Lukic (Migration)

[2022] AATA 4487

Lukic (Migration) [2022] AATA 4487 (7 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sanja Lukic

REPRESENTATIVE:  Mrs Danijela Jakovljevic (MARN: 9902396)

CASE NUMBER:  1919401

HOME AFFAIRS REFERENCE(S):          CLF2018/12655

MEMBER:Brendan Darcy

DATE:7 December 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

·cl 836.221 of Schedule 2 to the Regulations;

Statement made on 07 December 2022 at 1:34pm.

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – sponsor’s multiple physical and mental health conditions – care cannot be provided by other family members or obtained from service providers – husband’s age and health and son’s family duties – inquiries to service providers – sponsor’s fear of strangers – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(e)((i), (ii), Schedule 2, cl 836.221

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 9 July 2019 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).

2. The applicant applied for the visa on 12 February 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 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 at the time of decision.

3. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the definition of Carer was not met as outlined under regulation 1.15AA.

4. The applicant appeared before the Tribunal on 1 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Serbian and English languages.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

7. The applicant was born on 27 May 1975 in the former Socialist Federal Republic of Yugoslavia and is a citizen of the Republic of Serbia (Serbia).

8. The applicant arrived in Australia on 12 March 2017 while holding a Class FA Subclass 600 visitor visa. She applied for a Class BU Subclass 836 (Other Family) Carer visa on 12 February 2018 on the basis of providing assistance to her parent and Australian citizen, Svetlana Koljanin (née: Markovic).

9. Ms Koljanin, born in Yugoslavia on 1 May 1957, is the sponsoring family member (or the sponsor) of this Carer visa. Australian citizenship was conferred on the sponsor on 29 August 2000. At the scheduled hearing, the applicant stated her husband was residing in Serbia and that she has two adult children and a number of grandchildren. Her husband was not attached to the visa at the time of application.

10. On 21 July 2018, the Department received a Carer Visa Assessment Certificate (CVAC) indicating the sponsor had an impairment rating of 70. (The impairment rating is assessed against the Social Security Act’s Tables of the Assessment of Work-related Impairment for Disability Support Pension which rates permanent medical conditions.) Medical conditions included muscular dystrophy, osteoarthritis, severe back and hip pain, post-traumatic stress disorder (PTSD), major depressive disorder and anxiety disorder.

11. The submitted forms for a Carer visa indicated that the sponsor’s relatives in Australia included Vlado Koljanin (DOB: 30 August 1952), the sponsor’s husband, and Velimir Koljanin (DOB: 24 December 1983), the sponsor’s only son, were relatives of the sponsor and that it was unreasonable for them to provide the assistance the sponsor requires. 

12. According to the Departmental notes, the applicant was travelled outside of Australia while holding a Subclass 020 bridging visa B (or BV-B) between 16 March 2018 and 15 April 2018 and between 4 December 2018 and 22 January 2019.

13. On file are four (4) statutory declarations signed by the applicant. Each are dated 24 March 2019. One of the statutory declarations indicating the applicant has a registered business name for a cleaning business; that the applciant occasionally worked some hours for extra income; but otherwise, was a full-time carer for the sponsor. The other statutory declaration indicated that the sponsor is married and has two adult children; that the applicant is close to the sponsor; that she has many suitable skills for providing care to her mother and is willing and able to provide assistance to the sponsor. It further states her mother requires continuous assistance and this will the case as long as she lives; that her father does not have the necessary skills to assist her mother; and the family do not want her mother to be institutionalised as she is mentally fragile and fearful of strangers.  A further statutory declaration indicating that when the applciant travelled in 2018 and 2019, and her father assisted her mother; while another statutory declaration states her brother is not willing or able to provide care to his mother, that he is working on a full-time basis, and he is in a de facto relationship.

14. The parties also submitted a letter from psychiatrist dated 20 Marcy 2019 indicating the applicant’s mother has post-traumatic stress disorder and recurrent depressive disorder as psychiatric conditions; and hypertension, diabetes mellitus Type 2, hypercholesterolemia; asthma and osteoarthrosis as physical medical conditions.

15. The applicant’s father submitted a statutory declaration dated 24 March 2019 indicating that he cannot provide the necessary and committed assistance to his wife of 45 years because of his own health problems and because he is self-employed. He also states his wife finds it distressing when he assists her for hygiene related needs; that his wife does not speak English and that mental health problems started in Serbia

16. Velimir Koljanian provided a statutory declaration dated 24 March 2019 indicating that he was working full time and looking to start a family with his de facto spouse. It also mentions it is not culturally appropriate for his to provide care to his mother as the very idea of it is distressing and humiliating. There were no supporting documents.

17. On 9 July 2019, a delegate acting on behalf of the Minister refused to grant the applicant a Carer visa. The delegate made her decision the applicant did not satisfy clause 836.211 on the basis that part (1)(e)(ii) of regulation 1.15AA had not been met. The delegate stated that she acknowledged the sponsor has a preference for receiving the care required at home from a family member but she could not be satisfied that the information provided demonstrated the availability of residential facilities, or a combination of family support and in-home assistance from welfare, nursing or community services had been fully investigated, and that statement from the sponsor’s psychiatrist claimed services were available to the sponsor.

    Information received by the Tribunal

18. On 17 July 2019, the applicant validly applied for the delegate’s refusal decision to be reviewed by the Tribunal. Attached to the application for review was a copy of the delegate’s decision record and a legal submission by the representative.

19. On 18 March 2022, the Tribunal received an update CVAC indicating the at applciant has an impairment rating of 70.

20. ON 24 November 2022, the Tribunal received the following documents:

    ·     The applicant’s Certificate III in Individual Support completed in September 2020;

    ·     A letter by the sponsor’s psychiatrist dated 331 December 2021 which indicates the sponsor has survived several surgical interventions and that the sponsor’s husband has significant and mental health problems and is of advanced age.

    ·     A birth certificate indicating that the applicant’s brother is father to son born on 30 April 2021.

    ·     A statutory declaration by the applicant’s brother indicating he has familial duties which prevent him from assisting his mother. It is dated 22 November 2022.

    ·     A statutory declaration by the applicant’s father indicating his health has deteriorated, that he has undertaken heart surgy and his mental health conditions, including insomnia, worsened. which prevent him from assisting his mother. It is dated 8 November 2022.

    ·     An October 2022 email to the applicant from Australian Croatian Community Services (ACCS) indicating that its Footscray, Dandenong and Bell Park facilities have no vacancies, but the sponsor can be considered to be placed into its waiting list. It noted the sponsor has not undertaken an assessment for either Commonwealth Home Support Programme or the Home Care Package.  

    ·     Recent emails to the applciant from various aged care and other service providers: Autumn Aged Car, Blue Cross homecare, McKenzie Aged Care Group; Micare, the Serbian Community Association in Australia Inc; Tashcare; Uniting AgeWell, The Care List.

    ·     A letter from MyAgedCare indicating the sponsor has registered with MyAgedCare on 5 November 2022 and that an assessment was pending.

    ·     Various screenshots of community service and aged care providers from the MyAgedCare website and the internet in general. 

    ·     Information from the National Disability Insurance Scheme (NDIS) e indicating the sponsor would not be eligible for the services.

    ·     Various bank account statements and identity documents

21. As mentioned above, the applicant and the sponsor attended a scheduled hearing on 1 December 2022.

22. In a post hearing submission, the representative submitted the following documents to the Tribunal on 6 December 2022:

    ·     A further legal submission by the parties’ representative.

    ·     Commonwealth Bank statements from 2017 and 2018 indicating that the applicant’s brother obtained a mortgage of around 700,000 Australian dollars.

    ·     

    A MyAgedCare Assessment dated 29 November 2022 indicating the sponsor, following an aged care assessment on 9 November 2022 was eligible of a Home Care Package Level 4 Medium Priority required admission to residential care in the absence of a full-time carer, and advised consideration of high priority if care circumstances changed.

    
    
    

    APPLICANT IS A CARER

    Whether the applicant is a carer

23. 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.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

24. 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.

25. It is not in dispute the applicant is a relation of the Australian relative, or that the applicant does not meet the definitions of ‘relative’ and ‘close relative’ in reg 1.03. Neither is it in dispute that the sponsor as the relative in question is an Australian citizen who is ‘usually resident’ in Australia.

26. Therefore, as the applicant is the daughter of the Australian relative, the applicant is a relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

27. 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.

28. 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 IMI 07/013, or issued by a specified health provider in relation to a review of such an opinion.

29. On examination of the March 2022 CVAC received by the Tribunal, it is issued by BUPA Medical Visa Services to the abovementioned person with a medical condition.

30. Legislative Instrument IMMI 07/013 specified BUPA Medical Visa Services as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).

31. The certificate specifies that:

    ·     the caree has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life;

    ·     the impairment has an impairment table rating specified in the certificate; and

    ·     because of the medical condition, the caree 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.

32. The CVAC indicates the resident in this matter has a medical condition causing impairments of the person’s ability to attend the practical aspects of daily life; an impairment rating of 70 in accordance; and because of the medical condition, the person has and will condition to have for at least two years, a need for direct condition assistance in attending to the practical aspects of daily life

33. Regulation 1.15AA(3) stipulates that the opinion in a certificate from the health service provider is to be taken as correct for the purposes of whether or not the applicant satisfies the impairment criterion.

34. 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.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

35. 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.

36. In the present case, the person with the medical condition is an Australian citizen and has been since the year 2000. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

37. 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.

38. In the present case, the impairment rating specified in the certificate is 70. This rating exceeds the impairment rating 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)

39. 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.

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

    Assistance cannot be reasonably obtained by other relatives– reg 1.15AA(1)(e)(i))

41. Part (1)(e)(i) of regulation 1.15AA 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.

42. The Tribunal notes that the delegate’s decision did not make comments or findings about this subregulations.

43. In this matter, the other relatives of the Australian relative (the sponsor) who are Australian citizens, permanent residents or eligible NZ citizens, are the sponsor’s husband and the sponsor’s son.

44. There were some information indicating that at the time of the delegate’s decision that assistance could have been reasonably be provided by these relatives.

45. As it indicated to the Tribunal that the sponsor did not require the applicant as a full-time carer, it asked the applicant to explain her absences between 16 March 2018 and 15 April 2018 and between 4 December 2018 and 22 January 2019. The applicant claimed that sponsor prepared frozen meals and arranged a friend to bathe her mother and to administer medication; otherwise, the sponsor husband assisted with her daily activities in a limited manner. The applciant claimed she had to return to Serbia due to the birth of one of her grandchildren.

46. The applciant also explained that her father had not been fit and healthy enough to provide assistance to the sponsor because his PTSD and a number of serious surgeries in recent times affected his ability to care for his wife and that his health has continued to decline since the time of application in 2018.

47. On balance, the Tribunal accepts that the father of the applicant (the sponsor’s husband) is relatively psychologically and physically frail, aged, and was not a suitable relative able to provide the required assistance to the sponsor at the time of making this decision.

48. The Tribunal also enquired into the purpose of the applciant’s cleaning business as it indicated that she was a full-time carer. The applicant maintained that she earned very limited income as she was not adequately supported in Australia and the business was registered as she wished to be compliant with Australia’s tax laws. With no evidence to the contrary, the Tribunal accepts this explanation.

49. The Tribunal also asked into the reasons the applicant’s mother had not undertaken an aged care assessment which could have assisted her mother’s other relatives in providing support. The sponsor only undertook an aged care assessment after the hearing invitation and the Tribunal received an MyAgedCare letter in a post hearing submission that indicated the sponsor was eligible for in-home support at Level 4 and that she would require residential aged care assistance in the absence of the full-time caring responsibilities. The applicant explained that her mother had been highly reluctant due to a heightened fear of strangers, reflecting her PTSD diagnosis.

50. This had been relevant to the Tribunal because had the sponsor been able to access an adequate level of home care support funded by Australian taxpayers, then, in combination of support from the other relative, the applicant’s brother throughout this visa application’s assessment.

51. The applicant provided various reasons including her brother’s unwillingness to provide personal hygiene for his mother; her brother’s characteristic disinterest and neglectful behaviour towards his parents’ wellbeing in favour of his own pursuits; and his tempestuous and time-consuming relationship with his then girlfriend. The Tribunal said to the applciant that ordinarily this are very weak reasons and that while her brother’s behaviour demonstrated he was unwilling to provide his mother the required assistance, it did not demonstrate he was unable to do so.

1. The applciant then disclosed that her brother’s ongoing alcoholic drinking affected him, indicating to the Tribunal him to be an emotionally dysfunctional person.

2. The Tribunal provided a post hearing opportunity to indicate whether the applicant’s brother had any financial reasons as to why he may have unable to provide assistance to his mother at the time of application. The Tribunal later received financial documents from the Commonwealth Bank of Australia to the applciant’s brother indicating he had 700,000 Australian dollar home loan which he acquired in 2017 and that he continues to pay down that mortgage. Also accepted is the applicant’s brother is now in long term de facto relationship and has a biological child of his own.

3. On balance, the Tribunal accepts this other relative of the Australian relative (the sponsor’s son), that there is sufficient evidence that the assistance the sponsor needs cannot reasonably be provided by him. In making this finding, the Tribunal has been cognisant that the cumulative impact on caring for the sponsor will unreasonably put the applicant’s brother into financial hardship and that he was not willing and able to provide the required care.

4. Noting the above findings about other relatives of the Australian relative, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, therefore the requirements of reg 1.15AA(1)(e)(i) are met.

   Assistance cannot be reasonably obtained from services in Australia –reg 1.15AA(1)(e)(ii)

5. Regulation 1.15AA(1)(e)(ii) requires that the assistance required by the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

6. In 2018, the Australian relative (the sponsor) in this matter received an impairment rating of 70, indicating a high degree of infirmity and care required. However, there was no aged care assessment to provide a guide as to the eligible services the sponsor had been entitled. As the delegate noted in the decision record, the available information provided demonstrated the availability of residential facilities, or a combination of family support and in-home assistance from welfare, nursing or community services had not been fully investigated.

7. In examining the correspondence between the applciant and various aged care and community service providers, the Tribunal notes that the applciant has only recently undertaken efforts to locate suitable residential services. It also notes no aged care assessment was undertaken until very recently and those services providers were not provided with any assessment. Furthermore, when service providers informed the applicant, no vacancies were currently available does not mean services are not obtainable through waitlisting. The Tribunal has concluded that the applicant attempts to contact such provider about obtainable services in the community was half-hearted and not supportive of her claim required assistance to the sponsor services were unobtainable.

8. During the hearing, the Tribunal enquired whether there are any other reasons the sponsor cannot reasonably obtain services in the community.

9. The applicant outlined the number of progressively deteriorating physical conditions including muscular dystrophy and osteoarthritis that the sponsor. These conditions, in combination with other medical problems, required close and constant monitoring to prevent injuries through falls. The applicant was adamant that services in the community, including aged care homes, would not be reasonably able to provide the kind of intensive supervision she currently provides. 

10. Moreover, the applicant outlined to the Tribunal that her mother had been deeply disturbed by her experiences of displacement during the Croatia’s war of independence from a dissolving Yugoslav federation in early 1990s. Specifically, the applicant’s parents had been caught in the crossfire as they had lived close to the Croatian-Serbian border and that the fighting forced them to flee to Bosnia until the war concluded. The applicant claimed that her mother’s paranoia extended to severe emotional reactions to hearing the Croatian language spoken.

11. The submitted psychiatric reports indicate the sponsor suffers PTSD, anxiety and depression. It mentions the PTSD was also attributed to the emotional and physical abuse the sponsor endured at the hands of her in-laws before migrating to Australia. It does not mention a clinic diagnosis of paranoia or paranoid personality disorder or that any conditions were attributable to war-time experiences.

12. However, the Tribunal accepts that sponsor has irrational and persistent feelings whereby she will be subject to the intrusive attention from strangers; that she has difficulties functioning socially or in environments unfamiliar to her; and that the sponsor has hair-trigger reactions to hearing Croatians, as claimed.

13. The applicant also added that that she feared culturally appropriated services for her mother would not be reasonably obtainable from residential aged care and in-home support. In particular, she claimed her mother required Serbian-speaking staff, familiar Serbian food and Orthodox spiritual services as it was her mother’s practice of fasting and dry fasting (or xerophagy or no oil or butter). (In Orthodox practice, fasting includes most Wednesdays and Fridays throughout the year except for the fast free periods such as Paschaltide, the week after Pentecost and 11 days after Christmas).  The applcant also pointed out that there were no Serbian specific service providers of residential age or even in-home support in the community.

14. When cumulatively considering the level and kind of care available in the community, the Tribunal assesses that the assistance the Australian relative’s complex physical and psychiatric conditions cannot not be reasonably obtainable in the community. In this regard, it has placed weight on the manifestations of the applciant’s clinically diagnosed PTSD and anxiety whereby the sponsor experiences distressing but irrational fears of strangers intruding into her family, cultural and religious practices. As the Tribunal was unable to identify any culturally suitable Serbian-orientated services providers in the Melbourne metropolitan area, it has found that any placement of the sponsor in a residential home would not be reasonably obtainable from welfare, nursing or community services, in the sense, such services are culturally appropriate or available in the context of the sponsor’s complex needs. In the absence of culturally appropriate services, the Tribunal reasonably assesses residential age care will severely and adversely affect her psychiatric and other conditions.  The Tribunal does not accept the sponsor’s desire to have the applicant care for her is merely a preference for receiving at home care from a family member.

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

    Willing and able – reg 1.15AA(1)(f)

16. 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.

17. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicia     l 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.

18. The applicant has been providing continual and substantial care to the sponsor since 2018. She has also undertaken a Certificate III in Individual Support which completed in September 2020. The evidence strongly supports the applicant is willing and able to provide the sponsor with ongoing assistance of the kind needed.

19. 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).

    Conclusion on ‘Carer’ criterion

20. As the time of application, the applicant satisfies all the relevant criteria of regulation 1.15AA, the applicant for this visa under review is a carer of a person who is a member of the same family unit as a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident).

21. Therefore, the Tribunal is satisfied the applicant is a carer, pursuant to cl 836.212 at the time of application.

22. Having examined the relevant material and for the reasons outlined above, the Tribunal is also satisfied the applicant is a carer of person referred to in clause 836.212 at the time of decision, pursuant to cl 836.221.

23. Conclusion

24. At the time of decision, the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.

25. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.

    DECISION

26. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:

    ·cl 836.221 of Schedule 2 to the Regulations.

    Brendan Darcy
    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.