D'Cruz (Migration)

This matter concerned an application for review of a decision to refuse a Subclass 836 (Carer visa). The applicant, a citizen of the United States, claimed to be a carer for his Australian citizen mother, Mrs Joan Philomena D’Cruze. The Tribunal was required to determine whether the applicant met the definition of a "carer" as defined in regulation 1.15AA of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant was a "relative" of the Australian resident, and crucially, whether the assistance required by Mrs D’Cruze could not reasonably be provided by any other relative who is an Australian citizen or permanent resident, or obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal accepted, based on the applicant's willingness to undergo DNA testing and oral evidence, that the applicant was indeed the son of Mrs D’Cruze, thus satisfying the "relative" requirement.

The Tribunal's reasoning focused on the availability of alternative care. While acknowledging the applicant provided care and companionship, the Tribunal found that another individual, Ms Barrett, provided a significant amount of assistance with Mrs D’Cruze's daily needs and appointments. Furthermore, the Tribunal was not satisfied that Mrs D’Cruze’s four adult grandchildren, who resided in Western Australia, could not, in combination with Ms Barrett and potentially other community services, reasonably provide the required support. The Tribunal noted that care could be provided collectively by more than one relative and that the grandchildren, despite their preferences and commitments, could reasonably contribute to their grandmother's care.

Consequently, the Tribunal affirmed the delegate's decision, concluding that the applicant had not demonstrated that the required assistance could not reasonably be provided by other relatives or obtained from community services. The Tribunal found that there was insufficient evidence that the applicant's family had meaningfully explored welfare, hospital, nursing, or community services, and that at the time of the decision, the applicant was not the sole or primary carer.