Hussein (Migration) - [2023] AATA 334

Hussein (Migration) [2023] AATA 334 (13 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Mohammed Iqbal Hussein
Ms Asifa Zavia Hussein
Master Huzaifa Bin Iqbal
Miss Almaira Bint Iqbal
REPRESENTATIVE:  Ms Sai Priya Sivalohan
CASE NUMBER:  1927978
HOME AFFAIRS REFERENCE(S):          CLF2018/49867
MEMBER:Mila Foster
DATE:13 January 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 13 January 2023 at 5:39pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) –rating exceeds the impairment rating of 30 specified by the relevant instrument – evidence about the nature and extent of the assistance – not satisfied that the first named applicant is willing and able to provide substantial and continuing assistance of the kind needed – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 836.221

CASES
Bader v MIBP [2018] FCCA 485
Ignatious v MIMIA [2004] FCA 1395
MIMIA v Hidalgo [2005] FCAFC 192
Perera v MIMIA [2005] FCA 1120
Scargill v MIMIA [2003] FCAFC 116
Xiang v MIMIA [2004] FCAFC 64
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 23 September 2019 to refuse to grant the applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 24 May 2018. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicants are seeking to satisfy the criteria for the grant of a Subclass 836 (Carer) visa which are set out in Part 836 of Schedule 2 to the Regulations. The first named applicant is seeking to satisfy the criteria on the basis that he is the carer of his mother, Jamila Bibi Hussein, and the other applicants are seeking to satisfy the criteria on the basis that they are members of his family unit. It is claimed that the first and second named applicants are spouses and that the third and fourth named applicants are their children.
The delegate refused to grant the visas on the basis that the criterion in cl 836.221 was not met by the first named applicant because it had not been demonstrated that the care Ms Hussein requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
The first and second named applicants appeared before the Tribunal on 28 October 2022 to give evidence and present arguments. The Tribunal also took evidence from the first named applicant’s brother-in-law, Reaj Khan.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The evidence before the Tribunal includes the Department file relating to the visa application,[1] the oral evidence given at hearing, and written submissions and documentary evidence submitted to the Tribunal before and after the hearing. The Tribunal also has before it Department movement records relating to the applicants and Ms Hussein and Department records relating to Ms Hussein’s previous Partner visa application.
[1] Department file number CLF2018/49867 (DF).
Clause 836.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this decision.
The issue in the present case is whether the first named applicant is a carer of Ms Hussein, specifically whether he is willing and able to provide to Ms Hussein substantial and continuing assistance of the kind needed. This issue was raised at the hearing and the first named applicant was given the opportunity to provide further evidence and present arguments about the issue.
Background information
It is claimed that Ms Hussein is a 70-year-old Australian citizen by grant. She had migrated from Fiji in 2010 on the basis of her marriage to an Australian citizen. Two years later that marriage ended by divorce.
It is claimed that Ms Hussein has relatives who are Australian citizens or permanent residents but are unwilling or unable to provide her with assistance to meet her daily living needs. Those relatives are her daughter Sharine Bano Khan, her eldest son Mohammed Arif Hussein, her four adult grandchildren (Zayna Zeenat Hussein, Zohaib Arif Hussein, Mohammed Rehaan Khan, Sheriza Saista Khan), and her sister Man Bi Munaf.
It is claimed that the applicants are citizens of the United States (US) and resided there before coming to Australia on visitor visas and applying for the carer visa.
The first named applicant claims he has been caring for his mother since visiting her in Australia in February 2016. He claims that when doctors declared his mother needed a full-time carer, he decided to stay in Australia. According to Department movement records, the first named applicant last entered Australia on 22 December 2017 on a Subclass 601 Electronic Travel Authority visa. Movement records indicate that the third and fourth named applicants last entered Australia on Subclass 601 Electronic Travel Authority visas on the same date.
The visa application lodged on 24 May 2018 originally included the first, third and fourth named applicants. It is claimed that the second named visa applicant remained in the US until she came to Australia in November 2018 and was added to the visa application on 29 November 2018. Movement records indicate that the second named visa applicant entered Australia on Subclass 601 Electronic Travel Authority visa on 29 November 2018 and has since only departed once on a bridging visa from 11-25 July 2022.
It is claimed that after the second named visa applicant’s arrival in November 2018, the applicants have resided together with Ms Hussein at a residence in Rooty Hill, New South Wales (NSW). Prior to that it is claimed that the first named applicant lived at his brother’s residence in Mount Druitt, NSW where Ms Hussein was also residing.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the visa 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 the first named applicant applicant’s mother, Ms Hussein
The Tribunal has before it the first named applicant’s birth certificate, his marriage certificate Ms Hussein’s birth certificate, and Ms Hussein’s previous Fijian passports. On the basis of these documents the Tribunal finds that Ms Hussein is the first named applicant’s biological mother. The first named applicant is thus a ‘close relative’ as defined in reg 1.03 and hence a ‘relative’ of Ms Hussein.
On the basis of the Australian citizenship certificate presented to the Tribunal after the hearing, the Tribunal finds that Ms Hussein was granted Australian citizenship on 12 February 2019.
The dual factors of physical residency and intention are essential elements in the notion of ‘usually resides’: Scargill v MIMIA [2003] FCAFC 116 (‘Scargill’); Ignatious v MIMIA [2004] FCA 1395; and MIMIA v Hidalgo [2005] FCAFC 192. Generally speaking an individual’s place of residence is to be determined by reference to where he ‘eats and sleeps and has his settled or usual abode’; Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 at 249, endorsed in Scargill at [17].
Department movement records indicate that Ms Hussein made frequent trips outside Australia after she was granted permanent residence on 5 November 2010 but has not departed Australia since 21 September 2015. The Tribunal thus finds that Ms Hussein is usually resident in Australia.
As the first named applicant is a relative of Jamila Bibi Hussein who is an Australian citizen and usually resident in Australia, he meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet 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 or issued by a specified health provider in relation to a review of such an opinion. The Minister has specified Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services as the health provider in Legislative Instrument IMMI 14/085. A certificate issued in relation to Ms Hussein on 21 December 2021 which satisfies the requirements of reg 1.15AA(2) was presented to the Tribunal.
That certificate states that Ms Hussein has medical conditions that are causing impairments of her ability to attend to the practical aspects of daily life; she has a need for direct assistance in attending to the practical aspects of daily life because of the medical conditions; and because of the medical conditions, the need for direct assistance in attending to the practical aspects of daily life will continue for at least 2 years. Further, the certificate assigns a total impairment rating of 35 points based on the Social Security Tables for the assessment of work-related impairment for the Disability Support Pension. According to the accompanying Carer Visa Report, Ms Hussein’s diagnosed medical conditions are undifferentiated polyarticular inflammatory arthritis, osteoarthritis in her knees, osteoarthritis of her spine and Alzheimer’s dementia. The Tribunal thus finds that the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv).
On the basis of the above findings, the requirements of reg 1.15AA(1)(b) are met.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical conditions is Ms Hussein who is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126.
In the present case, the impairment rating specified in the 2021 certificate is 35. This rating exceeds the impairment rating of 30 specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.
As the 2021 certificate relates to Ms Hussein who is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be 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. It is claimed that the assistance Ms Hussein requires cannot reasonably be provided by her relatives either individually or collectively, nor obtained from welfare, hospital, nursing or community services. The Tribunal makes no findings on this requirement given it finds below that the first named applicant does not meet reg 1.15AA(1)(f).
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
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.
Substantial and continuing assistance can be provided by more than one person. In Bader v MIBP [2018] FCCA 485 the Court found that just because one person is providing substantial and continuing assistance, it does not follow that a second person in a supportive role and undertaking different tasks cannot also provide substantial and continuing assistance.[2] In Gorgees v MIBP [2018] FCCA 2787 the Court made it clear that the applicant does not need to be the sole carer that must provide all of the ‘constant care’ said to be required.[3]
[2] At [40].
[3] At [49].
The first named applicant stated at the hearing that he was willing and able to provide to his mother substantial and continuing assistance of the kind needed, and that his wife would assist when needed. He and the second named visa applicant stated at the hearing that with the exception of hygiene and toileting assistance provided by the second named visa applicant, the first named applicant had been providing Ms Hussein with all the assistance she needed and would continue to do so. They stated that the first named applicant assisted Ms Hussein with her mobility, outings, medication, meal preparation, cleaning of her room, and laundry. If the first named applicant had provided this assistance it would be a strong indicator of his willingness and ability to provide to Ms Hussein substantial and continuing assistance of the kind needed. However, the Tribunal is not satisfied that an accurate account of the assistance the first named applicant has provided to his mother since the second named visa applicant arrived in Australia has been presented. This raises doubts about whether he is willing and able to provide to his mother substantial and continuing assistance of the kind needed.
Assistance provided prior to second named visa applicant’s arrival
In the visa application for the first named applicant stated that he would provide his mother with ‘all domestic care & support including cooking, feeding showering, appointments with doctors, tablets or any health assistance’.[4]
[4] DF, f.9.
A Carer Visa Report issued on 25 June 2018 which was submitted to the Department stated that Ms Hussein was living with her eldest son [at the Mount Druitt address] and the first named applicant was her full-time carer. The report stated that she was partially dependent on assistance and required assistance with all activities of daily living (ADLs) except toileting. The report stated that she received the following assistance with daily activities:
a.Mobility - ‘Standby assist from son’ and ‘Assistance from son for transfers’.
b.Bathing/showering - ‘Set up assist from son’ and ‘Son supervises due to risk of falls’.
c.Toileting - ‘son helps with lowering trousers’.
d.Dressing/grooming - ‘Son helps with shoes and socks and trousers’.
e.Eating/feeding - ‘Needs help with prep’.
f.Supervision medication - ‘Son dispenses medication’.
g.Supervision for personal safety - no assistance specified.
h.Transportation - ‘Son brings her to all appointments’.
In summary comments, the examining doctor stated that Ms Hussein presented as someone who was able to perform most of her ADLs with minimal assistance but would benefit from full time supervision due to her frequent falls and high-risk falls. This indicates that the first named applicant was providing Ms Hussein with the assistance she needed at that time but other evidence indicates that Ms Hussein’s needs increased significantly, she became fully dependent and that following her arrival in Australia the second named visa applicant also began to provide Ms Hussein with assistance.
Assistance provided after the second named visa applicant’s arrival
In a statutory declaration made on 2 April 2019 the first named applicant said that with his family, his wife and children, he would like to take care of his mother. The Tribunal notes that the children were only 6 and 4 years old at the time. He said he, with his family, had stepped up to take full responsibility for taking care of his mother. He said he had been taking care of his mother since visiting her in February 2016; she was sad when he had to return home so he returned in March 2017 and made several trips back in 2017. He said that when doctors declared that his mother needed a full-time carer, he decided to take the step to stay with his mother. He said that he was physically fit with no medical issues and had relevant qualifications having completed courses in professional disability management. He said that as a family, an organised care plan was created for his mother dividing responsibilities between his wife and himself. He detailed the assistance he provided his mother on a daily basis which included helping her with toileting, showering, dressing, meal preparation, feeding, taking medication, praying. He stated that the routine only changed when he took his mother to appointments and family gatherings. In terms of assistance provided by the second named visa applicant, he stated that his wife supported and helped him a lot in caring for his mother and specified that she helped with meal preparation. He stated that both he and the second named visa applicant were dedicated to do all they could to support his mother. He stated that he and the second named visa applicant would take turns working to support their family financially and if he had work restrictions, the second named visa applicant would work full-time. The statutory declaration indicates to the Tribunal that by April 2019 the first named applicant and second named visa applicant were both providing Ms Hussein with assistance of the kind she needed. Indeed, in a statutory declaration the second named visa applicant made on the same day, she stated she would help take care of Ms Hussein in all aspects required on a daily basis, and would financially support her husband and their children.

In a Form 80[5] completed by the first named applicant on 3 April 2019 and submitted in connection with the visa application, he stated he was unemployed from February 2016 until January 2019 and referred to himself as a carer during that period. He stated that from February 2019 he was employed as a maintenance supervisor and carpenter for a construction company while also taking care of his mother. Although the first named applicant stated at the hearing that this employment was full-time and he chose his hours around his mother’s sleep and nap times, this information indicates that not long after the second named visa applicant arrived in Australia the first named applicant ceased providing all the assistance his mother needed so that he financially could support himself and his family. At the hearing he stated that the second named visa applicant did not have work rights in Australia.
[5] ‘Personal particulars for assessment including character assessment’ form.
On 29 May 2019 a ‘My Aged Care’ Support Plan was generated for Ms Hussein. The Support Plan stated it was based on information provided by Ms Hussein[6] and the second named visa applicant. Notably it states that Ms Hussein relied on the second named visa applicant for ‘all aspects of daily living’. The Support Plan stated that the second named visa applicant assisted with and supervised Ms Hussein’s meals, personal care, appointments, finance, and shopping. The Support Plan stated that the first named applicant worked for a living and supported his family where possible. This information significantly contradicts the evidence given by the first and second named applicant that the first named applicant had been providing most of the assistance needed by Ms Hussein, and that the second named visa applicant essentially assisted only with Ms Hussein’s hygiene and toileting needs.
[6] Through a Hindi interpreter.
The 2021 Carer Visa Report stated that Ms Hussein was living with the first named applicant and his family, namely her daughter-in-law and two grandchildren. Notably the report stated that Ms Hussein’s daughter-in-law was ‘home full time looking after her’. In contrast to the 2018 Carer Visa Report, this report stated that Ms Hussein was now fully dependent, required assistance with all ADLs and stated that she received the following assistance with daily activities -
a.Mobility - ‘Requires standby assistance at all times’.
b.Bathing/showering - ‘Sits on shower chair – set up assistance by DIL’ .. ‘Fully dependent on DIL for shower hygiene’
c.Toileting – ‘Requires transfer assistance into/out of toilet chair.’
d.Dressing/grooming – ‘DIL assists with all dressing/grooming’.
e.Eating/feeding – ‘Requires total assistance with preparation of food’.
f.Supervision medication – ‘Requires total assistance with medication administration. She would forget her medications if not given to her by her carer’.
g.Supervision for personal safety – nature of assistance not specified.
h.Transportation – ‘Requires carer assistance for transport in car to appointments’.
The 2021 Carer Visa Report also stated that her son had to assist her to unscrew a lid on a soft drink bottle, she was reliant on medication administration by her son, assistance from ‘carers’ and daily prompting ‘from people around her’ for basic tasks and activities of daily living around the household due to brain impairment. The 2021 Carer Visa Report does not give the Tribunal the impression that the first named applicant provided most of the assistance Ms Hussein needed. It indicates to the Tribunal that both the first named applicant and the second named visa applicant had provided Ms Hussein with the assistance she needed and that the second named visa applicant routinely provided more than assistance with hygiene and toileting. The report does not indicate to the Tribunal that the first named applicant had taken ‘full care’ of Ms Hussein since moving to Australia as he declared in a statutory declaration made on 16 October 2022. That statement also contrasts with the statement he had made in the statutory declaration of 2 April 2019 that he and his wife would take care of his mother.
There are other statements the first named applicant made in his 2022 statutory declaration which contrast with statements in his 2019 statutory declaration. In the 2022 statutory declaration he stated that he had created a very organised care plan for his mother and his wife assisted when necessary while in his 2019 statutory declaration he stated that his family had created an organised care plan for his mother which divided responsibilities between himself and his wife. In his 2022 statutory declaration he described the daily assistance his mother required in virtually the same terms as his statutory declaration of 2 April 2019 and stated that his wife helped his mother wash and dress. However, he did not state in his 2022 statutory declaration that he and his wife were dedicated to doing all they could to support his mother. Instead, he said he was very dedicated to do all he could to support his mother and all that was required to take full care of his mother. Unlike the 2019 statutory declaration, he did not state in the 2022 statutory declaration that he and his wife would alternate in employment but stated that his wife would work full-time to support the family financially. This gives the Tribunal the impression that the first named applicant changed his evidence about the assistance the second named visa applicant had provided and was willing to provide or at the very least that he sought to underestimate the assistance she had provided and overstate the assistance he had provided and was willing to provide.
At the hearing the first named applicant stated that only he would provide his mother with substantial and continuing assistance she needed. He said the second named visa applicant would only assist when needed which he said would be in relation to hygiene. The Tribunal noted that the Carer Visa Reports stated that the second named visa applicant had provided assistance to his mother and that the Support Plan stated that his mother relied on the second named visa applicant for all aspects of her daily living so that it seemed the second named visa applicant had also provided substantial assistance and was willing to do so. The first named applicant replied ‘no’, he was the ‘main person’. He said he got his mother out of bed, did social activity, did grocery shopping, took her to doctor’s appointments, cooked for her, managed her account, and paid her bills. He said he did most of the work; the second named visa applicant would take over if he was sick. The first named applicant offered no explanation for why the Support Plan in particular indicated his mother was reliant on the second named visa applicant for all aspects of her daily living if that was not the case, and he again seemed to be attempting to minimise and downplay the assistance provided by the second named visa applicant.
Substantial and continuing assistance of the kind needed can be provided by more than one person. If the first named applicant and second named visa applicant were both willing and able to provide Ms Hussein substantial and continuing assistance of the kind needed, the first named applicant would nevertheless satisfy reg 1.15AA(1)(f). Further, while it is not a requirement that substantial and continuing assistance of the kind needed has been provided in the past, given the first named applicant claims that he has been his mother’s main carer since at least December 2017 and that only he would provide substantial and continuing assistance of the kind needed, the Tribunal regards the nature and extent of the assistance he and the second named visa applicant have provided to date to be a relevant consideration in assessing whether the first named applicant is willing and able to provide substantial and continuing assistance of the kind needed.
It has been consistently claimed and the Tribunal accepts that the first named applicant has provided assistance to his mother of the kind needed. However, in light of the above issues with the evidence about the nature and extent of assistance provided by the first named applicant and the second named visa applicant since the second named visa applicant arrived in Australia, the Tribunal is not satisfied that an accurate account of the assistance they have provided to Ms Hussein has been presented. Consequently, the Tribunal is not satisfied that the first named applicant is willing and able to provide to his mother substantial and continuing assistance of the kind needed. To avoid doubt, the Tribunal is not satisfied that he is willing and able to provide that assistance alone, as he claims, or in addition to substantial and continuing assistance the second named visa applicant is willing and able to provide to Ms Hussein of the kind needed.
In reaching the above conclusion the Tribunal has had regard to all the evidence including medical reports relating to Ms Hussein provided by her treating doctors, evidence of the first named applicant’s training in disability management and the oral evidence given at the hearing. However, that evidence does not overcome the issues referred to above. Although the first named applicant is referred to in some of the medical reports as Ms Hussein’s carer, the Tribunal must consider whether he meets the definition of a carer in the Regulations not in lay terms and not simply based on what was reported to Ms Hussein’s doctors. The Tribunal accepts the first named applicant has completed courses in disability management. Even though the courses appear to relate to disability management in the context of workers’ compensation, the Tribunal accepts that the training is relevant to considering the first named applicant’s ability to provide assistance to Ms Hussein. However, this does not overcome the issues with the evidence presented about the nature of the assistance the first named applicant has provided to his mother and would be willing to provide. At the hearing Mr Khan indicated he had observed the first named applicant feeding Ms Hussein at home, he said the first named applicant was present when he visited, the first named applicant had brought Ms Hussein to a community function, and he had seen the first named applicant with Ms Hussein at a shopping centre a few times. This indicates that the first named applicant has assisted his mother but does not overcome the Tribunal’s concerns regarding the evidence about the nature and extent of the assistance provided by the first named applicant and second named visa applicant.
As the Tribunal is not satisfied that the first named applicant is willing and able to provide Ms Hussein substantial and continuing assistance of the kind needed, he does not meet the requirements of reg 1.15AA(1)(f). Consequently, at the time of decision the first named applicant is not a carer of the Australian relative and does not satisfy cl 836.221.
Conclusions
As the first named applicant does not satisfy cl 836.221, he does not meet the criteria for a Subclass 836 visa. As the other applicants applied for the visa on the basis they were members of his family unit, they do not satisfy the criteria for a Subclass 836 visa on that basis. On the evidence before the Tribunal the other applicants do not the satisfy the criteria on any other basis.
In respect of the other visa subclasses there is no material which would permit a finding that the first named applicant or any of the other applicants meet the prescribed criteria for the visa sought.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Mila Foster
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.