1719569 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The visa applicant sought to establish that she was the carer of her mother, who is an Australian citizen. The core of the dispute revolved around whether the visa applicant's mother required assistance that could not be reasonably provided by other means available in Australia.

The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 116 visa, particularly clause 116.221 of the Migration Regulations 1994. This clause mandates that the required assistance for the Australian relative cannot be reasonably provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, nor obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal also considered the definition of a "carer" as set out in regulation 1.15AA, which includes requirements relating to a medical condition, the resulting impairment rating, and the need for ongoing assistance.

The Tribunal found that while the visa applicant's mother had a medical condition causing significant impairment, as evidenced by a BUPA certificate with a 60% impairment rating, the crucial criterion of assistance not being reasonably available elsewhere was not met. The Tribunal noted that the visa applicant's mother had several relatives in Australia and that community services were also available. Consequently, the Tribunal concluded that the necessary care could be reasonably provided by these existing relatives and community services, meaning the visa applicant did not satisfy the requirements of clause 116.221.

As the primary visa applicant failed to meet the essential criteria for the Subclass 116 visa, the Tribunal affirmed the decision not to grant the visa.