Nguyen (Migration)

[2023] AATA 3754

Nguyen (Migration) [2023] AATA 3754 (19 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Nga Nguyen
Mr Tan Quyen Duong

REPRESENTATIVE:  Mr Ehsan Jahanandish, Smart Migration Group

CASE NUMBER:  2108689

HOME AFFAIRS REFERENCE(S):          CLF2019/1686

MEMBER:Michael Ison

DATE:19 June 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 19 June 2023 at 5:28pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – ‘carer’ of an Australian relative – CVAC certification – lung cancer – assistance cannot reasonably be provided/obtained – other relatives – sister – wife – welfare, hospital, nursing or community services – home care services – palliative care services – insufficient inquiries about the assistance that may be available – strong compassionate circumstances – request for Ministerial referral declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 836.221, 836.321

CASES
Biyiksiz v MIMIA [2004] FCA 814
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10
Hon Anh Vuong v MIAC [2013] FCCA 274
Xiang v MIMIA [2004] FCAFC 64

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 14 June 2021 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The first named applicant is Mrs Thi Nga Nguyen who is 59 years of age and is a national of Vietnam. Ms Nguyen is referred to as the applicant or the first named applicant in these reasons for decision.

3. The applicant first arrived in Australia on 7 June 2015 as the holder of a Visitor (Subclass 600) visa that was valid to 9 July 2015. The applicant departed Australia on 9 July 2015.

4. On 3 March 2016 the applicant was granted a second Visitor visa that was valid to 10 June 2016. The applicant returned to Australia on 18 March 2016 and departed on 10 June 2016.

5. On 15 October 2018 the applicant was granted a third Visitor visa, valid to 26 January 2019. The applicant returned to Australia on 26 October 2018 and has not departed since.

6. On 16 August 2006 the applicant married Mr Tan Quyen Duong and provided a certified translation of a copy of their marriage certificate to the Department. The Tribunal accepts that Mr Duong and the applicant are married. Mr Duong arrived in Australia after the applicant on 7 November 2018 as the holder of a Visitor visa. Mr Duong is referred to as the secondary applicant or the second named applicant in these reasons for decision. 

7. On 11 January 2019 the applicant applied onshore for an Other Family (Residence) (Class BU) (Subclass 836) Carer visa while in Australia on the basis that the applicant is a relative of her sponsor Mr Albert Quang Tinh Nguyen, who is the applicant’s father. Mr Tan Quyen Duong was included in this Subclass 836 Carer visa application as a secondary applicant on the basis he is a member of the family unit of the applicant, which the Tribunal accepts.  

8. The visa applications for the Subclass 836 Carer visas were refused on 14 June 2021. It is the refusal to grant the applicants’ those Carer visas that is the subject of this review.

9. Mr Albert Quang Tinh Nguyen is 91 years of age, was born in Vietnam and had Australian citizenship conferred on him on 19 December 1985. Mr Nugyen is referred to as the sponsor and where relevant as the resident in these reasons for decision. 

10. On 15 February 2019 [Ms A], who was then [age] years old and is now [age] years old, applied offshore for a Combined Partner (Class UF) (Subclass 309) visa and a (Class BS) (Subclass 100) visa on the basis of being the spouse of the sponsor, who was then 86 years old and is now 91 years old. [Ms A]’s two children from a previous relationship, being [Mr B]who is [age] years of age and [Ms C] who is [age] years of age, were included in [Ms A]’s Partner visa application as secondary applicants on the basis they are members of [Ms A]’s family unit.

11. On 14 July 2020 [Ms A] and her two children were granted Subclass 309 visas. [In] August 2020 they first arrived in Australian as the holders of Subclass 309 visas.

12. On 7 December 2021 [Ms A] and her two children were granted Subclass 100 visas which they continue to hold at the time of this decision.

13. The applicant provided evidence to the Department in the form of a certified translation of the applicant’s birth certificate showing the names of her parents. This demonstrates to the Tribunal’s satisfaction that the sponsor is the first named applicant’s father.

14. According to a Carer Visa Assessment Certificate (CVAC) issued on 5 February 2019, the sponsor has been assessed as having an impairment rating of 30 under the relevant Impairment Tables. The CVAC states that the sponsor has been diagnosed with left upper lobe lung adenocarcinoma with previous left upper lobectomy on 26 September 2018, Chronic Obstructive Pulmonary Disease (COPD) and mild depression. The sponsor’s overall level of dependence for activities of daily living was assessed as partially dependent. The sponsor’s medical conditions were assessed as adversely and permanently impacting the sponsor, including by limiting his exertion and stamina (functional impairment present) but the sponsor’s mild depression was assessed as causing no functional impairment. The CVAC also states that no corroborative evidence was provided in relation to the staging and prognosis of the sponsor’s lung cancer and therefore no impairment rating was assigned for those aspects of the sponsor’s medical conditions. The examining doctor stated in the CVAC that the sponsor’s requires assistance with most of his activities of daily living, apart from eating. In the examining doctor’s opinion, the sponsor needs personal care and attention on a daily basis to carry out routine bodily functions and constant supervision because the sponsor may be a danger to himself or others if unsupervised. The examining doctor assesses these needs as permanent (at least 2 years).  

15. The first named applicant was granted a Bridging A (Subclass 010) visa on 16 January 2019 shortly after applying for the Subclass 836 Carer visa. The first named applicant continues to hold that Bridging A visa at the time of this decision. The first named applicant’s Bridging A visa has condition 8101 (No Work) from Schedule 8 of the Migration Regulations 1994 (Cth) (the Regulations) attached.

16. The second named applicant also holds a Bridging A visa with condition 8101 attached.

    The primary decision of a delegate of the Minister

17. The applicant provided the Tribunal with a copy of the primary decision.

18. The applicants applied for the visas on 11 January 2019. 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 Regulations. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221 and the secondary criteria to be met include cl 836.321.

19. The delegate refused to grant the visa for the first named applicant on the basis that cl 836.221 was not met because the delegate found there was insufficient evidence to demonstrate that the care needs of the sponsor could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

20. The delegate refused to grant the visa for the second named applicant on the basis that cl 836.321 was not met because the second named applicant was not the member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 Carer visa given the first named applicant’s primary application had been refused.

    Postponement of the Tribunal hearing scheduled for 20 October 2022

21. On 23 August 2022 a hearing invitation was sent to the applicants by post inviting the applicants to appear in person before the Tribunal on 20 October 2022 to give evidence and present arguments.

22. On 12 October 2022 the Tribunal received a request from the applicants representative that the hearing be postponed as the representative had only been appointed on 31 August 2022 and requested additional time to properly prepare the applicants submissions and documentary evidence. The Tribunal agreed to postpone the applicants hearing.

    Postponement of the Tribunal hearing scheduled for 15 December 2022

23. On 13 October 2022 a rescheduled hearing invitation was sent to the applicants via their representative inviting the applicants to appear in person before the Tribunal on 15 December 2022 to give evidence and present arguments.

24. On 12 December 2022 the Tribunal received a request from the representative that the hearing be postponed due to the representative’s personal medical circumstances. Supporting evidence of the representative’s circumstances were provided with the request. The Tribunal agreed to postpone the applicants hearing.

    The Tribunal hearing held on 9 March 2023

25. The applicant appeared before the Tribunal on 9 March 2023 to give evidence and present arguments, in-person. The Tribunal had been informed the second named applicant would also be available to give evidence and present arguments. On the day of the hearing the Tribunal was told the second named applicant was supporting the sponsor to attend a medical appointment. The first named applicant rang the second named applicant several times throughout the hearing for the purpose of arranging him to give evidence by telephone, but the second named applicant did not answer his telephone.

26. As the sponsor is aged 91 the Tribunal did not expect or require him to give evidence.

27. Given the unexpected unavailability of the second named applicant on the day of the Tribunal hearing, the Tribunal asked that evidence of the sponsor’s medical appointment and the outcome (if any) of that appointment be provided to the Tribunal after the hearing and also requested that the sponsor and second named applicant provide statutory declarations addressing their present personal circumstances.

28. The applicant’s representative handed the Tribunal two documents at the start of the Tribunal hearing being a one-page Department document confirming the grant of a Subclass 100 Partner (Permanent) visa to the sponsor’s third wife, [Ms A] on 7 December 2021 and a letter from Northern Health dated 13 October 2022 confirming the sponsor attended for an oncology outpatient appointment that day.

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

30. The applicants were represented in relation to the review by their migration lawyer, Mr Ehsan Jahanandish of Smart Migration Group. Mr Jahanandish is referred to in these reasons as the applicants’ representative or the representative. The representative attended the Tribunal hearing.

31. At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether she understood the interpreter and whether she had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated she could understand the interpreter and did not have any objection to the interpreter. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicant that it would seek submissions from the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicants’ review.

    Pre-hearing submissions

32. The Tribunal received the following submissions on behalf of the applicants from the representative prior to the Tribunal hearing, with the main, but not necessarily all, documents attached to each submission noted:

    6 October 2022

    ·an operation report for the sponsor from Dr Mohammad Azari of St Vincent’s Hospital, dated 26 September 2018;

    ·a cardiothoracic discharge summary for the sponsor from Inpatient Services, St Vincent’s Hospital, dated 5 October 2018;

    ·a My Care Plan for the sponsor prepared by GEM & Rehabilitation, St Vincent’s Hospital, dated 10 October 2018;

    ·a medical report from a Consultant Cardiothoracic Surgeon, St Vincent’s Hospital to Dr David Leong, general practitioner about the sponsor, dated 19 October 2018, outlining the medical procedure/surgery undertaken and follow up consultation; 

    ·a support letter dated 29 June 2022 from Dr Leong in support of the applicants’ visa application to support the resident who has lung cancer;

    ·a copy of the passports of the applicant and second named applicant, both valid to 2 August 2032;

    ·a support letter dated 8 October 2018 from St Vincent’s Hospital to the Department in support of the applicant’s Visitor visa application to visit the sponsor, who the letter states is suffering from a serious medical condition;

    ·a support letter dated 19 October 2018 from Dr Leong to the Department in support of the second named applicant’s Visitor visa application to visit the sponsor, who the letter states is suffering from a serious medical condition; and

    ·a support letter dated 24 October 2018 from a Consultant Thoracic Surgeon in support the second named applicant coming to Australia to help the sponsor recover from his major operation for lung cancer. 

33. On the morning of the Tribunal hearing on 9 March 2023 the Tribunal received:

    ·A five-page written submission from the representative;

    ·A three-page statutory declaration declared by the applicant on 9 March 2023;

    ·A letter from Dr Thinh Duy Nguyen dated 13 February 2023;

    ·A chain of emails in December 2022 with Baptcare and a brochure including price lists for Baptcare’s home care services.

34. The representative apologised to the Tribunal, including in writing, for providing these late submissions on the day of the hearing. The Tribunal accepts that apology.

35. The Tribunal confirmed with the applicants’ representative at the commencement of the Tribunal hearing that these were all of the submissions provided to the Tribunal.

36. The Tribunal also engaged in other correspondence with the applicants and the representative in relation to administrative matters associated with this review.

    Post-hearing submissions

37. The Tribunal received the following submissions on behalf of the applicants from the representative after the Tribunal hearing, with the main, but not necessarily all, documents attached to each submission noted:

    5 April 2023

    ·A letter from a medical oncologist and palliative care physician at Northern Health dated 9 March 2023; and

    ·A list of transactions for a Commonwealth Bank term deposit stating on 25 July 2022 AUD50,000 was transferred as a “Transfer in Branch” into that account, which then had a balance of AUD50,000.

    6 April 2023

    ·One page email from the representative;

    15 April 2023

    ·Three-page statutory declaration declared by the sponsor on 14 April 2023; and

    ·Two-page statutory declaration declared by the second named applicant on 14 April 2023.

    17 April 2023

    ·Six-page written submission from the representative dated 17 April 2023.

    Tribunal decision

38. The Tribunal has had regard to the oral evidence of the applicant, all of the information in the oral and written submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicants’ application for the Other Family (Residence) (Class BU) (Subclass 836) visas, the documents provided to the Department in support of those applications and copies of communication between the Department and the applicants.

39. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

40. The issue in the present case is whether the applicant is a ‘Carer’ under reg 1.15AA by demonstrating that the assistance the sponsor has a direct need for cannot be obtained from relevant Australian relatives or welfare, hospital, nursing or community services in Australia or some combination of the two in accordance with the requirements of cl 836.221 and reg 1.15AA(1)(e).

    Whether the applicant is a carer

41. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.

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

42. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s father.

43. The Tribunal is satisfied, based on the personal identification documents provided by the applicants and the resident that the first named applicant is the daughter of the resident.

44. As the applicant is the daughter of the Australian relative, the Tribunal finds the first named 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)

45. 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.

46. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).

47. A CVAC has been issued in this case. The CVAC has been issued by a currently registered medical practitioner employed by Bupa who signed the certificate on 5 February 2019. The CVAC is now more than four years old largely due to delays in the primary decision-making process, which took almost two and a half years to be made and a backlog of cases at the Tribunal.

48. According to Department policy, where a CVAC is more than two years old the decision-maker can request that the person with the medical condition undertake a fresh examination and provide an updated CVAC. This is not a legislative requirement however and the Tribunal is mindful such requests will incur additional costs for an applicant or resident and can lead to significant further delays in the completion of a review.

1. Given a person with medical conditions that meet or exceed the required impairment rating is likely to be seeing medical professionals relatively frequently, an alternative to requesting an updated CVAC is to ask for recent reports from treating medical professionals.

2. The applicant provided updated medical reports for the sponsor, her father, as set out in paragraphs 32, 33 and 37 of these reasons for decision. The conclusions the Tribunal draws from those reports is that since the primary decision the applicant’s lung cancer has become inoperable such that he is now receiving monitoring and palliative treatment only.

3. Given the nature and overall impact of the resident’s medical conditions and impairments, his 2019 CVAC impairment rating, viewed in the context of the resident’s age, medical and health history both before and since the CVAC was completed, the Tribunal did not require the resident to provide an updated CVAC.

4. The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the Tribunal finds the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the Tribunal finds that the requirements of reg 1.15AA(1)(b) are met.

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

5. 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.

6. In the present case, the person with the medical condition is the resident who is an Australian citizen. The applicant provided a copy of the biometric page of the resident’s Australian passport.

7. Accordingly, the Tribunal finds that the requirements of reg 1.15AA(1)(ba) are met.

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

8. 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. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.

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

10. The Tribunal finds that the requirements of reg 1.15AA(1)(c) are met.

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

11. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

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

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

13. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia.

14. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to the second limb of reg 1.15AA(1)(e) 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] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

15. There is no evidence before the Tribunal that the sponsor has any relatives in Australia who are a New Zealand citizen.

    Be provided by any other resident

16. The sponsor has a sister and a wife in Australia who on the evidence before the Tribunal are Australian citizens or Australia permanent residents.

17. The sponsor’s sister is Ms Kim Thoa Nguyen who at the time of this decision is 73 years of age based on information provided in the application for the Carer visas. The applicants stated in the visa application that the sponsor’s sister “has family & kids to look after”.

18. The evidence of the sponsor in his statutory declaration is that his sister in Australia is “very old and cannot provide the care and support that I require.” The sponsor declared he has had an “up and down” relationship with his sister in Australia, with regular periods of estrangement, although as the sponsor is now suffering a terminal illness the sponsor reports that their relationship since March this year has been good.

19. The applicant’s evidence is that due to a long-standing family dispute her father’s sisters, including his sister in Australia, do not talk to her and therefore she does not have a good relationship with them or her cousins in Australia. The applicant told the Tribunal that her father only days before the Tribunal hearing indicated to the applicant he wanted to reconcile with his sister in Australia before he dies, so the applicant drove her father to his sister’s house and her father went inside and spoke to his sister, while the applicant waited outside as her aunt would not allow the applicant inside.

20. In a submission received by the Tribunal on 9 March 2023 the representative submitted in relation to the sponsor’s sister:

    19.     The sponsor has a sister in Australia.

    20.     The sponsor’s sister has three children in Australia.

    21. The sponsor’s sister and his nieces and nephews are not willing or able to provide assistance to the sponsor. One of her children live in Perth and one live in Melbourne.

    22. The sponsor and the applicant do not know where the third child of the sponsor’s sister lives.

    23.     The sponsor does not have any relationship with his nieces and nephews.

    24. Additionally, the sponsor’s sister is also very old and the sponsor cannot reasonably obtain any assistance from her.

21. The term ‘relative’ is defined in reg 1.03 including for the purposes of reg 1.15AA. It includes nieces and nephews.

22. Little information has been provided to the Tribunal about the circumstances of the sponsor’s sister in Australia or the circumstances of her three adult children other than as summarised above.

23. The sponsor has been married three times. His first marriage was in Vietnam and the applicant was born during that marriage.

24. Information on the Department file indicates the sponsor sponsored his second wife, Ms Thi Le Nguyen, who would be presently aged 71, to come to Australia and she was granted a Subclass 309 Partner (Provisional) visa on 25 February 2014. There is no information about the sponsor’s second wife before the Tribunal. The definitions of ‘relative’ and ‘close relative’ in reg 1.03 do not include an ex-spouse and therefore the Tribunal did not ask the applicant about her father’s second wife and she is not relevant to the issues before the Tribunal.

25. The sponsor then sponsored his third wife, [Ms A], who in documents submitted to the Department the sponsor claims to have married on 29 March 2018, to come to Australia on 15 February 2019. The Tribunal notes in the Form 40 ‘Sponsorship for migration to Australia’ signed by the sponsor on 11 January 2019, he answered question 40 that he was ‘divorced’.

26. In his statutory declaration declared on 14 April 2023, the sponsor declared:

    29.I was married to [Ms A], however, as soon as my condition worsened and I could not walk anymore, she left me.

    30.I thought that marrying [Ms A] would provide me with support that I need, but she was never supportive of me and was only taking care of her children.

    31.I thought [Ms A] loved me and would provide care to me, but I may have misunderstood her intentions.

27. [Ms A] was granted a Subclass 309 Partner (Provisional) visa on 14 July 2020 and has two dependent children. The primary decision records that in response to a request from the Department for additional information on 4 June 2021 the applicant submitted a statement in which she stated (errors in the original):

    Dear Case Office,

    My name is Thi Nga Nguyen, would like to write this statement to support for our carer visa application subclass 836 to be my father's full time carer in Australia.

    …

    On other hand, my father's partner ([Ms A]) has arrived in Australia in 08.2020 by her partner visa with two of her kids. She is very charm lady and she is also caring for my father as well. She made my father relax and happier than before. I can tell how happy my father is when she moved to Australia to live with my father. So since then, we are a whole family to care for our father.

    It is the best wish that our father needs when we are all living together to care for my father. He has been working so hard to care for us in the past. Therefore, it is the time for us to payback our love to our father for the rest of his life.

28. In a submission received by the Tribunal on the day of the Tribunal hearing, 9 March 2023, the representative submitted:

    SPONSOR’S WIFE

    16. It is submitted that the sponsor’s wife, [Ms A] has left the sponsor after she was granted her permanent partner visa.

    17. The separation occurred at the time that the sponsor’s illness became worse and he could not walk anymore. I am instructed that [Ms A] left the sponsor’s residence in February 2022 and never returned.

    18. The applicants and the sponsor are not aware of the where abouts of [Ms A] and her children.

29. In a submission received by the Tribunal on 17 April 2023 after the Tribunal hearing, the representative updated his submission about the sponsor’s wife as follows:

    SPONSOR’S WIFE

    19. The sponsor and the applicant’s husband has provided further confirmation and declaration in relation to the sponsor’s wife and the lack of assistance from her.

    20. It is submitted that the sponsor’s wife, [Ms A] has left the sponsor after she was granted her permanent partner visa.

    21. The separation occurred at the time that the sponsor’s illness became worse, and he could not walk anymore. I am instructed that [Ms A] left the sponsor’s residence in February 2022 and never returned.

    22. The applicants and the sponsor are not aware of the where abouts of [Ms A] and her children.

30. As noted in paragraph 28 of these reasons, the applicant provided evidence, which the Tribunal accepts, that the sponsor’s third and current wife, [Ms A], was granted a permanent Subclass 100 Partner visa on 7 December 2021 on the basis of her genuine and continuing married relationship with the sponsor.

31. The Tribunal asked the applicant about her father’s (third) wife. The applicant’s evidence to the Tribunal in relation to [Ms A] is:

    ·The applicants arrived in Australia on 26 October 2018 and 7 November 2018 and have lived with the applicant’s father since arriving in Australia;

    ·[Ms A] arrived in Australia with her two then teenage children in August 2020;

    ·[Ms A] moved into the shared house straight away with her children;

    ·[Ms A] and her children moved into the bedroom the applicants’ had been occupying and the applicants had to move into the sponsor’s bedroom with the sponsor;

    ·The applicant stated her father and [Ms A] did not ever share a bedroom;

    ·When [Ms A] and her children arrived the applicant asked her father who [Ms A] is and her father told the applicant [Ms A] and her children are just staying temporarily;

    ·At the time, the sponsor did not tell the applicant he had married [Ms A];

    ·Three or four months later the applicant asked her father who [Ms A] is again because the applicant was surprised that she and her husband had to give up their bedroom for her and her children. At this time the sponsor told the applicant he had sponsored [Ms A] to come to Australia;

    ·[Ms A], to the applicant’s ongoing surprise and shock, did not provide any care or support to the sponsor apart from cooking meals sometimes, which the sponsor could not eat, so the applicant would prepare the sponsor a separate meal each time.

32. Based on this evidence it appears that [Ms A] and her two children lived with the sponsor and the applicants from August 2020 until February 2022, which is approximately 18 months.

33. The applicant’s oral evidence about the (lack of) care and support [Ms A] provided to her father, the sponsor, contrasts to her June 2021 submission to the Department where she described [Ms A] and the care she provided to her father in positive terms, including that [Ms A] has made the applicant’s father more relaxed and happier than before she arrived.

34. The Tribunal notes in the Form 40 that the sponsor declared that his dwelling is a house (question 44) and has three bedrooms (question 45) and at the time of completing the form three people were living there (question 46). This contrasts to the applicant’s evidence that it is a two-bedroom dwelling. The sponsor signed the form on 11 January 2019 before his third wife and her children came to Australia. The address of the dwelling shown on the Form 40 is the same address the applicant has provided to the Tribunal as her current address.

35. The Tribunal does not find the description of the circumstances of the sponsor’s third marriage to [Ms A] and the care she did or did not and now can or cannot provide to the sponsor to be convincing. On the evidence submitted to the Tribunal the sponsor, just two weeks before his 87^th birthday, married a woman with two teenage children who is [number] years his junior in the hope of bringing her to Australia to, amongst other things, care for him. But by the time the sponsor sponsored [Ms A]’s provisional and permanent Partner visa application in July 2020 the applicants had already arrived in Australia, had been living with the sponsor and had been providing assistance, care and companionship to him since 26 October 2018 and 7 November 2018 respectively. The Tribunal notes that the sponsor submits he has been very happy with the assistance the applicant (and her husband) have provided to him, to the extent that in his 14 April 2023 statutory declaration he declared:

    34.I am happy that I have my daughter and son-in-law with me as they are caring for me with their love and compassion and I can these last days of my life with dignity.

    35.If my daughter and son-in-law were not with me in the past few years, I would have died a long time ago. They kept me alive with their care, support and love.

    36.If they are not allowed to stay with me, I do not think I can stay alive even one day. My daughter and son-in-law are the reasons that I am still alive and if they are not allowed to stay with me, I believe that my life will end very soon after.

36. The Tribunal discussed with the applicant during the Tribunal hearing how she assists the sponsor with his activities of daily living. The applicant was able to describe in detail the assistance she and her husband provide to the sponsor including providing culturally appropriate food. The applicant told the Tribunal, as is not uncommon for people with long-term pain and loss of functions, that her father can lash out violently in frustration and it is only the love she and her husband the second named applicant have for the sponsor that enables them to continue to care for him despite these acts, but she doubts any other carer would tolerate such behaviour. The Tribunal accepts this evidence.

37. The representative submitted to the Tribunal that since the delegate’s decision in June 2021 the sponsor has become reliant on the use of a wheelchair for his mobility. The Tribunal accepts this submission.

38. It was evident to the Tribunal that the applicants’ have provided a high level of assistance and care to the sponsor since October and November 2018, including as his physical condition has deteriorated, and that both they and the sponsor wish for this arrangement to continue.

39. The Tribunal is aware that the sponsor has inoperable lung cancer and has not been given a life expectancy by his doctors. The applicant told the Tribunal that the sponsor told her that his doctor said he could survive for another three years but without the care of the applicants he will die within a year. The applicant also told the Tribunal the sponsor told her that without the applicants he would die not because of his illness, but because of loneliness.

40. The Tribunal has great empathy for the circumstances of the sponsor and the applicants.

41. However, the Tribunal remains concerned about the lack of information before it about the present circumstances of the sponsor’s wife and her children and the sponsor’s sister in Australia and her children. This lack of information in the Tribunal’s view reflects the sponsor’s preference that he be cared for by the applicants and the applicants’ preference that they be permitted to care for the sponsor rather than reflecting that the sponsor’s wife or sister in Australia or any of their adult children are unable to assist or contribute to providing the assistance the sponsor requires.

42. This is not a finding by the Tribunal that the sponsor’s wife or sister in Australia or any of their adult children could provide the assistance and care to the sponsor that the applicants have been and are providing. The applicants live with the sponsor and have demonstrated they are able to care for him 24 hours a day, seven days a week. However, this is not what is required. The Tribunal must be satisfied that the assistance the resident sponsor requires could not reasonably be provided by any other relative of the sponsor, being a relative who is an Australian citizen or Australian permanent resident. This does not require one of the sponsor’s relevant relatives in Australia to step into the applicants’ shoes. What it requires is that the Tribunal is satisfied that the sponsor’s Australian citizen or permanent resident relatives who are in Australia could not individually or collectively in some combination provide the assistance the sponsor requires.

43. Based on the information before the Tribunal at the time of this decision, the Tribunal is not satisfied the assistance the sponsor requires could not individually or collectively in some combination be reasonably provided by the sponsor’s Australian citizen or permanent resident relatives who are in Australia.

    Be obtained from welfare, hospital, nursing or community services in Australia

44. The delegate who made the primary decision found that the applicant did not provide any evidence that she had contacted welfare, hospital, nursing or community services in Australia to explore what services are available to support the sponsor.

45. The sponsor’s evidence, in his statutory declaration declared on 14 April 2023 is that he receives some home care from Bapt Care and otherwise relies on the advice and referrals of his general practitioner and specialist doctors as to what services he may need or be able to obtain. The applicant provided evidence, which the Tribunal accepts, that in addition to the limited home care the sponsor receives, he continues to receive care as an outpatient for his inoperable cancer from Northern Health and has also been referred to Banksia Palliative Care for specific palliative care services.

46. The sponsor declared that he is too tired and does not have the energy or health to go around and seek services that may or may not help him and his very limited English language skills make it impossible for him to research and find community services.

47. The sponsor also declared that he has breathing problems and cannot speak over the phone with people to try and ask for help from community services. However, several paragraphs earlier in his statutory declaration the sponsor declared that since March 2023 he speaks regularly with his sister in Australia “over the phone”. The Tribunal does not draw any adverse inferences in this regard as it accepts that the sponsor is profoundly unwell.

1. The Tribunal accepts the sponsor’s declarations in relation to his inquiries about what assistance may be available to him from welfare, hospital, nursing or community services in Australia. It is not an expectation of the Tribunal nor a requirement for the grant of a Carer visa that the sponsor must personally find out what assistance he can obtain from welfare, hospital, nursing or community services in Australia. But someone must make those enquiries in order to demonstrate that the assistance the sponsor requires cannot reasonably be obtained from within the Australian community.

2. The Tribunal discussed with the applicant during the Tribunal hearing what support services the sponsor receives and what inquiries had been made about what assistance he may be able to obtain from welfare, hospital, nursing or community services in Australia. The applicant told the Tribunal the sponsor receives one cleaning service once a week from Bapt Care, which is vacuuming the carpet, although a cleaner may not attend for three or four weeks in a row sometimes and then the applicant will do the vacuuming. The applicant told the Tribunal it generally takes her about 20 minutes to do the vacuuming, which the Tribunal accepts.

3. The applicant provided documents that show the sponsor has been approved for a level 2 home care package for which he receives funding of AUD619.36 per fortnight, or just over AUD16,000 per annum. Level 2 packages are for people assessed as having low care needs.

4. The Tribunal asked the applicant given the limited services received from Bapt Care, what the balance of the sponsor’s level 2 home care package is spent on given the wide range of home care services that are available from Bapt Care in a price list from Bapt Care that the applicant provided to the Tribunal. The applicant was unsure what the sponsor’s approved home care package is or how it is spent.

100.   The Tribunal told the applicant that for the sponsor to have received an approved home care package the sponsor must have had an aged care assessment and there should be an aged care plan and whether a copy could be provided to the Tribunal. The applicant told the Tribunal she was not aware of any such assessment or plan and does not know anything about those matters as she just provides care for her father.

101.   The representative submitted that given the deterioration in the sponsor’s health and physical condition he could potentially apply for a review of the home care package he is provided through myagedcare.com.au, but that the representative had spoken to Bapt Care about this and it could take a long time for the applicant to be reassessed. The Tribunal accepts this submission.

102.   The applicant was not sure what the referral of the sponsor to Banksia Palliative Care was about or what services may be able to be provided to the sponsor through that referral. The representative also submitted it was only a referral, which the Tribunal accepts, and he would see if more information could be provided after the Tribunal hearing. Additional information about what palliative care services could be provided to the sponsor by Banksia Palliative Care were not provided to the Tribunal after the Tribunal hearing.

103.   The applicant told the Tribunal that both she and her husband, the second named applicant, have very limited English communication skills, including not being able to read English, and they are not in a position to make inquiries about what welfare, hospital, nursing or community services may be available in Australia to assist the sponsor.

104.   The Tribunal also asked the applicant whether they had made inquiries about obtaining culturally appropriate assistance for the sponsor such as through Australian Multicultural Community Services or community organisations that support the local community that originally came from Vietnam or had accessed the telephone interpreter service to make relevant inquiries. The applicant responded that since she and her husband first arrived in Australia they have been taking care of the sponsor and have not made any inquiries about those services.

105.   The applicant told the Tribunal they had not made any inquiries about support from community nursing, formerly known as the Royal District Nursing Service. This was a concern for the Tribunal given the applicant’s evidence, which the Tribunal accepts, that the applicants do not read English yet the applicant assists the sponsor with his medication which he takes in the morning, middle and evening of each day.

106.   The Tribunal asked the applicant whether the sponsor receives any meals on wheels, occupational therapy, respite care, social support including over the telephone or escorted travel support services. The applicant told the Tribunal her father, the sponsor, received none of these services and because of their limited English they had not made inquiries about them and also in the area they live (Lalor) they could not find any Vietnamese and English-speaking neighbours to assist them. The Tribunal accepts this evidence.

107.   It is clear to the Tribunal that someone has assisted the sponsor to engage with myagedcare because the sponsor has been assessed and approved for a home care package and receives limited services using funding from that package. There is no evidence before the Tribunal as to who assisted the sponsor in this regard, when this occurred or when his home care package commenced. It appears to the Tribunal that the sponsor is not utilising all of the funding provided to him based on the evidence of the applicant about the limited home care services the applicant receives.

108.   It is also clear to the Tribunal that the sponsor receives outpatient hospital services, primarily through Northern Health and primarily for the now palliative treatment of his inoperable lung cancer and associated conditions. It is somewhat perplexing to the Tribunal that the sponsor is able to engage or be supported to engage with his general practitioner and specialist doctors and allied services at Northern Health but on the evidence before the Tribunal has not been able to obtain anyone’s assistance to find out what services could be provided to the sponsor by Banksia Palliative Care following the sponsor’s referral to that organisation for palliative care given the relevance of those services to his stage of life.

109.   Given the age and health of the sponsor the Tribunal does not expect the sponsor or anyone on his behalf to have made inquiries about residential care for the sponsor. It is apparent to the Tribunal that no such inquiries have been made but the Tribunal draws no adverse inferences and makes no adverse findings in this regard.

110.   Again, while the Tribunal has empathy for the circumstances of the sponsor and the applicants, particularly given their limited English communication skills and the sponsor’s specific cultural and care needs, the Tribunal is not satisfied that there has been sufficient inquiries made about the assistance that may be available from welfare, hospital, nursing or community services in Australia for the Tribunal to make a finding that the assistance the sponsor requires cannot reasonably be obtained from those services.  

111.   The Tribunal finds that it is not satisfied that the assistance required by the resident sponsor cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia or some combination of them and therefore the requirements of reg 1.15AA(1)(e) are not met.

Willing and able – reg 1.15AA(1)(f)

112.   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.

113.   The assistance the applicant provides to the sponsor is set out earlier in these reasons, including in paragraph 84. The applicant told the Tribunal that it is her wish to take care of her father until his last breath. The Tribunal accepts this evidence. The Tribunal also accepts that the applicant, and her husband, have been caring for the sponsor since October 2018 including adapting their assistance as the sponsor’s care have become more complex over time.

114.   Therefore, the Tribunal finds 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 reg 1.15AA(1)(f).

Other visa subclasses

115.   Visa Class BU also contains two other subclasses of visa in addition to Subclass 836 Carer visa: Subclass 835 Remaining Relative visa and Subclass 838 Aged Dependent Relative visa.

116.   The Tribunal finds that the applicant is not entitled to the grant of Subclass 835 Remaining Relative visa as the applicant’s near relatives, as defined in reg 1.15(2), reside in the same country as the applicant. The applicants visa application reveals that the applicant has a mother, step-sister and step-brother who remain resident in Vietnam and the second named applicant has his parents and five siblings who remain resident in Vietnam. As such, the applicant is not a ‘remaining relative’ and therefore is unable to meet cl 835.212.

117.   The evidence before the Tribunal is that the applicant was born on [day deleted] of April 1963. The Tribunal finds that the applicant is not entitled to the grant of Subclass 838 Aged Dependent Relative visa as the applicant is not old enough to be granted an age pension under the Social Security Act 1991 (Cth). Therefore, the Tribunal is not satisfied that the applicant meets the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations.

Conclusion – first named or primary visa applicant

118.   Given the findings above, the Tribunal finds that at the time of this decision the applicant is not a carer of the Australian relative, being the sponsor or resident, as that term is defined in reg 1.15AA(1)(e) and therefore does not satisfy the requirements of cl 836.221 of Schedule 2 to the Regulations and is not entitled to be granted any other subclass of visa in the Class BU visa class.

119.   For this reason, the Tribunal affirms the decision under review in relation to the first named applicant.

Second named visa applicant Mr Tan Quyen Duong

120.   If a member of a family unit satisfies the primary criteria for the grant of a Subclass 836 Carer visa, then any other member of that family unit who satisfies the secondary criteria are also eligible for the grant of the visa.

121.   Relevantly for present purposes, cl 836.31 of Schedule 2 of the Regulations provides in relation to secondary applicants for a Subclass 836 Carer visa (emphasis in original):

836.31 Criteria to be satisfied at time of application

836.311

The applicant is a member of the family unit of a person who:

(a)       has applied for an Other Family (Residence) (Class BU) visa; and

(b)  on the basis of the information provided in the application, appears to satisfy the criteria in Subdivision 836.21;

and the Minister has not decided to grant or refuse to grant the visa to that other person.

836.312 

The sponsorship mentioned in clause 836.213 of the person who satisfies the primary criteria includes sponsorship of the applicant.

836.32 Criteria to be satisfied at time of decision 

836.321 

The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa.

122.   As the Tribunal has found that the first named applicant has not satisfied the primary criteria in cl 836.221 for the grant of a Subclass 836 Carer visa this means the second named applicant does not meet the secondary criteria for the grant of a Subclass 836 Carer visa because the second named applicant is not the member of the family unit of a person, being the first named visa applicant, who has satisfied the primary criteria for the grant of that visa.

123.   The second named applicant has not claimed and there is no evidence before the Tribunal that the second named applicant is able to meet the primary criteria for the grant of a Subclass 836 Carer visa.

124.   The second named applicant has both parents and five siblings who remain resident in Vietnam and is not old enough to be eligible for an aged care pension and for these reasons is not a ‘remaining relative’ and therefore is unable to meet cl 835.212 and does not meet the definition of ‘aged dependent relative’ in reg 1.03 for the purposes of cl 838.212 of Schedule 2 to the Regulations, respectively.

125.   For these reasons the Tribunal finds that the second named applicant is not entitled to the grant of a Subclass 835 Remaining Relative visa or a Subclass 838 Aged Dependent Relative visa.

Conclusion – second named visa applicant Mr Tan Quyen Duong

126.   Given the findings above, the Tribunal finds that at the time of this decision the second named applicant is not a member of the family unit of a person who has satisfied the primary criteria for the grant of a Subclass 836 Carer visa and therefore does not satisfy the requirements of cl 836.321 of Schedule 2 to the Regulations and is not entitled to be granted any other subclass of visa in the Class BU visa class.

127.   For this reason, the Tribunal affirms the decision under review in relation to the second named applicant.

Other matters

Request for the Tribunal to refer the applicant’s application to the Minister

128.   In the representative’s submission received by the Tribunal on 17 April 2023, the representative submitted:

SPECIAL REQUEST

27. In the event that the tribunal is not satisfied that the applicant and her husband meet the requirement for the grant of a subclass 836, we ask the respectful senior member to make referral to the minister for intervention and substitution of the decision with a more favourable decision. Considering the condition of the sponsor and his needs, it is submitted that it will be in the best interest of an Australian Citizen for the minister to intervene in this matter.

129.   Section 351 of the Act provides that if the Minister thinks it is in the public interest to do so the Minister may substitute for a decision of the Tribunal another decision that is more favourable to the applicant. This is known colloquially as Ministerial Intervention.

130.   The power in s 351 is a power that is personal to the Minister and cannot be delegated. The Minister also does not have a duty to consider whether to exercise this power or not.

131.   There is no formal power for the Tribunal to refer matters to the Minister for the Minister to consider exercising the power in s 351 because of the non-compellable nature of the Minister’s power. However, over time an informal practice has emerged where the Tribunal has made such ‘referrals’. These are not ‘referrals’ in any legal or formal sense but are often sought by applicant’s presumably because they hope if the Tribunal makes a ‘referral’ in a particular case then it may have a greater chance of actually being brought to the Minister’s attention. Whether this is actually the case is a moot point and in any event an applicant can directly seek that the Minister exercise the Minister’s power under s 351 in their application, irrespective of whether the Tribunal makes such a ‘referral’ or not. 

132.   In 2016 the Minister issued guidelines known as the 2016 Ministerial Instructions to the Department on which applications for the Minister to exercise the power under s 351 (and other intervention powers) should and should not be referred to the Minister. In Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 10 the High Court on 12 April 2023 found the Department’s administration of these guidelines breached the Minister’s non-delegable statutory powers to decide procedurally whether to consider an application and where the Minister chose to consider an application to decide substantially whether to substitute a more favourable decision or not.

133.   While the administration of the Ministerial Instructions by the Department has been ruled as unlawful by the High Court, the Instructions still provide valuable guidance on when the Minister may choose to make either the procedural or substantive decision referred to above. The Instructions require that there must be unique or exceptional circumstances to establish that it is in the public interest for the Minister to intervene.

134.   The Instructions do not provide an exhaustive statement of what such unique or exceptional circumstances are, but provide some examples, including:

Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident

135.   The Tribunal is satisfied that the sponsor’s circumstances of being an Australian citizen who is 91 years of age, with incurable stage 4 lung cancer, who has been reliant on the applicant as his main carer since October 2018, amounts to strong compassionate circumstances.

136.   The Tribunal is not going to refer the applicant’s application to the Minister. The Tribunal has not been informed what palliative care services are available to the sponsor and this means the Tribunal does not know what impact the refusal to grant the applicants Carer visas will have on the sponsor or whether the Tribunal’s decision will cause the sponsor irreversible harm.

137.   The Tribunal recognises that if the applicants were required to depart Australia this may reduce the immediacy, amount, quality and cultural appropriateness of the care and assistance available to the sponsor and this in turn may hasten the sponsor’s end of life. However, this is speculation by the Tribunal given the absence of information about the palliative care services the sponsor has been referred to.

138.   The Tribunal notes that this aspect of the Tribunal’s decision does not prevent the applicants from directly seeking that the Minister exercise the power under s 351 of the Act in relation to their applications for Carer visas.

Tribunal concerns about the grant of the Subclass 100 Partner visa to [Ms A]

139.   The Tribunal notes that [Ms A] was granted a permanent Subclass 100 Partner visa on 7 December 2021 on the basis of her genuine and continuing married relationship with the sponsor.

140.   The Tribunal brings to the Department’s attention the declarations of the sponsor and the oral evidence of the applicant in relation to the sponsor’s relationship with [Ms A] and the seemingly separate lives they lived while cohabitating between August 2020 and February 2022. While the sponsor and [Ms A] occupying separate bedrooms throughout their relationship and the initial lack of disclosure by the sponsor of their marriage to the applicants does not preclude the sponsor and [Ms A] being in a genuine married relationship, the submissions and evidence were of sufficient concern to the Tribunal that the Tribunal feels compelled to highlight this evidence to the Department.

141.   Whether the Department decides to review the evidence on which the Subclass 100 visa was granted to [Ms A] with a view to potentially re-interviewing her if the evidence given to the Department was inconsistent with the evidence given to the Tribunal during this review, is a matter entirely for the Department.

DECISION

142.   The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Michael Ison

Senior Member

Attachment - Extracts from the 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.