(a) is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(c) has nominated the applicant for the grant of the visa.

23. It also provides that the nominator must be `settled' and `usually resident' in Australia. `Settled' is defined in regulation 1.03 as:

`settled' in relation to an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, means lawfully resident in Australia for a reasonable period;

24. Clause 836.221 provides that at the time of decision the visa applicant must be a `carer' the person referred to in clause 836.212:

25. The term `carer' is defined in regulation 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 impairment of the ability of that person to attend to the practical aspects of daily life; and

(iii) the physical impairment has, under the Impairment Tables, 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

(c) the rating mentioned in subparagraph (b) (iii) is equal to, or exceeds, the impairment rating specified by Gazette Notice 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

(i) from 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) 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 in relation to a medical assessment carried out on behalf of Health Services Australia that is signed by the medical adviser who carried it out; or

(b) it is a certificate issued by Health Services Australia in relation to a review of an opinion in a certificate mentioned in paragraph (a) that was carried out by Health Services Australia 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.

"Health Services Australia" means the government business enterprise Health Services Australia Ltd.

"Impairment Tables" means the Tables for the Assessment of Work-related Impairment for Disability Support Pension in Schedule 1B to the Social Security Act 1991.

26. The Tribunal must initially consider whether, at the time of application, the visa applicant claimed to be a `carer', and was validly nominated by an eligible person for the grant of the visa. Having regard to the criteria set out in the legislation and the considerations set out in Departmental policy, the relevant matters are discussed under the following headings:

Clause 836.212: Whether the visa applicant was nominated at the time of application for the visa by a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Whether the nominator is `settled' and `usually resident' in Australia.

27. The visa applicant was nominated at the time of application by Ivan Antonio GONZALEZ CORDOVA, his brother, to be the carer of the nominator's daughter. The nominator has been an Australian permanent resident since 1993 and is usually resident in Australia.

Clause 836.212 and regulation 1.15AA: Whether the visa applicant was nominated by a resident who is a relative.

28. The definition of a `carer' in regulation 1.15AA provides that the visa applicant must be a `relative' of the resident. Relative is defined in regulation 1.03 as a `close relative' which is the spouse of the person; or a child, adopted child, parent, brother or sister of the person; or a step-child, adopted step-child, step-parent, step-brother or step-sister of the person. The visa applicant has claimed that the nominator is his brother. Based on the evidence of the visa applicant's and the nominator's birth certificates that are before the Tribunal, the Tribunal is satisfied that the nominator is the visa applicant's biological brother.

Clause 836.221: Whether at time of decision the criterion in clause 836.212 continues to be satisfied.

29. The Tribunal must next consider whether at the time of decision, the visa applicant is a `carer' as defined in regulation 1.15AA. Having regard to the criteria set out in the legislation and the considerations set out in Departmental policy, the material before the Tribunal is discussed under the following headings:

Paragraph 1.15AA(1)(b) and (c): Is there a certificate which meets the requirements of subregulation 1.15AA(2) and which indicates that a person (the nominator or a member of the nominator's family unit) has a medical condition and will continue for at least 2 years to have a need for direct assistance in attending to the practical aspects of daily life? Whether the physical impairment rating specified in the certificate is equal to or exceeds the gazetted impairment rating.

30. A certificate issued by HSA and dated 24 March 2000 in relation to the nominator's daughter Andrea, has assigned her an Impairment Rating of 40. According to the assessing doctor, the nominator's daughter had a direct need for assistance in attending to the practical aspects of daily life because of her medical condition. The medical condition was permanent and likely to last at least two years. Paragraph 1.15AA(1)(c) provides that the rating mentioned in subparagraph (b)(iii) must equal, or exceed, the impairment rating specified by Gazette Notice. An impairment rating of `30' was specified in the Commonwealth of Australia Gazette No.47 of 25 November 1998. The HSA certificate indicated that a total rating of `40' had been assigned. Accordingly, the Tribunal finds that the HSA certificate satisfies the relevant elements of regulation 1.15AA.

31. The HSA certificate is now over three years old. Under policy, the certificate is valid for 18 months from date of issue. However, PAM3 advises that while it is open to officers to ask the relative to undertake a fresh examination by HSA if the certificate is more than 18 months old at the time of decision, as this is not prescribed in the regulations, officers must be flexible in applying the 18 month "rule", bearing in mind that the costs of some assessments can be quite substantial. In this case the medical condition of the person in need of care is not likely to improve with the passage of time. As such, the Tribunal finds it is not necessary to ask for a fresh assessment.

Paragraph 1.15AA(1)(d): If the person to whom the certificate relates is not the resident, whether the resident has a permanent or long-term need for assistance in providing the direct assistance to the person with the medical condition.

32. The person to whom the certificate relates is the nominator's daughter. Based on the medical evidence before it the Tribunal is satisfied that the nominator has a permanent or long-term need for assistance in providing assistance to his daughter.

Paragraph 1.15AA(1)(e)(ii): Whether the direct assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia

33. In relation to assistance from welfare, hospital, nursing or community services the question posed by paragraph 1.15AA(1)(e)(ii) is whether this cannot reasonably be obtained, not whether the nominator would accept it. The Tribunal accepts the medical evidence before it that the nominator's condition requires close supervision on a 24-hour basis. The evidence indicates that in Tasmania community and other services for both the care of children suffering from Prader Willis syndrome as well as support for their families are somewhat limited. The Tribunal finds that the assistance required cannot reasonably be obtained from Australian citizen or resident relatives of the nominator and the Tribunal is satisfied that paragraph 1.15AA(1)(e)(ii) is met at the time of application and the time of decision.

Paragraph 1.15AA(1)(f): Whether the visa applicant is willing and able to provide substantial and continuing assistance of the kind needed.

34. The Tribunal observes that had the visa applicant attended the hearing it would have been possible to explore with him the issues of whether he is willing and able to provide substantial and continuing assistance of the kind needed by the nominator's daughter. The Tribunal notes that the evidence before it is that the visa applicant does not live with the nominator and his family. The visa applicant has admitted to the Tribunal that he worked on a fulltime basis for a period of two and a half years and that he is also currently working as a taxi driver. There is also evidence that the nominator's daughter attends school and that her grandmother also cares for her. It is also noted that at his interview, the visa applicant did not seem surprised when the delegate informed him that his application would be refused. In addition, when asked if he had anything further to add in support of his application, the visa applicant made no attempt to convince the delegate that he was Andrea's carer. Instead, he asked the delegate if there were any other onshore applications he could make. The Tribunal has taken into account the various reports submitted by the nominator in support of the application and their contents. However, as the visa applicant did not appear before the Tribunal to give evidence on his own behalf, based on the evidence before it the Tribunal cannot be satisfied that he is providing substantial and continuing assistance to the nominator and his family.

35. Based on the totality of the evidence before it the Tribunal is not satisfied that the visa applicant is willing and able to provide substantial and continuing assistance of the kind needed by the nominator and that he has done so since January 2000. The Tribunal finds that at the date of decision the visa applicant does not meet paragraph 1.15AA(1)(f) of the Regulations.

Paragraph 1.15AA(1)(e)(i): Whether the direct assistance mentioned in paragraph (b)(iv) cannot reasonably be obtained from any other relative of the resident who is also a resident.

36. In Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 the Court considered that it is appropriate for the Tribunal to make a finding of fact that the assistance required by the nominator may be derived from a number of sources or relatives where this is appropriate in the circumstances. The Tribunal is therefore required by the decision in Azzi to consider what is the nominator's need for assistance, not simply the care that the visa applicant may be able to provide. In relation to this requirement, PAM3 provides as follows:

"If another relative or the appropriate service is not available, the Australian relative may seek the assistance of a relative overseas who is willing and able to provide the service to the level required.

* another relative resides near the Australian relative but is unwilling to provide assistance; or

* the service is available in Australia but not where the Australian relative lives;

the visa decision-maker must form an opinion on the information available whether it would be reasonable to decide that, for practical purposes, the need cannot be met by that other relative or welfare/community services.

`Reasonable' should be given its usual dictionary meaning. This may be described as using commonsense, being practical or sensible, using logic, being judicious or prudent (eg some services are available for a limited number of hours and may not be adequate)."

37. The evidence indicates that apart from the nominator and his spouse, the nominator's mother lives in the family home and tends to a large portion of her granddaughter's needs. The Tribunal also notes that the visa applicant stated at interview, that when he visits the nominator's home, several times per week, there are normally other family members present with Andrea. Accordingly, based on the evidence before it the Tribunal finds that the nominator, his spouse and mother are the major carers in relation to his daughter, Andrea. As a result the Tribunal finds that there are other relatives of the nominator resident in Australia who can reasonably provide the assistance that the nominator and his family require.

38. As a result of the Tribunal's findings that the visa applicant does not meet paragraphs 1.15AA(1)(e) and (f) of the Regulations, the Tribunal is satisfied that the visa applicant does not come within the definition of a `carer' in regulation 1.15AA, both at the time of application and at the time of decision. Therefore, the visa applicant does not meet the requirements of both clauses 836.212 and 836.221 and the application must fail.

39. The Tribunal has no discretion to grant a visa on humanitarian or compassionate grounds. The love, affection and concern that two brothers may have for each other do not, by themselves, meet the definition of a `carer'.

40. Given the findings made above, the Tribunal has no alternative but to affirm the decision under review

41. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Family (Residence) (Class AO) visa.