2425725 (Migration) - [2024] ARTA 860

2425725 (MIGRATION) [2024] ARTA 860 (3 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2425725

Tribunal:Senior Member M Bourke
Place:Melbourne
Date: 3 December 2024
Decision:The Tribunal sets aside the decisions under review and remits the applications for an Other Family (Migrant) (Class BO) visa for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for a Subclass 116 (Carer) visa:
- cl.116.211, cl.116.212 and cl.116.221 of Schedule 2 to the Regulations; and
the Tribunal sets aside the decisions under review and remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, in accordance with the order that the second, third, fourth and fifth named visa applicants meet the following criteria for a Subclass 116 (Carer) visa:
- cl.116.311 of Schedule 2 to the Regulations.

Statement made on 03 December 2024 at 10:28am
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – member of the family unit – visa applicant’s understanding of multiple sclerosis – employment experience as a nurse or carer – family commitments and health requirements of Australian relatives – services obtained through NDIS – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.212, 116.221, 116.311, 116.321; rr 1.03, 1.12, 1.15, 2.08
CASES
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 July 2024 to refuse to grant the visa applicant an Other Family (Migrant) (Class BO) Subclass 116 visa under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 8 September 2021. At that time, Class BO contained three subclasses, subclass 114 (Aged Dependent Relative), Subclass 115 (Remaining Relative) and Subclass 116 (Carer): Item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the visa applicants are seeking to satisfy the criteria for the grant of a Subclass 116 visa. Relevantly to this case, the primary criteria to be met includes cl.116.221, which require that the primary visa applicant meets the definition of carer as set out in reg 1.15AA.
The delegate refused to grant the visa on the basis that the primary visa applicant did not meet the requirements in reg 1.15AA(1)(e) and (f) and therefore did not meet the definition of carer for the purposes of cl.116.221.
The Tribunal has considered the documents, statements, information and submissions provided to it by the review applicant. The Tribunal may make a decision without holding hearing if it is satisfied that s.106(3) applies. In this review, the only parties to the preceding are the review applicant, and the Minister who was a nonparticipating party. The Tribunal is satisfied that the decision it will make is wholly in favour of the review applicant, and the Tribunal is satisfied that the issues for determination in the review can be adequately determined in the absence of the parties to the proceeding. For these reasons the Tribunal has decided to make a decision in the review without holding hearing after considering all the information before it.
The review applicant was represented in relation to the review.
The following are the written reasons that the Tribunal has concluded the decision under review is set aside and the matter should be remitted back to the Department for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information available to the Tribunal
The Tribunal has considered the Department’s decision record dated 19 July 2024. The Tribunal is satisfied that the review applicant did not provide the Department with a complete list of his Australian relatives. The Tribunal is satisfied that the review applicant provided unsigned letters and incomplete information to the Department.
The Tribunal is satisfied that a Carer Visa Assessment Certificate dated 15 April 2021 confirms the review applicant was born in [specified year], and has been diagnosed with Multiple Sclerosis, and has formal services provided through NDIS on a daily basis to assist the review applicant with going to the gym or attending appointments. The Tribunal is satisfied the review applicant receives a disability support pension, and has appointments with a general practitioner and a neurologist. The Tribunal is satisfied that the review applicant requires assistance with mobility supervision of his medication and for his personal safety and requires assistance with transportation. The Tribunal is satisfied that the review applicant’s condition is impacting his physical and mental health. The Tribunal is satisfied that the review applicant currently lives in a room provided by his brother, [Brother A]. The Tribunal is satisfied that the review applicant was assessed as having a permanent medical condition and was given an impairment rating of 30.
The Tribunal received a current medical report from the review applicant’s neurologist dated 13 June 2024. The neurologist confirmed he spoke to the review applicant in a telephone consultation at the neuro-immunology clinic in May 2024 and confirmed the review applicant is well with no new symptoms or relapse or functional decline. The report confirmed the review applicant had missed previous clinic appointments and an appointment for his prescribed infusion.
The review applicant provided Tribunal with a list of his family members who resided in Australia and in Lebanon. The Tribunal is satisfied that the review applicant has [specified relatives] who reside in Lebanon, and [specified relatives] who are deceased.
The Tribunal has considered the statutory declarations and medical reports in relation to the review applicant’s father and stepmother, both of whom are Australian citizens, and is satisfied that the review applicant’s father is a pensioner who suffers from trauma, personality disorder, severe depression and other chronic disorders, and his current wife also suffers back pain and is on medication for depression and anxiety. The Tribunal is satisfied that the review applicant’s father and stepmother also have two school-age [children] aged [ages] years, and are unable to care for the review applicant due to their health conditions and family commitments.
The Tribunal is satisfied that the primary visa applicant is the sister of the review applicant who resides in Lebanon, and who is married with three children, all aged [age range].
The Tribunal is satisfied that the review applicant has two other sisters who are Australian citizens. The Tribunal is satisfied that the review applicant’s sister, [Sister A], is married with [number] school-age children whose husband works full-time. The Tribunal is satisfied that [Sister A] offers limited assistance to the review applicant, including assisting him with cleaning and having him over for meals. The Tribunal is satisfied based on a radiology report, that [Sister A] is diagnosed with [specified medical conditions]. The Tribunal is satisfied that the review applicant’s sister [Sister B] is married, has [number] children, including young twins with special needs and her husband works full-time running a business. Further the Tribunal is satisfied based on a medical report that [Sister B] is diagnosed with [specified medical conditions]. The Tribunal is satisfied that the review applicant’s two Australian citizen sisters are unable to provide the care he requires due to their health conditions and family commitments.
The Tribunal is satisfied that the review applicant has three Australian citizen brothers. The Tribunal is satisfied based on the medical reports, birth certificates, employment confirmation and statutory declarations that the review applicant’s brother [Brother B] is employed full-time, is married, and has a child who was born prematurely, is diagnosed with [a medical condition] and is currently in hospital. The Tribunal is satisfied based on statutory declarations, birth certificate and medical reports from the [named] Hospital that the review applicant’s brother [Brother C] is married, has [number] children, the youngest of whom who was born in [year] and diagnosed with [specified medical conditions], and works full-time. The Tribunal is satisfied based on statutory declarations, business documents and birth certificates that the review applicant’s brother [Brother A] is married, has one child and his wife is currently pregnant, owns and manages a [business], and currently provides the accommodation for the review applicant. The Tribunal is satisfied that the review applicant’s three Australian citizen brothers are unable to provide the care the review applicant requires due to their employment and family commitments, and in the case of [Brother B] and [Brother C], due to the serious health conditions of their babies.
The Tribunal is satisfied that the review applicant has had an admission to psychiatric hospital for mental health issues. The Tribunal is satisfied that the care he requires must reasonably be provided by someone who can provide the support for his mental health and physical health needs. The Tribunal is satisfied that the review applicant has two Australian citizens stepsisters with whom the review applicant does not have a strong relationship. The Tribunal is also satisfied that the review applicant has [number] Australian citizen [relatives], who due to their age and their lack of connection with the review applicant cannot provide the care that he requires.
The Tribunal has considered the statement of the primary visa applicant signed and dated 22 October 2024. The Tribunal is satisfied that the review applicant has a strong connection with the primary visa applicant, and that she has an understanding of his diagnosis of multiple sclerosis, and an understanding that he has been largely alone since his mother died. The Tribunal has considered the primary visa applicant is able and willing to provide the review applicant with support and responsibilities including organising and supervising his medications and his appointments, assisting him with personal care including bathing dressing and eating, encouraging his physical activities as advised by health professionals, maintaining clean and hygienic living spaces for him and facilitating social interaction to reduce his feelings of isolation. The primary visa applicant provided a statement identifying the needs of the review applicant and the assistance and commitment she had to providing that care. The primary visa applicant also stated she had worked for a short period of time as a nurse or carer at a primary health care clinic. The primary visa applicant also stated she is aware of the need to balance her commitments to her family and her commitment to caring for the review applicant.
The Tribunal also has taken into account the commitment of the review applicant’s siblings in Australia to provide the financial support to rent accommodation for the primary visa applicant and her family and the review applicant in the circumstances that the visa is granted.
Time of application criteria
Clause 116.211 requires that the visa applicant claims to be a carer of an Australian relative. In the present case the visa application was made on the basis that the primary visa applicant is a carer of the review applicant who is the visa applicant’s brother.
The Tribunal has considered the application form, identity documents, translated Lebanon extract family registration, statements and statutory declarations and is satisfied that at the time of application the primary visa applicant claim to be a carer of an Australian relative, namely her brother, and satisfies the requirements of cl.116.211.
Clause 116.212 requires that at the time of application the primary visa applicant is sponsored by an Australian relative (or spouse or de facto partner of the Australian relative) who has turned 18. The Tribunal has considered the sponsorship form signed by the review applicant dated 25 May 2021. The Tribunal has considered the identity documents which confirmed the review applicant was born in [year] and was over the age of 18 at the time of application. The Tribunal is satisfied that at the time of application the primary visa applicant was sponsored as required by the legislation, and satisfies the requirements of cl.116.212.
The Tribunal is satisfied that the primary visa applicant meets the time of application requirements in cl.116.211 and cl.116.212, and therefore the Tribunal is satisfied the primary visa applicant satisfies the primary criteria in Subdivision 116.21.
Whether the primary visa applicant is a ‘Carer’
Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or resident). The term carer is defined in reg 1.15AA of the Regulations.
Applicant is a relative of the resident – reg 1.15AA(1)(a): – requires the applicant is a relative of the resident who is the Australian relative (within the meaning of reg 1.03, that is a ‘close relative’ or other specified relation) in the present case the Australian relative is identified as the primary visa applicant’s brother. Based on the translated Lebanon extract of family registration, from the district of Akkar, which records the primary visa applicant and the review applicant are full biological siblings with the same parents, the Tribunal is satisfied that the primary visa applicant is the sister of the review applicant. The Tribunal is satisfied that the review applicant is an Australian citizen since 2023, and is a relative within the meaning of reg. 1.03, namely the brother of the primary visa applicant, and resides in Australia.
Accordingly the primary visa applicant is a relative of the Australian relative, the review applicant. The Tribunal is satisfied that the primary visa applicant meets the requirements of reg 1.15AA(1)(a).
Carer Visa Assessment Certificate – reg 1.15AA(1)(b) : – requires a certificate which meets the requirements of reg 1.15AA(2), states that a person (the Australian resident or a member of the family unit of the resident) has a medical condition, the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life, and the impairment has, under the Impairment Tables, the rating that is specified in the certificate, and because of the medical condition, the person has, and will continue for at least two years to have, a need for direct assistance in attending to the practical aspects of daily life. For a certificate to meet reg 1.15AA(2), it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister in accordance with Legislative Instrument IMMI 14/085.
The Tribunal has considered the Carer Visa Assessment Certificate dated and signed 15 April 2021 and is satisfied it meets the requirements of 1.15AA(2). The Tribunal finds that the certificate provided addresses each of the requirements mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly the Tribunal is satisfied that the primary visa applicant meets the requirements of reg.1.15AA(1)(b).
Residency status of person with medical condition – reg 1.15AA(1)(ba): – requires the person who has a medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The Tribunal is satisfied based on the records in the Department filed that at the time of application the review applicant was an Australian permanent resident. The Tribunal is satisfied that at the time of decision the review applicant is an Australian citizen. Accordingly the Tribunal is satisfied the primary visa applicant meets the requirements of reg 1.15AA(1)(ba).
Impairment rating – reg 1.15AA(1)(c): – requires that the impairment rating must be equal to or exceed the impairment rating specified in the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126. In the present case, the impairment rating specified in the certificate is 30. This rating is equal to the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).
Residents need for assistance – reg 1.15AA(1)(d): – where the person to whom the certificate relates is not the Australian relative (or resident), but a member of their family unit, reg 1.15AA(1)(d) requires the Australian relative to have a permanent or long-term need for assistance in providing the direct assistance mentioned in reg 1.15AA(1)(b)(iv). That direct assistance is the subject of the certificate attending to the practical aspects of daily life for at least two years as a result of the medical condition. As the person to whom the certificate relates is the Australian relative, reg 1.15AA(1)(d) does not apply.
Assistance cannot reasonably be obtained or provided – reg 1.15AA(1)(e): – requires that the assistance cannot reasonably be provided by (i) any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible New Zealand citizen, or (ii) obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal has considered the physical and mental health requirements of the review applicant. The Tribunal has considered the circumstances of the relatives of the review applicant who are Australian citizens, permanent residents or eligible New Zealand citizens. This was discussed in detail earlier in this decision record. The Tribunal is satisfied that the assistance the review applicant requires cannot reasonably be provided by any other relative of the review applicant who is an Australian citizen, permanent resident or eligible New Zealand citizen.
The Tribunal has considered the review applicant has obtained services through NDIS, through Centrelink, through his general practitioner and through his neurologist at the hospital. The Tribunal is satisfied that the review applicant has obtained services available to him through welfare, hospital, nursing and community services in Australia. The Tribunal is satisfied that the review applicant is missing appointments, and requires more assistance to meet his physical health and mental health needs. The Tribunal is satisfied that the assistance the review applicant requires cannot be obtained only from the welfare, hospital, nursing or community services in Australia. Therefore, the Tribunal is satisfied that the requirements of reg. 1.15AA(1)(e)(i) and (ii) are met. Accordingly, the Tribunal is satisfied that the primary visa applicant meets the requirements of reg. 1.15AA(1)(e).
Willing and able – reg 1.15AA(1)(f): – requires that the primary visa applicant is willing and able to provide the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the visa applicant’s state of mind. In contrast the issue of ability is an objective enquiry as to whether the visa applicant is a person who is suitable for it to provide the assistance: Xiang v MIMIA [2004] FCAFC 64. The term ‘substantial and continuing assistance’ has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of ‘special need relative’ in the regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term ‘substantial’ is directed to the level of assistance and the term ‘continuing’ is directed at the duration of the assistance and that it is a composite phrase, in the sense that it’s two elements are cumulative. Although the comments in this case were not made in the context of the definition of ‘carer’ the Tribunal considers them to be of assistance when considering that definition.

The Tribunal has considered the statement of the primary visa applicant, and the information provided by the review applicant and his siblings and father and stepmother. The Tribunal is satisfied that the primary visa applicant is able to provide the review applicant with the care that he requires, and that the review applicant is willing to have the care provided by his sister, the primary visa applicant. The Tribunal is satisfied that the primary visa applicant is willing and able to provide substantial assistance to the review applicant, and is willing and able to continue to provide this assistance for as long as it is required. The Tribunal is satisfied that the care the primary visa applicant would provide would include the review applicant living with her family, supervising his medication, attending to his daily needs, including personal hygiene and preparing meals, assisting him with transport to appointments, providing him with support with physical activity and social interaction.
Therefore the Tribunal is satisfied that the primary visa applicant is willing and able to provide the Australian relative with substantial and continuing assistance of the kind needed, to assist with both his physical and mental health needs, and accordingly meets the requirements of reg.1.15AA(1)(f).
Conclusion: – given the above findings the Tribunal concludes that at the time of decision the primary visa applicant is a carer of the Australian relative within the meaning of reg. 1.15AA(1), and therefore satisfies the requirements of cl.116.221.
Secondary visa requirements
Clause 116.311 requires that at the time of application secondary visa applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivisions 116.21.
Based on the application form, the Tribunal is satisfied that the second, third and fourth visa applicants made a combined application with the primary visa applicant.
The fifth named visa applicant was born after the time of application, and therefore was not practically able to be included in the application for the visa. The fifth named visa applicant was included in the application for the review lodged with the Tribunal. Pursuant to reg 2.08, a child born to the primary visa applicant after the primary visa application is made but before it is decided are taken to have applied for the visa of the same class as the parent at the time they were born. Based on the birth certificate the Tribunal is satisfied that the fifth named visa applicant was born in September 2023, which was after the application was made on 8 September 2021, and prior to the Department decision being made on 19 July 2024. Applying reg 2.08, the Tribunal is satisfied that the fifth named visa applicant is taken to have made a combined application with the primary visa applicant.
Based on the translated registered marriage certificate the Tribunal is satisfied that the second named visa applicant is the spouse of the first named visa applicant. The Tribunal is satisfied that the second named visa applicant is a member of the family unit of the primary visa applicant within the meaning of reg 1.12(2)(a).
Based on the translated identity documents, family registration extract, passports and other information provided, the Tribunal is satisfied that the third, fourth and fifth named visa applicants are the children of the primary visa applicant and the second named visa applicant. The Tribunal is satisfied that the third, fourth and fifth named visa applicants are all aged under 18 and are the dependent children of the primary visa applicant and the second named visa applicant. The Tribunal is satisfied that the third, fourth and fifth named visa applicants are members of the family unit of the primary visa applicant within the meaning of reg 1.12(2)(b).
As stated above the Tribunal is satisfied the primary visa applicant satisfies the primary criteria in Subdivision 116.21.
For the above reasons are Tribunal is satisfied that the four secondary visa applicants are members of the family unit of, and made combined applications with the primary visa applicant, who is a person who satisfies the primary criteria in Subdivision 116.21. Accordingly the Tribunal is satisfied that the four secondary visa applicants, namely the second, third, fourth and fifth named visa applicants, meet the time of application criteria in cl.116.311.
Given the findings above, the appropriate course is to set aside the decisions under review and remit the applications for the visas to the Minister to consider the remaining criteria for the Subclass 116 visas.
DECISION
The Tribunal sets aside the decisions under review and remits the applications for Other Family (Migrant) (Class BO) visa for reconsideration, in accordance with the order that the first named visa applicant meets the following criteria for Subclass 116 (Carer) visa:
– cl.116.211, cl.116.212 and cl.116.221 of Schedule 2 to the Regulations; and
the Tribunal sets aside the decisions under review and remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration in accordance with the order that the second, third, fourth and fifth named visa applicants meet the following criteria for a Subclass 116 (Carer) visa:
– cl.116.311 of Schedule 2 to the Regulations.
Date(s) of hearing: N/A
Representative for the Applicant: Ms Fatima Dennaoui (MARN: 1688204)