Tran (Migration)

[2023] AATA 1666

Tran (Migration) [2023] AATA 1666 (30 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thanh Truc Tran

REPRESENTATIVE:  Mr Paul Joseph Smith, lawyer, of Paul Joseph Smith Migration Services

CASE NUMBER:  1824235

HOME AFFAIRS REFERENCE(S):          CLF2017/25272

MEMBER:Michael Ison

DATE:30 May 2023

PLACE OF DECISION:  Melbourne

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

·cl 836.221 of Schedule 2 to the Regulations.

Statement made on 30 May 2023 at 5:28pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – assistance reasonably provided by welfare, hospital, nursing or community services in Australia – family injuries and physical limitations – culturally appropriate food and care – decision under review remitted

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 836.221; Schedule 8; rr 1.03, 1.15

CASES

Biyiksiz v MIMIA [2004] FCA 814
Hon Anh Vuong v MIAC [2013] FCCA 274
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 6 August 2018 to refuse to grant the review applicant an Other Family (Residence) (Class BU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is Mrs Thanh Truc Tran who is 50 years of age and is a national of Vietnam. Mrs Tran is referred to as the applicant in these reasons for decision.

3. The applicant first arrived in Australia on 18 December 2007 as the holder of a Sponsored Family Visitor (Class UL) (Subclass 679) visa that was valid to 15 March 2008 and the applicant departed Australia on that date.

4. On 15 June 2009 the applicant applied for an offshore Other Family (Migrant) (Class BO) (Subclass 116) (Carer) visa on the basis that the applicant claims to be a relative of her sponsor Mrs Diep Ngoc Thi Nguyen, who is claimed as the applicant’s mother. The applicant’s application for the Subclass 116 visa was refused on 8 April 2010.

5. On 23 August 2010 the sponsor Mrs Nguyen lodged an application with the Tribunal to review that visa refusal in Tribunal review number 1005270. That review application was heard by the Tribunal, differently constituted, on 23 December 2010. On 24 December 2010 the Tribunal affirmed the decision under review.

6. On 2 March 2017 the applicant was granted a Visitor (Class FA) (Subclass 600) visa to attend her father’s funeral in Australia. That visa was valid to 3 April 2017. The applicant arrived in Australia on 3 March 2017.

7. On 28 March 2017 the applicant applied for an onshore Other Family (Residence) (Class BU) (Subclass 836) (Carer) visa while in Australia on the basis that the applicant claims to be a Carer in accordance with reg 1.15AA of the Migration Regulations 1994 (Cth) (the Regulations) as the relative of her sponsor (the resident) Mrs Nguyen. It is the refusal to grant the applicant that Carer visa that is the subject of this review.

8. The applicant provided evidence to the Department in the form of the applicant’s birth certificate showing the names of her parents to demonstrate her relationship with her sponsor, Mrs Nguyen. Based on this evidence the Tribunal finds the sponsor is the applicant’s mother.

9. Mrs Nguyen is 71 years old and had Australian citizenship conferred on her on 29 January 2000. Ms Nguyen provided the Department with a copy of her Certificate of Australian Citizenship and the Tribunal finds Ms Nguyen is an Australian citizen. Ms Nguyen is referred to as the sponsor or the resident, as the context requires, in these reasons for decision.

10. The sponsor’s husband passed away suddenly in February 2017, and she has six adult children in Australia who are Australian citizens and are siblings of the applicant.

11. On 14 February 2017 the applicant married Mr Thanh Do Nguyen and provided a copy of their marriage certificate to the Department. The Tribunal accepts that Mr Thanh Do Nguyen and the applicant are lawfully married.

12. The applicant has three children: two daughters, aged 24 and 26 years old and one son, aged 27 years old. The applicant provided a copy of her children’s birth certificates to the Department. The Tribunal accepts that the applicant has three children identified in the birth certificates.

13. The applicant’s husband and three children were not included the applicant’s Carer visa application. 

14. According to a Carer Visa Assessment Certificate (CVAC), the sponsor or resident in this matter, Mrs Nguyen has been assessed as having an impairment rating of 45 under the relevant Impairment Tables. The CVAC was issued on 19 May 2017. The CVAC stated the sponsor has diagnosed osteoarthritis of the hands (severe functional impairment), osteoarthritis of the knees (moderate functional impairment), migraines (moderate functional impairment) and depression with anxiety (mild functional impairment).  The condition adversely and permanently impacts the resident’s both upper and lower limbs, the resident’s mental health and consciousness. The examining doctor stated the medical conditions resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision or monitoring because the person requiring care may be a danger to themselves or another. The need is permanent (at least 2 years).

15. Just before the hearing the Tribunal was provided with an updated CVAC for the sponsor which had been completed on 18 September 2022. The medical doctor who completed the CVAC assessed the sponsor as having an impairment rating of 65 under the relevant Impairment Tables. The updated CVAC noted that in addition to the medical conditions present during the 2017 CVAC assessment that in 2021 the sponsor had attempted suicide by overdose resulting in an ambulance trip and admission to hospital, increasingly uses a wheelchair for mobility and has been diagnosed with vascular dementia that has “… contributed a severe functional impact on her ability to complete her activities of daily living…”. The examining doctor stated the medical conditions resulted in the need for personal care and attention on a daily basis to carry out routine bodily functions and the need for constant supervision or monitoring because the person requiring care may be a danger to themselves or another. The need is permanent (at least 2 years).

16. For clarity only, vascular dementia is a form of dementia caused by brain damage that results from restricted blood flow to the brain. It typically can result from a single large stroke, multiple smaller strokes, untreated high blood pressure or untreated diabetes.

17. At the time of applying for the Carer visa, the applicant was granted a Bridging A (Subclass 010) visa that was valid to 24 October 2017 when the applicant was granted a Bridging B (Subclass 020) visa, which the applicant continues to hold at the time of the decision. The applicant’s Bridging B visa has condition 8101 (no work) from Schedule 8 of the Regulations attached.

18. The applicant has departed Australia only once since arriving in Australia on 3 March 2017. On 14 November 2017 the applicant departed Australia as the holder of the Bridging B visa and returned to Australia on 14 December 2017. The applicant has not departed Australia since that time.

    The primary decision of a delegate of the Minister

19. The applicant provided the Tribunal with a copy of the primary decision.

20. The applicant applied for the visa on 28 March 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.

21. Notably, the delegate accepted that the sponsor’s care needs could not be met individually or collectively by the sponsor’s six adult children who live in Melbourne and are Australian citizens.

22. The delegate refused to grant the visa on the basis that cl 836.221 was not met because the delegate was not satisfied that the assistance the sponsor requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia.

    The Tribunal hearing

23. The applicant appeared before the Tribunal on 28 September 2022 to give evidence and present arguments, in person.

24. The following family members of the applicant and sponsor attended the Tribunal hearing to give oral evidence if required (ages at the time of hearing):

    ·The sponsor;

    ·Mr Phi Long Tran, aged 52 years, who is a son of the resident and brother of the applicant;

    ·Mr Thinh Long Tran, aged 47 years who is a son of the resident and brother of the applicant;

    ·Ms Thao Thanh Tran, aged 44 years old who is a daughter of the resident and sister of the applicant;

    ·Mr Hieu Long Tran, aged 43 years who is a son of the resident and brother of the applicant;

    ·Mr Kim Long Tran, aged 41 years who is a son of the resident and brother of the applicant;

    ·Mr Thach Long Tran, aged 38 years who is a son of the resident and brother of the applicant;

    ·Mr Daniel Tran, aged 22 years who is a grandson of the resident and son of Mr Phi Long Tran; and

    ·Mr Christopher Tran, aged 20 years who is a grandson of the resident and son of Mr Phi Long Tran.

25. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. 

26. Each of the potential witnesses were sworn in and the Tribunal discussed their ability to give relevant evidence. The sponsor was immediately excused from giving evidence because it was obvious to the Tribunal when the sponsor was being sworn in that her dementia and memory issues would render her evidence unreliable or incoherent. The Tribunal accepts the sponsor’s inability to give evidence is caused by her medical conditions and makes no adverse findings and draws no adverse inferences against the sponsor because she was not able to give evidence on the day of the Tribunal hearing.

27. The applicant’s nephews and sponsor’s two grandsons were excused from giving evidence on account they did not have any relevant evidence to give on the determinative issue in this review being whether the sponsor’s care needs could reasonably be obtained from welfare, hospital, nursing or community services in Australia. The sponsor has two additional grandsons who are the sons of Mr Hieu Long Tran, being Mr Anthony Tran aged 18 years and Master Vincent Tran aged 14 years, who were not in attendance but would have been excused from giving evidence for the same reason.

28. Mr Phi Long Tran, Mr Hieu Long Tran and Mr Kim Long Tran were each excused from giving evidence for specific medical and personal reasons which the Tribunal does not need to set out in these reasons.

29. The Tribunal heard oral evidence from the applicant, Mr Thinh Long Tran, Ms Thao Thanh Tran and Mr Thach Long Tran.

30. The applicant was represented in relation to the review by her migration lawyer, Mr Paul Joseph Smith of Paul Joseph Smith Migration Services. Mr Smith is referred to in these reasons as the applicant’s representative or the representative. The representative attended the Tribunal hearing in person.

31. At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicant whether she could understand the interpreter and whether she had any objection to the use of the interpreter retained by the Tribunal. The applicant indicated she could understand the interpreter and did not have any objection to the interpreter retained by the Tribunal. The Tribunal explained to the applicant the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicant’s representative during the hearing. The Tribunal informed the applicant that it would seek submissions from both of the applicant and the representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicant’s review.

    Pre-hearing and post-hearing submissions

32. The Tribunal received extensive pre-hearing and post-hearing submissions including an updated and current CVAC for the sponsor, updated statutory declarations from the applicant and each of her adult children in Australia, supporting medical records and reports for the sponsor and some of her children and a five-page written submission from the representative dated 21 September 2022. These submissions were of considerable assistance to the Tribunal in the conduct of this review.

    Tribunal decision

33. The Tribunal has had regard to the oral evidence of the applicant and the witnesses Mr Thinh Long Tran, Ms Thao Thinh Tran and Mr Thac Long Tran, all of the information in the oral and written submissions provided to the Tribunal on the applicant’s behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the applicant’s application for the Other Family (Residence) (Class BU) (Subclass 836) visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

35. The issue in the present case is whether the applicant is a ‘Carer’ under reg 1.15AA. The delegate of the Minister was not satisfied the applicant meet cl 836.221, as the delegate found the applicant did not meet the definition of ‘Carer’. The delegate made this finding because the delegate was not satisfied under reg 1.15AA(1)(e)(ii) that the assistance the resident (or sponsor) requires could not reasonably be obtained from welfare, hospital, nursing or community services in Australia

    Whether the applicant is a carer

36. 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)

37. 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 daughter.

38. The Department file includes a certified translation of a Vietnamese birth certificate for the applicant that names the sponsor as her mother. The Tribunal accepts this evidence.

39. Therefore, as the applicant is the daughter 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)

40. 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.

41. For a certificate to meet the requirements of reg 1.15AA(2) it must be a medical assessment carried out on behalf of a health service provider specified by the Minister in a legislative instrument and be signed by the medical adviser who carried it out. In this case, IMMI 14/085 applies and provides the approved health service provider is Bupa Australia Health Pty Ltd trading as Bupa Medical Services (Bupa).

42. Two CVAC’s have been issued in this case. The most recent CVAC has been issued by a currently registered medical practitioner employed by Bupa who signed the certificate on 18 September 2022. According to the most recent CVAC, the sponsor has medical conditions causing impairments to the sponsor’s ability to attend to the practical aspects of daily life, the impairments have Impairment Table ratings specified in the CVAC and the CVAC states because of the sponsor’s medical conditions, the sponsor has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life.

43. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the current CVAC 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)

44. 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.

45. In the present case, the person with the medical condition, being the sponsor, is an Australian citizen. The Department file includes a copy of the sponsor’s Certificate of Australian Citizenship and the Tribunal accepts this evidence. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

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

46. 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. Clause 5 of IMMI 17/126 states that for the purposes of reg 1.15AA(1)(c) of the Regulations the impairment rating is 30.

47. In the present case, the impairment rating specified in the current CVAC is 65. This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

48. The Tribunal finds that 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)

49. 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.

50. 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)

51. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia.

52. Relevantly, the Federal Court has held that ‘reasonably obtained’ in relation to the second limb of reg 1.15AA(1)(e) is determined by reference to obtainability by the person requiring the assistance and not by reference to the availability of the service: Biyiksiz v MIMIA [2004] FCA 814. While cultural factors can be relevant to the determination of whether the relevant care is reasonably obtainable, an applicant’s mere preference for a particular service is to be distinguished from a cultural reason: Hon Anh Vuong v MIAC [2013] FCCA 274 at [34].

1. In relation to the first limb of reg 1.15AA(1)(e), the sponsor has six adult children, not including the applicant, who are Australian citizens and live not just in Australia but also in Melbourne where the sponsor lives.

2. The applicant told the Tribunal as her mother’s (the sponsor’s) medical conditions, particularly her more recent diagnosis of suffering vascular dementia, had worsened she had become more socially isolated, more challenging to physically and emotionally support and more reliant on the care of the applicant. The applicant told the Tribunal she has three adult children who still reside in Vietnam, two of whom are married and each have two children of their own. The applicant told the Tribunal her purpose in applying for the Carer visa is to look after her mother, the sponsor, until the end of the sponsor’s life. The Tribunal accepts this evidence.

3. The second youngest of the sponsor’s children, Mr Kim Long Tran, lives with the sponsor and the applicant. The Department file included medical reports in relation to Mr Kim Long Tran and the Tribunal was able to speak to Mr Tran at the commencement of the hearing and excused him from giving evidence to the Tribunal. The evidence before the Tribunal is that Mr Kim Long Tran has a diagnosed incurable medical condition that affects his psychological and general functioning and has significant care needs of his own which are also managed by the applicant. The Tribunal accepts Mr Kim Long Tran is incapable of providing any assistance to his mother and in fact requires the support and assistance of the applicant.

4. Ms Thao Thinh Tran has lived next door to her mother and sister, the sponsor and applicant respectively, since 2019. Ms Tran explained in significant detail her personal circumstances that have and continue to prevent her from providing any meaningful assistance to the sponsor in attending to the practical aspects of daily life. Ms Tran is married, has an eight year old daughter and until relatively recently worked in a manual labour job until she was injured and “laid off”. Ms Tran provided evidence of ongoing treatment for that injury and the physical limitations it imposes upon her. It is not a short-term injury. Ms Tran also provided evidence of suffering a separate recent significant medical event for which she continues to receive regular and ongoing treatment, including mental health treatment. The Tribunal accepts the evidence in relation to Ms Thao Thinh Tran and finds that even though she lives next door to the sponsor in her personal and medical circumstances she cannot provide any meaningful assistance to the sponsor in attending to the sponsor’s practical aspects of daily life.

5. The Tribunal was provided with updated statutory declarations from each of the sponsor’s adult children and where relevant these declarations were supported by medical reports and records. The medical information included psychological and mental health reports and plans for two of the sponsor’s children. The Tribunal was also provided with payslips as evidence of work commitment for another two of the sponsor’s children. Having heard the evidence of the applicant and Mr Thinh Long Tran, Ms Thao Thanh Tran and Mr Thach Long Tran, in addition to having read the statutory declarations originally provided in support of the application for the visa, the Tribunal is satisfied that the assistance the sponsor requires cannot reasonably be provided individually or collectively by the sponsor’s six adult children (or any combination of them) who live in Melbourne and are Australian citizens.

6. In relation to the second limb of reg 1.15AA(1)(e), the Tribunal discussed with Mr Thinh Long Tran, the third eldest of the sponsor’s children, what efforts had been made to find out what assistance for the sponsor could be obtained from welfare, hospital, nursing or community services in Australia.

7. In relation to this consideration, the applicant’s representative submitted:

   The primary application was refused based on a finding that the applicant had failed to provide evidentiary documents to demonstrate that requisite services are not available or are too expensive for the sponsor.

   There are very limited community care services which would meet the care needs of Mrs Diep Ngoc Nguyen.

   Mrs Diep Ngoc Nguyen requires 24 hours high level of personal care. The family applied for assistance, but the services were not available to them.

   Mr Thinh Long Tran, son of the sponsor, has recently made contact with Health and Community Services in the area in the attempt to receive help and support. The general response is that placements are not available, and the waiting list can be indefinite. Even for temporary respite care, there are no places available until July 2023.

   The number of facilities suitable to care for Mrs Diep Ngoc Nguyen is even more restricted by the fact that not many have Vietnamese staff able to communicate with Mrs Diep Ngoc Nguyen.

8. There is some force to this submission but the Tribunal did not find the submission to be compelling.

9. Mr Thinh Long Tran’s evidence to the Tribunal was that he was the sibling of the applicant charged with finding out what welfare, hospital, nursing or community services may be available to provide the required assistance to their mother, the sponsor. Mr Thinh Long Tran explained to the Tribunal the inquiries he had made of local community services and nursing or aged care homes and the difficulties he encountered in finding any service or combination of services who could provide the 24 hour a day, seven days a week care their mother the sponsor needs, particularly with her dementia and preference for culturally appropriate food and care. The Tribunal accepts that Mr Thinh Long Tran has made some inquiries of welfare and community services and that it is well accepted there are limited aged care places available where a client of Vietnamese background will be able to receive culturally appropriate care including care delivered by Vietnamese speaking staff. The Tribunal accepts that Mr Thinh Long Tran made the inquiries he gave evidence about.

10. The representative submitted in oral closing submissions at the Tribunal hearing that the sponsor has acute care needs and the care provided to the sponsor needs to be consistently provided and not be provided by a patchwork of carers and services. The Tribunal accepts this submission. Having detailed information about the medical conditions of the sponsor in the May 2017 CVAC and in the September 2022 CVAC it is evident to the Tribunal that the sponsor has acute 24 hour a day, seven day a week care needs. The two CVAC’s disclose that in the just over five years between them the sponsor has been diagnosed with additional and significant medical conditions that have contributed to her impairment rating rising from 45 to 65.

11. The oral evidence of the applicant in particular demonstrated to the Tribunal how the sponsor’s care needs present and vary from day to day and how the applicant responds to and manages the sponsor’s care needs. Given the sponsor’s specific presentation in particular of dementia, the Tribunal accepts that for assistance to be effective in supporting the sponsor continuity of care is of great importance. The Tribunal further accepts that the assistance that may be reasonably available for the sponsor from welfare, hospital, nursing or community services cannot presently or in the likely future provide either the overall care or the continuity of care that the sponsor reasonably requires.

12. Mr Thinh Long Tran’s evidence is that neither he nor any of his siblings receive a carer allowance or other payment for providing assistance to their mother, the sponsor, the sponsor is not presently receiving any hospital outpatient services and the sponsor is too old to be eligible for the National Disability Insurance Scheme. The Tribunal accepts this evidence.

13. The Tribunal is satisfied that the assistance required by the sponsor cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

    Willing and able – reg 1.15AA(1)(f)

14. Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.

15. 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.

16. The Tribunal accepts the applicant’s evidence that she has been the primary carer for the sponsor since the sponsor’s husband and her father passed away suddenly in February 2017. The applicant was able to describe to the Tribunal in significant detail the assistance she provides to the sponsor.

17. The Tribunal also accepts the evidence of the applicant that she is willing and able to, and intends to, continue providing the assistance the sponsor needs until the end of the sponsor’s life.

18. Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

    Conclusion on ‘Carer’ criterion

19. 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 of Schedule 2 to the Regulations.

    Conclusion

20. 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

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

    ·cl 836.221 of Schedule 2 to the Regulations;

    Michael Ison
    Senior Member

    
    

    Attachment- Extracts from the 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.