Mousa (Migration) - [2019] AATA 3702

Mousa (Migration) [2019] AATA 3702 (12 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Steven Mousa
Mrs Sale Patroza
Master Santios Mousa
Miss Speranza Mousa
CASE NUMBER:  1805905
DIBP REFERENCE(S):  CLF2015/10276
MEMBER:Jane Marquard
DATE:12 March 2019
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. 836.212, 836.213 and 836.221 of Schedule 2 to the Regulations.

Statement made on 12 March 2019 at 2:45pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – Federal Circuit Court remittal – carer of the sponsor – assistance reasonably provided by another Australian relative – commitments of other family members – assistance provided by community services – deteriorated health of the sponsor and his wife – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 cls 836.212, 836.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA814
Jajo v MIBP [2013] FCCA 1554
MIMA v Lim (2001) 112 FCR 589
Minister for Immigration and Border Protection v Singh [2016] FCAFC 18
Vuong v MIAC [2013] FCCA 274
Xiang v MIMIA [2004] FCAFC 64
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The first named visa applicant is a 30 year old man from Iraq, and the other visa applicants are his wife, son and daughter. The family have been living in Australia since 2015. They arrived in Australia on visitor visas.
This is an application for review of a decision made by a delegate of the Minister for Immigration (the Department) on 27 July 2015 to refuse to grant the visa applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 17 February 2015. 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 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 Carer 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 which requires the visa applicant to be the carer of the sponsor, who in this case, is his father.
The delegate refused to grant the visas on the basis that cl.836.221 was not met, as the delegate was not satisfied that the visa applicant was the carer of his father, on the basis of the definition in reg.1.15AA.
On 9 May 2016 the Administrative Appeals Tribunal (the Tribunal), differently constituted, affirmed the decision of the Department.
On 23 February 2018 the Federal Circuit Court remitted the matter by consent to the Tribunal for reconsideration. This was on the basis that the Tribunal formerly constituted denied the Applicant procedural fairness and that this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 18. The delegate of the Department had issued a certificate pursuant to section 375A of the Migration Act 1958 (Cth) on 31 July 2015 and the existence of the certificate was not disclosed to the applicants in the course of the review by the Tribunal as it was formerly constituted.
In light of the remittal for reconsideration, this is a review of the decision of the Department on 27 July 2015 by the Tribunal differently constituted. On 24 February 2018 the visa applicants requested that the application include a further child, Sandriek, born on 27 March 2016. However, following the decision in MIMA v Lim (2001) 112 FCR 589, children born after the delegate’s decision are not included in their parent’s application, under r.208.
The applicants appeared before this Tribunal on 8 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
EVIDENCE
In coming to a decision, the Tribunal has taken into account the evidence before the Department and the Tribunal formerly constituted, as set out in the Tribunal decision dated 9 May 2016. This includes:
·List of medication for the sponsor;
·Medical reports for the sponsor;
·Receipts and brochure for the breathing apparatus used by the sponsor;
·Statutory declaration and medical report in relation to the sponsor’s wife dated 20 February 2015; and
·Statutory declarations and supporting evidence from Mrs Tanya Moussa, Mrs Selva Saad Gorgees, Ms Sonita Saad Gorgees, Ms Selesty Saad Gorgees, Mrs Noora Slaw Moussa, Mr Norman Yalda and Mr Steven Moussa.
The Tribunal has also taken into account new evidence provided to this Tribunal, discussed in more detail below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant is the carer of the sponsor.
Whether the applicant has claimed to be a ‘carer’ and is sponsored by the Australian relative
Clause 836.212 of the Regulations requires that at the time of application the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the first named visa applicant claims to be the carer of his father.
For the purposes of the carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl.836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations.
The Tribunal is satisfied that the first named applicant claimed to be a carer of an Australian relative, as his father is an Australian citizen.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl.836.212.
The applicant is sponsored by the Australian relative, his father, and therefore satisfies the requirements of cl.836.213.
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is the carer of the Australian relative. The term ‘carer’ is defined in r.1.15AA of the Regulations which is set out in the attachment to this decision.
Applicant is a relative of the resident – r.1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of r.1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the first named applicant’s father, and a number of documents have been provided to evidence this relationship.
The Tribunal is satisfied that the primary visa applicant is a relative of the Australian relative, his father, who is an Australian citizen usually resident in Australia.
Therefore, as the primary visa applicant is the son of the Australian relative, the primary visa applicant is a ‘relative’ of the resident within the meaning of r.1.03, and meets the requirements of r.1.15AA(1)(a).
Certification – r.1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that the relative has a certificate from a health service provider specified by the Minister, currently Bupa, which states that the Australian relative has a medical condition which is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life. Further, the Regulation requires that 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. The Regulation also requires 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.
The sponsor provided a Carer Visa Assessment Certificate from Bupa dated 29 January 2015. The Certificate states that the sponsor has a medical condition causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life, and this will continue for at least 2 years. According to the certificate, the sponsor requires direct assistance in the areas of hygiene (needs prompting, feels dizzy when bending down), with toileting (double incontinence 2-3x week), dressing/undressing/grooming (needs prompting), with eating (prompting to eat regularly), mobility, giving or supervising of medication and with transport.
The Tribunal is satisfied that the relative has this certificate in compliance with r.1.15AA(1)(b).
Impairment rating –r.1.15AA(1)(c)
Regulation 1.15AA(1)(c) requires that 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.
In this case, the impairment rating specified in the Carer Visa Assessment Certificate is 40. This exceeds the impairment rating specified by the relevant instrument, which is 30, and therefore meets the requirements of r.1.15AA(1)(c).
Certificate requirements – r.1.15AA(2)
For a certificate to meet r.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, or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal is satisfied that the Carer Visa Assessment Certificate is in place, signed and issued in relation to medical assessment carried out on behalf of a health provider specified by the Minister, which is Bupa.
The Tribunal finds that the certificate provided does meets the requirements of r.1.15AA(2).
Residency status of person with medical condition – r.1.15AA(1)(ba)
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition, the sponsor, is an Australian citizen. Accordingly, the requirements of r.1.15AA(1)(ba) are met.
Resident’s need for assistance (where s/he is not the subject of certificate) – r.1.15AA(1)(d)
As the person to whom the certificate relates is the Australian relative, r.1.15AA(1)(d) does not apply.
Assistance cannot reasonably be provided/obtained – r.1.15AA(1)(e)
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal previously constituted was not satisfied that assistance could not be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services. The findings of the Tribunal previously constituted are set out. In summary, below:
During the hearing, the applicant claimed his mother could not care for the sponsor because she needs a carer herself. However, even if family members help the sponsor’s wife in some aspects of her life, there is no evidence she requires a carer for her own needs. .. The Tribunal asked the applicant to comment on the Department’s finding that since most of the care the sponsor requires is supervision, there was no evidence the applicant’s mother was not able to perform that role. The applicant responded by claiming his father was forgetful and suffered from mental and psychological illness. He also said his mother was not able to shower the sponsor and he suffers incontinence on occasion. The applicant also stated the sponsor needs special food and his mother already has to prepare this as well as feed him.
No independent information was provided which would indicate that the sponsor’s wife does not have the mental and physical capacity to provide for most of the care requirements of the review applicant. There is also no evidence the sponsor requires a special diet.
Regarding the applicant’s sister Tanya Mousa, the applicant claimed she was already looking after their mother and her time is very limited because she has two children and attends TAFE. The applicant said his sister takes their mother to doctor’s appointments and performs other duties such as helping her shower, reminding her to take medication and helping her with errands. The applicant claimed his sister spends 10 to 15 hours a week providing care to his mother. As stated above, the Tribunal is not satisfied that the sponsor’s wife has significant care needs and that she is not able to assist her husband. The Tribunal is of the view that the sponsor’s wife, together with the 10 to 15 hours per week available to Tanya Mousa would meet most of the sponsor’s care needs.
The applicant claimed his mother and sister are not able to assist the sponsor with showering and toileting. This is something that could possibly be arranged through home care assistance, although there is no evidence the sponsor has been assessed by any organisation. It appears from the evidence of statutory declarations that the sponsor’s relatives have asked organisations for full-time care for him. Ledya Kaena stated in a statutory declaration dated 14 September 2015 that she contacted a number of care providers “asking for offering a constant care to my father-in-law (Qaryqos Mousa) and they told me that they can’t offer that kind of care to my father’s need of support”. There is no evidence the sponsor needs “constant care” and if nursing or community services were approached about occasional assistance and the sponsor is referred and assessed appropriately, it is likely some services will be available. This is supported by Ledya Kaena’s inquiry to Multicultural Community Care Service which was responded to with a referral to social support and respite programs as well as SWS Commonwealth Respite & Carelink Centre.
The applicant claimed that he is the only person that can provide an adequate level of care for his father. He said he is required to set up the machine (CPAP) that the sponsor needs for breathing, sleeps in his room in order to monitor the CPAP, assists with a machine for rheumatoid problems with the sponsor’s feet, helps the sponsor shower and toilet and ensures he takes medication. The applicant said because of his father’s mental state following the death of a son, the applicant sits with him in the afternoons and tries to get him to socialise.
Although the sponsor’s family claim that without the applicant, they cannot provide or access the kind of care the sponsor needs, according to a letter from Cardiology Australia dated 26 June 2015, the sponsor “exercised for 7.15 minutes to reach stage 3 on the Bruce protocol achieving a maximal heart rate of 141 beats per minute which is 89% of predicted heart rate”. The Bruce protocol is a diagnostic test used in the evaluation of cardiac function where the patient is measured on a treadmill. The letter concludes that the sponsor is negative for significant coronary artery disease and the doctor states he is pleased the sponsor is so well.
The Tribunal accepts the sponsor has a number of chronic health problems, but the Tribunal prefers the evidence of the sponsor’s cardiologist that shows the sponsor is able to mobilize and exercise for short periods and is overall quite well, rather than the reports of the applicant that the sponsor requires constant assistance. The CPAP machine is a simple devise for sleep apnea that is designed to be fitted and used by the patient themselves and does not require monitoring by another person. The machine for the sponsor’s feet appears from the photos submitted to be a foot spa that also would not need another person to set up and monitor. Regarding the sponsor’s mental health, it is understandable he would be suffering grief and depression having lost a son to an illness, however, he lives with his wife who does not work and there is no evidence she is unable to provide him with company and general support. He also has adult children, some of whom live nearby and, although busy, would be able to provide some companionship on occasions. The Tribunal does not accept that the applicant is in a best position to care for the sponsor since he also has a wife and two small children.
The Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, a combination of available relatives, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.
As the Tribunal has concluded that the requirements of r.1.15AA(1)(e) are not met, it is not necessary to consider the other requirements of the definition of a carer.
This Tribunal is satisfied that assistance cannot be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services. The reasons for this finding are set out below.
Firstly, over two and a half years have passed since the previous decision of the Tribunal. In this time, the health of the sponsor and his wife have deteriorated. The level of care required is extensive.
Medical reports provided to the Tribunal formerly constituted indicated that the sponsor had mild arthritis in the spine and peripheral joints, and a history of poor vision in his right eye since a young age. A report from Klara Georgees, a psychologist, dated 22 September 2015, stated that the sponsor presented with depressive symptoms such as difficulty sleeping, low mood, difficulty concentrating and memory problems, consistent with Major Depressive Disorder. An updated medical report dated 22 November 2018 referred to mild, chronic atrial fibrillation, back pain, sciatica, hypertension, coronary artery disease, lumbar spine osteoarthritis, depression and blindness in the right eye. It set out 16 types of medication required daily.
A letter from Albert Shafransky, Consultant Physician Cardiologist dated 9 October 2018 stated that he had no sign of significant coronary artery disease from his exercise echocardiogram and that he was currently on crestor, larix, metroprolol, somac, twynsta and rivaroxabon. His next check was recommended for 12 months later.
A letter from Dr Faisa Choudhury, Respiratory and Sleep Advanced Registrar, Liverpool Hospital, dated 14 November 2017, stated that the sponsor had severe obstructive sleep apnoea, diagnosed in November 2014, chronic atriol fibrillation, hypercholesterolaemia and hypertension. He was enabled on an enable funded CPAP at 13 cm pressure. There was various correspondence about the use of this equipment.
A letter dated 15 June 2018 from Dr Fadil Khaleal, consultant surgeon, noted that post colposcopy, there were 2 small adenomatous polyps, and otherwise no significant findings. Earlier reports from this doctor indicated that the applicant was checking for signs of bowel cancer due to a family history.
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]. Consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61]. Here the Certificate provided that the sponsor required care in direct assistance in the areas of hygiene (needs prompting, feels dizzy when bending down), with toileting (double incontinence 2-3x week), dressing/undressing/grooming (needs prompting), with eating (prompting to eat regularly), mobility, giving or supervising of medication and with transport. Evidence from the applicant is that he is the only person that can provide an adequate level of care for the sponsor given the exacerbation of these conditions. He currently sets up a machine that the sponsor needs for breathing, helps him shower and toilet, helps him take medication and feeds him. When he wakes in the morning he takes him off the breathing machine. He gives him medication for his stomach, blood pressure, depressions, arthritis, high cholesterol and for avoiding blood clots. He also prepares warm water for his rheumatism. Sometimes he reminds him to go to the toilet. He also provides emotional support as the sponsor has been adversely impacted by the death of another son. The sponsor also uses a machine for rheumatoid problems. He sleeps in the same room with his father.

The Tribunal is satisfied that the level of care required is extensive given the sponsor’s conditions, the breathing apparatus, and the medication required.
Secondly, the Tribunal is satisfied that assistance cannot be reasonably provided by another Australian relative. The courts have found that care may be provided collectively by more than one relative. In Jajov 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. The Tribunal questioned the applicant extensively about whether the long list of relatives in Australia could not collectively provide the assistance. After considering the evidence, the Tribunal is satisfied that the sponsor requires 24 hour care, and even collectively the relatives could not reasonably provide this care.
The visa applicant has provided this care for the last four years, living with the sponsor, indicating that while other relatives may help, the responsibility has been with him. His wife works full-time at a transport company and supports them financially while he cares for his father. His children are nine, seven and three. The children are in day care. His wife has a flexible job so she can help with the children.
The visa applicant’s brother Raymond had four children and works full-time as a truck driver. He has four children, from two to eighteen. His brother Doreid also works full-time as a truck driver, and has two children, around eight and six. His sister Lamia cares for her husband, and has four young children, one who is only five. She does not have the time to help because of family commitments. His sister Tania has three young children and the eldest is seven. Tania has provided some assistance in past and the Tribunal questioned the visa applicant about whether she could provide care. The primary visa applicant told the Tribunal that her time was limited as she had young children, one who suffers from asthma and requires constant supervision and hospitalisation. She also could not shower her father or sleep over.
The primary visa applicant indicated that his four nieces could not provide the kind of assistance required. He said that they were from his mother’s side and therefore could not be expected to assist. Further, the niece Selvea Saad Gorgees has a young child, and her husband is a taxi driver who works odd hours. The niece Sonita Saad Gorgees has a young child and is studying. The niece Selesty Saad Gorgees has seven children and does not drive. The niece Noora Moussa Slaiw Mousa has young children and is studying. The grandson Norman Yalda owns and manages a pizza shop which requires full-time involvement.
The Tribunal formerly constituted was not satisfied that the applicant’s mother could not reasonably provide the assistance required. At the Tribunal hearing, formerly constituted, the sponsor gave evidence that his son was the best person to care for him. He said that his wife suffered from hypertension, diabetes, high cholesterol, stomach problems and mental health issues since the passing of her son. His son had some training in using his breathing machine to prevent strokes. If he was unwell, his son slept in his room. The applicant’s mother claimed that she was unable to take care of her husband as she suffered from back pain and multiple illnesses. A medical report from Dr Haddad stated that she had angina and IHD, multiple arthritis secondary to psoriasis, back pain with sciatica due to lumbar disc prolapse at L4/5, urinary incontinence, gastritis, generalised osteoarthritis, recurrent otitis externa, haemorrhoids, tenosynovitis, hyperlipidaemia and hypertension, cervical disc prolapse and latent tuberculosis. She had applied for a disability pension. The doctor suggested that she was unable to care for any other member of her family as she is sick and needed someone to care for her.
The applicant told this Tribunal that his mother is now very unwell, is diabetic, has high blood pressure and rheumatoid arthritis. She sleeps in another room and he sleeps next to his father. His father’s breathing machine makes a noise and has a smell so this disturbs her. The applicant said that he wakes up in night to ensure the hose remains in his father’s nose. He also checks the machine is working. His father sleeps with the machine every night otherwise he could get a stroke, as he had a mild one previously. His mother cannot walk for a long distance as her legs start to hurt. When his wife is home, she does everything for his mother, and her sister Tania helps his mother as well. Medical reports indicated that she suffers from a range of conditions.
Given the demanding and specific medical needs of the sponsor, the Tribunal is satisfied that 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, due to work and family commitments, and the fact that the sponsor’s wife suffers from a number of medical conditions herself.
Thirdly, the Tribunal is satisfied that assistance cannot be reasonably obtained from welfare, hospital or nursing services.
The evidence provided to the Tribunal formerly constituted was not sufficient for the Tribunal to be satisfied that the assistance could not be reasonably obtained from welfare, hospital or nursing services. This included a statutory declaration of Luay Mossa dated 7 May 2015 who stated that he contacted Fairfield Parent Support Centre, Bankstown Community Health Centre and Home Care Centre but they were unable to offer the kind of support needed. A statutory declaration of Ms Ledya Kaena on 14 May 2015 stated that she had contacted the House Direct Centre, contact person ‘Dinne’, and was told the organisation could not provide support for her father. A statutory declaration of Rana Mossa dated 14 May 2015 stated that she contacted the Home Care Service, contact person ‘Leah Tran’, and was told they could not provide the required services. A statutory declaration of Ledya Kaena, dated 14 September 2015 stated that she had contacted Multicultural Community Care Service, My Aged Care and Home Care Service on three occasions. A letter from Minh Nguyen, Case Manager at Multicultural Community Care Service, undated, stated that her father was under the age of 65 and therefore not eligible for home care packages. She was referred to the SWS Commonwealth Respite and Carelink Centre. They were referred to the Mental Health access line for depression. Various organisations were unable to provide the assistance required, especially monitoring the breathing equipment. The Tribunal formerly constituted noted that there was on the Department file a response letter from the Melkite Catholic Welfare Association stating that they could not provide a carer, but did not address whether any other assistance or referrals were made. The Tribunal noted that the contact number provided for Home Care Service was the number for initial contact for referral. The contact number provided for House Direct Centre was for the NSW Mental Health Access Line. The applicant told the Tribunal formerly constituted that the services contacted could not bathe or toilet the sponsor, or sleep with him. They required hourly payment which they could not afford. Further, his father was much happier being cared for by him
Prior to this Tribunal hearing the applicant had not provide any substantive information to support the claims, even though he claimed that his father did not want anyone else besides him to help him. He submitted however that there were specific language and cultural needs, and he could provide assistance for his father who suffered depression, particularly after the death of a child. The fist named visa applicant said that he had told by numerous organisations that they could not provide a carer who would sleep in his father’s room to check on his breathing equipment. Further, the medical practitioner had not arranged for assessment by an Aged Care Assessment Team (ACAT), which would have determined the sponsor’s eligibility for government subsidised aged care services. The Tribunal provided the applicants with additional time to provide information from these services.
On 16 January 2019 the first named applicant provided the following information:
·Letter from the Chaldean Australian Culture Society stating that the sponsor is a member of the Banaya Chaldean Association and that he suffers a serious medical condition and requires full-time care which is now met by his son, who had looked after him for many years and who is attending to his needs with dedication and love. The letter stated that care and service provided could not reasonably be obtained from community services. The sponsor was on a pension and could not meet the cost of over $600 a day from a care team. The sponsor was very comfortable with the care provided on a 24 hour basis by his son. Further care could not be obtained in the sponsor’s language.
·Email from Kincare, a care service for home-care, dated 8 January 2019 regarding 24 hour support for the sponsor. Prices for live-in care were $630.60 per weekday, $693.60 per Saturday and $924.80 per Sunday.
·Email from Customer Care at Australian Unity, dated 8 January 2019, attaching a booklet on a Home Care package for services.
·Letter from St Thomas the Apostle Chaldean Catholic Diocese of Australia and New Zealand dated 8 January 2019 stating that the sponsor was a full-time member of the community, that he required full-time care and his wife was unable to provide that care.
There is no evidence that the sponsor has been assessed by an ACAT which would have determined the sponsor’s eligibility to obtain government subsidised aged care services. Notwithstanding this, in the particular circumstances of the case, and considering the unique nature of the assistance required, in light of the information from doctors and health providers, the Tribunal is satisfied that care could not reasonably be obtained from welfare, hospital, nursing or community services. The Federal Court has held that ‘reasonably obtained’ in relation to community services is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA814. The Tribunal accepts the costs of care are prohibitive in terms of what the applicant and the sponsor could afford, as indicated by information from the health service providers. The Tribunal has also been persuaded that the applicant has specific language and cultural needs which could not be reasonably obtained, see Hon Anh Vuong v MIAC [2013] FCCA 274 at [34]. He also has mental health needs due to depression, and the impact on him of death of a child, and requires specialised assistance with the breathing machine at night time, as well as other general needs such as toileting, and provision of an extensive list of medication. The Tribunal is satisfied that this care could not reasonably be obtained from welfare, hospital, nursing or community services.
The Tribunal is satisfied therefore 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.
Willing and able – r.1.15AA(1)(f)
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.
In this case, the visa applicant left Canada, where he said he was happy, to come and care for his father. He has been caring for his father for four years, as evidenced by a number of letters of support, medical reports and his own evidence. The sponsor has indicated that the visa applicant is the person he wants to care for him.
The Tribunal is satisfied that 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).
Conclusion on ‘Carer’ criterion
Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.
Section 376 Certificate
The Tribunal disclosed the existence of a certificate issued by the Department on 26 March 2018 under section 376 of the Act. This certificate protected various folios of the Department file (folios 245 to 247) because the file contained information from the Department of Human Services which was given to the Department in confidence. The certificate stated that the information must only be disclosed to the Tribunal and the Tribunal must do all things necessary to ensure that the information is not disclosed to anybody. The information is information from the Department of Human Services in relation to allowances and pensions. This is information available to the sponsor and his wife already and therefore is disclosable.
CONCLUDING PARAGRAPHS
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
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.836.212. 836.213 and 836.221 of Schedule 2 to the Regulations.
Jane Marquard
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.