Nguyen (Migration)

[2023] AATA 2057

Nguyen (Migration) [2023] AATA 2057 (5 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tien Dien Nguyen

VISA APPLICANTS:  Ms Thi Vien Nguyen
Mr Dinh Tuan Doan
Mr Tien Hung Doan
Mr Tien Anh Doan

REPRESENTATIVE:  Ms Myyen Tran

CASE NUMBER:  2010498

HOME AFFAIRS REFERENCE(S):          OSF2016/002276 OSF2016/002279 OSF2016/073696

MEMBER:Jennifer Cripps Watts

DATE:5 May 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 5 May 2023 at 12:25pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of the Australian relative – low level of independence – assistance cannot reasonably obtained/provided – other adult relatives – NDIS funding – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 116.221

CASES
Xiang v MIMIA [2004] FCAFC 64

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 June 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 8 July 2016. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the primary visa applicant (the applicant) is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. To meet the secondary criteria, cl 116.321, for the grant of the visa, the secondary applicants must be a member of the family unit of a person who holds a subclass 116 visa. The visa of the primary visa applicant (the applicant) was refused because they did not meet the primary criteria. As the secondary applicants did not meet the secondary criteria, their visas were also refused.

3. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the applicant was found not to be a ‘carer’ when assessed against the requirements of reg 1.15AA(1) of the Regulations.

4. The review applicant appeared before the Tribunal by MS-Teams audio-visual on 21 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant by phone. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.  Occasionally questions and answers were clarified throughout the hearing, which is not unusual in the Migration Division, where the applicants and Tribunal do not share a common first language and there is an interpreter assisting. 

5. The review applicant’s representative attended the hearing, from the same location as the review applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is a carer, with reference to each of the elements of reg 1.15AA(1) of the Regulations, at the time of this decision.

   Whether the visa applicant is a ‘carer’

8. Clause 116.221 requires that at the time of decision, the visa 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.  

9. The elements of reg 1.15AA are cumulative. If the applicant does not meet one element, there is no need to consider the remaining elements.

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

10. 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).

11. The applicant is Ms Thi Vien Nguyen, who is a sister of the resident, who is her brother, a ‘close relative’ for the purpose of reg 1.03.

12. The resident, who is the brother of the primary applicant, is referred to variously in this decision as the Australian relative, resident or sponsor.

    Certification – reg 1.15AA(1)(b)

13. Regulation 1.15AA(1)(b) requires that a certificate (the 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.

14. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in Legislative Instrument IMMI 14/085.  The health provided specified in IMMI 14/085 is Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services (Bupa).

15. The Tribunal has been provided with a certificate, a Carer Visa Assessment Certificate and Panel Physician’s Report, under cover of a letter from Bupa dated 11 March 2022.  The certificate is signed by Dr A Madagammana, Bupa Panel Physician, and dated 8 March 2022.  The person assessed is Sam, the son of the Australian resident.

16. According to the certificate:

    ·a member of the family unit (Sam) of the resident (his father) has a medical condition causing impairments of their ability to attend to the practical aspects of daily life

    ·the impairment has an impairment table rating specified in the certificate 

    ·because of the medical condition, the person has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life

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

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

18. 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.

19. In the present case, the person with the medical condition is Sam Toan Nguyen, an Australian citizen.

20. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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

21. 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 Legislative Instrument IMMI 17/126, which specifies the impairment rating as 30 (thirty).

22. In the present case, the impairment rating specified in the certificate is 40 (forty). This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

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

23. 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.

24. In the present case the Australian relative (resident) is not the subject of the certificate, but the parent of the person who is the subject of the certificate, his son Sam.  The Tribunal has made a finding that reg 1.15AA(2) is met relating to the certificate.  It is included in the certificate that the person with, and because of, the medical condition, is a member of the family unit of the Australia relative, and that the relative has a need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years (page 9 of the certificate).

25. As the Australian relative requires assistance in providing the direct assistance referred to in reg 1.15AA(1)(b)(iv) the requirements of reg 1.15AA(1)(d) are met.

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

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

27. Documentary evidence has been provided, and oral evidence was given at the Tribunal hearing, relating to the matters the Tribunal must consider relating to reg 1.15AA(1)(e). 

28. The Australian resident and his son, Sam, live in a household with Sam’s mother, his older sister and younger brother (who is 16).  They are Australian citizens.  Evidence was given by the resident that the family generally spends their evenings together at home.

29. Currently, evidence has been provided indicating, in summary, that Sam’s care is being provided, or obtained, by a plurality of assistance, from his father, and community services. At present, the person who primarily cares for Sam, when he is not attending a day care programme outside the home, is his father, the Australian resident.  For a period from 2019 to 2021, during the COVID-19 pandemic, Sam was primarily cared for by his mother and she received a carer’s payment from the government during this time, until she returned to work full time. 

30. Sam has an NDIS plan, which will be reviewed on 23 December 2023, that provides total funded supports of $70,275.06, comprising (mostly NDIA managed):

    ·Core supports  $57,876

    ·Transport  $  2,676

    ·Capacity Building and improved daily living supports           $  5,819

    ·Support co-ordination   $  2,403.36

31. In the delegate’s decision, reference was made to Sam accessing speech and occupational therapy services through the Royal Institute of Deaf and Blind in 2019.  This is incorrect.  The Tribunal accepts, on the evidence provided, that Sam last accessed these services in 2010.  He accessed another therapy provider in 2019 for therapy, referenced in the letter of Dr Duc Van dated 24 June 2020.

32. In a medical report from Dr J Kokkinos, dated 27 March 2023, it is included that Sam, at 19 years and six months:

    ·Started having seizures on 16 March 2023

    ·Is gentle, easy to manage and can do some housework

    ·Finished school but can’t read or write

    ·Participates in some programmes that deal with disabled people (referring to his three days a week at a community service, which includes swimming, bowling and music)

    ·Sam has been prescribed anticonvulsant medication, and he will need it for life. 

33. A letter provided from Afford, dated 13 April 2023, includes that:

    a.Sam attends the Community Centre at Condell Park three days a week from 9am to 3pm; on Monday he participates in swimming, Wednesday bowling and Friday music.

    b.He is picked up from home at 8.30am and dropped off at 3.15pm

    c.Needs help with food preparation and entering vehicles

    d.And he has been attending the programme since April 2022 (noting that this commenced after Sam left school the previous year)

34. A Functional Assessment Report from an occupational therapist, dated 16 November 2022, includes that:

    a.The report was prepared from discussions with Sam, his father and sister, Judy Blanch from Afford, review of paediatrician report dated 2 December 2021 from Dr Duc Van, review of a Neurology report dated 9 September 2020, Dr Kimberley Tan, Eastern Eye Centre, and an occupational therapy report, dated 26 July 2023, of Loan Nguyen, Skilled Heath, and results of Independent Living Skills Checklist

    b.Sam lives in a privately owned home with his mother, father, sister (adults) and brother (16 years of age)

    c.He has been diagnosed with a moderate intellectual disability and cortical vision impairment, from an acquired brain injury at age six weeks

    d.Sam requires support with most activities

    e.His parents work running a business

    f.He started attending Afford five days a week in April 2022, but funding for his two year NDIS plan ran out in June 2022, and is $8,000 in arrears (noting that this report was prepared in November 2022 and Sam’s NDIS total funded support was increased to $70,275.06)

    g.Sam requires some assistance dressing, sleeps all night and is continent

    h.Can complete most grooming tasks, including showering

    i.Doesn’t take any prescribed medications (noting that this report was prepared prior to the onset of seizures in March 2023)

    j.Sam has a low level of independence, 10/31 on the Lawton’s Activities of Daily Living (LADL) test

    k.Whodas Results, an overall score of 64.83%; Sam scored lowest in life activities and participating in society, moderate in other areas

    l.Recommends funding:

    i.for a support coordinator

    ii.capacity building support for an occupational therapist (NDIS funded and NDIA managed $5,819.70)

    iii.community participation program 5 days per week (including in core supports funding?)

    iv.transport ($2,676 paid directly into bank account, fortnightly, NDIS?)

    v.low cost assistance technology ($1,500 self-managed NDIS)

35. The recommended funding referred to in the November 2022 Functional Assessment Report above is generally consistent with the types of supports that are funded through Sam’s NDIS plan.  It is noted that a recommendation of five days a week community participation is recommended and that Sam attends the Accord programme three days a week.  This was discussed at the hearing with Sam’s father who said they cannot afford the additional two days.  Sam’s father works three days a week, on the same three days Sam attends the community centre.  At present the arrangement is that on the days Sam is not at the community programme, his father cares for him.

36. Sam was having occupational therapy before the COVID-19 pandemic but no longer does.  The sponsor said that was because the service provider told them they were looking for a new service but have not found one yet.  He said that the cost of occupational therapy is beyond the funding they receive from the NDIS.

37. Sam’s typical daily routine and arrangements were discussed with the resident at the Tribunal hearing.  Sam’s father said Sam attends ‘school’ (the community programme) three days a week.  In the morning he brushes his teeth, washes his face and has breakfast.  When he returns, he has a shower, then dinner and in the evenings he plays or listens to music before going to bed.  Sam’s father works part time for a nail shop (not the same one his wife works at), doing deliveries, purchasing supplies and cleaning the shop.  He said he works because he ‘needs to pay the mortgage’. 

38. At the Tribunal hearing, the sponsor referred to his health condition, hepatitis B, a number of times and had also said that it is hard work looking after Sam.  He was asked in what way looking after Sam, relating to the sponsor’s health, was harder work than, for example, the work he does for the nail salon three days a week.  The sponsor said that the work at the shop is ‘organised’, it’s not hard and that with Sam, it’s a lot he has to do ‘every day’.  The sponsor said he is getting ‘old’.  He said his health is ‘not very good’, referring to his having Hepatitis B, and was asked whether he takes any medication.  He said he does not take any medication.  Whilst feeling old is a subjective matter, the Tribunal notes that the sponsor was born in 1969 and does not consider that he is ‘old’ in the sense that he is getting too old to provide the assistance that Sam requires, with reference to the medical evidence and other reports relating to Sam’s needs, particularly where there are other adult family members who may reasonably be capable and expected to provide assistance, at least in the home, and Sam’s participation in community services he obtains with his NDIS funding.

39. The sponsor was asked at the hearing whether Sam is easy or difficult to manage and he said ‘it’s harder to manage’, comparing it to the work he does three days a week for the nail shop.  The sponsor provided the Tribunal with a recent medical report of Dr Kokkinos dated 27 March 2023 and was reminded that in the report Dr Kokkinos said that Sam ‘is gentle, easy to manage and can do some housework’.  It was put to the sponsor, as adverse information, that his evidence about Sam being hard to manage and that Sam cannot do anything for himself was inconsistent with the doctor’s thoughts on these points.  The adverse information was put in the terms required by s 359A of the Act, with his solicitor present.  The applicant was told that if the Tribunal relied on the information, it would be a reason or part of the reason for affirming the decision about the visa.  The sponsor was invited to comment on the information, either at the hearing or at a later time.  A short adjournment was granted for the sponsor to speak with his solicitor.  Everyone turned off their microphones and cameras for that purpose for about five to 10 minutes.  When the hearing resumed, the applicant indicated that he wished to respond in his oral evidence at the Tribunal hearing.  He was reminded that the Tribunal relying on the information would be subject to his comments or response and the sponsor was invited to go ahead.

40. In response to the adverse information at the Tribunal hearing, the sponsor said that Sam’s brain specialist, referring to Dr Kokkinos, said he could do something for him (the doctor), but that it was the first time the doctor met Sam.  The sponsor said that Sam was quite gentle when they were with the doctor, but that because the doctor had not met Sam before he ‘might not have had enough time to understand Sam’.  The sponsor said that he agrees Sam ‘can do some simple things at home’, like closing doors, and turning lights on and off, but that he cannot do many things for himself because he cannot see at all and has a problem with his brain.  Seeking to understand the reference to Sam being ‘gentle’ and the sponsor seeming to say that the doctor may not have understood Sam, the sponsor was asked whether Sam ever loses his temper, to which the sponsor responded, ‘it’s hard’.  For clarification, the Tribunal asked whether Sam is ‘violent’, or whether he loses his temper, ‘any of that type of behaviour’, and the sponsor said, ‘no’.

41. Medical evidence is unequivocal relating to Sam’s impairments relating to his eyesight and brain function.  There is reliable evidence that has been provided, and considered, for example from Dr Kokkinos.  The Tribunal has considered the resident’s response and comments relating to the adverse information put to at the hearing.  The Tribunal gives weight to the information contained in Dr Kokkinos’ medical report referring to Sam being gentle and able to do some things around the house.  His father said Sam is not prone to violence or losing his temper, which tends to indicate Dr Kokkinos’ impression of Sam, notwithstanding it was the first time he met him, is substantially accurate.  The Tribunal does not suggest that it is not demanding and sometimes tiring looking after Sam, with his conditions, but considers the sponsor may be somewhat overstating it when he says Sam is hard to manage. 

1. The Tribunal accepts that Sam’s mother runs a nail shop and works six days a week, that that Sam’s elder adult sister works full-time for an Australian company specialising in science research and does other part-time work, and that his younger brother, who is under 18, attends school.

2. On the evidence, Sam’s elder sister lives at home with the family and, although she works full time, it is reasonable to think she also spends some time at home, for example in the evenings.  Sam’s mother works six days a week, but likewise, it is reasonable to think that she is at home in the evenings.  The resident said at the hearing that the family spends time together at home during the evenings.  Sam’s younger brother is not an adult and the Tribunal has not included in its consideration of whether Sam’s relatives could collectively, or with a plurality of services, reasonably provide assistance or obtain services fulfilling Sam’s needs relating to the direct assistance he requires in attending to the practical aspects of daily life because of his medical conditions.

3. Activities that Sam enjoys outside the home, on the days he does not attend the community centre, include going shopping to buy groceries, going to the park or beach if the weather is good, and getting some exercise outdoors, accompanied mainly by his father.  The sponsor said he does ‘basically everything’ for Sam, and qualified this to mean assisting Sam with eating, bathing, personal hygiene, taking his seizure medication and helping him go to bed.  The sponsor was asked if Sam sleeps through the night and responded that he does, which is consistent with information in the Functional Assessment report.  Sam’s seizures started only about a month or two before the Tribunal hearing.  He was taken to hospital, saw a specialist and he has a follow up appointment with the specialist in two months.  Sam was prescribed medication which the sponsor said he will need to take for the rest of his life.  This is consistent with the documentary medical evidence provided. The specialist told them that the medication would help reduce the seizures, but they cannot be certain it will stop the seizures, hence the follow up appointment to monitor his progress and medication.

4. The Tribunal accepts that Sam’s father provides Sam with direct assistance in attending to the practical aspects of Sam’s daily living.  However, in circumstances where there are two other adult family members who live in the same home, notwithstanding that they both work full time it is reasonable to think that they would be willing and capable of assisting the relative to provide the direct assistance Sam needs.  Some of the supports of the type described in reg 1.15AA(1)(e)(ii) are obtained for Sam, and funded through his NDIS plan.  

5. Oral evidence was given by the resident at the hearing that he needs to work to pay the mortgage.  On the face of it, the Tribunal accepts this to be the case.  He works three days a week, on the same days that Sam attends his NDIS funded community programme.  Even though the other adult family members who live in the same household work full-time and a very busy with their work, it is not unreasonable to think that they would provide at least incidental assistance when they are at home.  In an emergency, as with any other Australian citizen, ambulance and hospital services can be accessed and obtained for Sam if required. 

6. The sponsor was asked whether his wife, Sam’s mother, assists with any of Sam’s care and said not a lot because she is ‘very busy with her salon’, six days a week from 8:30am to 6:00pm, and also that ‘her health is quite poor’; she has hypertension and diabetes and takes medication.  The Tribunal accepts this.  The sponsor said that during COVID-19, his wife received a carer’s pension payment from the government to look after Sam, from 2019 to 2021, but that she no longer receives it because she is back at work full time.  The sponsor said he does not receive a carer’s payment.

7. The sponsor was asked at the hearing whether Sam can do anything for himself and he responded, ‘no’ because he ‘can’t see’.  He said that Sam can find the bathroom, but that he still has to be there to manage ‘other things’, such as ‘mixing the water’.  It is accepted that Sam’s father makes sure Sam can manage his personal hygiene, the medical and other evidence indicates that Sam can attend to himself in the bathroom.

8. The sponsor was asked at the hearing why the current arrangement, where he works three days a week while Sam attends his out of home support service on the same days, and cares for Sam on the other days cannot continue.  The sponsor referred to his ‘health condition’, and said for that reason he cannot ‘continue in this job ‘long term’.  He was asked what difficulties he faces looking after Sam and said he’s been looking after Sam for nearly 20 years, he is getting old, his health condition is ‘going down, he feels ‘really, really tired’ and is ‘afraid I (he) will not be capable to maintain the activities in the long term’, and that he needs ‘to look after his disease’.  The sponsor said that they have had Sam in their lives with ‘many disadvantages’ and that they have been caring for him for ‘a long, long time’ and that they are ‘getting tired’.  Sam’s mother also provided evidence, in a statutory declaration, that she is ‘exhausted from work’ (at the nail salon) and that she ‘does not have the strength to care for Sam’.

9. The Tribunal is not satisfied that there is any medical evidence that substantiates the Australian relative’s claim that he cannot continue to provide assistance to Sam because of his health.  The written evidence of Sam’s mother has been considered.  For the purpose of finding whether it is reasonable to expect that his mother may provide at least some assistance to her husband to assist Sam, and be capable of doing so, the Tribunal observes that his mother lives in the same household.  While she cannot be expected, given her work commitments, and medical conditions, to provide ‘substantial’ assistance while she is working full time and is out of the home at work, it is not unreasonable to think that when she is home his mother can incidentally provide assistance to Sam’s father for Sam’s needs.  The same conclusion has been reached by the Tribunal relating to Sam’s older sister, that is, it is reasonable to think that she is capable of assisting her father to provide the direct assistance to Sam that he needs, from time to time.

10. The Tribunal has referred to the certificate and acknowledges that Sam is described as a ‘child with extensive levels of care needed on a daily basis’, and that Sam ‘will need care for the rest of his life’ and that the assistance he requires is ‘substantial’, so clearly for at least 2 years.

11. While acknowledging that it may at times be difficult or tiring to provide assistance to a person with Sam’s medical conditions, there are other adult relatives who live in the same household as Sam who, the Tribunal is satisfied, could reasonably and capably provide some of the assistance required to assist Sam’s father.  Together with the services that are obtained with Sam’s NDIS funding, the Tribunal is satisfied that the assistance Sam is provided with, or may reasonably be provided with from his immediate family members who live in the same household, and the assistance obtained through community services and the NDIS funding, is and will be substantial and continuing

12. The sponsor has adult siblings in Australia.  Written evidence has been provided from them giving reasons why they cannot assist.  It has been considered and the Tribunal is satisfied that in their circumstances they cannot provide any assistance to the sponsor for Sam’s care.

13. Reg 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, an Australian permanent resident or an eligible New Zealand citizen; or

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

14. The applicant’s visa was refused because reg 1.15AA(1)(e)(ii) was not met.  The Tribunal, on review, has considered both reg 1.15AA(1)(e)(i) and (ii), as detailed above. 

15. For the reasons given, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative and/or collectively with the other Australian citizen adult relatives who live in the same household as the relative and person with the medical condition, in conjunction with welfare, hospital, nursing or community services which are already, or may be, obtained in Australia and therefore the requirements of reg 1.15AA(1)(e) are not met.

    Willing and able – reg 1.15AA(1)(f)

16. 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.

17. The primary visa applicant, who is in Vietnam, provided written evidence and also gave oral evidence by phone at the Tribunal hearing.  It is accepted, on her documentary and oral evidence, that she is willing and appears to be able to provide assistance.  However, as the Tribunal has made a finding that reg 1.15AA(1)(e) is not met, it is not necessary to go on to make a finding relating to reg 1.15AA(1)(f).

18. Given these findings, the Tribunal concludes that at the time of decision the visa applicant is not a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl 116.221.

19. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    Secondary applicants

20. The Tribunal has affirmed the decision to refuse the visa of the primary applicant.  The secondary applicants do not meet the secondary criteria and the decision to refuse their visas is also affirmed.

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Jennifer Cripps Watts
    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.