Markovska (Migration)

[2022] AATA 3605

Markovska (Migration) [2022] AATA 3605 (18 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Zagorka Markovska
Mr Blagoja Markovski

REPRESENTATIVE:  Mr Vincent Cheng (MARN: 0959348)

CASE NUMBER:  2018064

HOME AFFAIRS REFERENCE(S):          CLF2018/191772

MEMBER:Russell Matheson

DATE:18 October 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas 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 18 October 2022 at 3:54pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance cannot be reasonably provided by other specified relatives or obtained from service providers – other relatives’ family, work, study, incapacity or own caring commitments – small amount of in-home medical care – limited attempts to investigate service providers – nursing home placement possible but not reasonable – cultural and language requirements and preferences – applicant’s ongoing care – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e), (f), Schedule 2, cl 836.221

CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Jajo v MIBP [2013] FCCA 1554
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 2 December 2020 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 applicants applied for the visa on 16 August 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.

3. 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 includes cl 836.221. 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.

4. The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant is the carer of an Australian relative.

5. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicants appeared before the Tribunal on 9 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Alex Markovski the son of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Macedonian and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant (Mrs Zagorka Markovska)
    is the carer of the resident (Ms Danica Kostandinov) at the time of this decision. For the purposes of this application, the resident is the sponsor.

10. The Tribunal received a copy of the delegate’s decision with the application for review. The delegate determined that reg 1 15AA(1)(e)(ii) and (f) within the definition of ‘Carer’ at reg 1.15AA were not met at time of its decision. The delegate found for those reasons cl 836.221 of Schedule 2 was not met.

    Whether the applicant has claimed to be the ‘carer’

11. 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)

12. Regulation 1.15AA(1)(a) requires the applicant to be a “relative” of the resident (within the meaning of reg 1.03). In the present case, the resident is identified as the applicant’s aunt. Based on the evidence, the Tribunal accepts that the resident is the aunt of the applicant. Therefore, the applicant is a relative of the resident within the meaning of r.1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

13. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the 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.

14. 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.

15. The Tribunal has been provided with a Carer Visa Assessment Certificate (CVAC or certificate) dated 9 January 2022 in respect of the resident. The Tribunal notes that it is in relation to a medical assessment carried out on behalf of Bupa Medical Visa Services and is signed by the medical adviser who carried out the assessment. The Tribunal further notes that the CVAC states that the Australian resident has medical conditions that are causing impairments of her ability to attend to the practical aspects of daily life, that these impairments are assigned ratings for the purposes of the impairment table, and that because of the medical condition the resident 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.

16. The Tribunal is satisfied as to the genuineness of the certificate and finds that it meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

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

17. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident, or eligible New Zealand citizen. In the present case, the person with the medical condition (the resident) is an Australian citizen Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

18. 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.

19. In the present case, the impairment rating specified in the certificate is 30. This rating is equal to 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 he or she is not the subject of the certificate) – r.1.15AA(1)(d)

20. Where the person to whom the certificate relates is not the resident, but a member of their family unit, reg 1.15AA(1)(d) requires the resident 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 because of the medical condition.

21. As the person to whom the certificate relates is the resident, r.1.15AA(1)(d) does not apply.

    Assistance cannot be reasonably obtained/provided – r.1.15AA(1)(e)

22. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the resident who is an Australian citizen, permanent resident, or an eligible New Zealand citizen; or obtained from welfare, hospital, nursing, or community services in Australia.

23. Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal now turns to the task of assessing the level and particulars of this assistance.

24. The examining doctor considered medical reports when assessing the resident Ms Markovska from the following:

    ·Dr Stacy Harris (General Practitioner), Camberwell Junction Medical Centre, dated 17 August 2020; and

    ·Dr Penelope Harvey (Geriatrician), Northern Health, dated 16 December 2016 and 4 April 2017.

25. According to the CVAC dated 9 January 2022, the resident has been diagnosed with the following medical conditions:

    ·Alzheimer’s disease, on Galantamine.

26. In the summary comments, the examining doctor relevantly stated as follows in relation to the resident:

    The resident has been diagnosed with Alzheimer’s disease and the family has noticed deterioration over the last six months in that her gait has deteriorated and indeed she has had a fall, and she is now incontinent of urine on a weekly basis. She confuses English and Macedonian more and doesn’t notice people can’t understand her, which would make it more for an English only carer to understand her. Objects are constantly lost all over the hose and she tends to hoard and put objects in the wrong places resulting in food and sanitation dangers. She needs prompting with most things but does perform these to higher level if it is a familiar actin like dressing. She cannot retain new information (eg: why is everyone wearing a mask) and because of her relatively well-preserved mobility, she is at risk of wandering, falling and getting herself into dangerous situations and she requires 24-hour supervision.

    Brain function: The resident has been diagnosed with Alzheimer’s disease and she has shown progressive deterioration over time.  She has significant problems with her memory in losing things constantly and requiring prompting to shower, dress and eat. She can no longer cook for herself and doesn’t understand masks at all. Her concentration is poor, she watches TV, but cannot discuss what she has seen, doesn’t read at all, she does a little gardening and enjoys simple conservations with family members. She is now unable to simple problem solve (eg: putting food in the fridge not the cutlery draw). Zagorka (the applicant) and her family perform all the planning, decisions and executive functions for her daily life as she can no longer remember. If a task is familiar, she can remember two steps (eg: put your bra and top on), but if the task is less familiar, only one instruction at a time and these often require frequent repetition. On questioning Danica (the resident) was not aware of the day month or year, could not read the time and could only remember one out of three objects at a minute and that it was summer, which was consistent with her described difficulties.

27. The examining doctor assessed the resident to require direct assistance with mobility, bathing/showering, toileting, dressing/grooming, eating, supervising medication, personal safety and transportation. The resident’s overall level of dependence with activities of daily living (ADL’s) is that she is fully dependent.

28. The applicant gave evidence that the resident sponsor needs assistance with all aspects of her life, and she is the only relative that is available and able to aid her 24/7. She further stated that she has experience in caring for people with Alzheimer’s disease and dementia, having cared for her mother and mother-in-law who both passed away in 1986 and 2009 respectively.

29. Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such an assessment: at [61].

30. Care may be provided collectively by more than one relative. In Jajo v MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.

31. Medical evidence before the Tribunal indicates that the resident sponsor Ms Danica Kostandinov has Alzheimer’s disease, that she has shown progressive deterioration over time, and that she has significant problems with her memory. The Tribunal accepts that the resident sponsor has considerable care needs due to her medical condition. The Tribunal accepts the claim and supporting medical evidence that the resident sponsor’s condition has deteriorated significantly since the issuance of the first CVAC Certificate concerning her medical conditions in July 2018 and the second CVAC Certificate issued in January 2022. The Tribunal notes that the resident sponsor’s overall level of dependence with ADL’s has changed from being partially dependent to fully dependent.

32. The Tribunal has received statutory declarations from the resident sponsor’s family members, including:

    ·Zagorka Markovska (the applicant)

    ·Alex Markovski (applicant’s son).

    ·George Kostandinov (resident’s son).

    ·Petar Kostandinov (resident’s son).

    ·Traiko Kostandinov (resident’s son).

    ·Lucy Kostandinov (resident’s daughter-in-law).

    ·Jordan Kostandinov (resident’s grandson).

    ·Nicholas Kostandinov (resident’s grandson).

    ·Thomas Mulov (resident’s nephew).

    ·George Mulov (resident’s nephew).

    ·Olivia Madden (resident’s granddaughter); and.

    ·Efy Karagiannis (resident’s daughter-in-law).

33. The Tribunal has considered the medical information and other evidence including the testimony of the applicant at the hearing. Based on this evidence, it finds that the resident requires assistance with the full range of functions, that her independent living skills are in the low range and that she is highly dependent on others to care for her and to support herself.

34. These may be said to be the practical aspects of daily life for which the resident sponsor has a need for direct assistance now, and for the next two years under subr.1.15AA(1)(b)(iv).

35. The Tribunal now turns to the question of whether the assistance cannot reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident or an eligible NZ citizen.

36. Based on the evidence before it, the Tribunal finds that the resident sponsor has three sons and a sister living in Australia, as well as two grandsons, three granddaughters and two nephews who are all aged 18 years or more. The Tribunal finds that these people are the relatives of the resident for the purposes of r.15AA(1)(e)(i).

37. The Tribunal has considered the statutory declarations from the resident sponsor’s Australian adult relatives and their ability to provide relevant assistance to the sponsor. The resident sponsor is an 82-year-old widow. Her Australian relatives are either working full-time, required to care for their own families, living interstate, and in the case of the younger family members, simply unequipped to provide the standard of care required by the resident sponsor.  

38. George Kostandinov (son) is the resident sponsor’s acting power of attorney. He is unable to provide care to her due to his work and family commitments. His wife Lucy is unable to provide care to the resident sponsor due to family commitments. His daughter Emily is studying full-time at university and does not have the requisite skills to care for the resident sponsor.

39. Traiko Kostandinov (son) is unable to assist the resident sponsor due to his own substantial family and work commitments.

40. Petar Kostandinov (son) is self-employed and travels daily to regional Victoria and is unable to assist the resident sponsor in a regular or meaningful capacity.

41. Nicholas Kostandinov (grandson) is studying full-time and does not have the requisite skills to care for the resident sponsor.

42. Dana Kostandinov (granddaughter) is somewhat estranged from her family and rarely visits the resident sponsor and is not willing or able to provide the care required.

43. Olivia Kostandinov (granddaughter) is caring for her two young children and as a result is not able to provide care to the resident sponsor.

44. Jordan Kostandinov (grandson) has work commitments and does not have the requisite skills to care for the resident sponsor.

45. Persika Mulov is the resident sponsors sister. She suffered a stroke and has been diagnosed with vascular dementia and requires constant care that is provided by her two sons, Thomas and George Mulov (the resident sponsor’s nephews). The resident sponsor’s nephews are therefore unable to contribute towards the care she requires.

46. The resident sponsor’s son (George) in his written submission notes that none of his mother’s relatives can care for her as she requires 24/7 care, which is supported by her doctor. He further submits that it is unreasonable to expect the resident sponsor’s family members to uproot their own lives, quit their employment and be separated from their families, and ultimately place undue stress on their own family units. He further states that due to the nature of his mother’s dementia, she is more at ease when she is surrounded by someone she knows and recognises, giving her familiarity and she becomes very stressed when encountering new situations and people. Additionally, if his mother is placed into a nursing home environment, it would only serve to confuse and stress the resident sponsor, not being able to converse with staff in her own Macedonian language, without even factoring in the added risk of COVID-19. He claims that the applicant’s presence provides a consistent and safer environment for the resident sponsor’s wellbeing, as her condition slowly deteriorates over time. The resident sponsor’s son also states that he has investigated obtaining in-home assistance from service providers in Victoria and concluded it would be both disjointed and prohibitively costly. The resident sponsor’s own doctor supports a continuation of the care arrangements provided by the applicant on the basis that the care being provide is most conductive to a favourable outcome regarding the resident sponsor’s wellbeing. He further advises against placing the resident sponsor in an aged care facility on the basis that she is at a much higher risk of contracting COVID-19 and dying from it and she would be deprived of culturally appropriate care in her own home.

47. The Tribunal notes that the resident sponsor did undertake an Aged Care Assessment via an ACAT in April 2017.  The resident sponsor was recommended for services/strategies such as personal care, social support, meals, home maintenance and that the family engage with the Alzheimer’s Association. At the hearing before the Tribunal the applicant discussed the support the resident sponsor receives in the home: a nurse attends the home Monday to Friday and checks the resident sponsor’s health and blood pressure, staying for approximately 15 minutes. The remaining care hours per week are carried out by the resident sponsor’s family, and principally by the applicant. There is limited evidence of any other services being sought to provide the care required to the resident sponsor.

1. Medical evidence submitted to the Tribunal makes it plain that the resident sponsor needs 24/7 care – an assertion that the Tribunal accepts. 

2. Based on the above findings, the Tribunal is satisfied that the assistance cannot reasonably be provided by the relevant relatives, either by themselves or in combination with each other and that as a result, r.1.15AA(1)(e)(i) is met.

3. The Tribunal now considers if the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

4. The Tribunal has considered the limited evidence that has been submitted pertaining to the availability of welfare, hospital, nursing or community services in providing the care and assistance the resident sponsor requires.  The Tribunal notes that the resident sponsor’s family have engaged in limited meaningful attempts to acquire any further services beyond those in-home services provided after the ACAT in 2017. Those ongoing nursing services are clearly inadequate and have required the constant and ongoing assistance and support of the applicant in ensuring the resident sponsor receives the care she requires.  The resident sponsor’s family have asserted that seeking these residential aged-care services would essentially be an exercise in futility as the resident sponsor will not accept the services, whilst the impact upon moving the resident sponsor to an aged-care facility would be particularly averse to her health and wellbeing. 

5. The Tribunal has considered whether the care the resident sponsor requires is reasonably obtainable from welfare, hospital, nursing or community services and whether her desire to be cared for by the applicant and remain at home with her family is a personal preference rather than a cultural factor. The Tribunal accepts that a place for the resident sponsor in an aged care residential provider could potentially be obtained.  The Tribunal has concluded however, in the specific circumstances of this case, that this would not be ‘reasonable’.  The Tribunal notes the specific and considerable needs of the resident sponsor – given that she is a widower aged in her eighties – and considers that her need for ongoing support provided by her family in the home – rather than in external residential care - is in the resident sponsor’s best interests. The Tribunal has placed considerable weight on the medical evidence that has collectively imparted the importance of the resident sponsor remaining in her home and continuing to be supported by her family rather than in residential aged-care. 

6. The Tribunal, based on the medical evidence submitted, including detailed written submissions from George Kostandinov and the representative and the oral testimony of the applicant which it found honest and genuine – accepts that the specific assistance the resident sponsor requires cannot be reasonably provided from welfare, hospital, nursing or community services. The applicant and the resident sponsor’s son George Kostandinov asserted that the lack of cultural adaptation, language barriers and the resident sponsor’s general opposition made service providers outside in home care unsuitable. The Tribunal is concerned with the potential consequences if the resident sponsor were to be placed in residential aged care outside of her home and family.  The resident sponsor has significant care needs which involve constant supervision and support.  She hallucinates and becomes confused due to her dementia which has worsened considerably in recent years. The Tribunal notes the medical evidence submitted that also asserts that the resident sponsor’s condition would be better managed by her remaining in her own home with the ongoing support of her niece together with the ‘in the home’ assistance.

7. The applicant and George Kostandinov have asserted that consistent with Biyiksiz v MIMIA [2004] FCA 814 and departmental policy, the obtainability of appropriate care must be assessed both in the context of the resident sponsor’s condition, the availability of suitable care outside the home, and the likely consequences for her being placed in care outside the home. The applicant in her written submissions stated that the resident sponsor’s medical condition requires constant supervision and assistance with even the most basic tasks and dementia is the primary cause of the need for such a high level of care.

8. The applicant believes that the evidence outlined in the Interim Report of the Royal Commission into Aged Care Quality and Safety of October 2019 highlights the significant risks dementia patients face in residential aged care. This risk, it is submitted, will be amplified by the sponsor’s inability to communicate with her carers in an external aged care environment. 

9. The Tribunal accepts the applicant’s and George Kostandinov‘s argument that the only alternative care arrangement to her continuing to provide care to her aunt (the resident sponsor) – which the Tribunal is satisfied she is doing and has so now for an ongoing period – is for the resident sponsor to enter a nursing home or other aged care facility on a full-time basis.  Her other family members in Australia are clearly, and the Tribunal agrees, not a viable option given their own circumstances in life. The applicant and George Kostandinov in written submissions and oral evidence submitted that a range of factors made entering residential aged-care unsuitable. These included the expense of an aged-care facility and a limit on suitable places; a reticence to send the resident sponsor (aunt/mother) to an aged-care facility during the COVID-19 pandemic due to the vastly increased risk factors to the resident sponsor; and a reluctance to send a woman aged in her eighties with little English language skills and dementia into an alien environment. 

10. The Tribunal notes the Interim Report of the Royal Commission into Aged Care Quality and Safety that was delivered in October 2019 and its highlighting of several failings in the aged care sector in Australia including neglect, abuse, incorrect management of the behavioural and psychological symptoms of dementia; and the physical and behavioural changes residential aged care can have, in some circumstances, on the elderly.  The Tribunal accepts that the Interim Report highlighted a range of concerning and distressing themes in a few elements in parts of the residential aged care sector.  The Tribunal does not however consider it germane to the particular and specific issue before the Tribunal – can the assistance the resident sponsor requires be obtained from welfare, hospital, nursing or community services in Australia.  The Interim Report does not replace the requirements of the Migration Act and Regulations.  Given the generality of the Royal Commission’s Interim Report findings and the applicant’s submissions on this matter, the Tribunal has given them limited weight in its consideration of this review. 

11. The Tribunal has noted the applicant’s concerns about the danger of COVID-19 in the residential aged care sector as well as the cost of utilising such services.  Whilst the Tribunal is understanding of these concerns, the applicant’s submissions on these matters have been general and lacking in specificity, particularly in relation to the financial impediments in residential aged-care. The Tribunal gives these specific submissions limited weight. 

12. Noting the resident sponsor’s considerable needs as well as the cultural and language factors that were submitted, the Tribunal is of the opinion the support and assistance she needs is best provided by her niece, the applicant who has already provided this support for multiple years. The applicant meets r.1.15AA(1)(e)(ii).

13. The Tribunal is 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 r.1.15AA(1)(e) are met. 

14. 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.

15. 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.

16. At the hearing and in her written submissions, the applicant stated she has lived with the resident sponsor and has been providing her with care and assistance since April 2018. The Tribunal questioned the applicant about the resident sponsor’s medical condition and history.  The Tribunal considered she was well versed and experienced in her aunt’s condition and her testimony was consistent with that of the resident sponsor’s medical specialists.

17. The Tribunal questioned the applicant about the assistance she was providing in relation to feeding, cooking, domestic cleaning, personal hygiene, shopping, giving medication, supervision and transport.  The Tribunal found the applicant’s evidence to be genuine and detailed.  Similarly, the applicant’s explanation of the resident sponsor’s daily routine was consistent and plausible.  The Tribunal is entirely satisfied that the applicant has been residing with her aunt, the resident sponsor since 2018 and has been providing the continual assistance, care and support required, with limited in-home support. She stated that she has no dependent children and no financial debts and is willing and able to care for the resident sponsor 24/7.

18. The Tribunal is satisfied that the applicant is willing to provide the substantial and continuing assistance of the kind needed.  The Tribunal notes that the resident sponsor’s care needs are considerable.  Nevertheless, the Tribunal is satisfied that the applicant is able to provide the substantial and continuing assistance of the kind needed: which involves continual supervision; meal preparation; cleaning; assistance with showering and toileting; assisting in dressing and grooming; laundry; and oversight of the resident sponsor at night when the resident sponsor may become distressed if left alone.   

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 r.1.15AA(1)(f).

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

21. 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

22. 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.

    Russell Matheson
    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.