SALAZAR MACEDO (Migration)

SALAZAR MACEDO (Migration) [2023] AATA 1781 (4 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Monica Carmen Salazar Macedo
Mr Ernesto Mario Chirinos Silva
CASE NUMBER:  1921122
HOME AFFAIRS REFERENCE(S):          CLF2017/64855
MEMBER:Moira Brophy
DATE:4 May 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

Statement made on 04 May 2023 at 11:36am

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance cannot reasonably be provided/obtained – impairment rating of 50 – requires constant supervision with all aspects of daily life – assistance from welfare, hospital, nursing or community services – NDIS package – reasonable enquiries not made – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA; Schedule 2, cl 836.221
CASES
Biyiksiz v MIMIA [2004] FCA 814
Lin v MIMIA [2004] FCA 606
Rafiq v MIMIA [2004] FCA 564
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 July 2019 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visa on 20 September 2017. 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 (Cth) (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. Relevantly to this matter, the primary criteria to be met include cl 836.221.
The delegate refused to grant the visas on the basis that cl 836.221 was not met because in the absence of evidence of what assistance may be available to the resident from welfare, hospital, nursing or community services in Australia, the requirements of subreg 1.15AA(1)(e)(ii) were not met, and therefore cl 836.221 was not satisfied.
The applicants Mrs Monica Carmen Salazar Macedo and Mr Ernesto Mario Chirinos Silva appeared before the Tribunal on 2 November 2022 and on 17 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Alexander Mayorca Sanchez who was represented by his mother, Mrs Rosa Lili Mayorca. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.
The applicants were represented in relation to the review at the time of hearing but the representative ceased acting for the parties on 24 March 2023.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a national of Peru, born in 1970. She is married and her spouse Mr Ernesto Mario Chirinos Silva is included in the application as a secondary applicant. She arrived in Australia in March 2008 as the holder of an Independent Sector ELICOS (subclass 570) visa valid for 6 months. She was subsequently granted further Student visas in October 2008, April 2009, and October 2012. In April 2013 she was granted a subclass 457 visa valid to 11 April 2017. She lodged the present application in September 2017, on the basis of providing assistance to her Australian citizen nephew, Mr Alexander Mayoca Sanchez who sponsored the application.
The sponsor was born in Peru in 1981. He came to Australia on 1 May 1996 after his parents and two sisters had come to Australia. He became an Australian citizen on 23 March 2007. His mother Mrs Rosa Lili Mayorcva is a sister of the applicant. The sponsor lives with his mother and his father, Mr Oscar Mayorca in a home owned by his parents. He has three sisters, Jeanette, Jessica and Amy and he has one brother Anthony.
The delegate in her decision dated 24 July 2019 was not satisfied on the evidence that it was unreasonable for the adult relatives of the sponsor to provide the full extent of the assistance he required on a collective or rotational basis. Further the delegate noted that no information was provided to indicate if services had been sought on behalf of the resident from any Australian organisation, doctor or health professional, hospital, nursing home or other community service.
Tribunal Proceedings
On 29 July 2021, the Tribunal wrote to the applicant and requested an updated Carer Visa Assessment Certificate (CVAC) as a considerable time had elapsed since the previous CVAC had been obtained.
The applicant experienced delays in obtaining the CVAC because of lockdowns during the COVID-19 pandemic.
The CVAC provided by the applicant and dated 15 November 2021 indicates that the person with the medical condition is the sponsor, Mr Alexander Mayoca Sanchez. It states that he has a medical condition causing physical, intellectual or sensory impairment of his ability to attend to practical aspects of daily life, and assessed him with an impairment rating of 50. The report indicated that the medical condition he has results in a need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.
On 23 June 2022 a request was made for further information from the applicant regarding the resident’s relatives, namely his parents, his siblings and his aunt, what assistance they have provided to the sponsor in the past and the assistance they were prepared to offer in the future. The applicant was also requested to provide evidence of any application made to the NDIS and any assistance that had been provided, also evidence of assistance (if any) sought from welfare, hospital, nursing or community services in the previous 18 months.
A follow up request was sent on 3 August 2022.
In response, on 4 August 2022 the applicant provided the following:
·A statutory declaration from the father of the sponsor, Mr Oscar Armando Mayorca Poma dated 26 July 2022;
·A statutory declaration from Mrs Rosa Lili Mayorca, the mother of the sponsor dated 3 August 2022;
·A statutory declaration from Ms Jessica Mayorca, sister of the sponsor dated 26 July 2022;
·A statutory declaration from the applicant Ms Monica Carmen Salazar Macedo dated 3 August 2022;
·A statutory declaration from Ms Jeanette Mayorca, sister of the sponsor dated 26 July 2022;
·A statutory declaration from Ms Amy Mayorca, sister of the sponsor dated 3 August 2022;
·A statutory declaration from Mr Anthony Mayorca, brother of the sponsor dated 3 August 2022;
·A statutory declaration from Ms Sylvia Alayna Mayorca, aunt of the sponsor dated 24 July 2022;
·A further copy of the sponsor’s CVAC dated 15 November 2021; and
·A letter of employment from SydWest Multicultural Services in relation to Mrs Rosa Lili Mayorca dated 19 July 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the carer of the sponsor as defined in reg 1.15A and whether the sponsor’s needs could not be reasonably provided by either other adult family members or by community health care providers in Australia.
The elements of reg 1.15AA are cumulative. If the primary visa applicant does not meet an element, then the primary visa applicant cannot meet the regulation overall.
In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided at the hearing. The Tribunal has also considered the CVAC dated 15 November 2021 provided, which the Tribunal requested prior to the hearing.
Whether the applicant has claimed to be the ‘carer’
Clause 836.212 of the Regulations requires that the applicant claims to be the carer of an Australian relative. In the present case, the visa application was made on the basis that the applicant is the carer of her nephew, the son of her sister.
For the purposes of the Carer visa, ‘Australian relative’ is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 836.111. The terms ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations.
There is a copy of the Carer visa application made by the sponsor, and his aunt, the visa applicant on the Department file. On that application, the applicant claims to be the carer of her nephew, the sponsor Mr Alexander Mayorca (the caree). The caree is an Australian citizen, as evidenced by the copy of citizenship certificate provided.
Therefore, at the time of application, the primary visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 836.212.
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.
Whether the applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s nephew.
The Department file contains identity documents of the primary visa applicant and the sponsor, her nephew. The Tribunal is satisfied on the evidence before it that the applicant is the aunt of the sponsor. The Tribunal is satisfied the applicant meets the definition of close relative. The Tribunal is also satisfied that the sponsor is an Australian citizen and is ‘usually resident’ in Australia.
Therefore, as the applicant is the aunt of the Australian relative, the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.
For a certificate to meet reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister (see Legislative Instrument IMMI 07/012), or issued by a specified health provider in relation to a review of such an opinion.
On 4 August 2022, the applicant provided a CVAC from BUPA Medical Visa Services dated 15 November 2021.The report stated the sponsor has a severe intellectual impairment, his communication is primarily nonverbal and as a result he has an extreme level of functional impact on his ability to communicate even in his main language of Spanish. The examiner assessed him with an impairment rating of 50 and indicates that the medical condition he has results in a need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.
The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition is the sponsor who, according to documents on file, is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 07/012.
In the present case, the impairment rating specified in the certificate is 50 points. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
Certification
As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot be reasonably obtained / provided – 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 New Zealand citizen; or obtained from welfare, hospital, nursing or community services in Australia. In determining whether the assistance cannot reasonably be obtained for the purposes of reg 1.15AA(1)(e), the Federal Court has held that the question is whether the Australian relative can reasonably obtain assistance from the person or services; not whether that person is able to reasonably provide the required assistance, or those services are reasonably available: Lin v MIMIA [2004] FCA 606; Rafiq v MIMIA [2004] FCA 564; and Biyiksiz v MIMIA [2004] FCA 814.
According to the BUPA Assessment conducted on 15 November 2021, the sponsor has a severe intellectual impairment and requires prompting with all aspects of daily living but he is able to toilet independently with prompting for hygiene and if left alone he would not initiate daily dressing, hygiene and cooking. He is not able to cook due to safety risks associated with leaving stove tops on or cutting or burning himself with utensils. He was noted to be easily distractable, exhibiting inappropriate behaviour at times and was not able to answer basic questions such as his name. The interpreter had difficulty understanding him. His functional impairment was assessed as severe.
As a result, he is assessed as requiring constant supervision with all aspects of daily life and he requires prompting to perform basic activities and there are significant safety risks associated with him being left alone at home. His conditions were assessed as permanent and unlikely to improve beyond his current functional capacity. In their opinion, he satisfied the criteria for a Carer visa.
At the time of hearing, the Tribunal discussed with the sponsor’s mother his current care arrangements. The sponsor’s mother told the Tribunal that she works Monday to Friday as a carer. She generally works 20 to 30 hours each week. She told the Tribunal that she was generally in good health and she takes medication for a thyroid condition, she takes no other medication. She said her husband had previously worked for Telstra but he had retired in October 2021. She said that he suffers from asthma which can be quite severe at times, but he has no other health conditions. He is considering a return to work.
The sponsor’s mother said the sponsor, has his own room, but he requires supervision at all times. She said he sometimes needs to go to the toilet during the night and either she or her husband will take him. She said he wakes around 8 or 9 AM in the morning. She said because she leaves for work early, she leaves food out for him and her sister, the applicant, would give him the food she has left for him. She said that the applicant would supervise the sponsor’s toileting and showering and sometimes the applicant shaves him and supervises the cleaning of his teeth. She said that the applicant takes him to the park or sometimes to the shopping centre. She said that the sponsor would generally have lunch between 12.30 and 1 PM and sometimes the sponsor and the applicant would eat out or sometimes she would leave food prepared for them. The sponsor requires assistance with cutting the food up. She said the applicant does activities with the sponsor, such as painting or puzzles. She said the applicant used to be a teacher which is helpful in terms of finding appropriate activities to entertain the sponsor. She said the sponsor finds it difficult to adapt and is reluctant to adjust to change. She said either she or her husband would supervise the sponsor going to bed at around 9 PM each evening.
The sponsor’s mother told the Tribunal that the applicant lives at Homebush with her husband. Prior to that she said for many years she had lived with them in the family home. She said it takes about 30 minutes from Homebush to their house and that the applicant generally gets to her house at about 7:30 AM. She has her own car. She said that her mother was currently in Australia on a Visitor visa and that she travels regularly to Australia and stays generally with her or sometimes with her brother.
The sponsor’s mother said that she provides food for the applicant and she gives her money for petrol and general things she needs. She generally helps her out whenever she can and her husband works. She said that he is a cleaner.
The sponsor’s mother said she was very happy with the assistance provided by the applicant as the sponsor was not happy when they had relied on institutional help and he did not adjust. She said the applicant has known the sponsor since he was born and she understands him even though his language skills are quite poor. The applicant had cared for the sponsor in Peru when his parents and sisters had come to Australia. She said she was able to distract him and she gives him love and affection.
The Tribunal also took evidence from the applicant who gave consistent evidence of the level of care the sponsor required. She said that she had previously been in paid employment but she ceased that work in 2020 and she now uses her time to help her sister by caring for the sponsor. She said it also enabled her to spend time with her mother when she was in Australia. The applicant said that she goes to her sister’s house each day between 7.30 and 9 AM and that the sponsor generally wakes up around 8.30 AM. She said his mother leaves food out for him and she supervises him to make sure he eats well and eats in a way to minimise the risk of his choking. The applicant said she goes through the sponsor’s toileting routine with him and she assists him with showering. She said he was able to dry himself but he is very slow when performing any of those tasks.
The Tribunal accepts that the sponsor has significant care needs given his multiple medical diagnoses. He requires supervision and assistance with many activities of daily living and cannot be left alone for long periods of time.
At the time of hearing, the Tribunal asked the sponsor’s mother about other family members in Australia.
The mother of the sponsor told the Tribunal her son Anthony is currently living in an apartment, he works in the city and is still studying. Her daughter Amy is still living at home but she often stays with her boyfriend. She is intending to soon move into an apartment with him. She is employed as a radiotherapist. She said her husband retired from his work at Telstra some twelve months ago. She indicated he was considering a return to work. He has asthma which is severe. He has no other health issues.
The Tribunal received statutory declarations from members of the family:
·     In a statutory declaration dated 26 July 2022, Ms Jessica Mayorca, sister of the sponsor stated that she works full time as a 3D modeller/graphic designer. Confirmation of her employment was provided. Due to increasing work and personal commitments, she stated she was not able to care for the sponsor on a regular basis. She supported the application made by the applicant.
·     Ms Jeanette Mayorca, sister of the sponsor, in a statutory declaration dated 26 July 2022, stated she is studying and working full time as an assistant accountant. She stated that when the sponsor was younger, she used to spend time with him but as he got older and her life became busier that was harder to do. She said his care needs had increased and his autism had worsened. She had high regard for the care provided by the applicant to the sponsor and supported the application.
·     Mr Oscar Armando Mayorca Poma, the sponsor’s father, made a statutory declaration dated 26 July 2022. In that declaration he stated he had retired from his position as a Design Specialist with Telstra in September 2021. He stated that prior to his retirement he had suffered from asthma and had been unable to maintain his physical fitness. He described the care required by the sponsor to be demanding and challenging. He stated the sponsor needed full-time assistance and attention and an energetic person to care for him. He stated he was physically not able to provide this. He expressed the view that the applicant was able to meet the needs of the sponsor and he supported her application.
·     Mrs Rosa Lili Mayorca, the sponsor’s mother, provided a statutory declaration dated 3 August 2022. She stated she, her husband Oscar and her twin daughters came to Australia in 1995. At the time the sponsor was refused a visa but they appealed that decision and he was later granted a visa. During the time he remained in Peru, he lived with her mother and the applicant. Her two younger children were born in Australia. She stated that if the application were successful, she would increase her hours of work from 20 to 30 hours per week so she could pay the mortgage on the house. She stated the care of the sponsor was a full-time commitment and as a mother, she could not force her other children to be responsible for his care. She stated the sponsor gets anxious and irritated with people or in a situation he is not familiar with. When he was with the applicant, she knew he was in good care and she did not have to worry about him. Evidence of her employment was provided.
·     Ms Amy Mayorca, the sponsor’s sister, in a statutory declaration dated 3 August 2022 stated she had completed her studies in medical radiation science and she was currently working full-time as a radiographer. She was in a relationship. She stated that as she was born and raised in Australia her first language is English. She stated the sponsor spoke only Spanish. She supported the application as she observed the sponsor to be calm and content in the care of the applicant. Evidence of her employment was provided.
·     Mr Anthony Mayorca, the sponsor’s brother, in a statutory declaration dated 3 August 2022 stated that he had observed his parents struggling to cope with the activities the sponsor has to undertake and their financial need to provide for their family and pay their mortgage. Anthony stated he was working and studying as an apprentice electrician and that he was in a relationship. The combination of these factors meant he was not able to provide the care the sponsor required, and he supported the application of the applicant. Evidence of his employment and study was provided.
·     A statutory declaration from Ms Silvia Elena Mayorca, the aunt of the sponsor and sister of the sponsor’s father, dated 24 July 2022 was provided. She was the manager of a cleaning company. She had no capacity to assist with the care of the sponsor because of her work responsibilities, but she supported the application as she had observed the care provided by the applicant and regarded it to be of great assistance to the family.

The Tribunal has considered the oral evidence and the statutory declarations provided. The Tribunal accepts that the sponsor’s care needs impact his family members, especially his mother. The Tribunal further accepts that as a mother, she tries to ensure her other four children are able to pursue their employment and personal opportunities and to not be responsible for the sponsor’s care. The Tribunal appreciates this dilemma however, given the four children primarily live in the family home, the Tribunal finds they can each reasonably provide additional assistance for a limited period each week to assist the sponsor with his needs with many aspects of daily living. The Tribunal further finds the father of the applicant who is presently not in paid employment can reasonably make a greater contribution to assisting his wife with the care and supervision the sponsor requires which will ensure she can continue with her employment to meet the financial needs of the family. The Tribunal was mindful of the fact the family fought to obtain a visa for the sponsor to be with them in Australia after they migrated in 1995. The sponsor’s care needs were apparent at that time.
The Tribunal is prepared to accept that the applicant has been helpful in providing care for the sponsor in the period she has been in Australia and that, as a result of the time she has been here, she has formed a significant relationship with the sponsor. However, the assistance to which reg 1.15AA(1)(e)(iv) refers relates specifically to assistance with attending to the practical aspects of daily life, and in this case on the evidence before the Tribunal, that assistance has been and is substantially provided by the mother of the sponsor.
Additionally, since the delegate’s decision, the sponsor has been accepted as a participant in the NDIS and he has been granted a package to enable him to access services to assist him, under this scheme. The Tribunal gave the applicant and sponsor the opportunity to discuss with the Tribunal what services had been accessed under this scheme. The sponsor’s mother explained there had been a lot of information for them to work through as to what services would best assist the sponsor and they had just completed that task. They were yet to obtain an occupational therapist report, but their initial thoughts were that once that was available, they would be in a better position to assess the services they would access. The sponsor’s mother said either she or her husband would ensure the sponsor attended all appointments with the NDIS. The Tribunal finds this to be an indicator of their intention to support and assist the sponsor to engage with and participate in NDIS services. The Tribunal appreciates that the family have been modest in their request for NDIS services to date, and on their own evidence they have yet to use the modest package they have been awarded. The Tribunal notes the next NDIS review for the sponsor will occur in 2024 and if necessary at that time, it is open to them to seek to access further support.
Despite making a request for information, the Tribunal did not have before it any evidence that an enquiry had been made with any other service other than the NDIS.
Based on the above findings, the Tribunal is not satisfied that reasonable enquiries were made by or on behalf of the resident that would allow the Tribunal to assess whether the assistance required could not reasonably be obtained from relevant services. This lack of enquiry is significant because a lack of enquiry formed one of the bases upon which the delegate made her decision. In this way, the sponsor and the applicant have been on notice of this being an issue in the review since at least 24 July 2019 when the delegate made her decision – or more than three years ago.
CONCLUSION
The Tribunal has considered the information before it in relation to the ability for the resident’s Australian relatives to provide the necessary assistance along with assistance obtained from the relevant services within Australia.
For the reasons given above, it accepts that while the sponsor’s siblings could provide limited assistance given their studying, employment and personal commitments, his parents, especially his father have capacity to provide greater assistance than is currently being provided.
The Tribunal is not satisfied that reasonable enquiries have been made about what assistance is able to be obtained from welfare, hospital, nursing or community services. The significance of this is two-fold. Firstly, and in the absence of information about the resident’s ability to obtain assistance through services, the Tribunal is not satisfied that the balance of the assistance required by him cannot be obtained from those services. Secondly, it is not able to consider the resident’s wishes about how he should be cared for or his family’s views about the suitability of alternative sources of assistance, and ultimately whether it would be unreasonable to obtain the relevant services.
The Tribunal is not satisfied that the assistance required by the resident 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 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.
Given this finding, it is not necessary to consider the remaining requirement of the carer definition, namely whether the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed: reg 1.15AA(1)(f), and therefore the Tribunal does not address this.
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.
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. Specifically, the applicant is not old enough to be eligible to meet the criteria for a Subclass 838 Aged Dependent Relative visa. On the evidence of the family composition provided by the applicant in the application, and particularly her declaration in the application that she has a child in Peru who is not an Australian permanent resident or citizen, it is not apparent to the Tribunal that the applicant can meet the requirements for a Subclass 835 Remaining Relative visa.
Secondary visa applicant
Clause 836.321 requires that the secondary visa applicant continues to be a member of the family unit of the primary visa applicant who is the holder of the Subclass 836 visa at the time of decision. As the Tribunal has found that the primary visa applicant does not meet the primary criteria and does not satisfy cl 836.221 at the time of decision, it follows that the primary visa holder is not the holder of a Subclass 836 visa. Therefore, the secondary visa applicant does not meet the secondary criteria requirements in cl 836.321.
For these reasons, the Tribunal finds that the secondary visa applicant does not meet the requirements of cl 836.321 at the time of decision.
For the reasons above, the visa applicants do 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.
DECISION
The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.
Moira Brophy
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.

[2023] AATA 1781

4 May 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Appeal