1809774 (Migration)

This matter concerned an application for a Subclass 116 (Carer) visa by a national of Lebanon, seeking to care for her mother, an Australian citizen. The visa application was initially refused by a delegate in June 2014, a decision affirmed by the Migration Review Tribunal in September 2015. The Federal Circuit Court dismissed an appeal in September 2017. However, the Federal Court subsequently set aside the Tribunal's decision and remitted the matter for reconsideration due to jurisdictional error.

The core legal issues before the Tribunal were whether the visa applicant was a "carer" as defined by the regulations, specifically whether the direct assistance the review applicant (the mother) required in attending to the practical aspects of daily life could not reasonably be provided by a relative who is an Australian citizen or permanent resident, and whether such assistance could not reasonably be obtained from welfare, hospital, or community services. The Tribunal was required to assess the reasonableness of assistance from relatives in light of the review applicant's specific needs.

The Federal Court had previously found that the Tribunal had failed to perform its statutory task by not assessing the reasonableness of assistance from relatives by reference to the mother's actual needs. The Tribunal had accepted that individual relatives could not provide the full degree of care required but was not satisfied that assistance could not reasonably be provided by relatives collectively or by community services. The current Tribunal considered updated evidence, including medical reports and a carer visa assessment, and found that the visa applicant's special cultural, linguistic, and psychological needs, coupled with the specific nature of the care required, meant that assistance could not reasonably be provided by a relevant relative in Australia.

Consequently, the Tribunal concluded that the visa applicant met the criteria for a Subclass 116 visa. The Tribunal remitted the matter for reconsideration, finding that the visa applicant was a carer as defined by the regulations and that the prescribed criteria for the visa grant were met.