Phan (Migration)

Phan (Migration) [2019] AATA 3813 (13 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Thi Tuyet Nhung Phan
Mr Phuoc Tho Phan
Mr Quoc Tan Phan
Mr Quoc Tien Phan
CASE NUMBER:  1732745
HOME AFFAIRS REFERENCE(S):           CLF2015/38198
MEMBER:Hugh Sanderson
DATE:13 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Statement made on 13 August 2019 at 1:08pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer visa) – sponsorship requirements not met – assistance can reasonably be provided by the other relatives of the sponsor – applicant is not a carer of the Australian relative – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, Schedule 1, Schedule 2, cls 836.221, 836.213

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 Immigration and Border Protection on 19 December 2017 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visa on 24 June 2015. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative), Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (the Regulations)). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations.
The delegate refused to grant the visas on the basis that cl.836.221 was not met because the delegate was not satisfied the applicant was the carer of the sponsor as defined in r.1.15AA of the Regulations. Specifically, the delegate was not satisfied that the assistance required by the sponsor cannot reasonably be provided by any other relative resident in Australia or obtained from welfare, hospital, nursing or community services in Australia. The delegate was also not satisfied the sponsorship requirements in cl.836.213 were met.
Background
The first named applicant (hereinafter the applicant) is a citizen of Vietnam and is currently 54 years old. The second named visa applicants are her husband and two children who are currently aged 27 and 24 years old. They have applied for the visa on the basis of being members of the family unit of the visa applicant. The sponsor of the applicant is her mother, Thi Chinh Tang. She is currently 89 years old and is a citizen of Australia.
The sponsor provided a Carer Visa Assessment Certificate dated 18 May 2015 which found that she was suffering from multiple medical conditions including severe major neurocognitive disorder due to Alzheimer’s disease. She was assessed as having a total impairment rating of 90.
The sponsor has the following children who are resident in Australia:
·Vinh Phan, son, currently 62 years old (living in Melbourne);
·Thi Thanh Huyen Phan, daughter, currently 52 years old;
·Quoc Sach Phan, son, currently 47 years old; and
·Quoc Hung Phan, son, currently 41 years old.
The applicant and her family arrived in Australia on 12 February 2015 holding Visitor visas. At that time the sponsor was living in the home of her daughter, Thi Than Hung Phan. The applicant then applied for a Carer visa.
It was claimed that Thi Thanh Huyen Phan was no longer able to care for the sponsor, as she had to provide care for her husband who was mentally unstable as well as her children. It was claimed that Quoc Sach Phan was the owner of a busy nail salon and did not have any time to provide care for the sponsor. It was claimed Quoc Hung Phan was employed full-time as a handyman, had young children and was not able to provide any care for the sponsor.
It was claimed that due to cultural barriers and in particular special dietary requirements due to diabetes, home and community services were not able to offer appropriate care for the sponsor both during the day and night. The applicant provided a letter from Bernard Chan Nursing Home stating there were no vacancies. It was claimed that approaches to other nursing homes were also unsuccessful. A report from Van Son Nguyen, psychologist, gave the opinion that community health services were inappropriate for the sponsor and could not be reasonably obtained.
After the application was filed, the applicant and her family moved from the home of Thi Thanh Huyen Phan with the sponsor to alternative rented accommodation.
The delegate who considered the application first considered whether the sponsor had the mental capacity to sponsor the applicant. The delegate noted the following:
·The sponsor was diagnosed as suffering from severe dementia;
·The medical reports provided in support of the Carer Visa Assessment Certificate were based on reports provided by her general practitioner, a consultant urologist and a clinical psychologist supporting a finding that she suffered from severe dementia; and
·A report from the sponsor’s general practitioner saying that she suffered from forgetfulness most of the time but understood the responsibilities of being a sponsor provided no insight as to how, if she did suffer from severe dementia, she could understand her commitment to her future responsibilities as a sponsor.
Based on the above, the delegate was not satisfied that at the time of the application the sponsor understood sponsorship undertakings or that any other person or agency could commit to the undertakings on the sponsor’s behalf. Accordingly, the delegate found the applicant did not satisfy the sponsorship criteria in cl.836.213.
The delegate then considered whether the applicant was the carer of the sponsor as defined in r.1.15AA and specifically whether the assistance required by the sponsor cannot reasonably be provided by any other relative resident in Australia or obtained from welfare, hospital, nursing or community services in Australia. The delegate noted the following issues:
·The sponsor had been living with her daughter and her husband and their four children but it was claimed that as her daughter and her grandchildren had to care for her daughter’s husband who suffered from lower back pain and chronic anxiety disorder they were not able to provide any care to the sponsor;
·The applicant provided details of the sponsor’s three sons and daughter who reside in Australia, but did not provide any details of any grandchildren or other relatives residing in Australia;
·The care the sponsor’s daughter, Thi Thanh Huyen Phan, provided to her husband made it unreasonable for her to provide substantial care to the sponsor;
·There was limited information from the sponsor’s son, Quoc Hung Phan, as to his work hours or incapacity to provide care for the sponsor;
·Despite his claims, there was no information why Quoc Hung Phan did not have the skills to be able to care for the sponsor;
·There was limited information from the sponsor’s son, Quoc Sach Phan, as to why he was not able to provide assistance to the sponsor;
·The fact that he is a male, did not prevent Quoc Sach Phan from providing care to his mother;
·The registration details of Quoc Sach Phan’s business indicated that information was sent to the sponsor’s Bonnyrigg address;
·Despite requesting information of all adult relatives who reside in Australia, no information was provided with respect to the 14 grandchildren of the sponsor who reside in Australia who are likely to be over the age of 18;
·In the absence of any information about these 14 grandchildren, it must be assumed that they would be able to provide assistance to the sponsor;
·It would appear the combined efforts of 14 grandchildren and four children, even with one living in Melbourne, would be able to meet the assistance requirements of the sponsor;
·Despite the applicant requesting an Aged Care Assessment Team (ACAT) Report, this appeared to have been done with no genuine intention to seek any homecare assistance;
·The claim that there were no culturally appropriate aged care facilities was not plausible when there were facilities available for Vietnamese clients in New South Wales, and specifically the Australian Vietnamese Aged Care Services in Homebush West, the Eremea Home Carer Services in Ashfield, and the ANHF Home Care Services in Campsie;
·The only evidence of any attempt to obtain services for the sponsor had been one letter from one aged care provider and claims that the applicant had applied for a ACAT report; and
·The report from the psychologist makes no mention of the care facilities that would be available for the sponsor or why they would not be suitable for her.
Taking into account all these matters, the delegate was not satisfied that the assistance required by the sponsor could not reasonably be provided by other relatives of the sponsor resident in Australia or obtained from welfare, hospital, nursing or community services in Australia. The delegate found that the applicant did not meet the definition of the carer in r.1.15AA(1)(e) and therefore did not meet the criteria in cl.836.221.
As the delegate concluded the applicant did not meet the criteria in cl.836.213 and cl.836.221 the delegate refused the application.
Information to the Tribunal
The applicant provided further information to the Tribunal including the following:
·Letter from My Aged Care dated 15 March 2018 confirming the sponsor had been assigned a level three homecare package;
·Statements from the grandchildren of the sponsor claiming they were all studying, working or otherwise unable to provide any assistance to the sponsor and also claiming that as they did not speak Vietnamese they could not help;
·Appointment of the sponsor’s son, Quoc Hung Phan, as her attorney dated 17 July 2015; and
·Financial records of the parties.
The applicant appeared before the Tribunal on 23 July 2019 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.
The applicant provided details of where she had been living since she arrived in Australia. She said that her youngest brother had a power of attorney for her mother. She said that when the power of attorney was obtained the solicitor read out the details of the power of attorney to her mother and she said that she understood them. No further medical report was obtained to ensure her mother had the mental capacity to understand what she was signing. She said sometimes her mother has a clear mind and sometimes she does not.
The applicant provided details of her relatives who reside in Australia and the basis upon which she claimed they were not reasonably able to provide assistance to her mother. She said that she made enquiries in 2016 for her mother to live in a nursing home, but there was nowhere that was able to take her mother at that time. She said that as her mother does not like nursing homes, they have not looked for them since then. She said that she applied for homecare in 2016 but had not asked for this homecare to be provided. She said that her son dealt with the matter because he speaks English so she could not provide details of what was offered.
The Tribunal identified the children and grandchildren of the sponsor and asked the applicant why it would not be reasonable for them to provide the assistance to the sponsor either individually or in combination. The applicant said that her brother who lives in Melbourne has not been in contact with the family for a few years. She said that all the other relatives who reside in Sydney are busy either as students, working, or looking after their husband. She said that her mother does not like her grandchildren caring for her and they do not like caring for her.
The applicant said she had another sister living in Australia, Thi Hien Phan, who had applied for a Partner visa. This application had been refused after the sponsor died. She said that her sister had applied for a review of the refusal of that application and that application was currently before the Tribunal.
After the hearing, the applicant provided further documents to the Tribunal including the following:
·Statement by Quoc Hung Phan claiming that although his income is not high, he works seven days a week, has to look after his wife and two children and also his sister who lives with him and was refused a Partner visa application after her sponsor died, and she is now suffering from depression and anxiety;
·Statements by the grandchildren of the sponsor claiming they are all busy working or studying and only see their grandmother a few times a year and do not have the time to care for her; and
·Law Society of NSW practical guide for assessing when a client’s mental capacity is in doubt.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant meets the definition of a carer in r.1.15AA and whether the sponsorship requirements are met. The Tribunal has first considered whether the requirements of r.1.15AA are met.
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 r.1.15AA of the Regulations which is set out in the attachment to this Decision.
The Tribunal has first considered whether the assistance required by the sponsor cannot reasonably be provided by any other relevant relative of the sponsor or obtained from welfare, hospital, nursing or community services in Australia.
Assistance cannot be reasonably obtained / provided – r.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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia.
The sponsor has the following relatives who are resident in Australia:
·Vinh Phan, son, currently 62 years old (living in Melbourne);
·Thi Hien Phan, daughter, currently 60 years old;
·Thi Thanh Huyen Phan, daughter, currently 52 years old;
·Quoc Sach Phan, son, currently 47 years old;
·Quoc Hung Phan, son, currently 41 years old;
·Thi Thanh Thu Nguyen, granddaughter; currently 28 years old;
·Huy Van James Nguyen, grandson; currently 22 years old;
·Dang My Tien Phan, granddaughter; currently 22 years old;
·Dang My Tuyet Phan, granddaughter; currently 21 years old; and
·Dang My Tinh Phan, granddaughter; currently 18 years old.
As Vinh Phan resides in Melbourne and has little or no continuing contact with the sponsor, the Tribunal accepts that any of the assistance required by the sponsor cannot reasonably be provided by him.
Thi Hien Phan is currently in Australia on a Bridging visa awaiting a review of the decision of the Department to refuse her application for a Partner visa. As she is not an Australian citizen or permanent resident, her presence in Australia is not relevant when considering whether the assistance required by the applicant cannot reasonably be provided by another relative.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s daughter, Thi Thanh Huyen Phan. The sponsor was previously living with Thi Thanh Huyen Phan and her family. Thi Thanh Huyen Phan claimed that she can no longer care for her mother as she is under a lot of stress with her own family responsibilities. Her husband has multiple medical conditions and she is his carer. Two of her children continue to live in the home with her and her husband and two of her children have recently left their home and are now residing in the United Kingdom.
There is little information as to why it would not be reasonable for Thi Thanh Huyen Phan to provide a substantial amount of care for the sponsor. The sponsor was previously living with her and as two of Thi Thanh Huyen Phan’s children who were living at the home have now moved to the United Kingdom there are now less people living in that home. She has previously been able to provide care to both her mother and husband and there is nothing to indicate that the care that she provided to both of them was not appropriate. She has the skills necessary to provide the assistance. The most recent certificate of sickness provided from her husband indicates that he suffers from chronic lower back pain with degenerative changes, dizziness, arthritis and chronic anxiety. There is no information which would indicate that Thi Thanh Huyen Phan would not be able to continue to provide him all the assistance he required together with providing substantial assistance to the sponsor.
In all the circumstances, the Tribunal finds Thi Thanh Huyen Phan would be able to provide substantial assistance to the sponsor. This would include providing assistance during the day and at night and providing any interpretation services required if any assistance were being provided by a non-Vietnamese speaking person.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s son, Quoc Sach Phan. It was claimed he could not provide any assistance to his mother as he owned his own nail salon business and was receiving treatment for drug addiction and hepatitis C. A letter from his doctor dated 10 July 2019 stated that he had last seen him on 3 February 2015. No information was provided which would indicate any treatment Quoc Sach Phan received would interfere with his capacity to provide assistance to his mother.
Little credible or corroborative information was provided to indicate the amount of time Quoc Sach Phan is involved in his business. It was stated that his wife also works in the business. Although claiming to be in the business seven days a week, no information was provided to support this. It was claimed the business had several employees and this would indicate Quoc Sach Phan would be able to arrange his affairs to be able to provide some assistance to his mother. This would include being available to transport her if required, carry out any necessary chores during the week such as shopping, and also provide some respite for any primary carer when his business is not operating or he is not required to be in attendance.
In all the circumstances, the Tribunal finds Quoc Sach Phan would only be able to provide limited assistance to the sponsor as set out above. That assistance would be able to compliment any primary care of the sponsor.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s son Quoc Hung Phan. The sponsor has appointed him with her power of attorney which indicates that he is actively involved in her financial affairs and is aware of her daily needs.
It is claimed Quoc Hung Phan works for himself as a handyman seven days a week. Little information has been provided which would support this claim. His tax return for the year ending 30 June 2017 indicates gross receipts of $30,269 and a net income of $24,370. His spouse disclosed an income of $17,759. For the year ending at 30 June 2018 he disclosed a taxable income of $36,070. Even accepting Quoc Hung Phan charges at a minimal rate, the Tribunal does not accept that the income that is disclosed supports a finding that Quoc Hung Phan is working seven days a week and does not have any time to be able to provide any assistance to his mother.

Quoc Hung Phan has two children who are aged 14 and 15. He is married. The Tribunal does not accept that the family circumstances of Quoc Hung Phan would prevent him from providing assistance to his mother. Although his wife has recently undergone surgery, there is nothing to indicate that she is dependent upon his support for any reason. His sister, Thi Hien Phan, is living in his home after she was refused the Partner visa. Although it is claimed that she is suffering from anxiety and depression and he sometimes has to provide her support, there is nothing that would indicate that any support he does provide to his sister would prevent him from providing substantial support to his mother.
The Tribunal finds Quoc Hung Phan could reasonably provide substantial assistance to the sponsor. This would include providing transport, shopping, household chores, company and supervision for his mother. He would also be able to provide some physical assistance and care to his mother.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s granddaughter, Thi Thanh Thu Nguyen. She currently lives with her mother, Thi Thanh Huyen Phan, father and younger brother in the home the sponsor was previously living in.
She works full-time as a primary school teacher and is engaged to be married. Although claims have been made about her hours of work, there is little information to corroborate these claims. The Tribunal does not accept that a primary school teacher is so involved in her work including marking papers and preparing for the following school day that she often has to go to bed at 1:00am. The Tribunal finds the claims made by Thi Thanh Thu Nguyen are not plausible or credible and are made to hide the fact that she would be able to provide assistance to the sponsor outside normal school hours or when she is attending Tuesday staff meetings which she claims sometimes finish as late as 6:00pm.
The assistance that it would be reasonable for her to provide would include general supervision, personal care and hygiene, cooking, cleaning and general household chores. The Tribunal finds that it would be reasonable for her to provide a high degree of assistance to the sponsor outside her working hours. This would include on weekends and would be able to be extended during school holiday periods.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s grandson, Huy Van James Nguyen. He lives at home with his mother Thi Thanh Huyen Phan, his father and older sister in the home the sponsor was previously living in.
He currently attends University, attending classes on Monday and Wednesday from 9:00am to 4:00pm during the school term. His certificate of current enrolment indicates the study that he will be doing in the second half of 2019 will be the equivalent of 0.375 full-time study load. He stated that he had recently commenced work at South West Radiology, working five days a week from 9:00am to 2:00pm as he is on University holidays. He claims that he will be working three days a week when the University term recommences.
The Tribunal does not accept the applicant’s claim he is too busy to provide any assistance to the sponsor. The Tribunal finds Huy Van James Nguyen would be able to provide assistance when he is not at work or attending university classes. This would include supervision of the sponsor, physical assistance in helping the sponsor move, transporting her, and general assistance.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s granddaughter, Dang My Tien Phan. She has recently graduated from University and is now working casually as a primary school teacher. She claims to work from 8:00am to 4:30pm each day and sometimes longer, and tutors students on Wednesdays and Saturdays. There is limited information to support the claim that she is tutoring students on these days, particularly during any school holidays.
The Tribunal accepts that Dang My Tien Phan would not be able to provide assistance to her grandmother when she is working and tutoring students. The Tribunal finds, however, she would reasonably be available to provide assistance to her grandmother when not working and on Sundays. It is likely the amount of reasonable assistance she would be able to provide to her grandmother would increase during school holiday periods. This assistance would include supervision, general hygiene and other care, mobility assistance, shopping and other general care requirements.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s granddaughter Dang My Tuyet Phan. She is currently attending the University of Technology and is attending classes two days a week on Monday and Thursday. Although she claims that she spends a lot of time ‘studying and articulating ideas for (her) upcoming classes’ there is little information as to any other activity she does outside these two days. She claims that she will be commencing work in a department store in August 2019, however, no details of this have been provided.
The Tribunal finds that Dang My Tuyet Phan would be able to provide a substantial amount of assistance to the sponsor. This would include direct supervision, providing hygiene and personal care, transport, and general assistance. The assistance would not be able to be provided on the two days she attends University, however, would be able to be provided at other times. If she does have employment in a department store, it is unlikely that this employment would be full-time and she would be able to provide assistance when she is not working.
The Tribunal has considered the assistance that could reasonably be provided by the sponsor’s granddaughter, Dang My Tinh Phan. She is currently attending university studying exercise and sport science three days a week. She claimed she also works at McDonald’s on two days from 11:00am to 4:00pm and sometimes on weekends. She does not have a driver’s license. She claims that she can hardly look after herself let alone her grandmother. The Tribunal does not accept this.
The Tribunal finds Dang My Tinh Phan would be able to provide some assistance to the sponsor when she is not working or attending university classes. This would include supervision and general mobility assistance.
The Tribunal has considered all the circumstances of the relatives of the sponsor who are Australian citizens or permanent residents in Australia. The Tribunal accepts that no one relative would reasonably be able to provide all the assistance to the sponsor. The Tribunal finds, however, that a combination of the relatives of the sponsor would be able to meet all the assistance requirements of the sponsor.
The sponsor’s daughter, Thi Thanh Huyen Phan, would be able to provide a substantial amount of assistance to the sponsor. As the sponsor has previously lived with her and as two of the children of Thi Thanh Huyen Phan have recently moved out of the home there would be appropriate accommodation for the sponsor in her home. This would allow Thi Thanh Huyen Phan to provide daily supervision and care while at the same time providing care for her husband.
It would be reasonable for most of the other relatives of the sponsor resident in Australia at various times to provide assistance to the sponsor. As set out above, each relative has opportunities to provide assistance to the sponsor when they are not engaged in work or study. This includes periods on weekends and during the week when the relatives are not engaged in classes. This would provide respite to Thi Thanh Huyen Phan in the assistance that she was providing to the sponsor. Much of the assistance which would be required by the sponsor includes general supervision. This would allow any grandchildren of the sponsor who are studying to continue their studies while at the same time supervising the sponsor. Although it was claimed that none of the sponsor’s grandchildren speaks Vietnamese, the Tribunal does not accept that this is a reason why they cannot reasonably provide assistance to the sponsor. It is likely that at any time they were providing supervision or assistance to the sponsor that one of the sponsor’s children would be available to translate for them.
The Tribunal finds that a combination of the assistance which can reasonably be provided by all the relatives of the sponsor resident in Australia would more than meet the assistance needs of the sponsor. This would allow each of the relatives of the sponsor to participate in social and other activities apart from providing reasonable assistance to the sponsor.
In all the circumstances, the Tribunal is not satisfied that the assistance required by the sponsor cannot reasonably be provided by the other relatives of the sponsor resident in Australia.
The Tribunal has considered whether assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
Little has been done by the applicant or any of her relatives in Australia to genuinely pursue any assistance which can be obtained from welfare, hospital, nursing or community services. An assessment was done by My Aged Care which found the sponsor was eligible for a level three homecare package. The sponsor was advised of this on 15 March 2018. It appears that nothing has been done to follow up this approval or steps taken to obtain any community assistance. The applicant’s explanation for this was because she left any discussions to her son as she does not speak English. The Tribunal does not accept this as a reason why the sponsor has not obtained community assistance.
The Tribunal finds that assistance can reasonably be obtained from community and welfare services in Australia to provide assistance to the sponsor. This assistance would not meet all the sponsor’s needs, however, would further complement the assistance that can reasonably be provided by the relatives of the sponsor resident in Australia. This would further reduce the assistance required to be provided by the sponsor’s relatives and make the assistance required from them even more reasonable.
For the above reasons, 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.
Given these findings, at the time of decision the applicant is not a carer of the Australian relative, being the sponsor, and therefore does not satisfy cl.836.221.
As the Tribunal has concluded that the applicant does not meet this criterion for the grant of the visa, it is not necessary to consider whether the criteria in cl.836.213 were met at the time of the application.
For the reasons above, the applicant does not meet the criteria for a Subclass 836 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.
The applications of the second named visa applicants are based on a claim that they are members of the family unit of a person who meets the primary criteria. As the first named visa applicant does not meet the criteria for the grant of the visa, the decision to refuse the applications of the second named visa applicants must also be affirmed.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) 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.

[2019] AATA 3813

13 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Natural Justice