2009447 (Migration)

This matter concerned an appeal against a decision to affirm the refusal of an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to be recognised as a carer for an Australian resident who suffered from dementia and possible Parkinson's disease, conditions expected to deteriorate and render the resident fully dependent for daily living activities. The core dispute revolved around whether the visa applicant met the criteria for being a "carer" under the Migration Regulations 1994, particularly concerning the availability of alternative care.

The legal issues before the Tribunal were whether the visa applicant was a "carer" of the Australian resident at the time of the decision, and whether the required assistance for the resident could not reasonably be provided by any other relative or obtained from Australian service providers. This involved assessing the resident's medical conditions and functional impairments, as detailed in a Carer Visa Assessment Certificate, and determining if these impairments necessitated ongoing, substantial, and continuing care that could not be met by other means.

The Tribunal considered Regulation 1.15AA, which defines a "carer" and outlines specific criteria. The evidence indicated the resident had severe functional impairment due to Alzheimer's dementia and potential Parkinson's disease, leading to full dependence in daily activities. While the resident received a Level 4 Aged Care package and assistance from her daughters, the Tribunal found insufficient information regarding the capacity and sustainability of care arrangements involving other relatives. Crucially, the Tribunal concluded that the visa applicant had not demonstrated that assistance could not reasonably be provided by other relatives or obtained from welfare, hospital, nursing, or community services in Australia, a prerequisite for the visa.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants the Other Family (Migrant) (Class BO) visas, finding that the secondary visa applicant did not satisfy the criteria for the Subclass 116 visa.