Sarmout (Migration)

[2022] AATA 1426

Sarmout (Migration) [2022] AATA 1426 (12 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fadi Sarmout

CASE NUMBER:  2104159

HOME AFFAIRS REFERENCE(S):          CLF2018/357178

MEMBER:Russell Matheson

DATE:12 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criterion for a Subclass 836 (Carer) visa is met:

·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 12 May 2022 at 5:28pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance cannot reasonably be obtained from service providers – evidence of seeking assistance and costs of services – limited income and cultural, religious and language preferences – no other family members in Australia – applicant’s current care for sponsor – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15AA(1)(e)(ii), (f), Schedule 2, cl 836.211

CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64

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 18 March 2021 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth).

2. The applicant applied for the visa on 22 October 2018. 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.

3. he criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criterion to be met include cl 836.221. 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.

4. The delegate refused to grant the visas on the basis that cl 836.221 was not met because the delegate was not satisfied the applicant is the carer of an Australian relative.

5. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. The applicant appeared before the Tribunal on 20 January 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Souad Rachid, who is the applicant’s friend. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant (Mr Fadi Sarmout is the carer of the resident (Ms Zadekarim Zidan) at the time of this decision. For the purposes of this application, the resident is the sponsor.

9. The Tribunal received a copy of the delegate’s decision with the application for review. The delegate determined that reg 1 15AA(1)(e)(ii) and (f) within the definition of ‘Carer’ at reg 1.15AA were not met at time of its decision. The delegate found for those reasons cl 836.221 of Schedule 2 was not met.

   Whether the applicant is a carer

10. 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.

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

11. Regulation 1.15AA(1)(a) requires the applicant to be a “relative” of the resident (within the meaning of reg 1.03). In the present case, the resident is identified as the applicant’s mother. Based on the evidence, the Tribunal accepts that the resident is the mother of the applicant. Therefore, the applicant is a relative of the resident within the meaning of r.1.03 and meets the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

12. Regulation 1.15AA(1)(b) requires that a certificate, which meets the requirements of reg 1.15AA(2), states that: the 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 two years to have, a need for direct assistance in attending to the practical aspects of daily life.

13. 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.

14. The Tribunal has been provided with a Carer Visa Assessment Certificate (CVAC or certificate) dated 19 September 2019 in respect of the resident. The Tribunal notes that it is in relation to a medical assessment carried out on behalf of Bupa Medical Visa Services and is signed by the medical adviser who carried out the assessment. The Tribunal further notes that the CVAC states that the Australian resident has medical conditions that are causing impairments of her ability to attend to the practical aspects of daily life, that these impairments are assigned ratings for the purposes of the impairment table, and that because of the medical condition the resident 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.

15. The Tribunal is satisfied as to the genuineness of the certificate and finds that it meets the requirements of r.1.15AA(2). Further, the certificate addresses each of the matters mentioned in r.1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of r.1.15AA(1)(b) are met.

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

16. 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 (the resident) is an Australian permanent resident. Accordingly, the requirements of r.1.15AA(1)(ba) are met.

    Impairment rating – r.1.15AA(1)(c)

17. 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.

18. In the present case, the impairment rating specified in the certificate is 40. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets  the requirements of reg 1.15AA(1)(c).

    Resident’s need for assistance (where he or she is not the subject of the certificate) – r.1.15AA(1)(d)

19. Where the person to whom the certificate relates is not the resident, but a member of their family unit, reg 1.15AA(1)(d) requires the resident 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 two years as a result of the medical condition.

20. As the person to whom the certificate relates is the resident, r.1.15AA(1)(d) does not apply.

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

21. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the resident who is an Australian citizen, permanent resident, or an eligible New Zealand citizen; or obtained from welfare, hospital, nursing, or community services in Australia.

22. Under r.1.15AA(1)(b)(iv), the assistance is taken to be “direct assistance in attending to the practical aspects of daily life”. The Tribunal now turns to the task of assessing the level and particulars of this assistance.

23. According to the CVAC dated 19 September 2019, the resident has been diagnosed with the following medical conditions:

    ·COPD (emphysema) - limited exercise tolerance with frequent dyspnoea. On regular puffers. Previously heavy smoker- has now ceased.

    ·Bilateral shoulder pain - right shoulder has subacromial bursitis and shoulder impingement. Left shoulder has subacromial bursitis and shoulder impingement.

    ·Degenerative disc disease - Ongoing chronic back pain limiting ROM.

    ·Chronic Psychotic Depression - ongoing since the death of husband in 2017. She is chronically depressed and gets frequent panic attacks. Impacts on her ability to perform activities of daily living, memory, behaviour and has displayed suicidal intent. Currently on Zoloft and escitalopram. Sees psychiatrist and psychologist.

    ·TIA - reported to have had a TIA in 2018. Nil residual symptoms MRI in July 2018 shows no evidence of acute stroke. Nerve conduction studies reported to show no evidence of neuropathy She continues to complain of pain in legs and arms and her neurologist is following her up with an MRI of the brain and C spine to further investigate the same (not fully diagnosed)

24. In the summary comments, the examining doctor relevantly stated as follows in relation to the resident:

    The resident is a middle-aged lady who presented for assessment with her son (Fadi) and friend (Souda). She experienced a series of tragic life events which have contributed to her current medical illnesses. She has Chronic Psychotic Depression requiring constant supervision and direct assistance in her ADLs. She also has severe emphysema which limits her exercise tolerance to the point of requiring assistance for her personal care. She also has chronic pain in her lumbar and bilateral shoulders which further limits her physical ability Due to these conditions being rated permanent, she was given a total score of 40 which satisfies the criteria for a Carer Visa.

25. The examining doctor assessed the resident to require direct assistance with mobility due to ongoing dyspnoea, her mobility is limited to 50 metres and she uses a wheelchair regularly and she is unable to use the staircase. The resident requires assistance bathing and showering and requires help to soap and scrub. The resident requires help with toileting transfers on and off the toilet. She also requires assistance with dressing and grooming and her meals are prepared by her son and she is generally able to feed herself with encouragement due to loss of appetite. The resident medication is supervised due to memory loss. The resident requires supervision for person safety due to Psychotic depression with behavioural problems and suicidal ideations. The resident needs help with transportation and is driven to medical appointments.

26. The examining doctor assessed that the resident’s medical conditions resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions. The resident’s medical conditions result in the need for constant supervision or monitoring because she may be a danger to herself or another person and the conditions are permanent (at least two years). As above, the impairment rating for the CVAC was 40 points.

27. The examining doctor also considered the following medical reports relevant to the assessment that include:

    ·30 July 2019 - Dr Ruhaida Daud (Neurologist Report);

    ·1 July 2019 - Dr Faisal Choudury (Sleep Specialist);

    ·16 September 2019 - Dr George Hatoum (GP letter);

    ·18 March 2019 - Dr Khalid Qidwai (GP letter);

    ·11 February 2019 - USS of Bilateral Shoulders; and

    ·17 September 2019 - Dr Khalid Aziz Qidwai (GP letter);

28. The applicant gave oral evidence and provided a written submission stating his mother suffers from a number of ailments, including mental health issues and memory loss. He further stated that his mother needs help with mobility, bathing/showering, toileting, dressing/grooming, eating and doctor’s appointments. The applicant stated he needs to supervise his mother’s medication and supervise her for her own personal safety and that of others, and he is the only person in the family who can provide 24/7 assistance to his mother who culturally prefers to be looked after by a member of her own family. The applicant stated that there are no other family members or next of kin living in Australia.

29. The applicant states that his mother has received help from community services and allied health services from Medicare in the forms of Therapy assistance inclusive of psychology and physiotherapy on the allied health mental plans that only allow and are limited to 10 individual psychology sessions per calendar year, as well as five physiotherapy, OT, podiatrist sessions per calendar year.  The applicant provided copies of Mental Health Allied Health plans and services that were provided to prove they were utilised by his mother and he states that his mother has accessed theses services in full capacity each year and the services are limited and capped and she cannot access the full-time care she requires.

30. The applicant provided evidence that the resident cannot be provided with the reasonable full-time care she requires from any Australian welfare organisation, hospital, nursing home or community services on a full time basis and the services that can be provided are limited to transport services and limited home support, therefore their financial capacity to pay privately for extra services considering they are only surviving on his mother’s disability support pension of $944 a fortnight is limited and this financial hardship needs to be considered in relation to costs for medications, personal expenses, food, household bills and daily living expenses.

31. The applicant submits that assistance provided by community services or aged care services is limited to only 3 hours a day of home care in certain situations and not to all participants,  requiring the applicant to take on the rest of the care needed and not all the assistance is fully government funded with out-of-pocket charges.

32. The applicant provided evidence of seeking assistance and associated costs through a number of service providers that include:

    ·     Myhome care services for personal care approx. $67.00 hourly, cleaning and household tasks $56.00 hourly, nursing @ $99.00 hour, and any in home respite $63.00 hourly. Not including travel fees, ,management fees, weekend and holiday rates and sleep overs are charged at $ 430.00 for 8-hour durations;

    ·     Presbyterian Home and Aged Care Services nonclinical staff hourly @ $62.00 hour between Monday – Friday ,7am @ $105 hour. Public holidays capped @ $141.00 hour. Also required are management and travel fees separate to the services;

    ·     Benevolent Society home support partners charges are $85 hour billed in 30-minute increments if approved for aged care which his mother is not eligible for as she is not eligible for aged care due to her the age requirements of 65 years start age.

33. The applicant submits in his written submission after daily living expenses, costs of medication, household bills and groceries the resident cannot afford financially to access private services in the community.

34. The applicant informed the Tribunal the resident has obtained an NDIS plan approved in August 2021 for improved Daily Living Activities which consists of  $5,247.94 to be used to seek assessments and what formal supports could be provided for the next review. We are currently on a waiting list to access services and assessments as there has been a considerable amount of time waiting for services due to restrictions and limited face to face consultations; $2002.80 for support coordination to be able to be assisted to access services within the Ndis Budget; $5813.36 for care assistance support utilising a worker to assist the resident and the applicant for 3 hours on Wednesday on a weekly basis between 11am and 2pm. The applicant states that he provides the rest of the care required by the resident on a daily and weekly basis in all aspects of the resident’s daily life and is her full-time carer. 

35. The applicant also states that service providers and government services have been restricted during COVID-19 and he has made numerous attempts to  try and access government funding to acquire the care assistance his mother requires. The applicant provided evidence (emails) and responses from service providers such as Myhome Care, Vital Home Health Services, Likefamily Care, Justbetter Care, Disability Services Australia and Kincare and the resident was deemed not suitable for aged care because she was not aged 65 years or over making her ineligible for a nursing home placement and that her NDIS application had to be refused before she could be considered for any care services.  

36. The applicant provided a report from a clinical and forensic psychologist (Doc ID 9332983) assessing whether the residents psychosocial and medical conditions can be serviced by mainstream supports (welfare, hospital, nursing or community services) and/or informal supports to help care for her whilst she lives with a permanent and enduring disability. The examining psychologist also considered numerous medical reports relevant to the assessment which is extracted in document (ID 9332983) that include:

    ·    22 May 2021 – a clinical psychologist report;

    ·    30 June 2021 – a consultant psychiatrist report;

    ·     19 September – a BUPA Carer Visa Assessment Certificate;

    ·    10 December 2020 – an Allied Health Report, Speech Pathologist, Psychologist and social worker reports;

    ·    30 August 2021 – an NDIS plan;

    ·    13 January 2022 – Adaptive Behaviour Assessment System – Third Edition (ABAS-3); and

    ·    Three GP Mental Health Care Plans for the resident.

37. The Tribunal places significant weight on the detailed report presented particularly in relation to the Allied Health Report by the Mind and Behaviour Clinic  in 2020. That identifies that the resident requires the following care:

    ·Occupational therapy weekly;

    ·Psychological therapy fortnightly;

    ·Assistance with activities of daily living and supported community access for 7 hours per day;

    ·Assistance with daily life such as house cleaning/household activities for 2 hours a week;

    ·Assistance with daily life tasks in a group or shared living arrangement, 24-hour care;

    ·Daily personal activities 12 hours a day;

    ·Assistance with transport as needed approximately 5 hours per week; and

    ·Assistance with the costs of meal preparation and delivery of meals 2 hours per day.

    In conclusion the Clinical and Forensic Psychologist concludes that:

    Ms Zidan (the resident) was not able to utilise the therapies in her NDIS plan since August 2021 given there were very long waiting lists to use face-to-face sessions given, she found telehealth being unsuitable and impersonal for her. In general, COVID uncertainty should not be ignored or under-estimated. For example, given her increasing paranoia and fears towards other people, being in the community, or accessing medical or any type of therapy services she also would be hesitant to access medical needs e.g., COVID-vaccinations if it was not the ongoing support and trust she had from her son advising and assisting her to get vaccinated. Ms Zidan could not keep up with an ever-changing environment and all supports provided to Ms Zidan via NDIS is not sufficient to have achieved this important medical outcome to keep her safe. She does not have the capacity to make her own appointments, motivation to attend the appointment on her own, nor be able to remember the appointment or know how to use public transport to attend vaccination appointments or feel safe to receive a vaccination given her ongoing, persistent and enduring trauma-related anxiety, paranoia, and fears to her overall sense of self. Should her son not be permitted to remain in Australia, the costs to the Australian Government would be significantly higher. Ms Zidan was reported to have used 10 individual psychology sessions bulk-billed on Medicare. She was referred to see psychologists in 2018 by Dr Khalil A. Qidwal and had to request changes in psychologist because even though the psychologists spoke Arabic, Mr Sarmout (the applicant) expressed that they were not suitable for her level of complexity and she was not benefiting. She saw two generalist psychologists. It is the writer’s opinion that Ms Zidan’s level of complexity, a clinical psychologist who is Arabic speaking is best suited. However, clinical psychologists’ fees tend to be out of the financial reach of Ms Zidan living on a
    disability support pension income especially when Ms Zidan would require ongoing weekly fortnightly sessions because of the chronic severity of her symptoms.

    More importantly and an issue that would need to be avoided, given she has no family or

    next of kin in Australia and with Ms Zidan’s cognitive, psychological and physical decline

    would be recommended to be placed under the NSW Public Guardian to help make

    decisions about her medical and day to day support decisions. This will be further

    traumatising for Ms Zidan given she is already isolated in the community and heavily relies

    on Mr Sarmout. Removing all sense of familiarity with her day-to-day experiences, impacting

    on her personal sense of safety, and removing decision-making that is best suited for a

    family member that best understands Ms Zidan’s personal needs, cultural, language, and

    religious. If Ms Zidan is left to be supported solely by mainstream services who are far

    removed from meeting her personal, cultural and religious needs, her cognitive, mental

    health and physical capacity will further deteriorate and decline further pushing her quality

    of life towards unrepairable emotional and psychological distress. More importantly, given

    the observed and vocalised suicidal ideations by Ms Zidan, the risk of suicide is more

    probable.

    In conclusion, there are no overall culturally responsive service (welfare, nursing,

    community, or hospital service) that is currently accessible to Ms Zidan that are available to

    her to provide her with appropriate daily care, and she does not have the financial means to

    privately pay for the daily supports needed. NDIS funded supports were extremely low and

    unsuitable opening up further risks of Ms Zidan was not caring for his mother to provide the

    supports that she needs at home and in the community. Further, to suggest that there are

    available services within reach to Ms Zidan given her inability to source and access services

    on her own is also not possible. If Ms Zidan is to be isolated and not have a relevant carer

    looking after her in the same way that Mr Sarmout is currently caring for her, it will cost the

    Australian Government additional costs to care and treat Ms Zidan in the longer term.

    Therefore, Ms Zidan has attempted to utilise to very limited funding by the NDIS but they

    remain extremely unsuitable for her level of care needed, and for Ms Zidan to pay privately

    for the recommended services given her only source of income is her disability support

    pension makes accessing the recommended care services is beyond the financial means of Ms Zidan.

1. The Tribunal has considered the medical information and other evidence including the testimony of the applicant at hearing. Based on this evidence, it finds that the resident requires assistance with the full range of functions, that her independent living skills are in the low range and that she is highly dependent on others to care for and support herself. The Tribunal found the evidence of the applicant genuine and persuasive.

2. These may be said to be the practical aspects of daily life for which the resident has a need for direct assistance now and for the next two years under subr.1.15AA(1)(b)(iv).

3. The Tribunal now turns to the question of whether the assistance cannot reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident or an eligible New Zealand citizen.

4. Based on the evidence before the Tribunal the resident has no relatives or next of kin other than the applicant living in Australia with the applicant’s siblings living in Lebanon. The Tribunal notes the resident’s husband passed away in 2017.

5. Accordingly, 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 r.1.15AA(1)(e) are met.

   Willing and able – r.1.15AA(1)(f)

6. 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 enquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

7. 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.

8. The Tribunal has some concerns as to the applicant’s intention to provide the care necessary for the sponsor. In particular, the applicant does not appear to have any means of providing any financial support for himself but provided evidence of managing the sponsor’s finances. He is currently living in the sponsor’s home at Greenacre. The only income of the household is the pension received by the sponsor. The applicant claims that he receives no other income or government support such as Medicare. It appears that the sponsor of the applicant and the applicant will continue to be dependent upon government pensions and other financial support to meet their expenses. The applicant informed the Tribunal he is not allowed to work and is providing full-time care to the sponsor and has no intentions of seeking employment. The applicant provided evidence that he has been separated from his wife and son living in Lebanon for a lengthy period of time while caring for his mother and that his wife has initiated divorce proceedings and he has no home to return to and no employment opportunities in Lebanon. 

9. The Tribunal accepts the applicant has provided the majority of all care to the sponsor over the last three and a half years and there is an expectation that he will continue to do this in the future while the sponsor is alive. The applicant has shown himself to have the skills and willingness to be able to provide the care needed by the sponsor and that the care he has provided has been adequate for the needs of the sponsor. The Tribunal accepts that he will provide the care to his mother in the future, even if he does obtain some employment.

10. Therefore, the Tribunal finds 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 r.1.15AA(1)(f).

    Conclusion on ‘carer’ criterion

11. Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl.836.221.

12. 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

13. The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criterion for a Subclass 836 (Carer) visa is met:

    ·cl.836.221 of Schedule 2 to the Regulations.

    Russell Matheson
    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.