AZIZ (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, subclass 836 (Carer), heard by Hugh Sanderson of the Administrative Appeals Tribunal. The applicant sought to demonstrate that they met the definition of a "carer" under regulation 1.15AA of the Migration Regulations 1994, which requires that the assistance needed by the sponsor cannot reasonably be provided by any other relative in Australia or obtained from Australian community services. The core dispute revolved around whether the applicant had sufficiently established that other relatives of the sponsor, who were Australian citizens or permanent residents, were unable or unwilling to provide the necessary care, and whether attempts had been made to obtain services from welfare, hospital, nursing, or community services in Australia.

The Tribunal was required to determine if the applicant met the criteria for a carer visa, specifically whether the assistance required by the sponsor could not reasonably be provided by any other relative resident in Australia or reasonably obtained from Australian community services. This involved assessing the adequacy of the evidence provided regarding the health, work, family circumstances, and general availability of other relatives, as well as the efforts made to secure external care services. The Tribunal also considered the definition of "carer" as set out in regulation 1.15AA, which necessitates that the applicant be a relative of the sponsor and that the sponsor has a medical condition causing impairment requiring direct assistance for at least two years, which cannot be reasonably provided by other Australian relatives or obtained from Australian services.

In its reasoning, the Tribunal found that the applicant had not discharged the onus of proving that the required assistance could not reasonably be provided by other relatives or obtained from community services. While the sponsor's husband was accepted as unable to provide care, the Tribunal noted the existence of numerous other relatives residing in Australia, including adult children and grandchildren. The Tribunal highlighted that statutory declarations from these relatives, which were four years old, did not constitute current information demonstrating their inability or unwillingness to provide assistance. Furthermore, no information was presented regarding attempts to obtain care from welfare, hospital, nursing, or community services. Consequently, the Tribunal concluded that the applicant did not meet the criteria for the carer visa.

The Tribunal affirmed the decision not to grant the applicants the Other Family (Residence) (Class BU) visas. As the primary applicant did not meet the criteria for the grant of the visa, the secondary applicants, who were considered members of the family unit, also did not meet the primary criteria. Accordingly, their applications were also refused.