Phan (Migration)

[2019] AATA 4752

Phan (Migration) [2019] AATA 4752 (27 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Nicole Ngoc Phan

VISA APPLICANTS:  Mrs Thi Tran Chau Phan
Mr Thanh Liem Vo
Miss My Hanh Vo

CASE NUMBER:  1834838

HOME AFFAIRS REFERENCE(S):           OSF2013/027210

MEMBER:Hugh Sanderson

DATE:27 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2019 at 8:27am

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) – Subclass 116 (Carer) – carer of relative – family employed care worker – father approved for high level care – 9 siblings – not satisfied care couldn’t be provided by family – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 1 Item 1123A, Schedule 2 cl 116.221, r 1.15AA

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 2 October 2018 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 29 October 2013. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, 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.

3. The delegate refused to grant the visas on the basis that cl.116.221 was not met because the delegate was not satisfied the visa applicant was the carer, as defined in r.1.15AA, of the review applicant. Specifically, the delegate was not satisfied the assistance required by the review applicant could not reasonably be provided by any other relative of the review applicant resident in Australia or reasonably obtained from welfare, hospital, nursing or community services in Australia.

   Background

4. The review applicant (hereinafter the sponsor) was born in Vietnam and is currently 52 years old. She is a citizen of Australia. She is the sponsor of the visa application. The first named visa applicant (hereinafter the visa applicant) is the sister of the sponsor and is currently 50 years old. The second named visa applicants are her husband and daughter who have applied for the visa based on being members of the family unit of the visa applicant.

5. The application was based on the need to provide care for the parties’ father, Van The Phan. Their father was diagnosed as suffering from multiple medical conditions. These include dementia, lower back pain, double incontinence, diabetes and hypertension. A Carer Visa Assessment Certificate dated 28 June 2013 gave him an impairment rating of 50.

6. It was claimed that the sponsor did not have any relatives in Australia who would be reasonably able to provide the assistance required by her father. Information was provided that the visa applicant has the following relatives over 18 years old who reside in Australia and the reasons they were not able to provide any assistance to their father:

   ·Thi Ngoc Diep Phan, 63 years old, sister, quit her job to look after her parents but would like to return to work, has a 21-year-old child;

   ·Van Long Phan, 61 years old, brother, has two children aged 20 and 26 years old, was working but recently resigned from his job to continue to care for his parents;

   ·Van Son Phan, 58 years old, brother, working, has three children aged 16, 15 and eight years old and suffers from diabetes;

   ·Van Hung Phan, 56 years old, brother, working, has two children aged 20 and 19 years old;

   ·David Van Cuong Phan, 54 years old, brother, working, has two children aged 14 and 11 years old;

   ·Thi Kim Chi Phan, 53 years old, sister, divorced, working;

   ·Nicole Ngoc Phan, 52 years old, sponsor, living with her mother;

   ·Van Hien Phan, 49 years old, brother, working, has a six-year-old child;

   ·Thi Huong Quyen Phan, 48 years old, previously diagnosed with cancer but was reported as “doing well”, has three children aged 14, 12 and 7 years old;

   ·Fiona Phan, 21 years old, niece, university student;

   ·Laura Bui, 21 years old, niece, currently a student and working part time and planning to work full time next year;

   ·Nira Phan, 20 years old, niece, student and working part time; and

   ·Natalie Phan, 26 years old, niece, working full time at Westmead Hospital and married.

7. The parties claimed that their father had been previously cared for by their mother. She could not continue to do this as she is now 86 years old and her health was deteriorating. It was claimed their siblings in Australia had been looking after their parents at night, however, due to their employment and family duties they were not able to commit to do this for him permanently. It was claimed their father and mother like to be cared for by a family member at home, as this was in accordance with their Vietnamese cultural traditions.

8. The parties claimed further that they had attempted to obtain community help, however, were advised that the Multicultural Community Care Service was unable to provide 24-hour care. They claimed that nursing homes would not be able to provide the needs of somebody from a Vietnamese background.

9. The delegate who considered the application noted the following issues:

   ·The person needing assistance has nine children residing in Australia and a number of adult grandchildren;

   ·Although each child and grandchild claimed to have reasons why they cannot provide full-time care, there would be nothing to stop the relatives to combine on a rotational arrangement to meet the care needs of their father and grandfather;

   ·The father’s children are already providing this assistance and there is no information which would indicate they would not be reasonably able to continue to provide this assistance in the future;

   ·There are at least two children of the father who appear to have less work or other obligations and would be able to provide more substantive care for their father;

   ·There is little objective evidence of the parties making any genuine effort to obtain community or welfare assistance for their father;

   ·The father had already been approved for a high level of care by the Aged Care Assessment Team and he and his wife were receiving 10 hours of homecare per week from the Multicultural Community Care Service since 2011; and

   ·It appeared the family had employed a care worker to help bath their father and provide assistance indicating the family had the financial capacity to employ a welfare worker if required.

10. Taking all these matters into account, the delegate found that the assistance required by the parties’ father could be reasonably provided by the nine siblings and other family members resident in Australia. The delegate also found that the assistance required by the father could be reasonably obtained from welfare and community services in Australia. Accordingly, the delegate found the visa applicant did not meet the definition of a carer in r.1.15AA(1)(e) and therefore did not meet the criteria in cl.116.221 and refused the application.

    Information to the Tribunal

11. The sponsor provided further information to the Tribunal including the following:

    ·Statements from siblings saying they would provide financial support to the visa applicant if she were granted a visa to care for their father;

    ·Medical reports for Thi Huong Quyen Phan, Nicole Phan and Van Hien Phan;

    ·Further medical reports of the applicants’ father, noting that he had been diagnosed as suffering from a sarcoma, described as an aggressive form of soft tissue cancer, with his treatment options involving above knee amputation and radiotherapy or conservative management with palliative care with the family deciding to manage his condition not operatively; and

    ·Statements from the relatives of the sponsor and the sponsor giving reasons why they claimed they were not able to provide care to their father/grandfather.

12. The sponsor appeared before the Tribunal on 13 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s brother, Van Long Phan. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

13. The sponsor said that she had lived with her parents since 2000 in her own home. She said that she was currently working part time as a pharmacist. She said that she works as a locum, usually two days per week, 9:00am to 2:00pm on Wednesday and 8:00am to 7:00pm on Friday. She said that she is sometimes offered more work. She said that when she is working she relies on her sisters, Thi Kim Chi Phan and Thi Ngoc Diep Phan, to help look after their parents. She said that her mother is not now able to provide the care her father needs due to her own incapacity.

14. The sponsor said her father was bedbound and is required to wear nappies. He requires care all the time. She said he was in hospital in February 2019 for 10 days after suffering an infection from his catheter. He was in hospital about three or four times in 2018 for between seven days and 10 days each time.

15. The sponsor said that her parents currently receive homecare assistance as follows:

    ·Monday – 2:30pm to 5:30pm;

    ·Tuesday – 3:00pm to 5:00pm;

    ·Wednesday – 1:00pm to 3:00pm;

    ·Thursday – 3:00pm to 6:00pm;

    ·Friday – 12:00pm to 2:00pm;

    ·Saturday – 3:00pm to 7:00pm; and

    ·Sunday – 3:00pm to 7:00pm.

16. The care that is provided from homecare includes showering her father, helping to feed him, cleaning the bed and cleaning the bedroom. The person providing the homecare is able to provide all necessary assistance to her father. She explained that her brother, Van Long Phan, is employed by the company providing the homecare and he is the person who provides the homecare assistance to her father. He is paid for providing this homecare from his employer. Apart from caring for her parents, her brother does not have any other clients that he is required to look after. He is not working for anyone else at this time.

17. The sponsor said that her brother sometimes provides further assistance outside the care he provides as an employee for the homecare service. This includes staying over at night on Tuesdays and Fridays. He also provides assistance at other times when necessary and if he is available. He lives at home with his wife who had some medical problems herself and their two children.

18. The sponsor said that her sister, Thi Ngoc Diep Phan, has not worked for about four or five years. She lives with her husband and his mother. Her brother-in-law and his wife and their children also live in the home. She said that she sometimes stays overnight, usually twice a week, to assist in caring for her parents. She said that she would get to her home at about 8:00pm or 9:00pm after having taken care of her family. She said that sometimes she comes during the day when she feels able to. She said that during the day she is busy cooking for her husband and looking after her family.

19. The sponsor said her brother, Van Son Phan, works with New South Wales University and has three children under 18. He also suffers from diabetes and cholesterol and is often tired and dizzy. He does not have the physical capacity to care for their father and she rarely sees him. She was not able to provide any other information as to why it would not be reasonable for him to provide assistance.

20. The sponsor said that her brother, Van Hung Phan, works as a general practitioner in Fairfield and Sefton. She said that because he was busy with work he was not able to provide any assistance. She said that he sometimes visits his parents, but rarely and he would only spend an hour with them.

21. The sponsor said that her brother, David Van Cuong Phan, works Monday to Saturday. She said that he was divorced from his wife. Their children live with their mother. She said that he would come over to see his parents one or two times each week and occasionally would stay overnight on Wednesdays if needed.

22. The sponsor said that her sister, Thi Kim Chi Phan, stopped working about three years ago when she and her husband separated. She was employed as a receptionist at her husband’s business. She was currently living with their sister, Thi Huong Quyen Phan, in Revesby. She said that her sister was suffering from depression after the end of her marriage and has received medication from her general practitioner, but has not been required to see a psychologist or any specialist for any reason. She said that she had some other medical problems and complained about being stressed and exhausted. She said that she comes to be with their parents two or three times each week and will sometimes stay overnight if her other sisters are not able to do so.

23. The sponsor said her brother, Van Hien Phan, suffered a stroke in December 2017 and then had to go into rehabilitation. She said he divorced his wife in 2016. Their children live with their mother and he sees them on Sundays. She said that she believed he was working part time in real estate, but was not sure. Due to his stroke, he is not able to provide any physical assistance but was able to come over to visit his parents and supervise them one or two days per week.

24. The sponsor said that her sister, Thi Huong Quyen Phan, works as a pharmacist one or two days per week. She said that she suffers from being very weak. She said that as she has to take her children to school she cannot spend much time with their parents and might spend one or two hours with them when she visits.

25. The sponsor provided details of her nieces who are over 18 and live in Sydney. She said they all are either students and doing part-time work or are working full time and do not have any time to provide any assistance to their grandparents.

26. The Tribunal noted the sponsor had provided information from the Australian Vietnamese Aged Care Services who provide permanent residential care, respite care and palliative care specifically for Vietnamese speaking clients. The sponsor said they approached this organisation and saw that they had one person caring for four people. She said they did not do anything to enquire about any services available because they were not satisfied with them and their father did not want to go into a home.

27. The sponsor said that if the visa applicant were able to come to Australia the rest of her family would support her and she would have money from the sale of her assets in Vietnam.

28. The sponsor’s brother, Van Long Phan, gave similar evidence to that given by the sponsor.

29. The applicant provided an updated Carer Visa Assessment Certificate dated 14 August 2019. This confirmed the sponsor’s father satisfied the requirements of r.1.15AA(2), with a total impairment rating of 70.

30. The sponsor’s brother, Van Long Phan, also provided copies of CT scans and MRI reports for his wife. He stated that she would be seeing a specialist to decide on a date for an operation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

32. The issue in the present case is whether the visa applicant meets the definition of a carer in r.1.15AA.

    Whether the visa applicant is a ‘carer’

33. 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 r.1.15AA of the Regulations, which is set out in the attachment to this Decision.

34. The Tribunal has first considered if the applicant meets the requirements of r.1.15AA(1)(e).

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

35. 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.

36. The Tribunal has first considered the circumstances of the relatives of the sponsor who are resident in Australia and whether the assistance cannot reasonably be provided by any of them either individually or cumulatively.

37. The sponsor, Nicole Ngoc Phan, is the current primary carer for her father. She works on a casual basis two days per week, sometimes more. Her parents live with her in her home. She has been the primary carer for her father and mother since 2000 and she has the skills and knowledge to be able to continue to provide the assistance required. As she only works two days a week she is available for most of the time to be able to provide the assistance required. Due to the incapacity of her father, she believes that she requires the assistance of a person, particularly overnight, if he is required to be moved or have his nappy changed.

38. The Tribunal finds that it would be reasonable for Nicole Ngoc Phan to provide substantial assistance to her father. She is available to provide assistance overnight and for most days during the week. She is available over the weekend to provide assistance. There are periods, however, when she is legitimately involved in other activities such as work and would not be available for her own personal reasons.

39. The sponsor’s brother, Van Long Phan, is employed as a homecare assistant. His current employer is contracted to provide homecare assistance to his parents. He provides extensive assistance each day of the week to his parents through his employment. He does not provide homecare assistance to any other person through his work. The assistance provided by Van Long Phan as a homecare assistant is part of the assistance which is reasonably obtained from community services in Australia. The Tribunal does not take into account the care Van Long Phan is providing to his parents as an employed homecare worker when considering what assistance he can reasonably provide the sponsor and their father as a relative. Any assistance that it would be considered Van Long Phan can reasonably provide would need to take into account that he is employed as a homecare assistant, irrespective of whether he was providing that care to his parents or to another customer.

40. The Tribunal finds that it would be reasonable for Van Long Phan to provide a significant amount of assistance to the sponsor and their father. As he is already a homecare assistant, he has the skills and knowledge to provide all the care needs for his father. He already spends some nights staying with the sponsor to be able to assist in the care of their father. His wife has current medical problems, however there is limited information to indicate the care she would need from him would restrict the assistance he would be able to provide to the sponsor and their father. The Tribunal finds it would be reasonable for him to spend at least two nights each week with the sponsor to assist in any care for their father. He would also be available most mornings to provide further assistance and supervision when he is not actually employed as a homecare assistant.

41. The sponsor’s eldest sister, Thi Ngoc Diep Phan, has not worked for a number of years. Although it is claimed she would like to return to the workforce, there is no information which would indicate that she is likely to get work or is actively seeking work. The Tribunal does not accept that she is likely to return to work despite her claims. She lives with her husband, their adult child, her husband’s parents, his brother and his wife and their children. Although claiming to provide assistance to her husband’s parents, there is little information provided as to what care they require. Further, there is no information as to why other members of the family who live in the home would not be able to provide any required assistance. The Tribunal does not accept that she does not have any time available to her due to any other obligations to her husband’s family.

1. Thi Ngoc Diep Phan was previously the carer for her parents. She has the skills and knowledge that would be able to provide the assistance required. This assistance could be provided during the day and she would be available at night at least twice a week to provide overnight supervision and assistance to the sponsor in caring for their father. It is noted the husband of Thi Ngoc Diep Phan works night shifts and therefore her absence during the evening and night would not adversely affect their relationship. The Tribunal finds that it would be reasonable for Thi Ngoc Diep Phan to provide a substantial amount of assistance to the sponsor for the care of their father.

2. The sponsor’s brother, Van Son Phan, is employed full time and assists his wife who suffers from some medical conditions. He has three children aged between eight and 16 years. There is limited information as to how his family and work obligations would restrict him providing any assistance to the sponsor and their father.

3. The Tribunal finds that Van Son Phan would only be able to provide limited assistance to the sponsor and their father. This would likely be on weekends and only for one or two hours at a time. The assistance would probably be only by way of supervision.

4. The sponsor’s brother, Van Hung Phan, is married with two adult children. He works as a general practitioner. Little information has been provided to set out his work hours or other obligations. Although it was claimed he only visits his parents rarely, the Tribunal does not accept that it would not be reasonable for him to provide greater assistance than this. As a doctor, he would be able to provide all relevant care to his father when visiting. Although details of his working hours have not been provided, the Tribunal finds that it would be reasonable for him to provide this assistance of about two hours at least twice a week.

5. The sponsor’s brother, David Van Cuong Phan, is divorced. He has two children who live with their mother and he has contact with them on Sundays. The statement he provided gives little information as to why he would not be able to provide assistance to the sponsor and their father. It was claimed that he works Monday to Saturday, however, no supporting documentation was provided to substantiate this claim. It was claimed that he sometimes stays overnight with the sponsor to assist in the care of their father. There is nothing to indicate that it would not be reasonable for him to stay with the sponsor at least two nights a week to provide her assistance in the care of their father. There is nothing to indicate that he would not be able to provide all the assistance required by his father over that period.

6. The sponsor’s sister, Thi Kim Chin Phan, is divorced. She has no children. She is not working. It was claimed she was suffering from depression due to the end of her marriage which occurred over two years previously. There is no information which would indicate that apart from seeing her general practitioner she has required any further counselling or assistance as a result of any depression she may suffer. There is little information which would indicate she is not able to provide substantial assistance to the sponsor and their father. She is currently staying with another sister and there is nothing which would prevent her from staying with the sponsor to provide assistance to the sponsor and their father each night.

7. The sponsor’s brother, Van Hien Phan, suffered a stroke in December 2017. There is little information as to his current medical condition or whether he is in paid employment. In his statement, apart from referring to his “poor health status” he does not provide any other reason why it would not be reasonable for him to provide assistance to the sponsor and their father. The sponsor claimed that he was working as a real estate agent, but was not able to provide any details of this.

8. The Tribunal accepts that the medical condition suffered by Van Hien Phan would prevent him from providing aspects of the physical assistance required in the care of his father. The Tribunal finds, however, that he would be able to provide supervision and other assistance which would not be physically taxing to him. This would include providing assistance overnight.

9. The sponsor’s sister, Thi Huong Quyen Phan, is married with three children aged seven, 12 and 14 years. Although she has a history of lymphoma, there is no information which would indicate that she has not been successfully treated for this condition or that it would prevent her from providing any assistance to the sponsor and their father. It was claimed she works two days a week which indicates that she has the physical capacity to be able to provide assistance to her father.

10. The Tribunal finds that it would be reasonable for Thi Huong Quyen Phan to provide assistance to the sponsor and their father during the week when she is not working and her children are at school.

11. The sponsor’s mother lives with her and her father, however, due to her age the Tribunal accepts that it would not be possible for her to assist the sponsor in her care of her father apart from general supervision.

12. The sponsor has four nieces who are all students and working part time or working full time. The Tribunal finds that it would be reasonable for them to provide only limited assistance to the sponsor and her father. This might be for one or two hours during the week when they are not working or studying. This assistance would probably be limited to only supervision.

13. When considering whether the assistance required cannot reasonably be provided by a relative resident in Australia the Tribunal has considered the assistance that could reasonably be provided by each relative in Australia individually and whether in combination they could reasonably be able to provide the assistance required. Of the nine siblings who reside in Australia, the Tribunal finds that it would be reasonable for four of the siblings to provide substantial assistance. This would be from Nicole Ngoc Phan, Van Long Phan, Thi Ngoc Diep Phan and Thi Kim Chi Phan. The Tribunal finds that the other five siblings who reside in Australia would all be able to provide limited assistance. The effect of the assistance each sibling would be able to provide would allow the sponsor’s father to have at least two relatives present at all times, including overnight, to be able to provide the assistance he requires.

14. The Tribunal finds that a combination of the assistance provided by the relatives in Australia would more than equal the assistance required by the sponsor and her father. Accordingly, the Tribunal is not satisfied that the assistance cannot reasonably be provided by other relatives resident in Australia.

15. The sponsor currently receives homecare assistance each day of the week. The assistance provided is between two and four hours each day. That assistance is provided by the sponsor’s brother, Van Long Phan, as an employee for the homecare assistance provider.

16. The fact that the sponsor is receiving homecare assistance further reduces the obligation upon the relatives to provide assistance to the sponsor and their father. The assistance that is provided by homecare makes even more reasonable the assistance that can reasonably be provided by the relatives of the sponsor and her father who are resident in Australia.

17. The sponsor provided information from the Australian Vietnamese Aged Care Services. The available services provided include permanent residential care, respite care and palliative care. The sponsor stated that no enquiries had been made as to the availability of any of the services available as her father did not want to be placed into a nursing home.

18. The Tribunal accepts that the sponsor’s father prefers to be cared for by his family rather than being placed in a nursing home and he would not accept permanent residential care in a nursing home, regardless of whether it was specifically designed to care for elderly Vietnamese in Australia. The sponsor’s father has, however, been required to be admitted to hospital on a number of occasions over the last two years and has spent between seven and 10 days in hospital. The Tribunal finds that it would be appropriate and the sponsor’s father would be accepting of being placed in temporary care to give some respite to the sponsor and her siblings in the assistance they provide to their father.

19. The fact that this assistance can be reasonably obtained would further reduce the overall amount of assistance that would be required to be provided by the sponsor’s siblings. This would make the assistance that they could provide even more reasonable.

20. The Tribunal has considered all the circumstances of the relatives of the sponsor resident in Australia and the capacity for each relative to provide assistance to the sponsor and her father. The Tribunal finds that the assistance required can reasonably be provided by a combination of the relatives resident in Australia. Further, taking into account the assistance that can reasonably be obtained from welfare, hospital, nursing or community services in Australia would more than meet the assistance requirements of the sponsor and her father.

21. Accordingly, the Tribunal is not satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of r.1.15AA(1)(e) are not met.

    Conclusion on ‘carer’ criterion

22. As the Tribunal has concluded that the requirements of r.1.15AA(1)(e) are not met it is not necessary to consider the other requirements to meet the definition of a carer.

23. 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 sponsor, and therefore does not satisfy cl.116.221.

24. 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. As the visa applicant does not meet the criteria for the grant of the visa, the second named visa applicants are not members of the family unit of a person who meets the primary criteria and therefore do not meet the criteria for the grant of a visa.

    DECISION

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

    Hugh Sanderson
    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.