Nikolic (Migration) - [2022] AATA 4756

Nikolic (Migration) [2022] AATA 4756 (13 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nikola Nikolic
REPRESENTATIVE:  Ms Danijela Stojanovic (MARN: 0958278)
CASE NUMBER:  1903873
HOME AFFAIRS REFERENCE(S):          CLF2017/120840
MEMBER:Jane Marquard
DATE:13 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.212 of Schedule 2 to the Regulations; and
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 13 December 2022 at 11:54am
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – care could be provided by relatives and services in Australia – wider family’s health conditions and caring responsibilities – availability of welfare, hospital, nursing or community services – cultural and language barriers – health and aged care service limitations – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 836.111, 836.212, 836.221; rr 1.03, 1.15
CASES
Anveel v MIBP [2013] FCCA 2181
Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
Jajo v MIBP [2013] FCCA 1554
Lin v MIMIA [2004] FCA 606
Nguyen v MICMA [2019] FCA 934
Perera v MIMIA [2005] FCA 1120
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Xiang v MIMIA [2004] FCAFC 64
Yee Joy v MIBP [2015] FCCA 2537
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 February 2019 to refuse to grant the review applicant, Mr Nikola Nikolic, an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The sponsor of this visa application, Mr Krsta Nikolic, is a man from Serbia, aged 72 years old. He arrived in Australia in 1998 on a tourist visa and could not return to Serbia as war broke out and international flights were cancelled. He was later granted a working visa in Australia. His wife joined him 15 years later. He suffered a work injury in 2015 which, according to a psychiatric report in 2018, was the cause of a number of mental health problems.
The review applicant is his son, Nikola, aged 34, who currently lives with his parents and claims that he is carer for his father.
The review applicant applied for the visa on 11 December 2017.
The delegate refused to grant the visa on the basis that Regulation 1.15AA(1)(e) was not met. This regulation requires that assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
It was not necessary to hold a hearing in this matter as the Tribunal was able to determine the matter on the papers in accordance with s 360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
RELEVANT LAW AND QUESTIONS FOR DETERMINATION
At the time of application, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the review applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa.
The purpose of a carer visa is to allow a carer of an Australian relative with a medical condition causing a significant level of impairment to provide assistance of the kind required.
The criteria for a Subclass 836 visa are set out in Schedule 2 to the Regulations. The key issue in this case is whether 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 (reg 1.15 AA(1)(e)).
The regulations must be satisfied at both the time of application and decision.
FINDINGS
APPLICANT CLAIMS TO BE CARER
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that at the time of application the applicant claims to be the carer of an Australian relative. Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative.
In the present case, the visa application was made on the basis that the review applicant is the carer of his father, Mr Krsta Nikolic, who is an Australian citizen, and a sponsor for the visa application.
For the purposes of the carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
Krsta Nikolic has provided a copy of his Australian passport. There is no dispute, on the basis of documents provided, that the review applicant is the son of Krsta Nikolic.
The Tribunal finds that the review applicant claimed to be the carer of another person (caree) at the time of application; and the ‘caree’ is an ‘Australian relative’, that is, a ‘relative’ as defined in reg 1.03 who is also an Australian citizen, permanent resident or eligible NZ citizen.
Therefore, at the time of application the applicant claimed to be the carer of an Australian relative and satisfies the requirements of cl 836.212 of Schedule 2 to the Regulations.
APPLICANT IS A CARER
Whether the applicant is a carer
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)
Regulation 1.15AA(1)(a) requires that the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03, that is, a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s father.
There is no dispute that the applicant is the son of the Australian relative. Regulation 1.03 includes a child in its definition of close relative.
Therefore, as the applicant is the son of the Australian relative, the 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)
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.
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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
The applicant provided a Carer Visa Assessment Certificate dated 31 October 2017 issued by Bupa Medical Services as the health service provider.
The Tribunal is satisfied that a certificate is in place, and it meets the requirements of reg 1.15AA (2).
The Tribunal is also satisfied that according to the certificate:
·the Australian relative has a medical condition causing impairments of the person’s ability to attend to the practical aspects of daily life;
·the impairment has an impairment table rating specified in the certificate (30); and
·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.
The Tribunal was provided with a number of medical reports updating the Tribunal on the applicant’s conditions since the certificate.
Although the BUPA certificate was issued in October 2017, it is clear from recent medical reports that there has been no improvement in Mr Nikolic’s condition, with a worsening in some areas. In a report from Dr Todorovic dated 17 November 2022, the doctor stated that he had been the general practitioner for the sponsor since 2016. He said that he suffers from Major Depressive Disorder, sensorineural hearing loss in both ears, cholelithiasis and chronic back pain. He had urosepsis in 2018. The doctor said that he supported their son’s application for a carer visa, as the health of the caree and his wife was gradually deteriorating, and they would be increasingly dependent. He said that they do not speak English. Their son speaks Serbian. He also confirmed, in an earlier letter, that the sponsor needs supervision and monitoring and a carer on a daily basis that would help with the activities of daily life.
A letter from Dr Dave from Bone Specialists dated 27 October 2021 noted that the sponsor had been referred to him for a parking permit. He said that he had multiple joint pain, degenerative arthritis of the spine and mild arthritis of the knees and was not a candidate for surgery.
A letter dated 10 November 2021 from an audiologist from Hearing Australia stated that the sponsor had profound asymmetric hearing loss. It was stated that he could not sleep with a hearing device and could not hear a smoke alarm and therefore would require family support.
A letter from Tomic Psychology Pty Ltd dated 21 November 2022 stated that the sponsor had been his patient since 2015. His last appointment had been 3 November 2022. He said that he had chronic Major Depressive Disorder. It had longitudinal course without inter-episode recovery. He also had major physical problems and ongoing acculturation issues and could not communicate in English. He said that due to his profound depression and fragile physical health and personal hygiene, he was ignorant about his appearance and unable to live independently and take adequate care of himself. He said that he was unable to attend properly to his everyday needs and perform basic home duties. He said that if he was placed in a non-Serbian nursing home or retirement village would increase his depression. Similarly, at home care from a non-Serbian person would be difficult. He supported care being provided by the review applicant, who would live with him and provides physical and emotional support. He noted that the father and son have a strong emotional attachment and the Serbian culture places strong value on family bonds.
A letter from Dr Kuljic, a psychiatrist, dated 20 June 2022 stated that the doctor had been treating Krsta since 2015. He confirmed that he suffered Post Traumatic Stress Disorder and Major Depressive Disorder as per the Diagnostic and Statistical Manual of Mental Disorders. He said that he believed his conditions were permanent. He confirmed that the conditions caused functional impairments including self-care, social and interpersonal functioning, travel, ability to focus and plan, and execution of plans. He required long-term care and support, which his son provided. He said that Krsta had often emphasised his son’s day-to-day role in helping him and making him feel safe and protected from risks. He noted that Dragica was also suffering from mental health problems. He said that Nikola provides appropriate and permanent social and emotional support and shares the same cultural, religious and ethical values with his parents. He had been available to his parents regardless of working hours. In an earlier letter he confirmed the medication taken by Krsta.
A more detailed report in 2018 from Dr Kuljic set out the history of the mental health conditions (a work injury followed by abuse from an employer) and his symptoms, which included nightmares, flashbacks and dissociative episodes. He felt sad and hopeless and had decreased energy and enjoyment of life. The accident made him disabled for work. He was treated with anti-depressants and anti-psychotic medication. His son monitored his intake. His condition was worsening and caused functional impairments in self-care, social and inter-personal functioning, travel and ability to focus and plan.
The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2) and a number of updated medical reports indicate that the conditions certified in the certificate remain in existence or are worsening. 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)
Regulation 1.15AA (1) (ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition is an Australian citizen as evidenced by his passport. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
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.
In the present case, the impairment rating specified in the certificate is 30. This rating is equal to 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 s/he is not the subject of certificate) – reg 1.15AA(1)(d)
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.
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably provided/obtained – reg 1.15AA(1)(e)
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
This is the key issue in this matter. The delegate of the Department was not satisfied that the applicant met Regulation 1.115AA (1)(e). New evidence has been provided to this Tribunal.
The assistance must be the assistance specified in the Carer Visa Assessment Certificate. The Certificate stated that the sponsor has a need for direct assistance in attending to the practical needs of daily life. This included need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision or monitoring. Other functional impairments noted were incontinence, hearing, mental health, conditions affecting the spine, lower and upper limbs, and that he transfers with difficulty. He required assistance with mobility, toileting, dressing, grooming, supervision of medication, supervision for personal safety and transportation.
Can assistance reasonably be provided by relatives?
The sponsor has a number of relatives in Australia. After consideration of their circumstances, the Tribunal is satisfied that each of the relatives, or a combination of them, could not reasonably provide the assistance required.
The applicant lives with his wife, Dragica. Dr Todorovic, in a medical report dated 17 November 2022, reported that he has treated Dragica since 2016. He said that Dragica is a ‘frail 65-year-old lady who suffers from severely impaired hearing on both ears, hypertension, Post Traumatic Stress Disorder, Major Depressive Disorder, chronic back pain and fatty liver’. In a Statutory Declaration of the review applicant, Mr Nikola Nikolic dated 24 November 2022 he submitted that his mother could not assist his father, as she had medical conditions of her own and was a disability pensioner. He reported that she has adjustment disorder with mixed anxiety, depression, PTSD, light shoulder pain, hip pain, right knee pain, hearing loss, high blood pressure, fibromyalgia and she had had a hysterectomy. Dr Kuljic, a psychiatrist, in a report dated 20 June 2022 confirmed her mental health problems were continuing. A Statutory Declaration dated 8 March 2018 was provided by Dragica. She said that she would like to help her husband with his day-to-day needs, but her health prevented her. She said that their son was providing assistance. An earlier report from Dr Todorovic dated 15 March 2018 confirmed that she suffered from deafness, major depressive disorder, post-traumatic stress disorder, chronic pain secondary to soft tissue injuries in her neck, back and left knee and hypertension. The Tribunal is satisfied on the basis of the evidence of family members, Dragica herself and the medical reports that she could not reasonably provide the assistance required, given her own medical conditions.
The review applicant submitted in his Statutory Declaration that his aunts are unable to assist their brother due to living some distance away, and one not being able to drive, and having health issues of their own. It was submitted to the Tribunal that the sponsor’s sister, Zivka Mitic has her own medical conditions, cares for her husband and looks after the grandchildren. A Statutory Declaration dated 3 July 2022 from Zivka Mitic stated that:
·She is 69 years old.
·She lives ‘far from him’ and does not drive long distance as she is not a confident driver (she only drives as far as her local shopping centre).
·She has her own health problems including dizziness.
·She cares for her grandchildren aged 7 and 14.
·She looks after her husband who had knee and arm surgery after an injury at work and cannot walk.
·She is not able to assist and care for her brother for these reasons.
A Medical certificate from Lakeside Medical Practice, Warilla dated 1 July was provided. Dr Thangavel certified that Zivka was unable to care for anyone except her husband. Dr Stanikic stated that her husband had multiple comorbidities and she cares for him indefinitely.
It was submitted that Doka Mitic, the sponsor’s other sister, has her own health issues, does not drive, and does not live close by. A Statutory Declaration from Doka Mitic was provided, which stated that:
·She lives at least 1 hour from her brother. She has never had a driver’s licence and is therefore not in a position to help her brother. She said that if he needed anything she would need to wait for a bus, as taxis are too expensive.
·She is on a Disability Pension and has physical and mental issues. She is 67 years old and has arthritis, veins on her legs which are painful, and she suffers from depression.
·Her brother needs someone ‘strong headed, physically fit to care for him and of course someone close’.
Also provided was the Disability Pension Concession Card for Doka Mitic.

A Statutory Declaration from the doctor for the sponsor’s brother, Dragan Nikolic dated 14 March 2019 was provided, which stated that:
· Dragan (born 1959) was receiving treatment for multiple medical conditions and would be unfit to care for his brother who was severely ill and would need 24-hour professional care. He said that Dragan also required 24-hour professional care.
It was submitted by the representative that no statutory declaration or updated reports could be provided for this brother, as the sponsor and he have not been on talking terms for some time due to an argument. The review applicant had tried unsuccessfully to contact him. This was confirmed in a recent Statutory Declaration from the review applicant, who stated that his uncle had not been in contact for some time due to family arguments. He said that he had tried to reach out to his uncle, but he had ignored his texts and telephone calls. A Statutory Declaration of Dragan dated 14 March 2018 had been provided to the Department. He said that no-one in the family except for Nikola could provide care to Krsta. He said that he was caring for his mother-in-law who had dementia. He said that he had work and other commitments and could not care for his brother.
It was submitted that the sponsor’s daughter, Ljilja Nikolic lives in Serbia and has never been to Australia. His other daughter, Dragana has two children and two jobs. One of her children is a teenager, currently in hospital, ‘facing health battles’. He suffers OCD and anxiety and refuses to eat and ‘has many other issues’. Employment documents were provided for Dragana to the Department indicating that she worked full-time. In a Statutory Declaration dated 7 March 2018 she said that she tried to help her father where possible but unfortunately was restricted in the amount of care she could provide as she was a wife and mother of two young children. She also resided one hour away from her parents which complicated accessibility.
A Statutory Declaration of Vasa Nikolic dated 10 March 2018 was provided to the Department. He said that he was unable to provide assistance to him and he could not drive the distance to assist him. Medical documents were provided to indicate that Vasa suffered from kidney and bladder issues, mild spondylosis, mild coronary artery disease and a number of other medical conditions. In a recent Statutory Declaration, the review applicant confirmed that Vasa lives 1 hour away and has medical conditions which prevented him from assisting. He confirmed that Vasa has a poor relationship with his father.
In earlier submissions to the Department, the review applicant said that his cousins have grown up not knowing his parents or himself and there is an age difference and language and cultural differences. They also have family and work commitments, so they have rarely seen each other. He said that his cousins know that his father has mental health issues, and they ‘stay away from him’. He said that it was extremely difficult trying to get Statutory Declarations from them as they could not comprehend helping his father and he barely knows them. He said that some felt that it was a ploy to get information or documents from him. A Statutory Declaration from Sasha Nikolic dated 27 March 2018 declared that she sees her uncle at most once per year. She said that she could not help him as she works full-time and had two young children. She said that she had never been part of his care and had no skills to help him and did not speak Serbian. A Statutory Declaration of Meri Cupac dated 9 March 2018 declared that Krsta was her uncle. She said that she worked full-time and was unable to care for him. She had three children of her own and had never been part of his care, which she felt was his children’s responsibility. A Statutory Declaration of Goran Nikolic dated 10 March 2018 stated that Krsta was his uncle, and he could not assist in his care. He said that he worked full-time and had two young children. He also had to look after his own parents. He could not assist with the high needs for care of his uncle and does not speak Serbian.
Whether any relatives can ‘reasonably’ provide the relevant assistance and what a relative is capable of doing are matters for consideration in determining whether assistance cannot reasonably be provided: Anveel v MIBP [2013] FCCA 2181 at [61]-[62]. However, consideration should also be given to the nature of care actually required by the person needing the care when making such assessment: at [61].
In assessing whether claims a relative in Australia cannot provide assistance are reasonable, Departmental policy suggests looking at issues such as the following:[1]
·     the number of relatives already in Australia.
·     the nature and extent of the assistance required.
·     where the person requiring assistance lives.
·     where any relatives in Australia live (see Yee Joy v MIBP[2]).
·     any evidence of ongoing close family relationships.
·     the reasons given as to why relatives in Australia claim to be unwilling or unable to provide assistance.
[1] Policy: Div 1.2/reg 1.15AA – Carer Instruction - Assessing whether assistance can be reasonably provided by another relative (re-issued 19/11/2016).
[2] Yee Joy v MIBP [2015] FCCA 2537 at [23].
The Tribunal has considered carefully all the submissions referred to earlier. While the Tribunal should have regard to policy, as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[3] The Tribunal has considered the number of relatives, the nature and extent of care required (including need for toileting, lifting and mental health needs), geographical proximity, family relationships and factors such as health, work and family commitments.
[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
The sponsor has a large number of relatives in Australia, such that it would be expected on the face of it that one could care for him. Care may also be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that r.1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person. In this case however, the Tribunal is satisfied that the relatives could not provide the assistance provided, for the reasons set out below.
As noted earlier, medical evidence establishes that the sponsor’s wife would have significant difficulty providing assistance due to her own medical conditions, including deteriorating depression, and does not have the capacity to help the sponsor with transfers etc due to her own neck and back conditions. The sponsor’s siblings are also not reasonably able to provide the assistance required. As outlined in the submissions and medical reports above, the siblings live some distance away so it would be difficult to travel and help for the period of two years, particularly in the case of Doka, who does not drive. Both Doka and Zivka have their own medical issues, in the case of Doka including painful arthritis and veins, and in the case of Zivka, dizziness. Zivka cares for her own husband who has medical conditions. Because of their medical conditions they would have difficulty caring for the sponsor for the period required, including transfers, carrying out daily bodily functions and monitoring. The other brother is not in contact with them currently and would not be able to provide the assistance required for his mental health conditions given the relationship, and he himself requires 24-hour professional care. Of the sponsor’s children who live in Australia, one has a child who has severe mental health issues as well as caring for another child and working full-time. She also lives one hour away from her parents. Vasa does not have a good relationship with the sponsor, lives an hour away and has some serious medical issues.
The sponsor’s extended family, including nieces and nephews, are not close to the sponsor, and this may well impact on their ability to provide the assistance required, given the medical evidence from both the psychiatrist and doctor about the sponsor’s fragile mental state and need for personal care. Further, these relatives live some distance away, have their own children and jobs, and do not speak Serbian, which would limit their capacity to assist.
Departmental policy states that ‘reasonable’ should be given its ordinary dictionary meaning, and states ‘this may be described as using common sense, being practical or sensible, using logic, being judicious or prudent.’[4] The Tribunal considers that there are factors for each of the relatives which would impact on their capacity to reasonably (in the sense of ‘using common sense’ or’ practically’) provide the care required for the relevant time period [5], including 24-hour direct assistance in attending to the practical needs of daily life, carrying out routine bodily functions and the need for constant supervision or monitoring (including dealing with incontinence, hearing, mental health, conditions affecting the spine, lower and upper limbs).
[4] Policy: Div 1.2/reg 1.15AA – Carer Instruction – Assessing whether assistance can be obtained from services in Australia (re-issued 19/11/2016).
[5] Nguyen v MICMA [2019] FCA 934 at [59]–[65].
The Tribunal is satisfied therefore that assistance could not reasonably be provided by any other relative in Australia or any combination of relatives.
Assistance from welfare, hospital, nursing or community services
According to submissions from the representative, approaches were made between 2019 and 2022 to numerous service providers for assistance, and they either could not provide assistance or did not respond. The information about the approaches was set out in a document provided by the applicant.. It was submitted that in Serbian culture, children look after elders, and aged care homes are inappropriate. The letter to these service providers requesting care asked for a male Serbian speaking person and noted that the sponsor only eats Serbian food. It requested help for ‘adjustment disorder with mixed anxiety/depression/PTSD, right shoulder pain, right knee and hip pain, hearing loss and incontinence’. The nursing homes enquired about were Mark Moran Vaucluse, Huntingdon Gardens, Hammond Care, St Brigid’s Green, Bondi Waters, Prestons Lodge, Brighton-Le-Sands (enquiry through AgedCare Guide) and Catholic Healthcare Lewisham Nursing Home. It was also submitted that the applicant could not be cared for in hospital on a full-time basis.
The National Disability Insurance Scheme provides funding for tailored specialist services for people with disabilities who are eligible. The NDIS connects participants to services in the community. The sponsor provided an email from the National Disability Insurance Scheme dated 21 November 2022 informing the sponsor that he was ineligible to access home care support as he was over 65 years old. This requirement is confirmed on the NDIS website.[6]
[6] Am I eligible | NDIS
The Tribunal was provided with a copy of an email sent to Campbelltown City Council. The applicant said that no response was received. It was submitted that he had also contacted them twice and was informed that they do not provide assistance to elders.
The Disability Support Pension is an income support payment for people with disabilities of working age not able to work independently.[7] An applicant must be under 67 or 66 years old depending on date of birth, so the scheme does not apply for this applicant who is 72 years old.
[7] Who can get Age Pension - Age Pension - Services Australia
My Aged Care is an Australian government service providing people over 65 years of age with assistance following an aged care assessment.[8] The applicant provided a Home Care Level 3 package from My Aged Care, approved in June 2019 for the sponsor. He was assigned a Level 3 home care package of up to approximately $34 550.90 annually. It was submitted that he scored RUDAS 7/27 for his cognitive assessment, which it was submitted was greater impairment than previously set out in his BUPA assessment. The assessor noted that Krsta was born and educated in Serbia. She recorded that while visiting his family in Australia, Krsta was unable to return due to conflict in his country, which he found very difficult, and it took some time for them to join him. The assessor stated that Krsta had experienced functional and cognitive decline due to a traumatic work injury and he requires care and assistance in all aspects of daily life. It was noted that his son cares for him and his wife. The assessor noted that he does not have social connections and has many doctor’s appointments. He was dependent on his son for personal care, grooming, transfers, toileting, meal preparation and cutting up food, domestics and laundry, medication, shopping, transport, medical appointments and social and emotional support. She noted that falls were reported due to poor balance and weakness in the right side. He needed assistance with stairs, bed and chair transfers and washing, drying and dressing. The assessor recommended flexible care involving assistance from the review applicant and social support. He could only obtain about 9 hours per week of home care, because of dietary requirements, lack of a Serbian speaker and shortage of workers in the Campbelltown area.
[8] | My Aged Care
A Statutory Declaration of the review applicant, Mr Nikola Nicolic dated 24 November 2022 provided to the Tribunal stated:
·    He had followed up with My Aged Care, and they had advised him to go to the website and find a provider. He contacted Russian Relief Association and spoke to the Home Services Manager who said that they were struggling to find staff and did not have any Serbian carers. The maximum hours they could provide was 9 hours a week based on his assessment. He also contacted Abel Tasman and was told they did not have staff in the Campbelltown area and did not have Serbian staff. He also contacted My Guardian NSW and was told they offered a maximum of 9 hours per week, which could be divided into cleaning, meal preparation and supervision. He said that they sometimes had Serbian staff but they were not always available.
·    He had written to his local council and did not hear back from them. He then telephoned the council on 18 November 2022 and was told a response would be forthcoming. On 23 November he telephoned again and was told that there was no assistance they could provide to elders, and he should contact My Aged Care.
·    His father has limited English.
·    His father does not like being around strangers and can get upset, agitated and at times aggressive, but Nikola knows how to handle him and calm him down.
·    Nursing is not an option as his father does not like strangers in his house.
·    There is a shortage of health workers and a difficulty getting help for 24 hours a day.
·    He had contacted the Serbian Orthodox Welfare Association of NSW many times. They had not answered his calls. He had also visited but was told that it was not their address, despite it being listed online.
·    His father did not want to go a nursing home, which would impact on his mental state. He has trust issues and fears nursing homes after watching reports of bullying. Furthermore, he only enjoys Serbian food. He said that there was no nursing home predominantly for Serbian elders, as in their culture, children look after the elderly.
·    His father requires someone to talk to when depression kicks in. Nikola often gets up at 2am to listen to him and give him advice to calm him or make him laugh. He does not believe he could get this level of in-depth care from any organisation and there are waiting lists. Care would also separate him from his wife to whom he had been married for 46 years.
·    He had been the primary and sole carer for his father for two years and ‘more’. He said that during lockdown ‘health workers were run down, losing jobs as they were ‘unvaxxed and simply not enough members to assist’.
·    He said that he did not regard caring as a job, but rather he had dedicated his life to be available at all times.
Several media articles were provided to the Tribunal referring to a healthcare crisis in NSW. An article, dated 23 July 2022 from 7News.com.au referred to patients sleeping on hospital floors and being treated in waiting rooms, due to chronic understaffing of nurses. An article in HealthStaff Recruitment also referred to the shortage of nursing staff in NSW which would have an impact on all aged care facilities from 2020. An article by Jarrod Ball for the Committee for Economic Development dated 10 August 2021 referred to a shortage of at least 110 000 direct aged-care workers within the next decade unless urgent action was taken, based on ‘conservative assumptions’. Care was regarded as ‘below world standards’ as highlighted by the Aged Care Royal Commission. An article in The Guardian dated 3 February 2022 said that providers estimate about a quarter of all shifts (the equivalent of 140 000 shifts a week) are going unfulfilled.
A letter from Dr Kulic, a consultant psychiatrist, dated 27 December 2018, stated that he anticipated difficulties in getting support for his patient through the public system as it would be limited in time and there would be issues of cultural sensitivity. He said that he was aware of the pressure on transcultural mental health services. He noted that issues in communication often leads to misunderstanding and paranoid ideation, which could happen through language barriers and his hearing impairment. He confirmed his support for the applicant’s son as a carer which he believed would be of benefit to his psychiatric treatment.
The Tribunal has considered whether the services could be ‘reasonably’ obtained, in the sense of ‘using common sense, being practical or sensible, using logic, being judicious or prudent.’[9] The Tribunal has considered the nature of the assistance required and suitability of sources of assistance.
[9] Policy: Div 1.2/reg 1.15AA – Carer Instruction – Assessing whether assistance can be obtained from services in Australia (re-issued 19/11/2016).
The care required as specified in the Carer Visa Assessment Certificate includes need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision or monitoring. This includes care for incontinence, hearing, mental health, conditions affecting the spine, lower and upper limbs, and transfers with. The sponsor requires assistance with mobility, toileting, dressing, grooming, supervision of medication, supervision for personal safety and transportation. In regard to mental health, the Tribunal notes that the sponsor has trust issues and can get aggressive and agitated around strangers. The psychologist in a recent report in November 2022 noted that the sponsor is ignorant about his appearance and unable to live independently and take adequate care of himself
On the basis of the information set out above, the Tribunal is not satisfied that welfare, hospital, nursing or community services or a combination could be reasonably obtained for the care required over the relevant period. Some of the service providers said that they could not provide these services or could only do so in a limited way (with My Aged Care providing 9 hours limited assistance). The Tribunal has also taken into account cultural factors including the ability to provide a specific cultural diet (here Serbian food) as in Lin v MIMIA[10] and Serbian speaking carers, as in Biyiksiz v MIMIA[11]. The Tribunal notes that 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]. In this case, given the evidence of the importance of Serbian language and food to the sponsor, the Tribunal is satisfied that this is a cultural factor and not a mere preference. The sponsor’s doctor referred to a need for Serbian carers given issues in communication which often ‘lead to misunderstanding and paranoid ideation, which could happen through language barriers and his hearing impairment’. He noted the shortage of Serbian carers. A recent report from Tomic Psychology confirmed the sponsor’s profound depression and noted that if he was placed in a non-Serbian nursing home or retirement village it would increase his depression. Shortage of Serbian carers was noted by service providers themselves. The Tribunal also has taken into consideration the shortage of aged care and health workers generally, as set out in the media articles provided.
[10] Lin v MIMIA [2004] FCA 606.
[11] Biyiksiz v MIMIA [2004] FCA 814.

Given the evidence of the service providers, medical practitioners, social workers and from the review applicant about attempts made to find service providers and the shortage of Serbian carers, the Tribunal is satisfied that the assistance provided could not be reasonably provided by another Australian relative, or obtained from welfare, hospital or nursing or community services.
Therefore, the requirements of reg 1.15AA(1)(e) are met.
Willing and able – reg 1.15AA(1)(f)
The applicant gave evidence to the Department that as he had been assisting his parents for (then) five years, he had a good understanding of the nature of assistance required, and that the care needed for his father would continue for the rest of his life. He noted that in their culture it was his duty to care for him. He said that when his father is in hospital he is asked to be there as often as possible as his father feels calmer when he is around. He said that he ensures his father attends medical appointments when needed. On one occasion he had a bladder infection and became confused, and Nikola noticed and took him to a doctor. He said that he:
·Runs the household, checking all mail and explaining it to them, paying bills, calling tradespeople and other household duties.
·Shops for them and cooks Serbian food.
·Ensures that they eat properly.
·Supervises them, for example his father forgets to turn the stove off.
·Performs household chores and laundry.
·Ensures his parents shower daily and assists his father in the shower and with toileting and dressing, as well as helping him with his incontinence problems.
·Drives his father to appointments, for walks and shopping.
·Ensures he walks safely particularly on stairs.
·Oversees their medication.
·Engages his father in activities such as chess and assists with socialising.
He said that when his father became unwell, he researched his conditions every day so he could know how to assist, and he has also learnt a lot from his father’s doctors and hospital staff. He said that at the hospital they gave him practical tips. He has been able to mentally and physically assist them and is single without family commitments. His parents financially assist him. At that time, he was working 9 hours night shift when his sister provided some assistance, however with her family and work commitments she found this difficult.
The assessor noted in the Aged Care Assessment that Nikola cares for his father 24 hours daily. She said that he was dependent on his son for personal care, grooming, transfers, toileting, meal preparation and cutting up food, domestics and laundry, medication, shopping, transport, medical appointments and social and emotional support.
In his Statutory Declaration, Nikola said that he was ‘willing and able to continue caring for my father until the day he dies. I have dedicated my life to him, and this is normal and expected in the Serbian culture’. He also gave evidence that at times when his father was depressed, he would wake up at 2am to talk to him and ‘make him laugh’. It was submitted that the review applicant was ready, willing and able to continue with the care already being provided. It was submitted that changing his care would cause the sponsor stress, depression and anxiety and that the sponsor has a strong bond with his son, and his son is the only one who can get close to him and calm him down.
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. Willingness is concerned with the applicant’s state of mind and 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. The term ‘substantial and continuing assistance’ has not been directly considered in this context but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. The Tribunal is satisfied, given the evidence of the care already being provided by the review applicant over the last few years that the applicant is both willing and able to provide the rigorous assistance required, involving not only practical and physical assistance in regard to matters such as toileting and lifting, but also help with his mental state. A letter from Dr Kuljic, a psychiatrist, dated 20 June 2022 confirmed that his son helped him with medication, was available at all hours, and that Krsta had often emphasised his son’s day-to-day role in helping him and making him feel safe and protected from risks.
Therefore, 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).
Conclusion on ‘Carer’ criterion
Given these findings, at the time of application and decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.212 and cl 836.221.
CONCLUDING PARAGRAPHS
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.212 and cl 836.221 of Schedule 2 to the Regulations.
Jane Marquard
Member

ATTACHMENT
Migration Regulations 1994
1.15AA Carer
1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:
(a)the applicant is a relative of the resident; and
(b)according to a certificate that meets the requirements of subregulation (2):
(i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and
(ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and
(iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and
(iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and
(ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and
(c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and
(d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and
(e)the assistance cannot reasonably be:
(i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or
(ii)obtained from welfare, hospital, nursing or community services in Australia; and
(f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.
(2)A certificate meets the requirements of this subregulation if:
(a)it is a certificate:
(i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and
(ii)signed by the medical adviser who carried it out; or
(b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.
(3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.