Nguyen (Migration) [2020] AATA 5958 (14 December 2020)

Last Updated: 3 March 2021

Nguyen (Migration) [2020] AATA 5958 (14 December 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

REVIEW APPLICANT: Ms Nghia Thi Nguyen

VISA APPLICANTS: Mr Van Son Vu
Mrs Hoang Van Trinh
Miss Hoang Linh Chi Vu
Mr Minh Duc Vu

CASE NUMBER: 1927596

HOME AFFAIRS REFERENCE(S): OSF2015/072047 OSF2016/073592

MEMBER: Steven Griffiths

DATE: 14 December 2020

PLACE OF DECISION: Adelaide

DECISION: The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:

• cl.116.211 of Schedule 2 to the Regulations; and
• cl.116.221 of Schedule 2 to the Regulations.

Statement made on 14 December 2020 at 11.33am

CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – ‘carer’ of an Australian relative – aged person with dementia – nature and scope of the assistance required – assistance from relatives – current care giver of the sponsor – reasons why other relatives cannot provide the care – assistance from certain services – language barriers – only comfortable when in the home environment – willingness and ability to provide care – substantial and continuing assistance – sponsorship requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.03, 1.15AA; Schedule 2, cls 116.212, 116.221

CASES
Anveel v Minister for Immigration and Border Protection [2013] FCCA 2181
Jajo v Minister for Immigration & Border Protection [2013] FCCA 1554
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 13 September 2019 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s.65 of the Migration Act 1958 (the Act).
2. The visa applicants applied for the visa on 23 July 2015. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl.116.221.
3. The delegate refused to grant the visas on the basis that cl.116.221 was not met as it was assessed that the requirements of Regulation 1.15AA(1)(e)(i) and (ii) had not been met in that the assistance cannot reasonably be provided by any other relative in Australia and the assistance cannot reasonably be provided by welfare, hospital, nursing or community services in Australia.
4. The parties were assisted by their registered migration agent, Mr. Mitchell Simons, of MSM Legal.
5. The review applicant appeared before the Tribunal on 9 December 2020 to give evidence, respond to questions and present arguments. The Tribunal noted the documented and oral evidence of the others at the hearing that the sponsor is an aged person with dementia and a variety of other health issues impacting on her awareness of the circumstances around her, noting the sponsor was in the room for all of the hearing and asleep, with the Tribunal regularly viewing the sponsor and noting she was asleep at all times.
6. The Tribunal accepts that it was it was not possible for the sponsor to provide evidence due to her health conditions, and accepted the legal determination of other authorities for the current carer of the sponsor, her daughter Ms. Nga Vu who is the owner of the home the sponsor lives in, to be legally responsible for the requirements of the sponsor, and determined Ms. Nga Vu would provide oral evidence on behalf of the sponsor. The Tribunal has determined to note Ms. Nga Vu as the primary care giver of the sponsor.
7. The Tribunal also received oral evidence from the other daughter of the sponsor, Ms. Nguyet Thi Minh Vu, who lives in Australia, with the applicant and adult secondary applicant providing oral evidence from Vietnam. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
8. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams Video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicants. 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 Microsoft Teams Video. No concerns were raised by the parties on holding a Microsoft Teams Video hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
9. The registered migration agent took part in the hearing
10. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

BACKGROUND OF THE EVIDENCE

11. Applicant Mr. Vu was born in Vietnam in 1961. His father is deceased, with his mother, the visa sponsor, born 1937, and having lived in Australia since 2012. He has an older brother living in Vietnam and 2 sisters living in Australia. He is married, with 2 daughters, born 2002 and 2009, with the wife and daughter’s the secondary applicants to the visa. He visited Australia from 28/5/15 to 22/6/15.
12. Sponsor Mrs. Nguyen was born in Vietnam in 1937. Her husband is deceased and she has 4 children, with 2 daughters living in Australia and two sons in Vietnam. She arrived in Australia on 12/6/12 on a Contributory Parent 143 Visa granted 18/5/12 and is an Australian Permanent Resident and became an Australian Citizen on 1/11/16. As part of her visa conditions she is not eligible for the Australian Aged Pension.

INFORMATION TO THE TRIBUNAL

13. Since the Department of Home Affairs made its decision, the applicant has provided further information to the Tribunal including:-

Migration Agent request for priority consideration, due to health issues of carer daughter, 30/1/20 and supporting review of women by Bronwen Winterburn, Clinical Psychologist, 28/1/20

Statement by non-residing daughter of sponsor of inability to care for mother, 11/8/20

Statement by residing daughter of sponsor of care needs of mother, attempts to source care from third parties, 13/8/20

Sponsor report on health condition by GP, 24/6/20

Consulting Psychologist report, 29/7/20, on sponsor by Bridge Consulting

Submission 23/11/20, including:-

Migration Agent comments

My Aged Care, Australian Government, confirmation of Level 2 Home Care Package, 6/10/20

Australian Government, Services Australia, Residential Aged Care Fees

CONSIDERATION OF CLAIMS AND EVIDENCE

14. In this case, Mr. Vu is seeking to satisfy the criteria for the grant of a Subclass 116 (Carer) visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Mr. Vu must meet the primary criteria in Part 116 to be granted the visa, and his wife and two children need only meet the secondary criteria.
15. The primary criteria to be met include cl.116.221 which requires that Mr. Vu is to be the carer of the Australian relative. The term “carer” is defined in r.1.15AA.
16. As the Sponsor, Mrs. Nguyen, is an Australian Citizen by grant and the applicant Mr. Vu is her son and the sponsor requires care, the Tribunal accepts that Regulation 1.15AA(1)(a) is met.
17. The Tribunal accepts that Mrs. Nguyen has the required health provider assessment that specifies that she has a variety of medical condition that causes impairment of her ability to attend to the practical aspects of daily life, she has the required number of impairment points and she has a need for direct assistance in attending to the practical aspects of daily life for at least two years. As a result, the requirements of r.1.15AA (b) and (c) are met.
18. In issue in this matter is whether r.1.15AA(1)(e) and (f) of the definition are met at the time of this decision.

Regulation 1.15(1)(e) – can the assistance be reasonably provided by certain relatives or obtained from certain services?

The definition of ‘carer’ in r.1.15AA includes at r.1.15AA(1)(e) that:

(e) the assistance cannot reasonably be:

1. 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
2. obtained from welfare, hospital, nursing or community services in Australia; and
19. As it applies to Mrs. Nguyen, r.1.15AA(1)(e)(i) requires a consideration of the assistance she requires, the reasons put forward by her relatives for being unable to provide her with this assistance, and whether these reasons are reasonable.
20. Regulation 1.15AA(1)(e)(ii) involves a consideration of whether the assistance Mrs. Nguyen needs cannot be obtained from welfare, hospital, nursing or community services in Australia.
21. The Tribunal can look at whether the assistance Mrs. Nguyen requires can be met by a combination of assistance from her family together with welfare, hospital, nursing or community services in Australia. This approach was adopted without comment in Lam v MIBP.

What assistance does Mrs. Nguyen require?

22. In looking at the type of assistance required, the Tribunal is not required to turn its mind to the nature and scope of the assistance required, and is required to accept the nature and scope of the person’s impairment and any consequential need for assistance as documented in the certificate prepared by the health service provider.
23. The Tribunal has regard to, and accepts, the BUPA Medical Visa Services report, dated 14 May 2015, of a Carer Visa Assessment Certificate, attaching a rating of 40 for Social Security Act rating of permanent conditions, being Dementia, Osteoarthritis, Stress Incontinence, Hypertension, Hypercholesteremia and Varicose Vein.
24. The Tribunal has regard to, and accepts, the submissions provided by treating medical professionals on Mrs. Nguyen as part of the Visa application lodged 23 July 2015 and Refusal Decision of 13 September 2019.
25. The Tribunal has regard to, and accepts, the report by the Department of Gynaecology, SA Health, dated 25 January 2016 on the support provided to the sponsor by the Nurse Incontinence Clinic, which are required to be ongoing.
26. The Tribunal has regard to, and accepts, the report by Adelaide MRI, Diagnostic Imaging, dated 1 August 2017, noting the knee and mobility issues Mrs. Nguyen deals with are caused by osteoarthritis.
27. The Tribunal has regard to, and accepts, the documented and oral evidence of the parties that the health needs of Mrs. Nguyen have continued to increase since the earlier diagnosis of her health issues, with she now hallucinating often about the situation she is in, sleeping poorly during the night and requiring the primary care giver to have broken sleep every night in calming her down and getting her back to sleep.
28. The Tribunal accepts the documented and oral evidence of the current care giver of the sponsor, being her daughter and her husband and 7-year-old son, of the impact that the care needs of Ms. Nguyen has had upon them, which is experienced every day.
29. The Tribunal accepts the documented and oral evidence of the primary care giver of the concern that she does not provide her husband and son with attention and care, the need to assist part-time in the business operated by the husband, the issues she has dealt with in her professional life that resulted in her having a nervous breakdown and dealing with PTSD and the exhaustion she feels each day due to the continual need to ensure Mrs. Nguyen has the care and support she requires.
30. The Tribunal accepts the documented and oral evidence of the parties that language issues are significant in this case, with Mrs. Nguyen requiring at all times a Vietnamese speaking carer and this has resulted in funded services not being able to be provided and placed more responsibility upon the primary care giver.
31. The Tribunal accepts the documented and oral evidence of the parties of the closeness the visa applicant has with his mother, he being identified as her favourite and a family leader, exampled by the sponsor and visa applicant being in regular contact, that he is fully aware of the medical issues of the sponsor, spent 4 weeks caring for her in early 2015 when he came to Australia and that he is the person trusted by all other family members as the person to care for Mrs. Nguyen.

Cannot reasonably be provided by certain other relatives

32. Regulation 1.15AA(1)(e) requires identification of those relatives of the sponsor who are Australian citizens, Australian permanent residents or eligible New Zealand citizens.
33. The term “relative” is defined in r.1.03 as a close relative or a grandparent, grandchild, aunt, uncle, niece or nephew, or a step-grandparent, step-grandchild, step-aunt, step-uncle, step-niece or step-nephew. A close relative is a spouse, de-facto partner, child, parent, brother or sister or a stepchild, stepbrother or stepsister.
34. As this applies to Mrs. Nguyen this includes her 2 daughters, their husbands and 3 grandchildren who live in South Australia, each with their own families and health and life issues.
35. Regulation 1.15AA(1)(e)(i) was considered by Judge Nicholls in Anveel v Minister for Immigration and Border Protection, in which he said that this provision requires an examination of whether, from the perspective of the relative, they cannot provide the care, and requires a focus on the reasons the relatives cannot provide the care. Judge Nicholls remarked that it is important to note that the test is stated in the negative and said: It is not whether the care “can” be “provided”, it is whether it “cannot” be provided by relatives. The focus of the Tribunal therefore must be the reasons as to why the relatives cannot provide the care.
36. In Jajo v MIBP, Judge Emmett stated that on the facts of that case, where there were a number of children in Australia, it was open to the Tribunal to conclude that a number of relatives can provide the assistance required by the person needing care.
37. It is therefore necessary to look at the circumstances of each of the relevant relatives and the reasons the relevant relatives state they cannot provide care.
38. The Tribunal accepts the documented and oral evidence of the primary care giver on her professional work roles undertaken since the sponsor came to live with her in 2012, her illness and change of work roles and reduced work hours, while helping her husband, who operates his own carpentry business and providing for the care needs of her 7 year old son.
39. The Tribunal accepts the documented and oral evidence of the parties of the conception issues for the primary care giver and husband, resulting in long and expensive medical assistance to ensure the conception and birth of their son, and the pressures this has placed on them.
40. The Tribunal accepts the documented and oral evidence of the parties of the desire to have a second child, and while long and expensive medical assistance has been provided a second child was not achieved.
41. The Tribunal accepts the documented evidence of the husband of the primary care giver that his business involves long work hours and he is not available to provide any help with the care needs of Mrs. Nguyen during the day.
42. The Tribunal accepts the documented and oral evidence of the primary care giver that her 7-year-old son has a relationship with Mrs. Nguyen but is not old enough to provide care for her.
43. The Tribunal accepts the documented and oral evidence of the second daughter of the sponsor, who lives in the same city as the sponsor, that she has long term health issues, that she and her husband have lost significant money with a business venture, that she works 5 days per week, that her husband works full time, all to ensure the family can meet their debt repayment requirements, and that while she sometimes provides food for her mother, she is not able to provide any regular commitment to the care needs of the sponsor as she is the care giver of the aged parent of her husband who lives with them and has care needs also.
44. The Tribunal accepts the documented and oral evidence of the parties that the husband of the second daughter of the sponsor, refuses to allow the sponsor to live with him as his wife is required to care for his aged parent who lives with them, as this is the responsibility of his family.
45. The Tribunal accepts the documented evidence that the second daughter and her husband have been through difficult relationship periods and that any additional care responsibilities would not be good for them.
46. The Tribunal accepts the documented evidence of the 2 children of the second daughter of the sponsor, noting one is at university and working part-time, with the other at school and that their commitments do not provide them with the opportunity to provide care for their grandmother.
47. The Tribunal accepts the documented evidence of the 2 children of the second daughter of the sponsor that they came to Australia when very young and do not speak Vietnamese to a sufficient level to be able to converse with their grandmother to a sufficient level to be able to provide care for her.
48. The Tribunal determines the assistance that Mrs. Nguyen requires cannot be provided by relatives who are Australian citizen, Australian permanent residents or New Zealand citizens.

Cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

49. Regulation 1.15AA(1)(e)(ii) requires that the assistance Mrs. Nguyen needs cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal must look to Mrs. Nguyen’s particular circumstances in deciding whether the assistance cannot reasonably be obtained, as this is more than whether the services are merely available to her.
50. The Tribunal accepts that Mrs. Nguyen has lived in Australia since 2012, noting she speaks only Vietnamese, has been reliant on support care since 2014 and this is increasing as she ages.
51. The Tribunal accepts the documented and oral evidence of the primary care giver that she, as the legal representative of Mrs. Nguyen, has sought assistance from a range of care and support providers, with the sponsor being formally assessed by ACAT on 9 July 2019 and for example with the MyAgedCare program was determined in October 2020 to be eligible for a Level 4 Home Care Package, with the offered package being Level 2 only, as this was all the available funding would allow, and this support package has not been able to be provided to this time as no Vietnamese speaking support workers have been available.
52. The Tribunal accepts the documented and oral evidence of the parties that Mrs. Nguyen is easily confused, has hallucination issues and is only comfortable when in the home environment in which she has lived since 2012, so any move by her to a supported facility, for respite or permanent use, would be seriously resisted and would likely result in significant negative impact on her health.
53. The Tribunal accepts the documented and oral evidence of the residential care facilities, being Regency Green and the Calvary Flora McDonald Retirement Community, on the basis of Mrs. Nguyen potentially becoming a resident, with each confirming in writing that the services at either at capacity, lack appropriate cultural support and do not support the range of care needs given her diagnosed health issues.
54. The Tribunal accepts the documented and oral evidence of the parties that the issue of bond payment requirements for any care facility for the sponsor is one they cannot fund, with the parties all having levels of debt due to home mortgage, business loans and higher education debts, while the sponsor has total assets of $ 6,726 while the estimate cost of an accommodation bond is $ 350,000.
55. 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 either individually or cumulatively, and therefore the requirements of r.1.15AA(1)(e) are met.

Regulation 1.15AA(1)(f) - is the applicant willing and able to provide assistance of the kind required?

56. Regulation 1.15AA(1)(f) requires that the visa 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 visa applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
57. 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.
58. The Tribunal accepts the documented and oral evidence of the primary care giver and the second daughter of the sponsor that their brother, the visa applicant, could provide daily care and support, had been prepared for many years to do so and was committed to doing so if given the chance to be in Australia.
59. The Tribunal accepts the documented and oral evidence of the parties of the visa applicant spending approximately 1 month in Australia in 2015, living with the sponsor and primary care giver for all that time, with the trip only enforcing the close bond the applicant and the sponsor have and continue to have over the last 5 years, with the bond enforced by the video and voice contact the parties regularly have.
60. The Tribunal accepts the documented and oral evidence of the parties that when the applicant was in Australia in 2015, he and his 2 sisters discussed the current and projected care needs of their mother, the difficulties the primary care giver was experiencing then, the inability of the second daughter of the applicant to contribute to her mother’s care and determined that the only possible outcome that respected their mother and ensured she had the best possible care was for the now visa applicant and his family to come to Australia to take on the role.
61. The Tribunal notes the visa application was lodged on 23 July 2015 and accepts the evidence of the applicant that he, his wife and two children remain committed to moving to Australia to enable her to be the carer for the Mrs. Nguyen.
62. The Tribunal accepts the oral evidence of the primary care giver and applicant that the applicant, his wife and children will live in the home of the primary care giver and sponsor, to ensure the applicant is with the sponsor all day every day.
63. The Tribunal accepts the oral evidence of the applicant that his wife has experience as a pharmacy assistant and nursing support in hospitals, has cared for her aged parents until they passed away and that they will both provide care to Mrs. Nguyen.
64. The Tribunal accepts the documented and oral evidence of the parties that the visa applicant and family will be financially supported by their relatives in Australia.
65. The Tribunal accepts the oral evidence of the applicant that his children, who are 18 and 11, will continue their education in Australia and are supportive of the family moving to Australia for the father and mother to care for their grandmother.
66. The Tribunal accepts the documented and oral evidence of the applicant that he and his wife have some English language skills, with their children being far better as it has been part of their education.
67. The Tribunal accepts the oral evidence of the visa applicant, primary care giver and second daughter of the sponsor that the visa applicant is the one person in the family who ensures they deal with issues and do not get stuck on any problems that exist
68. The Tribunal is satisfied that the visa applicant is willing and able to provide substantial and continuing assistance of the kind required by the sponsor, and therefore meets the requirements of r.1.15AA(1)(f).

Are the sponsorship requirements met?

69. Clause 116.212 requires that at the time of application the visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in r.1.03 of the Regulations. ‘Spouse’ is defined in r.1.15A (for visa applications made before 1 July 2009) and s. 5F of the Act (for visa applications made after that date, whilst ‘de-facto’ partner is defined in s.5CB of the Act).
70. The Tribunal determines the visa applicant is sponsored by an Australian relative, with the sponsor over 18 years of age.
71. Therefore, at the time of application, the visa applicant was sponsored as required by the legislation and satisfies cl.116.212.
72. Given these findings the Tribunal concludes that at the time of decision the first named visa applicant is to become the carer of the Australian relative, being his mother the sponsor, and therefore satisfies cl.116.221.
73. 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 116 visa. As the applicant Mr. Vu meets this criterion, his wife and two children meet the secondary criteria for the grant of the visa, and it is appropriate to remit the visa application of the secondary visa applicants for reconsideration.

DECISION

74. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
    • cl.116.211 of Schedule 2 to the Regulations; and
    • cl.116.221 of Schedule 2 to the Regulation.

Steven Griffiths
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.