1829051 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), where the applicant sought to provide care for his brother, an Australian citizen. The primary dispute revolved around whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, specifically concerning the inability of other Australian relatives or Australian community services to provide the necessary assistance. The decision was made by Member Helena Claringbold of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the assistance required by the sponsor could not reasonably be provided by any other relative who is an Australian citizen, permanent resident, or eligible New Zealand citizen, and whether such assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia. Additionally, the Tribunal considered whether the applicant was willing and able to provide substantial and continuing assistance to meet the sponsor's needs. The Tribunal was required to interpret and apply clauses 116.211 and 116.221 of Schedule 2 to the Regulations, and regulation 1.15AA, considering case law such as *Anveel v MIBP* and *Jajov v MIBP* regarding the assessment of "reasonable" provision of assistance.

The Tribunal reasoned that the applicant failed to satisfy regulation 1.15AA(1)(e)(ii) because the assistance required by the sponsor could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia. While the applicant claimed to be able to provide substantial and continuing care, the Tribunal found that the criteria relating to the inability of other Australian relatives or Australian services to provide care were not met. Consequently, the Tribunal concluded that the applicant did not meet the criteria for a Subclass 116 visa.

The Tribunal affirmed the decision not to grant the applicant an Other Family (Migrant) (Class BO) Carer visa, finding that the applicant did not meet the prescribed criteria for the visa sought.