Nguyen (Migration)

Nguyen (Migration) [2019] AATA 4403 (4 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Thi Loan Nguyen
VISA APPLICANTS:  Ms Thi Thanh Thuy Tong
Ms Tong Thi Tho Nguyen
CASE NUMBER:  1721588
HOME AFFAIRS REFERENCE(S):           2013027299 OSF2013/027299
MEMBER:Kate Millar
DATE:4 October 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 116 (Carer) visa:
·cl.116.221 of Schedule 2 to the Regulations.

Statement made on 04 October 2019 at 5:04pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) –dependent for activities of daily living – assistance cannot reasonably be provided by relatives or obtained from community services in Australia – decision under review remitted
LEGISLATION
Migration Regulations 1994 (Cth), r 15AA
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mrs Nguyen is 84 years of age, and lives with her husband Mr Chi Van Tong who is 85 years of age. Mr Tong provides care for Mrs Nguyen along with a second cousin Ms Huong Nguyen.
Mrs Nguyen suffers from depression, osteoarthritis, and chronic pain which results in poor mobility. She has problems with her vision.
Mrs Nguyen wants her daughter to come from Vietnam and care for her. On 9 September 2013, Mrs Nguyen’s daughter, Ms Thi Thanh Thuy Tong together with her grand-daughter Ms Tong Thi Tho Nguyen applied for Other Family (Migrant) (Class BO) visas. Their visa applications were refused by a delegate of the Minister for Immigration on 16 August 2017 because the delegate was not satisfied that the care required by Mrs Nguyen could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.
Mrs Nguyen appeared before the Tribunal on 12 August 2019 to give evidence and present arguments, and was represented by her registered migration agent. The Tribunal also received oral evidence from her sons Thanh Van Tong, Troung Van Tong and Thanh Van Tong. Mrs Nguyen has two sons with the name Thanh Van Tong, one born 1966 and one born 1976. The Tribunal also heard from Ms Huong Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Mr Tong was reported to be too unwell to attend the hearing or to participate by telephone. A medical certificate was provided after the hearing stating he was unit to attend the hearing on 12 August 2019.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The visa applicants applied for the visa on 9 September 2013. 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 (the Regulations).
In the present case, Ms Tong is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Ms Tong must meet the primary criteria in Part 117 to be granted the visa, and her daughter need only meet the secondary criteria.
The primary criteria to be met include cl.116.221 which requires that Ms Tong is a carer of the Australian relative. The term “carer” is defined in r.1.15AA
As Mrs Nguyen is an Australian citizen,[1] and Ms Tong is her daughter,[2] r.r.1.15AA(1)(a) is met. Mrs Nguyen has the required health provider assessment that specifies that:
·she has a medical condition that causes impairment of her ability to attend to the practical aspects of daily life;
·she has the required number of impairment points; and
·she has a need for direct assistance in attending to the practical aspects of daily life for at least two years.
[1] As shown by a copy of her Australian passport.
[2] As shown by an English translation of her birth certificate, issued in Vietnam.
As a result the requirements of r.1.15AA (b) and (c) are met. In issue in this matter is whether r.1.15AA(1)(e) and (f) of the definition are met at the time of this decision.
Regulation 1.15(1)(e) – can the assistance be reasonably provided by certain relatives or obtained from certain services?
The definition of ‘carer’ in r.1.15AA includes at r.1.15AA(1)(e) that:
(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
…
As it applies to Mrs Nguyen, r.1.15AA(1)(e)(i) requires a consideration of the assistance she requires, the reasons put forward by her relatives for being unable to provide her with this assistance, and whether these reasons are reasonable.
Regulation 1.15AA(1)(e)(ii) involves a consideration of whether the assistance Mrs Nguyen needs cannot be obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal can look at whether the assistance Mrs Nguyen requires can be met by a combination of assistance from her family together with welfare, hospital, nursing or community services in Australia. This approach was adopted without comment in Lam v MIBP.[3]
[3] [2013] FCCA 1263
What assistance does Mrs Nguyen require?
In looking at the type of assistance required, the Tribunal is not required to turn its mind to the nature and scope of the assistance required, and is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider.[4]
[4] r.1.15AA(3), Sefesi v MIBP [2016] FCCA 975
The health service provider specified by the Minister most recently assessed Mrs Nguyen on 12 April 2019. This assessment shows Mrs Nguyen has advanced osteoarthritis of the spine and knee, chronic back and knee pain, bilateral cataracts, urinary incontinence, depression and hypertension.
The assessment records that the advanced osteoarthritis in her knees and spine affects her mobility and stamina, and limits her ability to exert herself. She mobilises at home with the help of a walker, but outside the house uses a wheelchair.
The report notes that Mrs Nguyen has osteoarthritis in her shoulders which affects the range of movement in her shoulders. She has been referred for a possible knee replacement, and has difficulty with walking and prolonged standing. It records she is unable to walk to the toilet quickly enough and suffers from incontinence. It states she needs assistance with toileting and nappy change as documented by her GP.
In terms of her mental health, Mrs Nguyen suffers from depression. She has been reviewed by psychologist and has also tried medication but has not found this is of much help. She has difficulties with sleeping, and has poor memory and concentration. Mrs Nguyen has bilateral cataracts and is on the waiting list for surgery and lens implant. Her visual acuity in both eyes is 6/60. Her problems with continence result from the difficulty she has with walking and prolonged standing.
The health assessment makes comment on the ability of family to care for Mrs Nguyen and the availability of services, however in the absence of an assessment of other family members or of these services, the Tribunal considers these comments outside the scope of the assessment.
The health assessment reports that Mrs Nguyen requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding (supervised by her husband), supervising medication, supervision for personal safety, and transportation. It reports that she is fully dependent for activities of daily living.
The health assessment reports Mrs Nguyen requires assistance across a l aspects of her daily living, and she has high assistance needs, including supervision for personal safety and toileting and notes this requires the consistent presence of a carer.
Cannot reasonably be provided by certain other relatives
Regulation 1.15AA(1)(e) requires identification of those relatives of Mrs Nguyen who are Australian citizen, Australian remnant residents or eligible New Zeeland citizen.
The term “relative” is defined in r.1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew., A close relative is a spouse, defacto partner, child, parent, brother or sister or a step-child, step-brother or step sister.
As this applies to Mrs Nguyen this includes her husband Mr Tong, four of her children and thirteen grand-children, as well as her sister and seven nieces and nephews.
Regulation 1.15AA(1)(e)(i) was considered by Judge Nicholls in Anveel v Minister for Immigration and Border Protection,[5] in which he said that this provision requires an examination of whether, from the perspective of the relative, they cannot provide the care,[6] and requires a focus on the reasons the relatives cannot provide the care.[7] Judge Nicholls remarked that it is important to note that the test is stated in the negative and said:
It is not whether the care “can” be “provided”, it is whether it “cannot” be provided by relatives. The focus of the Tribunal therefore must be on the reasons as to why the relatives cannot provide the care.[8]
[5] [2013] FCCA 2181
[6] At [61]
[7] At [62]
[8] At [62]
In Jajo v MIBP,[9] Judge Emmett stated that on the facts of that case, where there were a number of children in Australia, it was open to the Tribunal to conclude that a number of relatives can provide the assistance required by the person needing care.[10]
[9] [2013]FCCA 1554
[10] At [57]
It is therefore necessary to look at the circumstances of each of the relevant relatives and the reasons the relevant relative state they cannot provide care.
On being asked how she manages at home now, Mrs Nguyen said when her husband was well a few days ago he could help her to bathe. Her husband helps her by turning on the water, making sure the temperature is right and in addition she uses a shower chair.
Her husband cooks when he is well. Mrs Nguyen said her husband is old and very ill with a short temper. She said if she forgets the cooking he gets angry and yells at her, and sometimes she is hungry at night. She said he asks if she intends to burn the house down. When he was sick last week she cooked rice at home using a rice cooker. She receives one meal a week from the Vietnamese community. She said once her son ordered her sufficient food for a month but as this was Australian food and she could not eat it. Once a week she receives cleaning services and the alternate week she has assistance with shopping. Mrs Nguyen is able to go to do the shopping, but says she points at what she wants, and the carer gets it off the self, and puts it in the fridge when they get home.
Mrs Nguyen said she goes to the toilet two to three times overnight. On being asked how she currently manages, she said it is difficult because her legs ache but she can get from her bed to the toilet. She has had rails installed on the wall in the toilet, has a shower chair, and a commode to assist her.
Mrs Nguyen independently gave evidence before the Tribunal heard from her children, and said she feels very upset that she has a lot of children and cannot rely on any of them. Her sons have to work, and after work they look after their own families and cannot look after her. She described he oldest son as having a heart condition and a bad temper, and she argues with him. Mrs Nguyen said when they meet he loses his temper and yells at her, and has said that he would not even look at her if she died.
The Tribunal did not have the benefit of hearing from Mr Tong. Mrs Nguyen said that her husband is very sick and goes to hospital frequently. He was hospitalised recently on 13 April 2019, and Mrs Nguyen said she was scared to stay at home on her own so she stayed at the hospital with her husband. She said he was unable to attend the hearing because the doctor told him he was anaemic and he was having trouble breathing.
A medical report provided after the hearing states Mr Tong has multiple medical conditions including severe bilateral cataracts, abnormal liver function which is awaiting specialist review, chronic obstructive airways disease resulting in shortness of breath and osteoarthritis. It is reported he has difficulty walking and standing, with activities of daily living and that his prognosis is poor. He has anxiety and depression and is on antidepressant and sleeping medication, which affect his memory and concentration. His general practitioner reports he requires a carer himself, and is unable to assist his wife with mobility, showering, toileting, dressing, feeding supervising medication, supervising personal safety, and is struggling to assist with cleaning, laundry and shopping.
The Tribunal received a statement from Mr Trung van Tong the eldest son of Mrs Nguyen he lives nearby in Parafield Gardens, and has four children. Trung says he has a health condition and assists with the care of his two grandchildren. He says he is unable to provide care for his parents because of his poor health and family commitments, and because he argues with his mother. He said he suffers from anxiety which results in heart palpitations. As there is a history of death from heart attack in the family he was not willing to come to the Tribunal to give evidence. He states he feels sorry for his mother, but they are always in conflict over what he says so he does not want to attend. Trung provided a medical report showing he has suffered coronary artery spasm. In conjunction with the evidence of Mrs Nguyen’s other children, the Tribunal accepts that the nature of the relationship between Trung and Mrs Nguyen means he is unable to provide her with assistance.
Trung has four children. The eldest is a pharmacist and has two young children, both she and her husband worked full-time and she says her father assists with the care of her children. His second daughter states she cannot communicate in Vietnamese, and works full-time. The third son is also a pharmacist and states he works 92 hours a fortnight and cannot speak fluently in Vietnamese. The fourth is a full-time trainee radiographer and also studies. The Tribula accepts that due to their work and family commitments, Trung’s children are unable to provide assistance to Mrs Nguyen.
The Tribunal heard from Mr Thanh Van Tong (born 1966) who works full time as a storeman. He has three children, one who is 17 years old, one 16 years old and one who is seven. He says he is unable to assist his mother because after work he helps his wife with the children. He lives in Salisbury Downs, approximately two minutes from his parents’ house.
He says he is unable to provide any meals or cooking for his parents because his parents like different food. He said he would occasionally assist with cleaning or laundry but can only provide limited assistance because he has to assist with his own household. On being asked if there was any reason why his older children could not assist his parents he said they are currently in year 11 and year 12 and have a lot of homework. He said his relationship with his mother is not close as he arrived in Australia in 1981 when he was 15 years old, and grew up independently, as his parents did not arrive until 1991. He had to look after himself suffered depression, and found it hard to learn English. He said his parents live a very traditional life and he is accustomed to freedom. He said when he is parents want him to do something they do not understand he is very busy.
The Tribunal also heard from Mr Tan Van Tong (born 1976) the second of Mrs Nguyen’s children of that name. Mr Tong said he is a hairdresser, and he lives at Parafield Gardens, which is 7 to 10 minutes away from his parents. He said he cannot provide care for his parents or his mother because he has two children under 11 years of age, owns his own business. He said his hours of work are 9am until 5.30pm and he works five and a half days a week. He works from home, and has some flexibility as to when he works. On being asked if he could attend medical other appointments with his mother, he said it would depend on his schedule. He can provide some help, however his mother needs personal care.
He said he cannot assist with cooking cleaning because he is too busy. Mr Tong said he came to Australia in 1991 with his parents, and is estranged from his brother Trung Van Tong who he considers is very rude to his parents, and who has behaved aggressively at his parents’ home, for example kicking a chair and hitting a table. He said his brother has accused him of taking the title to his parent’s home to obtain loans. He describes the relationship between the eldest son Trung and his mother as being difficult. He sees his parents approximately once a fortnight when he visits their house.
The Tribunal heard from Truong Van Tong who describes himself as a factory worker at Salisbury Downs. He said he came to Australia in 1981 with the older brother trunk Tong. He said he works from 6 am to 2:30 pm. He has three children aged 21, 18, and 13. He said he needs to collect his 13 year old after school, and cannot help his parent. He said his 21 year old son cannot assist because he can’t even look after himself. He said the 8 year old is a full time student and has schoolwork so cannot provide assistance. Truong said there is no love between him and his mother and that he is not willing to provide assistance to her. He sees his parents once a week at church and visits them a few times a week.
On being asked if there was anything that affected his relationship with his mother he said he left Vietnam when he was eleven years old and came to Australia with his older brother, and when he needed this parents they were not there. He said his elder brother did not look after him. Truong independently gave evidence that the relationship between his older brother and his mother was not good as his older brother yells at them.
Mrs Nguyen has a sister living in Australia, Mrs Thi Sim Nguyen. Her sister is married and has seven children. Her sister provided a statement in which she said they are self-employed in a market garden, and her children are running their own businesses. She says they are all working very long hours each day. Mrs Nguyen’s sister states she is working hard to support her own extended family, and she does not even have time to visit Mrs Nguyen. There is a ten year age gap, and their relationship was never close. She states she has argued with Mrs Nguyen about providing assistance to her, and as a result have not been in contact for several years. A joint statement was prepared for all seven of her sister’s children stating that due to their own family and working commitments and lack of Vietnamese language they are unable and unwilling to care for their aunt. This was not signed by all of Mrs Nguyen’s nieces and nephews, and it was reported by Hoang that despite her best efforts, due to a lack of contact with the family, not all of Thi Sim’s children were willing to provide any assistance even if this were only to sign the statement.
Mrs Nguyen has one other granddaughter in Australia, however she is not an Australian citizen or permanent resident.
While on the face of it Mrs Nguyen has a number of children and grandchildren living in close proximity to her, having heard from the parties the Tribunal is satisfied that her relationship with her children is such that they cannot reasonably provide assistance to her. There is a division within the family, and in the particular circumstances of this case, the explanation of this breakdown and the resulting effect on family relationships was convincing. Those of her grandchildren who are old enough to provide her with assistance are unwilling to do so. Her sister, nieces and nephews are estranged from her and it is unreasonable for them to provide care to the level that is required by Mrs Nguyen. Mrs Nguyen has been relying on her husband, whose health is deteriorating, and also on the assistance of a great-niece.

It follows that the Tribunal finds that the assistance Mrs Nguyen requires cannot reasonably be provided by relatives who are Australian citizens, Australian permanent residents, or eligible New Zealand citizens.
Cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia
Regulation 1.15AA(1)(e)(ii) requires that the assistance Mrs Nguyen needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal must look to Mrs Nguyen’s particular circumstances in deciding whether the assistance cannot reasonably be obtained, as this is more than whether the services are merely available to her.[11]
[11] Biyiksiz v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814; MIBP v Nguyen [2017] FCAFC 149
Mrs Nguyen states she need services from service providers who speak Vietnamese. Mrs Nguyen also says she cannot obtain assistance with meals and can only eat her daughter’s cooking.
Mrs Nguyen said she had been assessed by the Aged Care Assessment Team. This assessment resulted in Mrs Nguyen being eligible for high level residential care, high level residential respite care and a level 3 Home Care Package. She has not yet received these services. It was put to Mrs Nguyen that her home care package entitled her to services to the value of $33,000 per annum, however she said she didn’t know what she was eligible for. She said people do come to help her and she attends community groups three times a week. Her husband was assessed by ACAT in 2018, and is eligible for home maintenance and low level residential respite care. This current assessment would not allow him the same level of care in a nursing home as Mrs Nguyen.
On being asked if she had been assessed as being eligible for nursing home care, Mrs Nguyen said she would not go to a nursing home because she was concerned no one would care for her, and because she does not speak English.
It was put to Mrs Nguyen that there was a nursing home at Cowandilla that has 29 beds that cater specifically for the Vietnamese community. Mrs Nguyen said Hoang had enquired about this nursing home, but she is currently living with her husband and does not want to be separated from him. She did not know whether her husband was eligible for nursing home care.
The Tribunal heard from Huong who said she assists Mrs Nguyen in contacting agencies and taking her to appointments. Huong said there is a long waiting list for the Home Care package, and it does not provide 24-hour care. She said she had been advised it would be two to three years before they could access this package. She said Mr Tong was assessed by ACAT in 2018, however requires a new assessment as his health has deteriorated. Hoang said she had contacted the nursing home at Cowandilla, however there is high demand and no current vacancies. At this time, Mr Tong had not been assessed as requiring residential care, and this would result in the separation of Mrs Nguyen Mr Tong.
Hoang said the children tried to get meals on wheels for the parents, however Mrs Nguyen and Mr Tong didn’t like the food.
While Mrs Nguyen receive some help from the Vietnamese community, this assistance is not sufficient to meet her needs. In the absence of a vacancy in nursing care that is specifically for the Vietnamese community where her husband can also be accommodated, and the absence of the a readily available home care package, the assistance Mrs Nguyen requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
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 either individually or cumulatively, and therefore the requirements of r.1.15AA(1)(e) are met.
Regulation 1.15AA(1)(f) - is the applicant willing and able to provide assistance of the kind required?
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.
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.
Mrs Nguyen said her daughter could provide care, and her granddaughter could assist her with medical appointments by organising transport and as she speaks English.
On being asked if her daughter had applied for any other visas, Mrs Nguyen said she sponsored her daughter after her marriage broke down however this was refused. She applied to the Tribunal for review of this decision but the visa the decision was upheld as the divorce was found to be fake. She is also attempt to sponsor on another occasion, and the most recent application was refused two years ago.
Mrs Nguyen said her daughter does not have a drivers licence but does ride a motorbike in Vietnam. She currently works as a sewing machinist, and her granddaughter is studying. Mrs UN said if they come to Australia she will support her daughter and granddaughter by using her savings, and that her son should contribute. If necessary, she said she would sell the house. After the hearing a statement was provided from her four sons in Australia stating they agree to be financially responsible for the visa applicant and her daughter.
Mrs Nguyen said her daughter could help her with cooking, showering, washing, and household tasks. She said if she needed a doctor because she was unwell or in an emergency, her granddaughter could call an ambulance. She said they have had to call ambulances frequently due to her husband’s illness, however they have emergency call button to summon an ambulance when they need.
The Tribunal was unable to contact Mrs Nguyen’s daughter. However she is reported to be willing and able to provide the care of the kind Mrs Nguyen requires. Mrs Nguyen does not require specialised care, and the Tribunal considers her daughter would be capable of providing this care.
According to the family, the visa applicant came to Australia to provide care for Mrs Nguyen for six months in 2015. Mrs Nguyen reports that during her stay she felt safe and happy with the care she received from her daughter.
After the hearing statement was received from the visa applicant. This statement outlines Mrs UN’s medical conditions and the assistance she requires it states that in 2015 she came to Australia to care for her mother while her father was in receiving treatment. It acknowledges her English is limited and that her mother will need the assistance of an interpreter for medical appointments. It confirms she can provide assistance to her mother monitoring her medication, providing personal care, cooking, assisting her parents to attend church, cleaning shopping and taking her to medical appointments. The visa applicant declares she will provide constant supervision to assist her mother with mobility and prevent her from falling.
The tribunal is satisfied that the visa applicant is willing and able to provide substantial and continuing assistance of the kind required by Mrs Nguyen, and therefore meets the requirements of r.1.15AA(1)(f).
CONCLUSION
Given these findings the Tribunal concludes that at the time of decision the first named visa applicant is a carer of the Australian relative, being the review applicant, and therefore satisfies cl.116.221.
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. As Ms Tong meets this criterion, her daughter may meet the secondary criteria for the grant of the visa, and it is appropriate to remit the visa application of the second named applicant for reconsideration.
DECISION
The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 116 (Carer) visa are met:
·cl.116.221 of Schedule 2 to the Regulations;
Kate Millar
Senior 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.

[2019] AATA 4403

4 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice