Saini (Migration) - [2023] AATA 3597

Saini (Migration) [2023] AATA 3597 (19 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurpreet Singh Saini
Mrs Rohini Singh
Master Jastej Singh Saini
CASE NUMBER:  1911347
HOME AFFAIRS REFERENCE(S):          CLF2018/13568
MEMBER:Justine Clarke
DATE:19 October 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 19 October 2023 at 5:16pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) visa – assistance cannot reasonably be provided by other relatives or obtained from service providers – only other specified relative a teenaged child – attempts to obtain assistance from providers – applicant willing and able to provide care – current tasks of care – emotional attachment – members of family unit – first and second applicants now divorced – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA(1)(e)(i), (ii), (f), Schedule 2, cls 836.221, 836.321
CASES
Anveel v MIBP [2013] FCCA 2181
Jajo v MIBP [2013] FCCA 1554
Perera v MIMIA [2005] FCA 1120
Sefesi v MIBP [2016] FCCA 975
Xiang v MIMIA [2004] FCAFC 64
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made on 17 April 2019 by a delegate of the Minister for Home Affairs to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
On 19 February 2018, the applicants, who are nationals of India, applied for the visas.
The first-listed applicant, Mr GS Saini, is the primary visa applicant. At the time of application, it was claimed that the second-listed applicant, Mrs R Singh, was the partner of the primary visa applicant. It is claimed that the third-listed applicant, Master JS Saini, is their son.
The Tribunal notes that, during the course of this review, the primary visa applicant submitted a copy of the divorce order evidencing that the divorce order between the primary visa applicant and the second-listed applicant took effect on 19 August 2023.
At the time that the applicants applied for the visas, 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 this case, the applicants are each 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. Relevantly to this matter, the primary criteria to be met include cl 836.221 and the secondary criteria include cl 836.321.
Clause 836.221 is a time of decision criterion which provides: ‘[t]he applicant is a carer of the Australian relative mentioned in clause 836.212’. In this case, the Australian relative is [the resident]—the primary visa applicant’s claimed brother.
The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this decision.
Clause 836.321 is a time of decision criterion which provides: ‘[t]he applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 836 visa’.
The applicants provided the Tribunal with a copy of the delegate’s refusal decision (the primary decision). The delegate refused to grant the visas on the basis that cl 836.221 was not met because reg 1.15AA(1)(e)(i) and (ii) and (f), within the definition of ‘carer’, were not met.
Regulation 1.15AA(1)(e)(i) requires that the assistance cannot reasonably be 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. With respect to this requirement not being met, the delegate stated:
In the absence of any evidence regarding the capacity for any adult Australian relatives to provide any level of assistance to the resident, I cannot be satisfied that the care that the resident requires cannot be provided to him by any adult Australian relatives.
Therefore, I do not find that it has been demonstrated that it would be unreasonable for any adult relatives in Australia to provide the care he requires.
Regulation 1.15AA(1)(e)(ii) requires that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. With respect to this requirement not being met, the delegate stated:
On Form 47OF the applicant stated that assistance was being sought from ‘Red Cross Society’[.]
No further evidence was provided to support the resident’s pursuit of available care from welfare, hospital, nursing or community services in Australia.
…
No evidence of the resident or his family meaningfully exploring all possible services available regarding in-home care from community or welfare service providers, or private nursing agencies has been provided.
Having assessed all of the information available to me, I am not satisfied that the availability of suitable aged care facilities or in-home assistance for the resident from community/welfare organisations or professional nursing service providers has been fully investigated. 1911347 — VIC — Gurpreet Singh SAINI
Regulation 1.15AA(1)(f) requires that 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’. With respect to this requirement not being met, the delegate stated:
Having considered all of the information available to me, I am not satisfied that, at the time of a decision being made on this application, the applicant has demonstrated that he continues to be willing and able to provide the assistance required by the resident.
In addition, the delegate refused to grant visas to the secondary visa applicants on the basis that they each did not satisfy cl 836.321.
On 6 May 2019, the applicants applied to the Tribunal for the review of the refusal decision. The applicants were not represented in relation to the review.
On 1 September 2023, the primary visa applicant and the third-listed applicant appeared in person before the Tribunal to give evidence and present arguments. [The resident] also attended the hearing and was prepared to give oral evidence but, in view of other evidence before the Tribunal, the Tribunal did not consider it to be necessary. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
At the conclusion of the hearing, the primary visa applicant requested further time to submit evidence. The Tribunal granted the applicants until 16 October 2023.
On 12 October 2023, the primary visa applicant submitted his signed statement about ‘why the assistance required cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia for [the resident]’.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The main issue for determination in this case is whether, at the time of this decision, the primary visa applicant is [the resident]’s carer and thus cl 836.221 is met.
The Tribunal notes that it has a greater amount of evidence in respect of this issue than what had been before the delegate.
Whether the primary visa applicant is a ‘carer’ of ‘the resident’
The ‘chapeau’ or opening line to reg 1.15AA(1) requires an applicant for a visa to be a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen. This person is referred to as ‘the resident’.
The primary visa applicant claims that he is the carer of [the resident], who is an Australian permanent resident (‘the resident’).
At the hearing, the primary visa applicant told the Tribunal that [the resident] is an Australian permanent resident. The Tribunal notes the certified copy of [the resident]’s Indian passport which is on the Department’s file. One of the pages that has been copied includes the visa label which states ‘permitted to remain in Australia indefinitely’. From the evidence, the Tribunal finds that [the resident] is an Australian permanent resident who is usually resident in Australia. The Tribunal finds that [the resident] is ‘the resident’ in this case.
Is the primary visa applicant a relative of the resident? (reg 1.15AA(1)(a))
It is claimed that the primary visa applicant and [the resident] are brothers.
The term ‘relative’ is defined in reg 1.03 as a ‘close relative’ (also a defined term in reg 1.03) or other specified relation. The term ‘close relative’ includes a brother.
At the hearing, the primary visa applicant said that [the resident] was his full biological brother as they have the same parents. He noted that [the resident]’s birth certificate had been lodged with the Department.
The Tribunal has reviewed the documents on the Department’s file. These documents include a certified copy of the primary visa applicant’s birth certificate and a certified copy of pages from [the resident]’s Indian passport. Both documents record the names of their father and their mother. The names of each person’s father and mother are the same.
Based on the evidence, the Tribunal is satisfied that the primary visa applicant and [the resident] are brothers.
As the primary visa applicant and [the resident] are brothers, the primary visa applicant meets the requirements of reg 1.15AA(1)(a).
Does the certificate meet the requirements? (reg 1.15AA(1)(b) and reg 1.15AA(2))
Regulation 1.15AA(1)(b) requires that a certificate, which meets the 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.
In this case, the most recent certificate issued pursuant to reg 1.15AA(1)(b) and reg 1.15AA(2) is the certificate titled ‘Carer Visa Assessment Certificate’ dated 26 July 2023. The primary visa applicant brought the copy of this certificate, issued by BUPA in an envelope marked ‘DO NOT OPEN – Forward to Department of Immigration and Border Protection’, with him to the hearing and gave it to the Tribunal.
The certificate provides the name and signature of the examining doctor. It is on the letterhead of Bupa Medical Visa Services. Legislative Instrument IMMI 14/085 specifies Bupa Australia Health Pty Ltd trading as Bupa Medical Visa Services as the health service provider. The Tribunal is satisfied that the certificate meets the requirements of reg 1.15AA(2).
The certificate specifies that:
·     [the resident] has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to the practical aspects of daily life;
·     because of [the resident]’s medical condition, he has a need for direct assistance in attending to the practical aspects of daily life;
·     the impairment has an impairment table rating specified in the certificate; and
·     because of [the resident]’s medical condition, he has and will continue to have for at least two years, a need for direct assistance in attending to the practical aspects of daily life.
The Tribunal is satisfied that the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)–(iv) and that the requirements of reg 1.15AA(1)(b) are met.
Does the person with medical condition (here, [the resident]) meet the residency requirement? (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.
As has already been stated, the Tribunal is satisfied from the evidence before it that [the resident] (the person with the medical condition) is an Australian permanent resident residing in Australia. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Does the impairment rating meet the requirements? (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).
Does reg 1.15AA(1)(d) need to be satisfied?
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Can the assistance be reasonably provided by any other relatives or obtained from certain services? (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.
The type of assistance to be considered is the assistance referred to in the certificate provided by the health service provider, namely direct assistance in attending to the practical aspects of daily life which is needed because of an identified medical condition (reg 1.15AA(1)(b)(iv)).[1] The Tribunal is not required to turn its mind to the ‘nature and scope’ of the assistance required, rather it is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider.[2]
[1] Sefesi v MIBP [2016] FCCA 975 at [21].
[2] Ibid.
With respect to reg 1.15AA(1)(e)(i), it is helpful to note that the term ‘relative’ is defined in reg 1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. A close relative is a spouse or de facto partner of the person; a child, brother or sister of the person; or a step-child, step-brother or step-sister of the person.
Care may be provided collectively by more than one relative. In Jajov MIBP [2013] FCCA 1554 at [55], the Court held that reg 1.15AA(1)(e)(i) should not be construed as requiring that the assistance must only be provided by a single person.
The Tribunal is mindful that 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]. When making such assessment, consideration should also be given to the nature of care required by the person needing the care: at [61].
The ‘Carer Visa Assessment Certificate’ dated 26 July 2023 details the nature of the care required by [the resident]. At the hearing, the primary visa applicant stated that this latest certificate does not include the latest report for [the resident]’s depression.
The Tribunal notes that the Department’s file contains a copy of a document that the applicants submitted titled ‘Family Hierarchy’.
The Tribunal asked the primary visa applicant why it was contended that none of [the resident]’s Australian citizen or Australian permanent resident relatives could reasonably provide him with the assistance that he requires.
The primary visa applicant told the Tribunal that there was ‘no one but me’. He said that [the resident] was divorced[3] and had not remarried. He said that [the resident] had only one [child] who is [Age] years of age.[4] He also said that they had a sister who lives in Shanghai, China. He said that a sister could feed [the resident], but it would not be appropriate for the sister to toilet or bath him.
[3] A copy of the divorce order is on the Department’s file.
[4] The divorce order confirms that [the daughter] is [the resident]’s [child] and gives [her/his] date of birth.
From the evidence before the Tribunal, the Tribunal accepts that the assistance [the resident] requires cannot reasonably be provided by [his daughter]. Accordingly, the Tribunal finds that, at the time of this decision, reg 1.15AA(1)(e)(i) is met.
With respect to reg 1.15AA(1)(e)(ii), the Tribunal notes that in the completed Form 47OF for the visa, at question 71, the applicant/s had been asked:
Has anyone sought assistance from any Australian welfare organisation, doctor or health professional, hospital, nursing home or other community service to assist your relative?
The ‘yes’ box was ticked and the name of the organisation was listed as ‘Red Cross Society’.
Additional information was given at question 73. It was stated:
Red Cross temporarily provided only pick and drop service from home to hospital for period of one month. They used to pick [the resident] with other patients jointly from various suburbs and carry to hospital and likewise drop off at home. It was a temporary arrangement. [The resident] (sponsor) has to visit [Hospital] four (4) times a week for regular tests, rehabilitation, medicine and due to [Medical condition] cause.
At the hearing, the primary visa applicant told the Tribunal that, a long while ago, he thought it was in 2018, they had tried to get help from Red Cross and the local [Council] but that the cost was high. He said, other than that, a hospital had provided them with some coupons for travelling to hospital. He also noted that he had contacted the Salvation Army as well. He also gave some oral evidence about attempts to get assistance from the National Disability Insurance Scheme (NDIS).
The Tribunal gave the applicants until 16 October 2023 to file any other evidence in respect of this aspect of the case.
The applicants filed a signed statement from the primary visa applicant, dated 12 October 2023, detailing the enquiries he had made of various welfare, hospital, nursing or community services in Australia. While in another case, such evidence may not be sufficient, in this case, having had an in-person hearing where the Tribunal found the primary visa applicant to be credible and mindful that the applicants are not professionally represented, the Tribunal is satisfied with the evidence that has been provided. In the circumstances, the Tribunal is satisfied that the assistance that [the resident] requires cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia.
To conclude, the Tribunal is 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 reg 1.15AA(1)(e) are met.
Is the primary visa applicant willing and able to provide the assistance required? (reg 1.15AA(1)(f))
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. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of 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. Although the comments in this case were not made in the context of the definition of ‘carer’, the Tribunal considers them to be of assistance when considering that definition.
At the hearing, the primary visa applicant outlined the things for which [the resident] requires assistance, noting household chores, food preparation and medication. The primary visa applicant said that he does all the everyday chores such as shopping, cooking, washing dishes, cleaning and so on. He said he takes [the resident] to the bathroom and that [the resident] has a sitting option in the shower. He said that [the applicant] does not need help to shower or toilet. (The carer visa certificate confirms that [the applicant] requires some assistance with bathing/showing but ‘can do toileting unassisted’). He said that [the applicant] can walk inside the house but cannot walk any distance. (The carer visa certificate states that [the resident] ‘can mobilize to 50m without assistance, beyond that he experiences fatigue and requires a wheelchair’). He said that he takes [the resident] to medical appointments and to Centrelink. (The carer visa certificate states that [the resident] is ‘unable to drive due to effects of stroke on his vision’). He said that, when they were out, he tries to walk on [the resident]’s right side as a protective measure.
The primary visa applicant said that, as a family, they were ‘emotionally attached’. He noted that he had been living in a different city to his father and had not been with him before he died. He said that when he had found out about [the resident]’s needs, he had wanted to be with him. He noted that both he and [the resident] were divorced, and each had only one child. In his own words, ‘they’ll each marry and have families of their own’. He said that he and [the resident] only have each other. He said that he wanted to be there to support and care for [the resident] as he has an ongoing need for care.
The Tribunal has no reason to doubt that the primary visa applicant is both willing and able to provide substantial and continuing assistance of the kind that [the resident] requires. Indeed, the evidence is that he has been providing substantial and ongoing care to [the resident] for some time. The Tribunal accepts the primary visa applicant’s evidence that he is willing and able to provide the assistance to his brother [the resident] that [the resident] requires.
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
Given these findings, at the time of decision, the primary visa applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.
As the Tribunal has fund that the primary visa applicant meets the criterion in cl 836.221, the ability of the second and third-listed applicants to satisfy the secondary criterion in cl 836.321 should also be reconsidered.
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 applications for Other Family (Residence) (Class BU) visas for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.221 of Schedule 2 to the Regulations.
Justine Clarke
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.