Habo-Karomy (Migration)

[2023] AATA 4477

Habo-Karomy (Migration) [2023] AATA 4477 (14 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Miecheal Habo-Karomy
Master Cristiano Karomy
Master Troy Karomy
Mrs Diana Adeeb Habeeb Moshi

REPRESENTATIVE:  Mr Donald Chi-Ho Chen

CASE NUMBER:  2210142

HOME AFFAIRS REFERENCE(S):          CLF2019/32979

MEMBER:Deputy President Justin Owen

DATE:14 November 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:

·cl 836.221 of Schedule 2 to the Regulations;

The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the second, third and fourth-named visa applicants meet the following criteria for a Subclass 836 (Carer) visa:

·cl 836.321 of Schedule 2 to the Regulations.

Statement made on 14 November 2023 at 4:31pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – assistance cannot reasonably be provided/obtained – other relatives – fully dependent – require a significant degree of care, constant assistance and supervision – welfare, hospital, nursing or community services – unsatisfactory efforts – complex psychological and mental health challenges – absence of culturally appropriate services – Chaldean Catholic – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.221, 836.321

CASES
Hon Anh Vuong v MIAC [2013] FCCA 274
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 June 2022 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (‘the applicant’) is a male 47-year-old British national. The applicant applied for the grant of the visa on the basis of providing care to his Australian relative and sponsor, Ms Rajoo Tobya Oraha who is his mother. The applicants applied for the visa on 16 August 2019. His wife and two sons are secondary applicants. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met. The delegate was not satisfied that it had been demonstrated that it would be unreasonable for the applicant’s Australian relatives to provide the care the sponsor requires. The delegate was also not satisfied the care the sponsor requires could not be reasonably obtained from welfare, hospital, nursing and community services.

4. The applicants appeared before the Tribunal on 6 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jihan Esttaifan (the applicant’s sister), [Mr B] (the applicant’s brother), and Ms Rajoo Oraha (the sponsor). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the applicant is a carer

7. 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.

8. Regulation 1.15AA(1)(a) requires that 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 that the applicant is the son and therefore a ‘relative’ of the Australian relative who is an Australian citizen usually resident in Australia.    

9. 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).

10. Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

11. For a certificate to meet reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.

12. The Tribunal is satisfied that a valid Carer Visa Assessment Certificate (CVAC) was issued on 1 October 2019 by Dr Langford. The Tribunal is satisfied that the certificate meets the requirements of reg 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 impairment has an impairment rating (of 90) 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.

13. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

14. 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.

15. 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.

16. 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.

17. In the present case, the impairment rating specified in the certificate is 90. This rating meets the impairment rating specified by the relevant instrument and therefore exceeds the requirements of reg 1.15AA(1)(c).

18. 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 two years as a result of the medical condition.

19. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.

20. 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.

21. The sponsor’s CVAC states the sponsor is fully dependent, requiring assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervising medication, supervision for personal safety and transportation. The sponsor was diagnosed with longstanding physical and mental illness that results in a significant degree of impairment. She has been diagnosed with mental health conditions including major depression, post-traumatic stress disorder and an anxiety disorder; rheumatoid arthritis; vision impairment; cervical and lumbar spondylosis/Osteoarthritis; cognitive decline; Ischaemic heart disease; Hypertension and a number of other conditions. The sponsor has been living with the applicant and his wife and two young boys. The Tribunal notes the medical evidence that was also submitted for the BUPA carer Visa Assessment including a clinical psychologist report from Mr Sam Borenstein; a rheumatologist report from Dr Loretta Rozario; and a neurologist report from Dr Ross Mellick. 

22. The Tribunal has considered the various medical evidence submitted concerning the sponsor’s health.  The Tribunal accepts as an ethnically Chaldean refugee from Iraq she has experienced a very challenging period until she was granted a humanitarian visa in June 2014 before arriving in Australia in September 2014. The Tribunal accepts from the various evidence before it that her experiences in Iraq and Syria have had a detrimental impact upon her psychological health. 

23. The Tribunal has considered whether reg 1.15AA(1)(e)(i) 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 New Zealand citizen.

24. The Tribunal accepts the applicant’s evidence that he has a large family in Australia and there are 20 Australian relatives that would be considered eligible to provide care to the sponsor, including 11 close relatives and grandchildren of the sponsor, as well as nine nieces and nephews who are the children of the sponsor’s brother. 

25. The Tribunal discussed each of these relatives at its hearing with the applicant.  Written statements and statutory declarations were received from most parties whilst the applicant’s brother and sister each provided oral testimony at the hearing as to their own personal inabilities to reasonably provide the significant assistance the sponsor requires either individually or collectively with other family members and/or in conjunction with welfare, hospital, nursing or community services.

26. It is recognised by the Tribunal that the sponsor as the Australian resident has a very high rating on her CVAC.  Having taken evidence from the sponsor not just at this hearing but almost two years ago when the Tribunal remitted a previous refusal by the delegate on sponsorship grounds, the Tribunal is satisfied the sponsor has very specific needs that require a significant degree of care, constant assistance and supervision.  The person taking on such a role must have the fitness, strength and time to provide the care required by the sponsor.  The Tribunal accepts the evidence that that care has been provided by her son, supported by his wife, as they have lived together with the applicant’s sons now for a number of years. 

27. The Tribunal discussed all 20 Australian relatives with the applicant and reviewed all statutory declarations and other evidence.  The Tribunal is satisfied that the sponsor’s 78-year-old husband Habeeb in in poor health, no longer living with the sponsor and is unable to care for his wife. The Tribunal is satisfied that the sponsor’s daughter Jihan, who also provided oral testimony and a written statement to the Tribunal, is unable to provide care due to the fact she is now married, building her own life, and is also assisting with caring for her elderly father.  The Tribunal accepts the sponsor’s son [Mr A] is part-owner of a [shop] in [Suburb 1] which operates seven days a week and he is unable to provide the assistance his mother requires.  The sponsor’s eldest son [Mr B] provided oral testimony to the Tribunal where he discussed his own commitments which include caring for four children as well as his wife who suffered grave injuries in a motor vehicle accident and requires ongoing help.  The Tribunal is satisfied [Mr B] is unable to provide assistance to his mother.  The Tribunal is also satisfied the sponsor’s other daughter Amel is unable to assist as she is looking after her family of four children whilst also studying a computing course at Wetherill Park TAFE. 

28. In relation to the six grandchildren of the sponsor aged over 18 years of age, who are aged between 18 and 27 years of age, the Tribunal is satisfied on the evidence before it that they do not have the capacity to reasonably provide the assistance the sponsor, their grandmother, requires.  These grandchildren are variously working as a full-time registered nurse; working in other full-time jobs including operating a second mobile phone business at the Katoomba shops; whilst another is studying a Bachelor of Advanced Medical Science full-time.  The Tribunal has obviously concluded that the other two grandchildren who are aged 15 years and 8 years of age are also unable to assist.

29. The Tribunal furthermore is satisfied that the nine nephews and nieces of the sponsor, who are the children of the sponsor’s brother, are unable to reasonably provide the assistance required.  They range in ages from 31 to 45 years of age.  One is a full-time truck driver with his own business, providing for a family of six; others have multiple young children; another is the owner and manager of companies with 16 employees and has no capacity to assist. The others have various employment and family related reasons that the Tribunal is satisfied preclude them from reasonably being able to provide the very significant assistance the sponsor requires. 

30. The Tribunal accepts the four children of the sponsor, as the Australian resident, who reside in Australia have commitments to employment and family which prevent them from reasonably providing the assistance required by their mother.  The Tribunal is satisfied the Australian resident’s elderly husband is unable to provide any assistance due to his own health challenges.  The Tribunal is satisfied the Australian resident’s eight grandchildren are all precluded from doing so due to their existing various university, employment and family commitments as well as the young age of the youngest two. The Tribunal is furthermore satisfied the nine nieces and nephews, some of whom on the evidence don’t have any significant relationship with the sponsor whatsoever, have their own varying employment, family and caring responsibilities that make their provision of the assistance the sponsor as Australian resident requires not reasonably obtainable.

31. The Tribunal is subsequently satisfied that the assistance the sponsor requires as the Australian resident cannot reasonably be provided by another Australian relative.  Accordingly, the requirements of reg 1.15AA(1)(e)(i) are met. 

32. 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, nursing or community services.  

33. The applicant has asserted that the sponsor as the Australian resident has complex physical, psychological and cultural needs as a Chaldean refugee that make it difficult for her to obtain suitable care in the community.  The applicant points out that the sponsor only speaks the Chaldean language and is of the Catholic faith.  Evidence was provided concerning the Chaldean community who are a religious and ethic minority in Iraq that have suffered considerable discrimination and targeting on the basis of their faith and culture by some in the Muslim majority. 

34. At its hearing, the Tribunal noted that on the applicant’s Form 47 it was stated that no assistance had been sought from welfare, hospital, nursing or community services.  The applicant explained that due to his mother’s Chaldean faith and psychological issues she had not been prepared to accept such services. 

35. The applicant provided a list of organisations that were contacted between January 2022 and November 2023.  These included the Batnaya Association, Wellways, Catholic Care, Pearl Home Care Services, Tender Loving Care Disability Services, and the Guildford Arabic Baptist Church.  The applicant has submitted that all the organisations contacted either ignored the sponsor’s request or did not have adequate funding or facilities to provide the considerable care the sponsor as the Australian resident requires. 

36. The applicant discussed his recent attempts to contact My Aged Care for a comprehensive assessment for a Home Care Package and approval for Residential Aged Care for respite.  The Tribunal notes that the sponsor has in fact also undertaken a National Disability Insurance Scheme assessment and does receive some limited assistance from physiotherapy and occasional domestic help through cleaning. 

37. The Tribunal discussed the requirement that all options must be sought in order to determine that there is no assistance able to be reasonably obtained from welfare, hospital, nursing and community services in Australia.  The Tribunal also pointed out that more was required than just the sponsor’s personal preference for the care she needs to be obtained from her son, the applicant. 

38. The Tribunal is not satisfied that satisfactory efforts have been undertaken to ascertain if the assistance the sponsor requires can be reasonably obtained from services in Australia.  The Tribunal notes that the efforts to obtain such services only commenced in 2022, some years after the application was originally lodged.  The Tribunal considers the evidence of these efforts is vague.  The Tribunal subsequently places little weight on the evidence of attempts made to obtain such services.  The Tribunal is not satisfied the efforts undertaken were anything more than rudimentary. 

39. The Tribunal notes however that when considering the level and kind of care reasonably obtainable from welfare, hospital, nursing or community services, the Tribunal assesses that the assistance to treat the sponsor as the Australian resident’s complex psychological and mental health challenges as well as her physical conditions, and importantly to meet her cultural background, is not reasonably obtainable in the community.       

40. The presiding Member has presided over two cases involving the sponsor over the last few years so is familiar with the sponsor’s cultural background as well as the psychological and mental health challenges she faces as a sufferer of Post-traumatic Stress Disorder (PTSD) given her experiences as a Chaldean in Iraq and Syria. 

41. The Tribunal has noted the evidence submitted concerning Chaldeans in Iraq from the applicant as well as its own independent research concerning the community, and the challenges they have faced over the last several decades. 

42. The sponsor is a Chaldean Catholic who speaks Chaldean (with a rudimentary knowledge of Arabic).  The issues facing the Chaldean Catholic community as a persecuted ethic and religious minority in Iraq are well documented.  The sponsor provided oral testimony at the hearing as well as a statement post-hearing.  The sponsor was born in Iraq.  She asserts her life has been one of constant war and trauma from around 1980 until she was able to flee Syria for Australia in 2014.  Her experiences of the Iraq-Iran war which cost the lives of family members followed by the effects of the economic blockade on Iraq after the invasion of Kuwait in 1991 all had an adverse impact upon the sponsor.  She submits that after the American invasion of Iraq in 2003 life became very difficult for the Chaldean community who were targeted by the Muslim majority on account of their Christianity.  The sponsor stated two of [her sons] had to leave the [country] whilst her niece was kidnapped by Islamic militants and never seen again.  In 2010 the sponsor submits her family fled to Syria after being targeted by [Islamic militants]. The sponsor states the Syrian civil war however eventually made them flee the country in 2014.  The sponsor states her experiences in Iraq and Syria left her with severe depression and PTSD as well as chronic health problems due to the shortage of medications in Iraq and Syria. The Tribunal notes the reports of psychologist Mr Sam Borenstein which discusses her PTSD. 

1. The Tribunal accepts the Chaldean community, and the sponsor specifically, suffered considerable deprivation arising from the ongoing conflict in Iraq and Syria and the ethnic targeting of the Chaldean Catholic community.  Sustained stress from fleeing Iraq, living in refugee camps that were subsequently bombed, and the ongoing targeting of her community have all had a significant adverse impact upon the sponsor’s mental health and have triggered her depressive and anxiety disorders.  She has been authoritatively diagnosed with PTSD with symptoms including impaired concentration, amotivation, anhedonia and apathy.  Her psychological condition is exacerbated by her physical health condition.  The psychologist’s evidence is that the sponsor has benefited from the care she receives from the applicant and the secondary applicants.  The evidence before the Tribunal, based on the testimony of the applicant and the sponsor, is that the applicants individually and collectively support her medically, socially, psychologically, culturally and with her faith. 

2. The Tribunal notes the applicant and the secondary applicants have lived with the sponsor in Bonnyrigg for over four years.  The sponsor moved in with the applicants after her daughter, who had been providing care previously, became married. The applicant and the fourth-named applicant (her daughter-in-law) attend her church, St Thomas in Bossley Park together and help her follow her Chaldean Catholic faith, an important part of her daily life and well-being.  The Tribunal notes that there are no Chaldean nursing homes or residential aged care accommodation providers that provide Chaldean specific services in Sydney.  In the absence of culturally appropriate services, the Tribunal is of the opinion that residential aged care, and separation from her family, will have a further significant adverse impact upon the sponsor’s mental and psychological health.  The Tribunal is satisfied, from the medical and psychological evidence before it, that the sponsor’s mental health will suffer should she be separated from the applicant and her family and instead rely on services obtained from welfare, hospital, nursing or community services, including being placed into residential aged care.

3. The Tribunal notes that there are significant external services available in Sydney from Arabic-speaking and Arabic-cultural providers.  Given the sponsor’s psychological health and her past experiences in Iraq and Syria, the Tribunal does not consider such services would be culturally appropriate in the circumstances. 

4. The Tribunal has considered the issue of cultural reasons for the applicant to provide the care the sponsor requires. 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 the 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 this case however, the Tribunal is satisfied that the sponsor’s desire to have the applicant (and the secondary applicants) provide care for her in the home is a cultural reason, not a mere preference. In the absence of any Chaldean specialist aged care services, the Tribunal does not consider it would be reasonable or appropriate for the sponsor to obtain residential aged care due to her specific ethnicity, faith and language needs. Her considerable psychological health needs are assisted greatly by the ongoing presence of the applicant and his family in the family home. The Tribunal is satisfied the sponsor’s mental and physical health will deteriorate significantly should the care from her son not be available.

5. The Tribunal discussed at the hearing, and asked the applicant to comment on, the fact that the sponsor was receiving physiotherapy and some cleaning through the NDIS from people that were not Chaldean culturally or speaking.  The applicant explained that the fact he was there in person when these individuals visited provided enough comfort to his mother whilst they were home.  He stated she would not be comfortable at allowing these individuals access in any way if he were not there with her.  The Tribunal accepts the applicant’s submission.    

6. The Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant Australian relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

7. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

8. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.

9. The Tribunal noted at the hearing that the delegate did not consider this matter when refusing the application.  The Tribunal put the applicant on notice that it would consider this matter, explained the requirements of reg. 1.15AA(1)(f) and asked a range of questions to the applicant and the sponsor as to the applicant’s willingness and his ability to provide the substantial and continuing assistance of the kind the sponsor requires. 

10. The Tribunal is satisfied that the applicants have been living with the sponsor since 2019 in a home together in Bonnyrigg and the sponsor is principally being cared for by her son, the applicant.  The Tribunal is satisfied that the applicant (and his wife) is both willing and able to provide the care the sponsor requires.  The Tribunal questioned the applicant in detail about the care the sponsor requires, and the care he provides.  The Tribunal found the applicant to be spontaneous, considered and genuine in his responses. The Tribunal found the applicant to be an articulate, well-informed and experienced individual whose care for his mother – and his ability to provide the care – is genuine. He has an excellent employment record previously in the United Kingdom, is licensed to drive and entirely fluent in English meaning he is able to ensure the sponsor remains in contact with the outside world given her inability to speak English and the small number of Chaldean speakers in the Australian community.  

11. The Tribunal questioned the applicant about matters such as cooking, domestic cleaning, personal hygiene, showering, dressing, giving medication, transport and supervision and is satisfied the responses the applicant provided were both genuine and detailed.  The Tribunal accepts the applicant is providing these services to his mother, with his wife assisting with the cooking and showering of the sponsor.  The Tribunal notes the fourth-named applicant, is due to give birth to their third baby in two weeks, meaning that greater responsibility in providing the care to the sponsor will inevitably fall back on to the applicant as her husband whilst she is understandably focused on the needs of their new child.

12. The Tribunal is satisfied the applicant has been providing ongoing substantial and continuing assistance of the kind needed by his mother the sponsor for some years and continues to be both willing and able to do so today. 

13. Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

14. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

15. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for Subclass 836 visas.

    DECISION

16. The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the first-named visa applicant meets the following criteria for a Subclass 836 (Carer) visa:

    ·cl 836.221 of Schedule 2 to the Regulations;

17. The Tribunal remits the applications for Other Family (Residence) (lass BU) visas for reconsideration, with the direction that the second, third and fourth-named applicants meet the following criteria for a Subclass 836 (Carer) visa:

    ·cl 836.321 of Schedule 2 to the Regulations. 

    Justin Owen
    Deputy President

    
    

    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.