Misgena (Migration)

[2023] AATA 2050

Misgena (Migration) [2023] AATA 2050 (16 June 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tirhas Woldu Misgena

VISA APPLICANTS:  Mrs Missgena Abeba

Ms Momina Mohamed Omer

CASE NUMBER:  2206425

HOME AFFAIRS REFERENCE(S):           OSF2019/021728

MEMBER:  Justin Meyer

DATE OF ORAL DECISION:  16 June 2023

DATE OF WRITTEN STATEMENT:          6 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

·cl 116.221 of Schedule 2 to the Regulations

In relation to the secondary applicant, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

Statement made on 06 July 2023 at 4:19pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – debilitated from a stroke – assistance cannot reasonably be provided/obtained – other relatives – other responsibilities – community services – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

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 1 March 2022 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

1. The visa applicants applied for the visa on 18 October 2019. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.221.

1. The delegate refused to grant the visas on the basis that cl 116.221 was not met because (per his decision):

   The applicant has failed to provide any current documents to demonstrate that services from community health services and hospital and nursing services in Australia cannot be reasonably obtained.

In the absence of any current supporting documents of what government services and external services are available from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service, I do not find that it has been demonstrated that subregulation 1.15AA (1)(e)(ii) has been met.

As the requirement of subregulation 1.15AA(1)(e)(ii) has not been met, I further find that regulation 1.15AA (1)(e) within the definition of ‘carer’ is not met.

As I have determined that regulation 1.15AA (1)(e)(ii) within the definition of ‘carer’ at Regulation 1.15AA is not met at time of decision on this application, I also find that Clause 116.221 of Schedule 2 of the regulations is not met.

1. The review applicant appeared before the Tribunal on 16 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the Primary Visa Applicant Missgena Abeba, and from the review applicant’s daughter Alana Abreha Gebrekirstos

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Tigrinya and English languages.

1. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

1. The Tribunal gave its decision on the review at the conclusion of the hearing held on 16 June 2023. The following are the written reasons for that decision.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the assistance the review applicant (sponsor) requires can be reasonably obtained from any other relative of the review applicant (sponsor) or from welfare, hospital, nursing or community services in Australia.

Are the sponsorship requirements met?

1. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations. ‘Spouse’ is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s 5CB of the Act).

Family relationships

1. The relevant family relationships in this case are:

·Mrs Tirhas Woldu Misgena (the review applicant (sponsor)), a 56 year-old mother, and an Australian citizen.

·Ms Abeba Woldu Missgena, (the primary visa applicant), the 54 year-old sister of the sponsor, who is Eritrean.

·The second visa applicant, (Momina Mohamed Omer) is the primary visa applicant’s daughter, aged 24.

The claims

1. The review applicant (sponsor) in essence claims that only her sister can provide the type of care that she needs.

The conditions of the review applicant (sponsor)

1. The review applicant’s (sponsor’s) GP, Dr Pragya Sharma wrote a report of 25 May 2023 stating that she suffers from:

·Type 2 Diabetes.

·Hypertension.

·Hyperparathyroidism and has a recent stoke which has caused hemiparesis of her it side of body and homonymous.

·Hemianopia right eye.

·The GP goes on to write that she is very unstable and needs ongoing assistance.

·Her children have to take leave to help her physically at home – also, they are unable to do work as they have to care for her.

·She does not have any immediate family in Australia to help her.

·She also suffers from anxiety and depression affecting her mental health.

1. There are in excess of 50 entries for various conditions and consultations with this doctor over a decade.

1. The applicant was on the following medications and supplements:

·Gliclazide MR Tablet (Gliclazide)

·Metoprolol Sandoz Tablet (Metoprolol Tartrate)

·Omeprazole Ec Capsule (Omeprazole)

·Osteomol 665 Paracetamol Mr Tablet (Paracetamol)

·Ostevit-D Vitamin D3

·One-A-Week Capsule (Colecalciferol)

·Twynsta Tablet (Telmisartan/Amlodipine (As Besylate))

1. The review applicant (sponsor) has had previous BMI measurements, which as classified her as obese

1. There is management plan for chronic lower back pain, weight management and depression risk. Also mentioned are facet joint arthritis and shoulder pain.

1. Dr Michael G King, PhD, PhD, M.App.Sc.,M.Ed.,M.H.Sc MAPS, a clinical psychologist, wrote the review applicant (sponsor) has been an ongoing client at a clinical psychological practice from 2014. He wrote on 18 December 2018 that:

She is a person who has passed through a range of psychologically debilitating experiences and now is medically diagnosed as presenting with an unremitting level of "depression and anxiety" (medical referral Dr P Sharma, dated 12/11/2018).

…

The long term view of this client's mental health leads to the confirmation that her capacity for every day function is significantly diminished, to the extent that she requires ongoing and continuous assistance.

The functional severity of her condition is compared with the template of "disability" status under mental health conditions in the appended structured interview based on Table 5 of the Disability criteria. It can be seen than the combination of mental health factors and physical factors result in a ranking which is "near" or else clearly "beyond" the notional level of disability that triggers a consideration for formal classification of that status.

She is functionally impaired and requires ongoing assistance.

Such assistance would be provided by her sister, should the Department enable the sister to join Ms Misgena through the provision of a "carer" visa.

My own clinical view is that this provision of a carer will help to avoid further deterioration in the client's medical and mental health.

The claimed merits of having the visa applicant assisting in the review applicant (sponsor’s) care

1. Alana Gebrekirstos, the youngest daughter of the review applicant (sponsor), stated in a written declaration that:

·She lives at home with her mother, and her younger brother Christian.

·As the eldest child living at home, she assumed the role of sole carer and primary provider for her mother when she was a teenager and still in high school. Caring has included: taking her to her several medical appointments, being present at lengthy hospital admissions due to physical health-related complications, attending to her personal hygiene's and activities of daily living, and offering ongoing emotional support and reassurance to her.

·Her older siblings had all moved out to pursue further studies, employment opportunities and start their own families.

·The last few years have been challenging for her mother, but particularly for herself, significantly impacting her ability to focus on her future, employment and education.

·She is a Registered Psychiatric Nurse (full time) working shift work, and looking to complete a master’s degree.

·She often worries about her mother's ability to care for herself, as her functioning was drastically affected following her stroke.

·It is extremely challenging for her mother to complete everyday tasks, like dressing & bathing herself and eating. She is unable to be left alone at home, so her brother and her will often alternate between who will be at home to supervise her. She has even had to enable "Share My Location" on her phone, as there have been several instances in the past where her mother will wander out of the house, and become lost, unable to describe her surroundings, and becoming extremely distressed.

·She has had to leave and cut meetings and appointments at work short to attend to her mother, which has been detrimentally affecting her performance in clinical situations.

·She strongly believes that by having the visa applicant (and her daughter Momina) in Australia to support and care for her mother , this will enable and encourage her to live a more meaningful life, with the people she feels most comfortable and connected with, and who will provide long-term emotional and physical support.

·As described by her sister Wintana, their mother was devastated by the decision to reject her application to bring Abeba under the Other Family (Migrant) (Class BO) Visas by the [department]. As a result of this decision, she has personally witnessed a further decline in their mother's mental health. She feels hopeless and defeated by the limited support she is able to give to her, given her personal, work, and upcoming education commitments.

1. Wintana Gebrekirstos, the youngest daughter of the review applicant (sponsor), stated in a written declaration that:

·She is the eldest daughter of Tirhas Woldu Misgena.

·Her mother suffers from several crippling and debilitating lifelong physical and mental health conditions, which significantly impact on her ability to function and live a fruitful and meaningful life. A few years ago, her mother unfortunately suffered a stroke, and as a result, had a lengthy 6.5-week admission at the Sunshine Hospital Stroke and Neurology Unit. Following this admission, she engaged in daily intensive physical and mental health rehabilitation at the hospital’s Community Based Rehabilitation Centre. This was an unbelievably challenging time for her younger siblings and her, as appointments were often back-to-back, or spaced out during the day, meaning strenuous efforts and measures had to be taken to bring her to these appointments and also be there to provide moral support. This often involved missing work, university, or other commitments for some of the family.

·Undoubtedly, the stroke contributed to a rapid decline in the review applicant’s (sponsor’s), mental health, further exacerbating her depression and anxiety, which has been challenging for the family to manage, even now. In addition to the stroke, her mother also suffers from other physical health ailments, which date back to the early 2000s (Diabetes, High Blood Pressure, Cholesterol etc) which are all managed with medication and routine GP check-ups, and a previous workplace injury where she sustained lifelong back and knee problems. As a result, she was and is no longer able to work or support herself. The declarant’s siblings and her were just children at the time this happened, but very quickly filled in the carer role, making personal sacrifices to look after her, given her vulnerability and having no other immediate family in Australia to lean on or help. Their mother is linked in with clinical psychologist, Dr. Michael King at the Sunshine City Medical Centre who she has been seeing for several years for psychological support, but she continues to report that engagement has not been meaningful, as she has found it hard connecting with him, on cultural and religious grounds.

·The siblings have found it incredibly difficult to continuously support their mother over the years, while also trying to manage and navigate their own personal lives and families, work commitments and studies. Given their mother’s complexities and high needs, they have made several attempts to link/advocate on her behalf for additional supports via NDIS and Stroke Line. The review applicant (sponsor) has however refused these supports, as she simply does not feel comfortable welcoming strangers into her home, let alone assisting her with her personal hygiene and activities of daily living, as a result of past personal traumas and her heightened anxiety. The review applicant (sponsor), has disclosed to her children that she feeling as though she is a "burden to her children", due to her ongoing physical and mental health conditions. The siblings have had several discussions with their mother around what other supports outside their immediate family she may consider having. She has insisted that the only emotional and physical support she would find beneficial and meaningful, could be provided to her via her sister, Abeba Woldu Misgena, who could also relieve the siblings from direct carer responsibilities.

·The review applicant (sponsor), the youngest sister Alana. and Sally Adams (her social worker), have been working together since 2019 on the visa application [and quoting directly from this daughter’ written statement]:

“Given the initial time frame allocated for the documents to be submitted, my sister contacted the processing centre in Perth to request an extension of

time to submit additional paperwork. The request for additional time to submit these documents coincided with various contributing factors, which included: the tragic passing of our father (who at the time we were still grieving the loss of), an active war occurring in Sudan where Abeba and her daughter are (resulting in complete disruption of communication, power outages , and electronic connectivity issues), the Perth office shutting over the Christmas period and therefore delays in providing and receiving timely communication, the COVID-19 Pandemic and multiple lockdowns, and our mother's social worker Sally going on extended annual leave (Sally has been a vital member in helping our family throughout this entire process). Although the application was supported by medical documents outlining our mothers physical and mental health conditions and the need for a carer, she was disheartened by the decision to reject it, and will often ruminate on this and is therefore wanting to dispute this with the AAT.

The claimed merits of having the visa applicant assisting in the review applicant (sponsor’s) care

1. The visa applicant and her family explained the need for this carer arrangement in oral evidence at the hearing. The Tribunal found this evidence to be by and large straightforward and genuine.

1. The review applicant (sponsor) said that she had lived in a home in Victoria for 22 years. The brother of her husband had sponsored her and her children to come to Australia.

1. She lived with Alana and Christian, her children. Alana she confirmed worked as a nurse and Christian was four years into university. She is close to the visa applicant, who is the only sister that she has left in Eritrea.

1. The review applicant (sponsor) said that she had little to do with the Australian Eritrean community, living away from areas where Eritreans have tended to settle. She only had a friend who was a good distance away, who sometimes visits.

1. When she was affected by stroke someone came to the home with meals but she told them to stop because of the bad quality of the food. There was some house cleaning after that. She said she was in poor condition at that time. The Tribunal asked who was doing the cooking and cleaning at present and the applicant said Alana and Christian.

1. She prefers not to take the food from outside help. She cannot cook for herself. She cannot eat non-Eritrean food and even when it is Eritrean food and cooked outside it makes her vomit.

1. The review applicant (sponsor) can only occasionally go to local shops (and not a large mall for example) and is taken there by her son.

1. She barely sleeps until 1am she said, as she finds digestion to be a problem. She eventually sleeps until somewhere from 1am to between 6am and 8am. She has 12 tablets per day. At midday she must take two tablets and at night she takes ten.

1. I asked if she needed help getting out of bed. She replied that sometimes she did, and that the bed is very near the wall and she uses a stick and leans against it in an effort to get out. The passageway in her house she said was very narrow. She has not had falls but can feel faint and then has to “throw herself on the walls” to stay upright.

1. The Tribunal enquired whether there was always someone at home to care for her. She said that this was the case. It was getting harder over time for them to care for her. The children also have their own lives. Her eldest child lives a considerable distance away and another daughter is estranged from her. Alana is very busy with her work. When she brings her outside food she cannot eat it. Alana also has shift work which is inconvenient. Alana prepares breakfast and tends to come home at 5pm or 6pm.

1. Christian does the shopping for her, usually three times a week. He is looking for a job. The Tribunal assumes that he will eventually find one and will have substantially less time for his mother.

1. Only her sister is viable as a care giver – she understands the review applicant (sponsor), and knows her character and behaviour. They talk a good deal on the telephone and she understands her problems. The review applicant (sponsor) has travelled to Eritrea in the past and understood her. Her sister has no professional experience caring for others, but cared for their mother before she died.

1. There are no other family or community services that could help her she said. She tried these but she was not successful. It did not work and she had to stop everything. She needs help with going to the toilet from her son. He prepares the dishes and the plates. Her daughter is being prevented from getting a new job and advancement at another location because of their situation.

1. The review applicant (sponsor) said she has anxiety when others come into the house. She has high blood pressure. Her happier moments are for example when Alana takes her to the cinema, but she has little happiness.

1. The review applicant (sponsor) has limited English skills, but she can communicate in, and understand, English.

1. She said she had been to physiotherapy sessions referred by her doctor and had done group therapy sessions.

1. The review applicant (sponsor) said that she felt guilty having the help of her children and believed that her sister if she could come would help her.

The review applicant’s (sponsor’s) daughter Alana Abreha Gebrekirstos

1. The witness said that her mother became bewildered and needed constant supervision. At times she and her siblings would have to leave work to help her.

1. She essentially repeated the contents of her written statement per the above.

The visa applicant, Mrs Missgena Abeba

1. The visa applicant gave evidence by telephone. She knew of the hypertension and diabetic conditions of her sister. She was aware in detail of the stroke and its effects.

1. The gist of the visa applicant’s evidence was that her sister was struggling and the children were increasingly under pressure. Her sister had difficulty walking and was crippled. Her hand was paralysed. The visa applicant said she could cook for her, and although she was not a professional carer, she had looked after her mother when she was old and could do the task.

Sally Adams (social worker)

1. Ms Adams had long been involved with the family as a social worker in the local government area of the review applicant (sponsor). There was no external 24 hour care available as was needed. The review applicant (sponsor) is too young for a nursing home. Ms Adams said that the review applicant (sponsor) was very close to her sister. She also said she gets upset easily.

Analysis

1. The review applicant’s (sponsor’s) children are her family in Australia and I accept from consistent oral and written evidence that they generally have been providing care but have families of their own, full time work or prospective full time work, or have full time studies, or are estranged, respectively. I accept that they cannot fully assist the applicant with her needs.

1. At present the review applicant (sponsor) receives limited care from two of her children with whom she lives. But this is restricted due to other responsibilities. I find the applicant is unable to work. She has limited English skills, and is significantly debilitated by having had a stroke. I find that she spends her days with little communication with others outside of family

   , rarely leaves the house and has to spend considerable time on medical appointments and treatments.

1. The Tribunal was left with an impression of a woman in her mid-50s who was despairing about her situation.

1. The prospect of help from the community sector or government appears to be slim. The review applicant (sponsor). Her involvement with the Eritrean community is minimal. The community her area is not large

1. There do not seem to be specific programs or intensive assistance for the applicant from the government or community sector, that have worked for her in the past or would be effective for her in the future. Ms Adams gave useful evidence here. That help which exists is limited, but I also accept that there is another impediment, which is that the review applicant (sponsor) is sensitive, disconcerted by strangers and reluctant to be touched and helped. I accept that there are cultural barriers as well. I also accept that she is a member of a social/ethnic group which might be concerned about outsiders. She also has a considerable disability and health conditions and departing his house and new situations are an issue.

1. The prospect of being in a facility is not feasible, as she is well below nursing home eligibility age, and for example, is used to Eritrean food which would be unlikely to be accommodated.

1. After examining her options, the Tribunal has come to the conclusion that there is negligible care outside of available family, in this case her sister.

1. I am satisfied that the visa applicant has been in constant contact with the review applicant (sponsor) over the years. The visa applicant also gave corroborative unvarnished evidence on these points. Having questioned her in detail she had a viable plan for helping her sister and knew her situation. She was willing and able to undertake a serious role.

1. I have had the advantage of interviewing the parties, which did not occur when the delegate was making their decision.

1. I am satisfied that the visa applicant is willing and able to provide the care and it is care not otherwise available. Having questioned the parties in detail I find the other relatives in Australia are either young people with their own serious work, family and study demands or

estranged. Their ability to help at this needs level is not present despite the supportive and commendable care that they already give.

1. I accept from consistent evidence that the visa applicant is that person and no other person can match this or provide the care needed. It appears that the review applicant (sponsor) accepts without qualification the care of her sister.

1. There is a wide variety of medical and other evidence to support these conclusions.

1. I also find that the review applicant (sponsor) has in fact sought information and help outside of their family. They have evidenced enquiries of agencies and other services.

1. The Tribunal has had the benefit of a detailed submission and an extensive hearing which explains its divergence from the delegate’s approach.

Findings

1. I am satisfied that the assistance the review applicant (sponsor) requires cannot be reasonably obtained from any other relative or from welfare, hospital, nursing or community services in Australia. I find therefore that the applicant is a carer within the meaning of Regulation 1.15AA(1) and meets 1.15AA (1) (e) (i) and (ii) specifically. As a result I find that the applicant meets the requirement at subclause 116.221 of the Migration Regulations.

1. The 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).

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

1. The visa applicant is a relative of the resident shown by identity documents to be her sister, as noted by the delegate.

1. 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 visa applicant’s sister.

1. Therefore, as the visa applicant is the sister of the Australian relative, the visa 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)

1. 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.

1. 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 or issued by a specified health provider in relation to a review of such an opinion.

1. There is a certificate as required in the regulations, as provided to the Tribunal. The certificate meets the requirements of reg 1.15AA(2).

1. According to the certificate the resident has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life.

1. The impairment has an impairment table rating specified in the certificate because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life

1. 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)

1. 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.

1. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

Impairment rating – reg 1.15AA(1)(c)

1. 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.

1. In the present case, the impairment rating specified in the certificate is 30. This rating is meets the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

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

1. 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. For the reasons detailed above I am satisfied of this.

1. 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 reg 1.15AA(1)(e) are met.

Willing and able – reg 1.15AA(1)(f)

1. 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, it should be noted that ‘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.

1. 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.

1. For the reasons stated above I find that the visa applicant is both willing and able to provide substantial and continuing assistance required.

1. Therefore, the visa 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).

1. There is a valid sponsorship that is still in force. Therefore, at the time of application, the visa applicant was sponsored as required by the legislation and satisfies cl.116.212.

1. Given these findings the Tribunal concludes that at the time of decision the visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies

   cl 116.221.

1. 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 116 visa.

Secondary applicant

1. The second named applicant, Momina Mohamed Omer, has applied for the grant of a Carer (subclass 116) visa on the basis that she is the child of the primary applicant, Abeba Woldu Missgena. She is aged 24.

1. The Tribunal is satisfied that the sponsorship mentioned in cl.116.221 of the person who satisfies the primary criteria includes the sponsorship of the family member.

DECISION

1. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer visa) are met:

   ·cl.116.221 of Schedule 2 to the Regulations

   In relation to the secondary applicant, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for the grant of the visa.

   Justin Meyer 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.