1831981 (Migration)

This matter concerned an application for review of a decision to refuse an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to migrate to Australia to care for their mother, Ms A, an Australian citizen. The dispute centred on whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, as determined by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the direct assistance required by Ms A for the practical aspects of her daily life could reasonably be obtained from welfare, hospital, nursing, or community services within Australia, as stipulated by regulation 1.15AA(1)(e)(ii) of the Migration Regulations 1994. This criterion is a mandatory element for an applicant to be considered a "carer" for the purposes of the visa subclass.

The Tribunal's reasoning focused on the lack of evidence demonstrating that Ms A or her family had explored or sought assistance from Australian-based welfare, hospital, nursing, or community services. Despite Ms A's preference for care from family members, particularly Mandarin-speaking carers, and her stated aversion to relying on strangers due to past experiences, the Tribunal found that no reasonable steps had been taken to ascertain the availability or suitability of existing services in Australia. The Tribunal noted that Ms A's preference for family care and her refusal to consider external services did not equate to an inability to obtain such assistance.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa. The applicant failed to satisfy the requirement under regulation 1.15AA(1)(e)(ii) that the necessary assistance could not reasonably be obtained from Australian community services, and therefore did not meet the primary criteria for the Subclass 116 visa.