SAMIR (Migration)

[2023] AATA 1444

SAMIR (Migration) [2023] AATA 1444 (12 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Saadiya Samir
Mr Sattar Hussein

REPRESENTATIVE:  Mr Houssam Hayba (MARN: 0001536)

CASE NUMBER:  1836753

HOME AFFAIRS REFERENCE(S):          CLF2017/62264

MEMBER:Jennifer Cripps Watts

DATE:12 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 12 January 2023 at 3:03pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer of an Australian relative – assistance cannot reasonably be provided/obtained – mobility – full-time assistance required – in-home care – residential care – proper investigations not made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15AA; Schedule 2, cls 836.212, 836.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 December 2018 to refuse to grant the review applicants Other Family (Residence) (Class BU) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 6 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, a time of decision criterion which states that the applicant is a carer, of a person referred to in cl 836.212, as ‘carer’ defined in r 1.15AA of the Regulations.

3. The delegate refused to grant the visas on the basis that cl 836.212 was not met because the applicant was not a carer within the definition given in r 1.15AA for the purpose cl 836.212.  The elements of reg 1.15AA are cumulative; if one element is not met, the applicant does not meet the definition of 'carer' for the purpose of satisfying the primary criteria.  A finding was made by the delegate that they were not satisfied the assistance required by the sponsor or relative cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia (r 1.15AA(1)(e)(i)) and cl 836.212 was not met. 

4. A hearing scheduled in December 2022 had to be adjourned because the interpreter and applicant were not able to understand each other clearly.  On 10 January 2023, the applicant appeared before the Tribunal by phone.  Her husband, the secondary applicant, also attended to give oral evidence, as did the applicant’s sister, who is the sponsor.  For the most part, it was the applicant who gave oral evidence.  The secondary applicant made a statement at the end of the hearing.  The sponsor also gave a brief statement.

5. The Tribunal started the hearing by confirming with the applicant that she had requested the hearing be conducted by phone, as the Tribunal had been informed by her authorised representative.  The applicant said that her migration agent had not told her that she could appear by video and, if he had, she may have been able to arrange for someone to assist her with the technology.  The applicant was asked if she would prefer to adjourn so the hearing could be held by video and she stated that her preference was for the hearing to proceed by phone.

6. The Tribunal introduced the hearing by giving a detailed description of the criteria that needs to be met, with specific reference to the matters in r 1.15AA, and explained to the applicant that each of the elements must be met. 

7. For the following reasons, the Tribunal affirms the decision to refuse the visas.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets all of the elements of r 1.15AA.  The elements are cumulative; if one element is not met, the applicant is not a ‘carer’ as it is described in r 1.15AA of the Regulations, for the purpose of meeting cl.836.221.

9. The sponsor is Ms Malika Abdulhussein, who is an Australian citizen and resident. The applicant is her sister, Ms Saadiya Samir.  The secondary applicant, Mr Sattar Hussein, is the applicant’s husband.  The applicant and sponsor have no other siblings usually resident in Australia.  The applicant includes that she has four biological children who are citizens of The Netherlands; one resides in The Netherlands, two in the United Kingdom and one in Jordan.  The sponsor has one daughter who is an Australian citizen, and no other children.

10. At the hearing, the applicant gave evidence about when she and her husband visited or arrived in Australia, which was generally consistent with the Department’s records.

11. In this decision, the ‘relative’, Ms Malika Abdulhussein, is referred to variously as Malika, the relative, the sponsor, the resident and the applicant’s sister.

    Whether the applicant is a carer

12. 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.

13. The elements of r 1.15AA, to meet the definition of ‘carer’, are cumulative.  If one element is not met, it is not necessary to consider the remaining elements.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

14. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative.  In the present case, the Australian relative is identified as the applicant’s sister.  For this reason, the Tribunal is satisfied that the applicant is a ‘close relative’ within the definition given in s 103 of the Regulations.

15. Therefore, the applicant meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

16. 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.

17. 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, or issued by a specified health provider in relation to a review of such an opinion.  In this case the Legislative Instrument Minister is IMMI 14/085 which specifies, as the health service provider for the purpose of subregulations 1.15AA(2) of the Regulations, Bupa Australia Health Pty Ltd trading as Bupa Medical Visa services (Bupa).

18. The applicant provided a CVAC at the time of application and has provided the Tribunal with an updated and current CVAC and Panel Physician’s Report (PPR), dated 12 April 2022, for the sponsor, Malika Abdulhussein of New South Wales.  The sponsor attended the assessment with the applicant, Saadiya Samir; they were assisted by an Arabic interpreter. 

19. The sponsor was examined by Dr Madagammana, who produced the PPR with reference to the five medical reports specified in the report, from Dr Mahmood, Dr Edward Graham, Dr Malik, Dr Ganeshan and Dr Hassan; respectively the sponsor’s General Practitioner, Orthopaedic Surgeon, Psychiatrist, Radiologist and Neurologist. The medical conditions ‘that may impact their capacity to self-care’ are specified as osteoarthritis, chronic cervical, thoracic and lumber pain, B/1 lower paraparesia and chronic depression.

20. The examining doctor declares that they are satisfied that the sponsor has:

    ·A total impairment rating of 60 (sixty) has been assigned 

    ·A medical condition that is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life

    ·A need for direct assistance in attending to the practical aspects of daily life because of the medical condition

    ·Because of the medical condition, the need for direct assistance in attending to the practical aspects of daily life that will continue for at least two years.

21. In the PPR the current care requirements include that the sponsor lives with family, that her overall level of dependence is ‘fully dependent, and that she receives informal/family support.  It is included that the applicant requires assistance with mobility, bathing/showering, toileting, dressing/grooming, eating/feeding, supervising medication, supervision for personal safety and transportation.  A functional assessment was done and indicates the applicant to have functional impairment present impacting her lower limbs, spine, and mental health.

22. The summary comments at the conclusion of the report are as follows:

    76 years old Mrs. Malika Abdulhussein who is almost a wheelchair bound lady and is suffering from OA osteoporosis, lower limb paraparesia, chronic depression, complications of chronic DM and chronic pain.  These multiple comorbidities are impacting her quality of life, ability to explore community and complete tasks independently.  She is completely dependent on another individual for the ADLs, mobility and safety.  She satisfies the criteria of carer visa.’

23. The CVAC is signed and dated by the examining doctor.  The Tribunal finds that the CVAC meets the requirements of reg 1.15AA(2).  Therefore, the requirements of reg 1.15AA(1)(b) are met.

    Residency status of person with medical condition – reg 1.15AA(1)(ba)

24. 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.

25. In the present case, the person with the medical condition is the sponsor who is an Australian citizen. 

26. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

    Impairment rating – reg 1.15AA(1)(c)

27. 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, which specifies that for the purpose of reg 1.15AA(1)(c) pf the Regulations the impairment rating is 30 (thirty).

28. In the present case, the impairment rating specified in the CVAC, referred to above, is 60 (sixty), which exceeds the impairment rating specified by the relevant instrument.  Therefore the requirements of reg 1.15AA(1)(c) are met.

    Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)

29. Where the person to whom the certificate relates is not the Australian relative (resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is for the subject of the certificate attending to the practical aspects of daily life for at least 2 years as a result of the medical condition.

30. In this case, the person to whom the certificate relates is the resident.  For this reason, reg 1.15AA(1)(d) is not applicable.

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

31. 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.

32. It is because the delegate was not satisfied that reg 1.15AA(1)(e) was met that the visa was refused.

33. Evidence has been provided, and it is accepted by the Tribunal, that the applicant has only one adult Australian citizen child, a daughter, Zainab Khorzaji.  Zainab, who is married and has three young children (with another due in March 2022), who lives about a half hour’s drive from the applicant.  She is a registered psychologist with her own practice.  The Tribunal has considered evidence from Zainab, her mother and the applicant and is satisfied that Zainab’s circumstances, including some relating to her own health, are such that she cannot provide significant or ongoing assistance to her mother. 

34. The sponsor is married and that she and her husband separated in April 2019, that she has no contact with him and that the sponsor and applicant have no knowledge of his whereabouts since then.  Documentary evidence, including Centrelink and rental ledger receipts, have been provided seeming to indicate that the sponsor is ‘separated’ from her husband and that he lives at a different address.  It is accepted by the Tribunal, in the circumstances, that the sponsor’s husband cannot provide assistance.

35. Additional documentary evidence has been provided to the Tribunal, including medical reports and letters from the sponsor’s general practitioner (2018 and 2020), her psychiatrist Dr Deepa Malik (2021), her neurologist (May and August 2021), together with referrals, medical imaging, prescriptions and a copy of a My Aged Care application.

36. Dr Malik states in the 2021 letter that the applicant has been separated from her husband for two years and that she ‘needs assistance to live independently’ and that she is not comfortable having strangers in the house.  Dr Malik refers to previous traumatic experiences, but no additional detail is given or any reason why this would prevent the applicant from engaging with hospital, community, residential, nursing or other government services.  The applicant’s neurologist, Dr Bassel Hassan, includes in his 2021 reports that the applicant ‘progressive numbness and weakness in lower limbs’, that she has ‘falls’, experiences ‘severe motor and sensory disability in her lower limbs and she needs long-term care and that she needs a full-time carer’.  Dr Hassan also mentions that he has organised a brain MRI for March 2022 for  ‘incidental meningioma’.  On the basis of the medical evidence provided, the Tribunal accepts that the applicant needs full time care.

37. The applicant was asked to describe the set up at the home where she lives with her sister; she said she sleeps in the lounge room next to the study that has been converted into a downstairs bedroom for Malika; 70 percent of the time, she sleeps on a sponge mattress in the same room.  The reason given by the applicant for this arrangement is that her sister has an oxygen device attached all the time or she can’t breathe and she needs to check the connection.  The applicant said sometimes her husband comes to check on the device.  He sleeps upstairs.

38. Oral evidence was given, which is consistent with the information included in the medical reports that have been provided to the Tribunal, of hospital admissions the sponsor has had for her broken leg or foot, a hernia operation, to have a kidney removed, for chemotherapy, to have cateracts removed and to undergo a mastectomy.

39. The applicant was asked about her sister’s mobility and how she assists her, and said that Malika uses a walker and wheelchair; she can’t do without them and cannot move independently.  It was on an occasion when the applicant was attempting to assist Malika to stand that she slipped and fell and broke her foot or leg.  While she was only in hospital overnight, the applicant said it took at least three months for her sister to recover from the fracture.  The applicant was asked about the fall incident and said that it happened when she was trying help Malika walk.  The applicant said that while she assists Malika with eating and drinking, she also assists her with exercise 15 to 20 minutes a day and mental health care. The applicant said that she takes her sister to appointments, including to a psychologist.   The applicant said that when her sister is upset or depressed or tearing at her hair, she calms her down, for example by turning on Iraqi music and clapping and ‘things like that’.  The Tribunal has no reason to think the applicant does not care for and assist Malika in the way she described.

40. The applicant was asked at the hearing what inquiries they had made about alternative care arrangements for Malika and said they looked into organisations, asked friends and acquaintances, but that it was hard to obtain assistance 24/7, and at her sister’s age it would be very costly.  The applicant said a number of the places they had made inquiries to had not responded.  7, 8 or 9 other places did not respond.

41. With reference to written submissions received by the Tribunal in August 2021, attached was a copy of the pro-forma letter that the migration agent sent to each of the service providers to demonstrate that they have actively investigated government, community or other care.  The letter specifically inquires about ‘services that can be offered to Malika for 24 hour assistance in her home in a way that is culturally appropriate and is suited to her mental and health conditions’.  There are screenshots of emails and details of communication with different organisations.  The submitted conclusion was that the ‘overall response was that the services that Malika requires are not available’.  For example; My Aged Care could not provide 24 (in home) hour care; the Uniting Home Care package was only 3 times a week and the sponsor would need to pay for out of pocket expenses or fees; Kin Care has private home care, with charges beginning at $185 a week, but this does not include 24 hour assistance; HomeWise residential respite care responded that due to the sponsor’s complex case they cannot provide the services required; and Estia residential respite responded indicating there would be out of pocket charges and that they do not offer Home Care packages. 

42. Financial statements for the sponsor were provided for the purpose of demonstrating that the cost of any of the care that was investigated is beyond the sponsor’s financial means and that she supports herself with a government pension which only enables her to pay for her daily expenses and bills.  The Tribunal accepts that the sponsor is a woman of limited means and that in-home health care can tend to be costly.

43. It is submitted that the sponsor’s health conditions are complex and that she requires 24 hour assistance and that ‘culturally appropriate assistance is required, without limitation of language barriers’ and that the ‘only option is the applicant to be the carer’.

44. At the Tribunal hearing, it was suggested to the applicant that it was reasonable to think that residential care would be available for an Australian citizen, in her sister’s circumstances, and the applicant responded, ‘no, not 24/7 and not at night’.  This appeared to suggest to the Tribunal that the applicant had only made inquiries into care that could be provided in the applicant’s home and not residential care outside the home.  The applicant was asked if she was familiar with the term ‘residential care’ and it was explained that the Tribunal wanted to know if they had looked into whether there were, for example, any suitable and available nursing homes where her sister could live to obtain the assistance she requires.  The applicant and sponsor gave oral evidence that the sponsor would ‘rather die’ than live in an aged care facility.

45. The applicant was asked whether she had on any occasion looked into nursing homes as an option.  She described a visit she had with a person (who was not a friend) to a residential aged care facility to drop off a gift to one of the residents, a relative.  She was asked and confirmed, that she, the acquaintance and the resident at the facility are all of Iraqi background and that the visits were about four or five years ago.  The applicant said that she went to ‘have a look’, ‘a couple of times’, and formed the view that it was a nice place with a nice social life and care. The applicant said she saw people in wheelchairs in the garden. The applicant said she discussed this option with Malika and suggested they go and look at it together, but that her sister said she would ‘rather die’ than go there, and thereafter refused to consider or talk about it further.  The applicant was asked for the name of the care facility she was referring to, but said she could not remember.

1. Because the sponsor refuses to consider it, there appears to have been no further or genuine attempt to fully investigate residential or aged care facilities where the applicant may obtain the care and assistance she requires.  The applicant said that if she mentions it to Malika, her sister says she will throw herself in front of a car and ‘rather die’ than go to a nursing home.

2. The applicant’s only child, her daughter Zainab Khozarji, has provided sworn written evidence in which she describes in detail the reasons why she is unable to provide her mother with the assistance required.  She does not express an opinion about the suitability of residential care for her mother, nor is there any evidence indicating that the resident’s daughter has looked into any alternative care arrangements for her mother outside of the home.

3. At the hearing, the applicant described the difficulties, mental and physical, that Malika has.  The applicant described an incident where she was trying to assist Malika to stand where she dropped her and Malika suffered a broken leg or foot.  She was taken to hospital, where she was fitted with a cast, and stayed overnight.  A medical report from Dr Bashar Mahmood, dated 17 February 2020, refers to the accident and that Malika was fitted with a ‘walking CAM boot’, cannot go upstairs and needs to use a walking frame.  The applicant gave oral evidence that they live in a two storey house and that a downstairs room was converted to a bedroom for Malika to address her inability to use the stairs. 

4. The applicant has provided two CVAC’s, on in 2017 and another more recently in 2022.  The impairment score for Malika has gone from 35 to 60.  Even from a layperson’s view, it is clear that Malika’s condition or conditions are not improving and she is requiring more intensive care as time goes on. 

5. There is no question that the applicant requires full-time assistance, due to her medical conditions, in attending to the practical aspects of daily life.  There is a validly issued and recent CVAC dated April 2022 and other medical evidence confirming that she has multiple medical conditions, some degenerative or chronic.  The applicant’s impairment rating has increased from 35 at the time of application to 60 in the most recent CVAC.

6. Both written and oral evidence has been given that the sponsor has a preference not to be in residential care.  The applicant said Malika refers to nursing homes as ‘prison’.  However, with no evidence before the Tribunal that the sponsor has visited or inspected a nursing home, particularly the one that the applicant said she saw four or five years ago with an Iraqi friend that was ‘nice’, the Tribunal does not accept that the sponsor herself has genuinely considered or looked into such options or that she can have an informed view of why she can’t live in one.  That is not to say that the Tribunal has not considered the sponsor’s very strong preference to receive assistance from the applicant at home, or the emotional statements she makes about nursing homes.  The inquiries made into assistance that may be able to be provided in the home, while appearing not to have been engaged by the sponsor, have been very thoroughly investigated.  They appear, for the most part, to have been ruled out because of the cost involved with receiving in-home care from government, community, welfare or hospital services 24 hours a day.

7. Despite the migration agent’s written submission that it would be culturally inappropriate and that there would be language barriers in an aged care facility, and the oral evidence of the applicant and sponsor, the Tribunal is not satisfied there is supporting evidence that proper investigations have been made into whether there are culturally appropriate residential or aged care options without language barriers that may be available.  Included in the medical opinions provided, are statements that it would benefit the sponsor to have her sister, the applicant, continue to reside with her to provide assistance and care.  However, there appears to be no reference in the medical evidence to any reason why the sponsor could not reside in an aged care or residential nursing home.  It is acknowledged that in a letter from Dr Malik, it is included that the sponsor has ‘long-standing concerns for her safety due to previous traumatic experiences and would not be comfortable having strangers in her house to support her’.  This statement is given in the context of the sponsor’s preference to have the applicant live with her to provide assistance.  There is no opinion expressed as to the suitability or otherwise of full time live-in residential care, given the sponsor’s need for full time 24 hour assistance.

8. The Tribunal acknowledges that the applicant and secondary applicant both gave evidence that they have assisted people in the community through humanitarian work and that they feel settled living in Australia.  However, while it is accepted this may be the case, it is not a consideration for the Tribunal relating to the requirements his wife, the applicant, must satisfy to be a ‘carer’ under r 1.15AA of the Regulations. 

9. The Tribunal is satisfied that assistance cannot be provided by a relevant relative (in this case her husband or daughter).  The Tribunal is not satisfied that assistance cannot be obtained from welfare, hospital, nursing or community services in Australia

10. For the reasons given above, reg 1.15AA(1)(e) is not met.

    Other matters – delay in provision of the CVAC

11. A request for an updated CVAC was made during the period of the COVID-19 pandemic where there were lockdowns.  During this time, the Department was not offering assessments, which contributed significantly to a lengthy delay in reviewing the applications visa refusal.  Neither the applicant, nor the Tribunal, had any control of this situation.  The CVAC was finally obtained in April 2022, once the Department had recommenced the relevant assessments, and provided to the Tribunal at the earliest opportunity.

    Conclusion on ‘Carer’ criterion

12. Given the findings of the Tribunal, 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.

13. 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.

    Secondary applicant

14. To meet the secondary criteria, a secondary applicant must be a member of the family unit of a person who meets the primary criteria.  As the applicant does not meet the primary criteria, the Tribunal affirms the decision to refuse the visa of the secondary applicant.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Other Family (Residence) (Class BU) visas.

    Jennifer Cripps Watts
    Senior 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.