DINH (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for his Australian citizen father, the sponsor. The central dispute revolved around whether the necessary assistance for the sponsor could not reasonably be obtained from Australian welfare, hospital, nursing, or community services, and whether the applicant was willing and able to provide substantial and continuing assistance. The case was heard by Helena Claringbold.

The court was required to determine two primary legal issues. Firstly, whether the assistance required by the sponsor could not reasonably be provided or obtained from Australian welfare, hospital, nursing, or community services, as stipulated by Regulation 1.15AA(1)(e)(ii) of the Migration Regulations 1994. Secondly, the court had to assess whether the applicant was willing and able to provide substantial and continuing assistance to the sponsor, as required by Regulation 1.15AA(1)(f).

The court's reasoning focused on the sponsor's deteriorating health and the limitations of existing care arrangements. Evidence indicated that the sponsor's wife, the primary carer, suffered from chronic pain and cognitive decline, making her unable to provide adequate care. Statutory declarations from other relatives highlighted their own work commitments and the difficulties they faced in managing the sponsor's aggressive behaviour and complex medical needs. The applicant, however, demonstrated a willingness and ability to provide the necessary 24-hour care, having already been providing assistance and establishing a trusted relationship with the sponsor, who responded best to his care. The court found that the criteria under Regulation 1.15AA(1)(e)(i), (e)(ii), and (f) relating to clause 836.221 of Schedule 2 to the Regulations were met.

Consequently, the Tribunal remitted the applications for reconsideration by the Minister. The direction was that the first visa applicant met the specified criteria for a Subclass 836 (Carer) visa, and that the other named visa applicants should be considered against the relevant criteria for the grant of their visas.