2213297 (Migration)

The Administrative Appeals Tribunal considered an application for a Subclass 836 (Carer) visa. The primary applicant, a Vietnamese national, sought to migrate to Australia with her husband and two daughters to care for her Australian citizen mother, who had functional difficulties due to medical conditions. The Department had refused the visa application, and the applicant sought review of this decision.

The Tribunal was required to determine whether the applicant had satisfied the criteria under regulation 1.15AA of the Migration Regulations 1994, specifically whether the required assistance for the sponsor could not reasonably be obtained from other relatives in Australia or from Australian welfare, hospital, nursing, or community services. The Tribunal also needed to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal reasoned that while the applicant had provided evidence of her mother's medical conditions and her own willingness to provide care, the evidence regarding the inability to obtain assistance from other sources was not sufficiently established. The applicant had indicated that her siblings and other relatives were either unwilling, uninterested, or constrained by their own commitments. However, the Tribunal noted that the Department had requested more detailed statutory declarations from these relatives, which were not fully provided or adequately addressed in the applicant's submissions. Furthermore, the Tribunal considered the limited engagement with Australian care services, noting that the available funding from the mother's home care package was not fully utilised, and the applicant's explanation for this was not entirely clear.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the criteria under clause 836.221 of Schedule 2 to the Regulations be reconsidered, including in respect of the secondary applicants.