Nguyen (Migration)

[2022] AATA 3550

Nguyen (Migration) [2022] AATA 3550 (11 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Thi Muoi Nguyen

VISA APPLICANTS:  Mrs Thi Tu Nguyen
Mr Van Mang Duong

REPRESENTATIVE:  Mr Jay To (MARN: 0744110)

CASE NUMBER:  2003866

HOME AFFAIRS REFERENCE(S):          OSF2015/070369 OSF2016/073676

MEMBER:Margie Bourke

DATE:11 October 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 11 October 2022 at 6:43pm

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – assistance cannot be provided by any other specified relative or obtained from service providers – other relatives’ work, family and study commitments – applicant required to provide evidence about obtaining services from providers even though guardian/administrator appointed – caree’s requirements – search for providers found appropriate facilities – enquiry to one provider but no viewing of facilities or request for ACAT assessment – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.115AA(1)(e)(ii), (2), Schedule 2, cls 116.221, 116.221, 116.321

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 13 January 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 24 March 2015. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221.

3. The delegate refused to grant the visas on the basis that the first named visa applicant, Thi Tu Nguyen, did not meet the primary criteria requirements of cl.116.221, because the delegate was not satisfied the first named visa applicant met the definition of carer in r.1.15AA(1) for the purpose of satisfying cl.116.221.

4. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, the nature of the review and the fact that the visa applicants would be attending the hearing from overseas and participating in the hearing either by video or telephone. The Tribunal was of the view that the conduct of the hearing by video would allow the applicants the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and to properly assess the credibility of the evidence before it. The Tribunal noted that the hearing did not involve a large amount of paperwork to be put to the applicants during the course of the hearing. The hearing was scheduled at a time when the availability of in-person hearings was restricted due to the ongoing pandemic. The Tribunal considered that any unnecessary delay in conducting the hearing in this review should be avoided. For all the above reasons the review applicant was invited to attend a hearing to be conducted by video.

5. The review applicant had a guardian appointed by order of  VCAT, and an administrator by order of  VCAT. The guardian and the administrator appointed to make certain decisions on behalf of the review applicant is her daughter, Thi Chin Nguyen. The Tribunal considered the medical reports and current Carer Visa Assessment Certificate (CVAC) dated 20 February 2022, which outlined the current status of the review applicant’s impairments and functional capacity. The CVAC dated 20 February 2022 records that the review applicant has significant impairments, the loss of any functional capacity and has withdrawn from any interpersonal contact. The Tribunal also considered the VCAT guardianship and administration orders. The Tribunal accepted it was appropriate in the circumstances that the review applicant’s daughter Thi Chin Nguyen attend the hearing on behalf of the review applicant. The review applicant did not attend the hearing, and the Tribunal accepted her daughter Thi Chin Nguyen appear on the review applicant’s behalf at the hearing.

6. The hearing was scheduled for 15 September 2022, but was adjourned on that day due to technical difficulties.

7. The review applicant’s daughter and guardian Thi Chin Nguyen appeared on behalf of the review applicant before the Tribunal on 19 September 2022 by video to give evidence and present arguments. The Tribunal also received oral evidence from the two visa applicants. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

8. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing by video.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The main issue in the present case is whether the first named visa applicant meets the requirements of cl.116.221, which requires the applicant is a carer of the Australian relative mentioned in clause 116.211. It is accepted that the Australian relative is the review applicant, Thi Muoi Nguyen. It is accepted that the first named visa applicant is the daughter of the review applicant, the Australian relative. It is accepted that the second named visa applicant is the spouse of the first named visa applicant.

11. The definition of carer is set out in r.1.15AA(1) and (2). In the Department’s decision record, the delegate found that the first named visa applicant did not meet the requirements of r.1.15AA(1)(e)(ii).

    Whether the visa applicant is a ‘carer’: Assistance cannot be reasonably obtained / provided – reg 1.15AA(1)(e)

12. 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.

13. The review applicant was born in 1935, and at the time of this hearing is aged 87 years of age. The Tribunal accepts the evidence before it, including the information provided in the current CVAC dated 20 February 2022 that the review applicant is fully dependent on others and requires assistance with all aspects of daily living, including mobility, bathing and showering, toileting, dressing and grooming, eating and feeding, supervision of medication, supervision for personal safety and transportation. The Tribunal is satisfied that the review applicant has functional brain impairment with severe dementia that is long-standing and progressive. The Tribunal is satisfied based on the information in the current CVAC that the review applicant requires full-time care, 24-hours a day, to ensure her physical safety, hygiene and nutrition. The Tribunal accepts that the review applicant has the loss of any functional capacity due to her dementia with paranoid features and depression, her circaidian rhythm has been reversed (she sleeps during the day), and she has no comprehension and is unable to follow simple instructions or regulate her behaviour.

14. It is accepted by the Tribunal that the assistance required by the review applicant based on all the information provided, would be the by family members providing 24-hour supervision and care within the home, or the review applicant being placed in a nursing home with 24-hour supervision and care.

15. Currently the review applicant is not receiving 24 hour a day care as the person providing her care has other commitments.

16. The Tribunal is satisfied that the review applicant currently lives with her daughter (who is her guardian) Thi Chin Nguyen, and her husband and two children. The Tribunal accepts that Thi Chin Nguyen is attempting to provide the care that her mother needs whilst also being employed and caring for her other immediate family members. The Tribunal accepts that Thi Chin Nguyen has installed cameras in the home to monitor her mother whilst she is at work, and is finding the efforts to care for her mother exhausting and difficult.

17. I am satisfied based on the written and oral evidence before the Tribunal that the review applicant has four adult children in Australia, one daughter and three sons. The Tribunal has considered the written evidence provided by the adult children of the review applicant, their spouses and documents in support from their employers and ATO assessments, and statutory declarations from their children. The Tribunal is satisfied that the assistance required by the review applicant cannot reasonably be provided by her Australian relatives because of their work commitments, family commitments and/or study commitments.

18. The Tribunal is satisfied that the first named visa applicant meets the requirements of r.1.15AA(1)(e)(i).

19. The review applicant’s representative made written submissions to the Tribunal prior to the hearing. The representative submitted that as the review applicant had been placed under a guardianship order she did not have the capacity to obtain services from welfare, hospital, nursing or community services in Australia.

20. The Tribunal accepts that the guardianship order made in relation to the review applicant authorises the guardian to make decisions in relation to personal matters concerning the review applicant including where the review applicant lives, medical treatment for the review applicant, whether any services are needed and if so which ones, and to make decisions concerning sponsorship in relation to care of visa applications.

21. The Tribunal discussed with the review applicant’s representative, and the review applicant’s daughter appearing on her behalf at the hearing, that the Tribunal was of the view that the first named visa applicant would still required to meet the criteria for the visa, despite the fact the review applicant had had a guardian appointed. The Tribunal advised it had considered the submissions, but did not accept that the fact a guardian had been appointed to make decisions on behalf of the review applicant, did not mean that the first named visa applicant was not required to provide evidence that the assistance the review applicant required cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

22. The Tribunal discussed with the review applicant’s representative and the review applicant’s daughter, Thi Chin Nguyen, that persons of Vietnamese origin who spoke only the Vietnamese language and suffering severe dementia with psychotic or hallucinatory episodes, may still be able to obtain services through aged care placements, particularly in Vietnamese aged care facilities. The Tribunal discussed with the review applicant’s representative and the review applicant’s daughter, Thi Chin Nguyen, that the first named visa applicant was required to meet the criteria in r.1.15AA(1)(e)(ii), and that the evidence in relation to whether the assistance could reasonably be obtained from Australian welfare, hospital, nursing and community services did not necessarily have to be instigated by the review applicant. The Tribunal discussed that attempts to, or enquiries about, or obtaining the assistance the review applicant required from Australian welfare, hospital, nursing or community services could be made on behalf of the review applicant by her guardian or by some other person.

23. The Tribunal discussed with the review applicant’s representative, and the review applicant’s daughter, Thi Chin Nguyen, that they did not have to accept the Tribunal’s opinion that the consequences of a guardian being appointed did not mean the first named visa applicant was not required to provide evidence that the review applicant cannot reasonably obtain the assistance she requires from welfare, hospital, nursing or community services in Australia. The Tribunal discussed that this could be the subject of appellate scrutiny.

24. The Tribunal stated that if the review applicant’s representative and the review applicant’s daughter wished to make enquiries as to whether they could reasonably obtain the assistance the review applicant required, the Tribunal would allow a reasonable amount of time after the hearing for them to do so. The review applicant’s representative and the review applicant’s daughter, Thi Chin Nguyen, indicated to the Tribunal they would like the opportunity to enquire as to whether the assistance the review applicant required could be obtained from Australian welfare, hospital, nursing or community services in Australia. The Tribunal indicated that it would initially allow a period of 21 days, but that an extension of time could be granted if required to obtain the information.

25. The Tribunal indicated that it accepted the assistance the review applicant required, if not provided by family members on a 24 hour a day basis, would be provided from a residential aged care facility or nursing home. The Tribunal also indicated that the only appropriate form of care for the review applicant would include an aged care placement in an aged care facility with the capacity to provide for persons with dementia, and where staff spoke Vietnamese, and where the facility provided culturally appropriate meals, and provided for the spiritual and cultural needs of the review applicant.

26. The Tribunal received a submission from the review applicant’s representative on 10 October 2022, submitting the review applicant cannot reasonably obtain assistance from welfare, hospital, nursing or community services in Australia.

27. The Tribunal accepts that the review applicant’s daughter and guardian, Thi Chin Nguyen, with the assistance of her employer, M O’T, made enquiries through the myagedcare website for a suitable nursing home placement for the review applicant. The Tribunal accepts the review applicant filtered the enquiries on the basis that the appropriate facilities should include (1) a single room with an ensuite, (2) caters for cultural, spiritual or ethical food requirements, (3) capacity to assist residents with dementia, and (4) Vietnamese  speaking staff at the facility. The Tribunal accepts that these filters were appropriate for the enquiry made by the review applicant’s daughter.

28. The Tribunal accepts based on the information provided that there were three organisations which met the requirements of the review applicant’s daughter for an appropriate aged care facility, including Mecaware, Mekong Aged Care and Doutta Galla Aged Care Facility. The Tribunal is satisfied that these three organisations are responsible for the management of several aged care facilities in Melbourne and extending through Victoria. The Tribunal is satisfied based on the information provided, that the website provides the information for each individual aged care facility, including whether they meet all the individual criteria specified in an enquiry, and the suburb in which the facility is located. The Tribunal is satisfied based on the information provided in the submission and the statutory declaration from M O’T, that emails of enquiry was sent on behalf of the review applicant’s daughter to the three aged care organisations on 21 September 2022.

29. The Tribunal accepts, based on the information provided, that no response was received from, and that no follow-up email or telephone call was made in relation to those initial emails of enquiry dated 21 September 2022 to either Mecaware or Mekong Aged Care.

30. The Tribunal accepts that M O’T received a response by email on 7 October 2022 from the Doutta Galla Aged Care Facility advising they had seven centres in Melbourne and one in Shepparton. The Tribunal accepts that there was subsequently a telephone conversation, in which M O’T was advised there was some confusion from the person at the facility as to why they had not made an application to a centre closer to the review applicant’s family’s address (Endeavour Hills). The Tribunal accepts that the review applicant’s daughter had applied to the centres that filled her criteria (1) – (4) as set out in paragraph 27 above. The Tribunal accepts that the aged care facilities meeting these criteria are not in the closest suburb to the review applicant’s daughter’s home.

31. The Tribunal is satisfied that the review applicant’s daughter and M O’T were advised that a placement was possibly available at a Doutta Galla Aged Care facility that met their criteria, and that the review applicant would need to have an ACAT assessment.

32. The review applicant’s daughter provided a statement dated 6 October 2022 from DT, the general manager of a client business of the review applicant’s daughter’s employer M O’T, and a friend of M O’T. The Tribunal accepts that DT had placed her mother in an aged care facility in 2019 which she assessed as the most suitable accommodation for her parent. The Tribunal accepts that DT outlines that the experience on behalf of her mother in that aged care facility was an extremely negative experience. The Tribunal accepts that she was required to pay a deposit in the amount of $800,000, and the monthly fees were $7500. DT stated she also employed another person to visit her mother three times a week at additional cost.

33. The Tribunal does not accept the proposition that the experience of one person, namely DT, at a facility which is not being considered by the review applicant’s daughter for the review applicant, necessarily means that placing the review applicant in a different aged care facility will be a negative experience. The Tribunal does not accept the proposition that because it is submitted that the parent of DT was placed in an expensive aged care facility, that any less expensive aged care facility would necessarily provide poorer quality care.

34. The Tribunal is satisfied based on the information provided, that the review applicant’s daughter has not visited any aged care facility to assess whether they are suitable for her mother.

35. The Tribunal is satisfied based on the information provided, that the review applicant’s daughter has not made any enquiries in relation to the financial cost if the review applicant was to be placed in an aged care facility. The Tribunal understands that the financial cost varies, and is subject to means testing and asset testing. The Tribunal cannot be satisfied that the review applicant’s family cannot afford to place the review applicant in an aged care facility as the information of the assessment of the cost has not been sought by the review applicant’s daughter, and therefore is not available or provided to the Tribunal.

36. The Tribunal accepts that the filters or requirements the review applicant’s daughter required of the proposed aged care facility were appropriate, namely that she required a single room with an ensuite for the review applicant, she required the facility provide for the cultural spiritual or ethical food requirements of the review applicant, that the facility had the capacity to care for a person with dementia, and that the facility had Vietnamese speaking staff. The Tribunal has noted that the review applicant’s daughter’s employer declares that she does not know how the review applicant’s mother would survive being over one hour away from her daughter and the family. The Tribunal has considered the statutory declarations from the four adult children, and grandchildren of the review applicant, and note they do not all live in Endeavour Hills; two adult sons and their families reside in Keysborough, and one adult son and his family reside in Dandenong. The Tribunal has considered that the review applicant’s adult children, including the review applicant’s daughter Thi Chin Nguyen, and their family members, could visit the review applicant in the aged care facility, even in the circumstances that some travel would be required. The Tribunal is satisfied that if the review applicant was able to reside and receive the care she requires in a suitable aged care facility in a suburb in Melbourne, that it is reasonable to consider that the assistance required by the review applicant can be obtained.

1. The Tribunal finds that the review applicant’s daughter was sent one email of enquiry to 2 aged care facility organisations, namely Mecaware and Mekong Aged Care, and did not follow up that email with any further enquiry as to whether there was a possible suitable placement for the review applicant. The Tribunal finds that the review applicant’s daughter was advised that the aged care facility organisation Doutta Galla Aged Care Facility advised it did have suitable availability, but required an ACAT assessment, and the review applicant’s daughter did not follow-up any request for an ACAT assessment. The Tribunal finds that the review applicant’s daughter did not visit any potential aged care facility to assess whether they were suitable to provide the assistance required by the review applicant.

2. The Tribunal is not satisfied that the information provided to it demonstrates that the assistance the review applicant requires cannot reasonable be obtained from Australian services.

3. The Tribunal has considered the report provided to the Department from the consultant psychiatrist and psycho geriatrician, Hieu Pham, dated 26 June 2017, in which it is recorded that the review applicant had been assessed by the ACAS team but both the review applicant and the family were reluctant for her to go into a nursing home, partly for cultural and linguistic reasons. Dr Pham opines that Vietnamese nursing home beds should be reserved for people who have no family or relatives to take care of them. Dr Pham states, (the Tribunal is aware incorrectly) that there is one Vietnamese speaking nursing home in Reservoir and the beds are difficult to come by. The Tribunal must however apply the criteria in the legislation, which requires an assessment whether the assistance required can reasonably be obtained from welfare, hospital, nursing or community services. The Tribunal, or any decision-maker cannot assess the criteria on the basis of whether it is preferable that the available assistance is utilised by another person or whether the assistance that can be obtained from a aged care facility is difficult to obtain or limited in its availability.

4. The Tribunal has also noted the comment in the current CVAC dated 20 February 2022 by the examining doctor, “ with Muoi Thi’s disruptive behaviour and degree of dementia combined with no English proficiency, even a Vietnamese Nursing Home would have difficulty in dealing with her behavioural problems.”  In the absence of an assessment that the assistance required cannot be provided by an aged care facility because of the nature of the review applicant’s condition and behaviour, the Tribunal notes this comment, but does not conclude that it means the assistance required cannot reasonably be obtained from Australian welfare, hospital, nursing or community services.

5. The Tribunal accepts that the review applicant’s daughter and guardian, Thi Chin Nguyen, has been struggling to provide the care that her mother needs while she continues to work and care for her own immediate family. The Tribunal accepts that the review applicant’s behaviour, including continual demands and episodes of violence make caring for her very difficult. The Tribunal accepts that the first named visa applicant has offered to come and assist her sister, Thi Chin Nguyen, provide the care for the review applicant, and that Tribunal accepts that to provide care for the review applicant at this stage of her dementia is a demanding and difficult role.

6. The Tribunal accepts that the intentions of the review applicant’s daughter and the first named visa applicant are to provide the care their mother needs.

7. The Tribunal does not accept that based on the experience of DT, that the review applicant is unable to obtain the assistance she requires from welfare, hospital, nursing or community services in Australia.

8. The Tribunal is not satisfied that without any enquiry or assessment, that the review applicant or her family cannot afford to obtain the assistance the review applicant requires from welfare, hospital, nursing or community services in Australia.

9. The Tribunal accepts the evidence before it that the review applicant’s daughter made enquiries of aged care facilities in Melbourne that meet certain requirements, including that the review applicant would have a single room with an ensuite, that the facility have the capacity to care for people with dementia, that the facility had staff that spoke Vietnamese, and that the facility catered for cultural, spiritual or ethical food requirements. The Tribunal is satisfied that the review applicant’s daughter was advised by one organisation that there was availability, but an ACAT assessment was required. The Tribunal finds that the review applicant’s daughter has not proceeded to request a current ACAT assessment, or view the facility.

10. The Tribunal has not received a request for an extension of time to provide further information; the Tribunal received a submission that the assistance that the review applicant cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia.

11. The Tribunal finds that the review applicant’s daughter has not followed up her initial email to the other two aged care organisations that met her specific requirements for the care of her mother. The Tribunal accepts that the review applicant’s daughter did not receive a response to her initial email to these two aged care organisations.

12. The Tribunal is not satisfied that based on the availability indication that replacement might be available but not in a close suburb to review applicant’s immediate family members and Australian relatives that the assistance the review applicant requires cannot be obtained from a welfare, hospital, nursing or community services in Australia.

13. The Tribunal has carefully considered all the information and evidence before it, provided prior to the hearing, at the hearing, and in post hearing submissions.

14. For all the above reasons the Tribunal is not satisfied based on the information that has been provided to it by the review applicant’s daughter and guardian, Thi Chin Nguyen, that the assistance required by the review applicant cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.

15. The Tribunal therefore finds that the first named visa applicant does not meet the requirements of r.1.15AA(1)(e)(ii).

16. For these reasons the Tribunal finds the first named visa applicant does not meet the definition of carer in r.1.15AA(1).

    Conclusion on ‘Carer’ criterion

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

    Secondary visa applicant

18. Clause 116.321 requires the secondary visa applicant continue to be a member of the family unit of the primary visa applicant who is the holder of a subclass 116 at the time of decision. The first named visa applicant is the primary visa applicant in this matter, and at the time of decision the Tribunal is not satisfied that the first named visa applicant meets the primary criteria for the visa. The Tribunal is not satisfied that the first named visa applicant is or will be the holder of a subclass 116 visa. For this reason, the Tribunal finds that the second named visa applicant, Van Mang Duong, the husband of the first named visa applicant, does not meet the requirements of cl.116.321 at the time of decision.

19. Therefore the secondary visa applicant does not meet the requirements of cl.116.321.

20. For the reasons above, the visa applicants do 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.

    DECISION

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

    Margie Bourke
    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.