1702464 (Migration)

This matter concerned an application for a Class BO Subclass 116 (Carer) visa by two applicants, citizens of the People's Republic of China, who are the son and daughter-in-law of an Australian citizen sponsor. The sponsor, who has limited English proficiency, required care. The visa was refused by a delegate of the Minister, and this decision was affirmed by the Tribunal.

The primary legal issue before the Tribunal was whether clause 116.221 of Schedule 2 of the Migration Regulations 1994 and regulation 1.15AA were satisfied at the time of the decision. This required determining if the sponsor genuinely required substantial and continuing care and attention that could only be provided by the applicants, and if all reasonable efforts had been made to access nursing, hospital, or community services in Australia, and if family commitments precluded care from Australian relatives.

The Tribunal affirmed the delegate's decision, finding that the sponsor had access to adequate community-based services in Australia, including a Mandarin-speaking care worker and services from [Council 1], but had refused to accept them. Evidence indicated the sponsor insisted on receiving care only from family members and declined assistance from a care worker who prepared meals he later accepted when provided by family. The Tribunal found no evidence that the refusal to accept services was due to cultural factors. The Tribunal concluded that the requirements of the visa were not met.