’s opinion, of the lack of any genuine attempt to obtain welfare, nursing or community services for the sponsor and Australian resident.
The Tribunal notes that apart from the Home Care Package Level 4, the sponsor received approval over three years for a range of services through the Commonwealth Home Support Package. These were available after approval in May 2018. There is no corroborative evidence that any attempt has been made to obtain or acquire any of these services. The Tribunal does not accept that the assistance the sponsor and Australian resident requires cannot be reasonably obtained from welfare, hospital, nursing and community services, given the failure to make any meaningful attempt to make contact, enquire into their availability or suitability and utilise any such services.
The applicant has stated plainly that the assistance the sponsor requires is not available from welfare, hospital, or nursing or community services. The applicant’s representative states that the Home Care Package Leve 4 is not appropriate for the sponsor as she requires a high level of care. The applicant states the Australian resident requires 24/7 care. The Tribunal notes the correspondence previously provided from the sponsor’s psychologist Mr Nguyen Van Son who stated the sponsor was stressed by the thought of entering residential aged-care due to factors such as cultural differences, her dietary needs and her limited English language skills. Mr Van Son said even 24/7 residential aged care would not provide the same level of care as that of the applicant.
In relation to the need for 24-hour care, the Tribunal does not accept that 24-hour care can only be provided if the applicant’s visa is granted. The Tribunal notes it is required to accept the nature and scope of an individual’s impairment and any consequential need for assistance as documented in the CVAC: Sefesi v MIBP [2016] FCCA 975. When assessing whether the services can be obtained by the sponsor, the Tribunal is doing so by reference to what has been stated in the Certificate. In the absence of any meaningful attempts beyond the ACAT to obtain or even enquire into such services, including any services that may be offered which take into account the sponsor’s Vietnamese culture and language, the Tribunal does not accept that such services are not available.
At the hearing the Tribunal asked the applicant as to any requests for welfare, hospital, or nursing or community services assistance that talked about the necessity of Vietnamese speakers. The applicant replied no request had been made. There is no evidence before the Tribunal of any request for Vietnamese providers of services. The Tribunal nevertheless notes the sponsor’s and applicant’s concerns about the cultural differences that may exist in residential aged-care. In relation to the sponsor’s desire for ‘culturally suitable’ care and support (including the claim recorded in the ACAT from the sponsor’s daughter that it was in their culture for the eldest son to be their parent’s main carer), the Tribunal accepts that the sponsor may have a preference to be looked after by her son. The Tribunal notes however that a mere preference for a particular service is to be distinguished from a cultural reason. In Hon Anh Vuong v MIAC [2013] FCCA 274 the Court found that applicant’s mere preference to be cared for by his children rather than by strangers was not a barrier to his obtaining welfare assistance and therefore was not a matter that the Tribunal was required to consider further in its determination of reg 1.15AA. In Lam v MIBP [2013] FCCA 1263 the Court confirmed it is for the applicant to satisfy the Tribunal that the relevant services are not reasonably obtainable. In the current review, the Tribunal considers the Australian resident and sponsor has a preference to be cared for by her son, the applicant, rather than via external welfare, hospital, nursing or community services. The Tribunal notes the concern about “cultural differences” as expressed in the correspondence of the sponsor’s psychologist and by the sponsor’s daughter in the ACAT. No mention however is made of what these cultural differences – or what the cultural requirements of the sponsor are. There is no reference to any cultural requirements by the sponsor/Australian resident or the applicant in any requests to obtain welfare, hospital, or nursing or community services beyond the brief statement of the sponsor’s daughter recorded in the ACAT. The Tribunal accepts the Australian resident may have a preference for services to be delivered in Vietnamese. There is no evidence before the Tribunal however that this preference is a barrier to the sponsor reasonably obtaining welfare, hospital, or nursing or community services assistance. The Tribunal notes there is no evidence before it of any requests or efforts that have been made to welfare, hospital, or nursing or community services where Vietnamese or “culturally acceptable” services have been requested for the Australian resident. There is subsequently no evidence from agencies or services confirming that they cannot cater to the particular cultural or dietary requirements of the sponsor and Australian resident.
On the evidence before it, due to the lack of genuine enquiries into what services are available, the Tribunal is unable to come to a level of satisfaction that the services required cannot be reasonably obtained. The Tribunal considers the attempts to obtain any welfare, nursing or community services have been negligible. There is no evidence from agencies or service providers confirming that they cannot provide suitable assistance, or that the availability of care they provide does not cover the care required by the Australian resident and sponsor. Quite simply, beyond the May 2018 ACAT, no enquiries have been made since the time of application in 2016.
Given such little effort has been undertaken to obtain such services, the Tribunal is not satisfied that the services the sponsor requires are not reasonably obtainable. The Tribunal is not satisfied that the sponsor and Australian resident’s preference for her son, the applicant, to provide her care services is a barrier to her reasonably obtaining those services via welfare, hospital, nursing or community services.
The Tribunal accepts that the sponsor may be psychologically dependent on the applicant and have difficulties with strangers and people that she does not trust. The sponsor would rather remain in her own home and have the applicant provide her with care and assistance. The sponsor may be reticent to engage any other services that may be available.

100. The Tribunal has been however provided very little evidence of the sponsor and applicant enquiring about services that may be obtained. The only evidence appears to pertain to the ACAT in May 2018, over three years ago. Residential-aged care has been dismissed as inappropriate for the sponsor due to her dietary needs, language, cultural differences and fears of being mistreated. The Tribunal accepts that the sponsor may be reluctant to think of other aged care services and providers beyond her son, the applicant. On the evidence before the Tribunal however neither the sponsor, applicant or their family took any action to obtain services available to the sponsor, either as a result of services approved via the ACAT or elsewhere. The evidence the applicant provided from the ACAT was that the sponsor was assessed as eligible to receive permanent Australian Government-subsidised care from May 2018 with a Home Care Level 4 Package being approved (admittedly on a Medium priority waiting list) and a range of other services, including Commonwealth Home Support Package services being available. The approval for these services was permanent. The instructions as to how to obtain services in the Aged Care letter gave clear instructions about how to activate services whilst awaiting the availability of a Home Care Level 4 package. Whilst it is unclear whether these services would provide the level of assistance required by the sponsor, there is little evidence before the Tribunal that other services in Australia could not be reasonably obtained by welfare, hospital, nursing or community services.
101. The Tribunal notes the evidence provided at the hearing and in submissions that the sponsor and Australian resident was receiving 24/7 support from the applicant who is essentially providing all the assistance and care that the sponsor requires. The applicant claims the sponsor’s needs are extensive. Given the claim the sponsor requires 24 hours a day care, the Tribunal notes that within the Dee Why area where the Australian resident currently resides and neighbouring suburbs there are in fact 4 aged care providers who state that they offer their services There is no evidence however of any contact that has been made by the applicant or the sponsor’s family to any of the residential aged care providers in this area. The Tribunal is not satisfied the applicant and sponsor have made any attempts to obtain 24-hour care through aged care providers that offer residential services.
102. The Tribunal accepts the sponsor would prefer to remain in her own home with the applicant providing her care. However, this does not necessarily mean that the assistance cannot reasonably be obtained through welfare, hospital, nursing or community services. The Tribunal is not satisfied that this is the case because it has not been provided any independent or corroborative evidence of enquiries made to providers or received from service providers that illustrate this is the situation, or that any investigation has been undertaken to establish that whether 24-hour services are reasonably obtainable from welfare, hospital, nursing or community services in Australia. Neither is the Tribunal satisfied that cultural factors, such as language barriers, the claimed role of the eldest son or a desire for Vietnamese cuisine, means that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services because no evidence has been provided to support any assertion that services providers cannot cater to the sponsor’s cultural needs. The claims the assistance is not reasonably obtainable by welfare, hospital, nursing or community services have been made without any corroborative evidence to support the claim. There is no evidence about what these services are, or about the services that were approached to support such a claim. On the evidence before it, the Tribunal does not accept that the assistance the sponsor requires cannot be reasonably obtained from welfare, hospital, nursing or community services.

103. Ultimately, other than the testimony of the applicant and his family members, as well as correspondence from the sponsor’s psychologist, the applicant has not provided any acceptable information that the assistance cannot be reasonably obtained from welfare, hospital, nursing or community services for the sponsor. Rather, the evidence suggests the sponsor and her family has rejected any provision of such services, stating that the sponsor only wants her son, the applicant, to provide her with assistance. The Tribunal notes that there is no capacity available under the Regulations for it to waive the requirements concerning services being reasonably obtainable from welfare, hospital, nursing or community services.
104. Due to the lack of enquiries into possible avenues of support and on the limited evidence provided, the Tribunal is not satisfied that the care and assistance that the sponsor requires cannot be reasonably obtained through welfare, hospital, nursing or community services.
105. The Tribunal therefore is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. Therefore the applicant does not meet r.1.15AA(1)(e)(ii) and therefore the requirements of r.1.15AA(1)(e) are not met.
106. As the applicant does not meet the requirements of reg 1.15AA(1)(e), the Tribunal is not required to assess reg 1.15AA(1)(f).
107. Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl 836.221.
108. 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 material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
109. The evidence before the Tribunal is that the applicant was born on 22 June 1959. 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. Therefore the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in r.1.03 for the purposes of cl.838.212 of Schedule 2 to the Regulations.
110. The Tribunal finds that the applicant is not entitled to the grant of a Subclass 835 (Remaining Relative) visa. The test in r.1.15(1) is about whether the applicant is the remaining relative of the Australian citizen, in this case his mother, the sponsor. The Tribunal has considered whether the applicant’s mother is the parent of the applicant; whether the applicant’s mother is usually resident in Australia; and relevantly whether the applicant has no near relatives other than near relatives who are usually resident in Australia and Australian citizens, Australian permanent residents or eligible New Zealand citizens. As the applicant has a wife, a son aged 27 years of age, and a son aged 38 years of age who are not Australian citizens, Australian permanent residents or eligible New Zealand citizens who are usually resident in Australia, it appears he has a near relative as per r.1.15(2)(b)(i) and is therefore not a remaining relative as per r.1.15(1). As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl.835.212.
DECISION
111. The Tribunal affirms the decision not to grant the applicant an Other Family (Residence) (Class BU) visa.
Justin Owen
Senior 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.

[2021] AATA 3838

15 July 2021

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