Geromiano (Migration) - [2025] ARTA 1503

GEROMIANO (MIGRATION) [2025] ARTA 1503 (15 JULY 2025)
Applicant:Ms Shirley Unay Geromiano
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2207195
Tribunal:Senior Member M Sripathy
Place:Sydney
Date:15 July 2025

CORRIGENDUM
Date of Corrigendum: 20 August 2025

Pursuant to s 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alteration is made to the decision:
The reference to “Subclass 836 (Remaining Relative) visa” on the front page of the decision record is altered to read “Subclass 836 (Carer) visa” as follows:
Decision:   The Tribunal sets aside the decision under review
and remits the application for an Other Family
(Residence) (Class BU) visa for reconsideration,
with the order that the first named applicant
meets the following criteria for a Subclass 836
(Carer) visa:
·     cl 836.213 of Schedule 2 to the Regulations;
and
·     cl 836.221 of Schedule 2 to the Regulations.

Statement made on 20 August 2025 at 5:05pm
DECISION AND
REASONS FOR DECISION
Applicant:Ms Shirley Unay Geromiano
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2207195

Tribunal:Senior Member M Sripathy
Place:Sydney
Date:  15 July 2025
Decision:The Tribunal sets aside the decision under review and remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the order that the first named applicant meets the following criteria for a Subclass 836 (Remaining Relative) visa:
·     cl 836.213 of Schedule 2 to the Regulations; and
·     cl 836.221 of Schedule 2 to the Regulations.

Statement made on 15 July 2025 at 3:01pm
CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – carer for de facto partner – relationship, sponsorship and assistance cannot reasonably be provided by other relative or obtained from provider – two previous partner visa applications – inception and development of relationship – medical conditions and care required – three children live too far away, one’s part-time work and another’s own health – no obligation for adult children to provide care – home care package not fully utilised, but even full utilisation would not provide level of care required – spontaneous and credible evidence, documentary evidence and supporting statements – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulation 1994 (Cth), rr 1.03, 1.09A(3), 1.15A, 1.15AA(1)(e), (f), Schedule 2, cls 836.213, 836.221
CASES
MIBP v Angkawijaya [2016] FCAFC 5
Perera v MIMIA [2005] FCA 1120
Xiang v MIMIA [2004] FCAFC 64
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 13 May 2022 to refuse to grant the visa applicant a Other Family (Residence) (Class BU) Subclass 836 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicant applied for the visa on 22 May 2019. At that time, Class BU contained three subclasses, Subclass 835 (Remaining Relative); Subclass 836 (Carer) and Subclass 838 (Aged Dependent Relative: item 1123B of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 836 visa. The criteria for a Subclass 836 visa are set out in Part 836 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 836.221, which requires the applicant to be the carer of a person referred to in cl.836.212, which in turn requires the applicant to claim to be the carer of an Australian relative. The application was sponsored by Arthur James Heron, an Australian citizen, who the applicant claims is her de facto partner and in respect of whom the applicant claims to be the carer.
The delegate refused to grant the visa on the basis that the Department had received no documentary evidence to support that the visa applicant met various criteria, including that she was a relative of the sponsor, or that the application was sponsored, or that the assistance required by the Australian relative cannot reasonably be provided by any other relative of the resident or cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia as required by r.1.15AA(1)(e) or that the applicant was willing and able to assist the resident, as required by 1.15AA(1)(f) and therefore the delegate was not satisfied the applicant met cl.836.221.
The applicant appeared before the Tribunal by video conference on 10 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor Mr Arthur Heron. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.
For the following reasons, the Tribunal has concluded that the decision under review is set aside and the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The applicant is 35 years old, and a national of the Philippines. She applied for the visa on the basis of being the Carer for her de facto partner Arthur Heron, 88 years old, who she claimed has multiple health conditions and requires daily assistance.
The application is sponsored by Mr Heron, an Australian born citizen, born in 1937. He provided a sponsorship form signed on 21 May 2019, in which he indicated his relationship status as de facto, naming the applicant as his partner and provides the same residential address as the applicant. He stated that he lives in a one-bedroom retirement unit which he owns.
On 20 February 2020 the following material was submitted: Carer visa Assessment Certificate dated 11 February 2020; applicant’s Visitor visa grant notice; copy of sponsor’s Divorce order dissolving the marriage with Larrie Ann Heron; applicant and sponsor’s birth certificates; applicant’s certificate of good moral character; photos of applicant and sponsor together as a couple.
On 11 October 2021, the Department requested further information including: evidence of Enduring power of attorney and letter of support for sponsorship; evidence about why the required assistance cannot be reasonably obtained from welfare, hospital, nursing or community services in Australia; Evidence the applicant is willing and able to provide the assistance required; Declaration of all adult relatives in Australia of Arthur James; evidence why any other relative in Australia cannot reasonably provide assistance; and evidence of the applicant’s relationship with her de facto partner Arthur James Heron.
The delegate’s decision record refers to requests for extension to provide the information, which was provided to 16 December 2021. As at the date the decision was made, 13 May 2022, the delegate stated no documentary evidence as requested was received. The decision was made on the basis that insufficient evidence was provided to satisfy the delegate that the criteria for the visa are met.
Evidence before the Tribunal
In correspondence to the Tribunal in June 2022 the sponsor, who was appointed as the review applicant’s representative, advised that contrary to what was stated in the delegate’s decision a substantial volume of evidence was submitted by the applicant in support of the application, and he was concerned that this was not received or lost by the Department.
On 30 June and 13 July 2022, the representative (sponsor) forwarded a redacted copy of the Department file obtained under FOI, which contained the submissions and evidence sent by the applicant in December 2021. This included the following:
·Form 54 Family Composition form – setting out sponsor’s children and sibling
·Part G Q 58 & 59 Details of applicant and sponsor’s family
·Form 80 completed for applicant
·Cover letter setting out attached evidence and addressing circumstances of the relationship
·Statutory Declaration by applicant dated 25 November 2021
·Statutory Declaration by sponsor dated 25 November 2021
·Statutory Declaration by Larrie Ann Heron dated 25 November 2021
·Statutory Declaration by Roger Lucky dated 30 November 2021
·My Aged Care My Support Plan (generated 30/8/2017)– referring to ACAT Assessment conducted 29 August 2017 – approvals for Level 4 Home Care Package, Residential permanent care and Residential respite high care
·Enduring Power of Attorney to Larrie Ann Herron signed 18 April 2018 and Lee William Herron (secondary) signed 16 August 2018.
·Various Medical reports and letters relating to the sponsor
·Will of sponsor dated 24 August 2021
·Applicant’s Suncorp bank statements March -June 2021
·Suncorp bank statements for a joint account – December 2019-January 2020, October -November 2020
·Sponsor’s Suncorp Growth Saver bank statement showing balance of $95,563 at October 2021
·Letter relating to lease renewal for an address in Zillmere, addressed to applicant and sponsor dated 1 September 2020
·Australian Seniors Insurance Policy in sponsor’s name, nominating applicant as 100% beneficiary
On 14 May 2025, following constitution of the matter to the presiding member, a request for updated evidence and information was sent to the applicant, requesting evidence relating to the partner relationship with the sponsor and care arrangements.
On 15 May 2025 the representative (sponsor) provided the following information in an email - they had been waiting under stress for 3 years before the Tribunal and previous 4 years before the Department for resolution of this application. Due to the restriction of not being able to make more than two partner visa applications he decided to apply for a carer visa for the applicant. Their life together proves how supportive they are to each other. His health has deteriorated a lot since the application was made to the Tribunal in 2022. He has had heart failure in February 2024 and a pacemaker installed, he is incontinent and legally blind. They have now moved from Brisbane to Townsville and live in a granny flat under his son, Marshall’s, family home. The applicant helps his son’s wife to care for Marshall who is under NDIS care. He is getting a Level 4 package from Anglicare for the last 5 months but it is not enough to meet his needs. None of his other family are able to care for him and his whole existence relies on the applicant. She makes his life worthwhile. They have a joint bank account and the applicant also has her own account. She is also the beneficiary of his funeral policy and a beneficiary under his will. They enjoy each other’s company and have never had an argument. The applicant volunteers with Anglicare so she can accompany him with official care on outings. All of his adult children love her.
Attached with this email are Statutory Declarations from his daughter, Maria Hudson and Joan Herron, wife of his son, Marshall.
On 11 June 2025 the Tribunal received the following further documents and information:
·Statutory Declaration by applicant dated 10 June 2025 addressing their ongoing relationship, what she does for him, circumstances of sponsor’s other family members and why they cannot provide the care he requires, and sponsor’s ongoing medical conditions and care needs.
·Statutory Declaration by sponsor dated 10 June 2025 addressing the ongoing partner relationship with applicant what she does for him and referring to attached evidence.
·Statutory Declaration by Marshall, son of sponsor dated 10 June 2025, explaining he cannot provide care because of his own disabilities, and describing the care the applicant gives to his father,
·Statutory Declaration by Lee, son of sponsor dated 10 June 2025, describing the care the applicant gives to his father and his need for that care to continue.
·Joint bank account statements for periods in September/October 2024 and March/April 2025
·Various GP and specialist letters relating to the sponsor’s current health conditions
·Revised Will of sponsor dated 17 December 2024
·Email from Anglicare to applicant about volunteering
·Correspondence about Aged care Home Care Package dated April 2025
·Statutory Declaration by Joan Heron, wife of Marshall, dated 14 May 2025 attesting to relationship between applicant and sponsor and care assistance she gives him
·Photos of the couple
Tribunal hearing
The Tribunal took oral evidence, separately, from the applicant and sponsor at hearing. It questioned each of them, over several hours, addressing factual matters relevant to the various issues arising in the matter, including whether the applicant is the de facto partner of the sponsor; and whether the assistance the sponsor requires cannot reasonably be provided by other relatives or obtained from services and whether the applicant is willing and able to provide the assistance. They each gave evidence about their current living arrangements and address history; the applicant’s migration history; the sponsor’s relationship history and family composition; the sponsor’s medical conditions and care arrangements currently in place. Their evidence about common matters was broadly consistent. The Tribunal found each of them to be direct, forthcoming and spontaneous in their responses to the Tribunal’s questions. It is satisfied they were honest witnesses and accepts their oral evidence as generally credible. Further specific documents to support claims made at hearing were requested to be provided following the hearing. Details of the evidence as relevant is provided in the discussion below.
On 13 July 20205 the Tribunal received the following documents:
·Statutory Declaration by Maria Hudson, daughter of the sponsor, dated 13 July 2025, explaining her circumstances and why she cannot provide care for the sponsor, accompanied by photo ID and copy of her employment contract
·Statements of applicant and sponsor’s joint bank account for periods April – July 2025
·Statement of applicant’s personal bank account for April -June 2025
·Occupational Therapy Functional Report relating to Marshal Heron dated November 2024.
Are the sponsorship requirements met?
Clause 836.213 requires that at the time of application the applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, ‘relative’, ‘Australian permanent resident’ and ‘eligible New Zealand citizen’ are defined in reg 1.03 of the Regulations, and includes spouse or de factor partner. ‘Spouse’ is defined in s 5F of the Act and in reg 1.15A of the Regulations whilst ‘de-facto’ partner is defined in s 5CB of the Act and r.1.09A of the Regulations.
The applicant claims she is the de facto partner of the sponsor who is the Australian relative she is claiming to be the carer of. The first issue that arises for consideration in this matter is whether the applicant is the de facto partner of the Australian relative sponsor, Mr Arthur Heron.
At hearing the Tribunal asked each of the applicant and sponsor about the inception and development of the relationship and questioned them about matters relating to the circumstances of the relationship as referred to in r.1.09A(3). They both gave consistent evidence that the relationship commenced in around May 2018. The applicant described first meeting the sponsor at a party held by a friend in 2017, he was with someone else at the time, and she attended and met him as a friend. After this she returned to her home village and the following year in 2018, he called her up on the recommendation of her friend. He paid for her to come to where he was staying in Angeles, and she agreed. While there, he asked her if she would stay with him and look after him. She agreed and stayed with him for some months after that. They lived together in his hotel and the relationship developed from that time. He talked to her about wanting someone to be his ‘pair of eyes’. The sponsor’s account of the beginning of their relationship was consistent, but he provided more context and detail. In his evidence he described his own relationships history, having been married three times previously, twice to Filipino women, who were much younger than him. These previous relationships were longstanding, and he has children, adopted and natural, of the relationships. The applicant has not had any previous marriages but she had a previous relationship, also with an older man.
After some time living with him in the Philippines, the sponsor returned to Australia and asked her if she would come and live with him and look after him. She agreed and subsequently came in on a Tourist visa. The sponsor in his evidence to the Tribunal said he sought advice from a migration agent about sponsoring her and was informed that he would have difficulty sponsoring her for a Partner visa because he had already sponsored two partners and there was a limit on sponsorships, so he was advised that he could apply for her as a Carer. He said he sponsored her for her tourist visa and assumes he would have mentioned her as his partner but given the passage of time and his poor memory he cannot be sure.
Regarding the circumstances of the relationship since the applicant has been in Australia, the Tribunal heard consistent evidence from each of them, which is supported by the documentary evidence provided. This evidence is that the applicant has been living with the sponsor continuously since she arrived in September 2018, almost 7 years, at various addresses. They initially lived together at his unit in Deacon, then for several years in Zillmere, Brisbane and now in Currajong. The Tribunal is satisfied on this evidence that the applicant and sponsor are and have been since her arrival in Australia, living together and this is consistent with being in a de facto relationship.
The sponsor fully financially supports the applicant since her arrival. They opened a joint back account into which he deposits funds which they use for living expenses. They also opened a bank account for her into which the sponsor has deposited money, so that she has access to funds were anything to happen to him. She told the Tribunal she rarely uses this account, and it has a healthy savings balance. A copy of the statement provided following the hearing confirms a balance as at the end of June 2025 of just over $12,500. They do not own any property together. The sponsor sold the unit he had when she arrived, which was solely in his name, and deposited the funds in his savings account which is used for their joint expenses. He has provided for her in his will, recently changing it to make her an executor and beneficiary along with all of his children. He has also changed his funeral insurance policy making her the sole beneficiary. The Tribunal is satisfied on this evidence that the applicant is wholly financially reliant on the sponsor and these circumstances are not inconsistent with the existence of a de facto relationship.
Regarding social aspects of the relationship, numerous Statutory Declarations from their previous neighbour, sponsor’s daughter, Maria, daughter in law Joan Heron, and various doctors’ letters refer to the applicant as the partner of the sponsor. The Tribunal is satisfied that they are known as a couple to friends and family. The sponsor gave evidence that his Centrelink pension payment was reduced to partner rate when the applicant applied for a Medicare card. He said prior to this he did not know that he had to inform Centrelink because he has little contact with them. They both gave evidence to the Tribunal that they do everything together, they are home together all the time, she cooks, cleans and cares for him. She accompanies him on his outings with the aged care service providers. They had a holiday together in Cairns some years ago, but neither have had any holidays anywhere since then. The Tribunal is satisfied that the evidence of social aspects of the relationship are consistent with a de facto relationship.

Finally, regarding the nature of the commitment, the applicant told the Tribunal she is fully committed to the sponsor to the end of his life. She said she believes he loves on the basis that he worries about her like she does for him. She said he accepts her as she is and accepts her background despite being poor. She loves him despite their substantial age gap. She said that after he passes away, she may consider other aspects of her life such as having children but she is committed to him until then. The sponsor stated that they have been inseparable since she came here and she treats him better than anyone has treated him before. In terms of what he gives her he said he would give her anything she asks for but she does not ask him for much. He takes care of her financially completely and has provided for her in future also.
The Tribunal has considered the evidence and all the circumstances of the relationship, holistically and in the context of the applicant and sponsor’s particular situation. While on the one hand many aspects of the arrangements and circumstances of the relationship between the applicant and sponsor are of a carer/caree nature, on the other hand these same arrangements and circumstances are also consistent with a de facto relationship. As judicial authority makes clear, the presence or absence of ‘romantic love’ is not determinative when considering a claimed de facto relationship and whether the parties to the relationship have different motivations does not exclude them from being in a genuine de facto relationship[1], the task is to consider all the circumstances of the relationship and assess whether the criteria in s5CB are met. In the present case, having considered all the evidence before it, and giving significant weight to their continuous cohabitation for almost 7 years, evidence of financial dependency and social recognition of the parties as a couple, it is satisfied that the evidence supports a finding that the applicant is the de facto partner of the sponsor, and was his de facto partner at time of application. ‘
[1] MIBP v Angkawijaya [2016] FCAFC 5
Having found that the applicant was the de facto partner of the sponsor at time of application, and therefore his ‘relative’, it is satisfied that she was sponsored by the Australian relative.
Therefore, at the time of application, the applicant was sponsored as required by the legislation and satisfies cl 836.213.
Whether the applicant is a carer
Clause 836.221 requires that at the time of decision, the applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer’ is defined in reg 1.15AA of the Regulations which is set out in the attachment to this Decision.
Applicant is a relative of the resident – reg 1.15AA(1)(a)
Regulation 1.15AA(1)(a) requires that the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the applicant’s de facto partner.
Therefore, as the applicant is the de facto partner of Arthur Heron, the sponsor, who is the Australian resident the applicant is a ‘relative’ of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).
Certification – reg 1.15AA(1)(b)
Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 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 (see Legislative Instrument IMMI 14/085) or issued by a specified health provider in relation to a review of such an opinion.
The Tribunal has before it a certificate dated 11 February 2020 that relates to a medical assessment carried out on behalf of Bupa Medical visa Services and is signed by a medical advisor who carried it out. The certificate states that the Australian relative (resident) has various medical conditions which cause physical, intellectual or sensory impairments of the ability of that person to attend to practical aspects of daily life, a total impairment rating of 30 under the impairment tables has been assigned, and because of the conditions, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificate provided meets the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.
Residency status of person with medical condition – reg 1.15AA(1)(ba)
Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
In the present case, the person with the medical condition is an Australian born citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
Impairment rating – reg 1.15AA(1)(c)
Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument. The relevant instrument for these purposes is IMMI 17/126 which specifies the impairment rating for this purpose as 30.
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).
Resident’s need for assistance (where s/he is not the subject of certificate) – reg 1.15AA(1)(d)
Where the person to whom the certificate relates is not the Australian relative (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 for the subject of the certificate attending to the practical aspects of daily life for at least 2 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 be reasonably obtained / provided – reg 1.15AA(1)(e)
Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
The Tribunal notes that this is a time of decision criteria and therefore the Tribunal’s enquiry must relate to the facts and circumstances now. The Tribunal had the benefit of a hearing where it was able to take oral evidence from the applicant and sponsor. It has also had the benefit of updated and current documentary evidence submitted to the Tribunal and updated medical information. Over 3 years have passed since the delegate’s decision was made, and five years since the CVAC, and the sponsor’s medical conditions and care assistance requirements have significantly increased. The Tribunal has carefully considered the documentary and oral evidence now before it and makes the following findings.
On the evidence of the CVAC and updated medical evidence before it, the Tribunal accepts that the sponsor is now 88 years of age, he is legally blind, suffers incontinence, has numerous mobility issues requiring the use of a wheelchair and walker, and has in recent years been treated for two separate bouts of cancer and has had a pacemaker inserted. The CVAC indicated that he required assistance with toileting, supervising medication, mobility and personal safety. At hearing the applicant and sponsor gave evidence that more recently he also requires assistance showering and dressing.
The Tribunal took evidence from each of the applicant and sponsor at hearing about the current care arrangements. The applicant described a typical day, that she helps him shower and dress. While he can put the upper body clothes on, he needs assistance with lower body clothing and now also wears a stocking and she has to help with this. She cleans his toileting accidents regularly. She prepares all meals, cleans and does the laundry. She accompanies him when he goes on outings and to doctor appointments. He generally administers his own medication but she sometimes needs to reminds him. The sponsor’s evidence about what she does for him was substantially consistent. The Tribunal accepts that the sponsor requires substantial assistance with activities of daily life from morning to night and including overnight due to his incontinence condition.
The Tribunal noted the evidence submitted that he is now receiving a Level 4 ACAT package and asked how this was being used. They each gave consistent evidence that the package was used to purchase his wheelchair, and his incontinence pads. He also has two outings a week on Monday and Fridays and the applicant accompanies him on these as an Anglicare volunteer. He does not use the home care package for cleaning or personal care services because the applicant is doing that for him. The parties confirmed that he is not presently using all the funds in his package and has a credit balance.
The Tribunal asked what assistance, if any, he was receiving from other relatives in Australia. The applicant and sponsor confirmed that he has 5 adult children and 1 sister. The sister’s whereabouts are not known. Details on the Form 54 indicate she was born in 1942, making her 83 years old and therefore unlikely to be in a position to provide care assistance to him. Three of his five children live too far away to reasonably be able to provide assistance. The Tribunal accepts on the oral evidence that one son, James lives in Mackay, another son, Lee lives in Brisbane and that he has had no contact from his daughter Lyndall for over 25 years, though he believes she may be living in Coffs Harbour, NSW. It accepts that for reasons of distance and lack of contact, none of these relatives can reasonably provide the assistance he requires.
In respect of the remaining two children who live in Townsville, his son Marshall lives in the same property as him. The evidence of the applicant and sponsor is that Marshall has significant health issues of his own, relating to a brain tumour and he is in receive of NDIS and has his own care requirements. Documentary evidence in support of this was provided to the Tribunal following the hearing. He has not to date provided any assistance and, on the basis of his own health condition and care needs, the Tribunal accepts the assistance cannot reasonably be provided by him.
The sponsor’s daughter Maria also lives in Townsville, reasonably close to the sponsor. Evidence provided to the Tribunal is that she has not provided care assistance to the sponsor because she is working full time herself at Anglicare and is paying off her house. She has no room for the sponsor to live with her. She has never provided care to him in the past. Following the hearing, a Statutory Declaration from Maria was provided, setting out her reasons for not being able to provide care to her father due to her employment commitments. A letter confirming her employment with Anglicare, dated September 2024 was provided in support. The Tribunal observes that this letter indicates that she is employed with Anglicare for 30 hours per fortnight, not full time as claimed by her.
On the basis of the oral evidence from the applicant and sponsor the Tribunal accepts that Maria has not provided assistance to the sponsor to date. The evidence is that she is working and has her own cost of living and mortgage commitments, and therefore does not have the time or resources to provide care assistance for her father. While the Tribunal observes that the employment letter she provided indicates she is working less than full time, and it also observes that she works as an aged care worker, it also acknowledges that there is no obligation in Australia that adult children must provide care to their parents. For these reasons, given that Maria has no history of providing care assistance to her father, the Tribunal finds the case assistance required cannot reasonably be provided by his daughter Maria.
At hearing the Tribunal heard evidence that the sponsor has two grandchildren over the age of 18 years. The evidence it heard was that his daughter Maria has two adult children, who live and work in Brisbane, too far to reasonably be able to provide assistance to the sponsor. The remainder of his grandchildren, according to the applicant’s evidence are under the age of 18.
With regard to care services, the Tribunal observes that the sponsor is currently receiving a home care package at the highest level (Level 4). While he is not presently using the full package, this is because of his preference for personal care to be provided by his partner, the applicant. The sponsor’s argument to the Tribunal is that his decision not to utilise government funded services and to fully financially support his partner to provide care assistance to him benefits the Australian community because he is saving the government considerable money. The Tribunal has considered this argument, together with the balance of funds not used and nature and extent of care he requires and accepts that the assistance required cannot reasonably be obtained by welfare, hospital, community services, in his particular circumstances. The Tribunal accepts that even if he were to exhaust the full funding, he would still require care assistance overnight and throughout the day given his cumulative health conditions, age and frailty.
On the basis of the above findings and reasons, the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.
Willing and able – reg 1.15AA(1)(f)
Regulation 1.15AA(1)(f) requires that the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that ‘willingness’ is concerned with the applicant’s state of mind. In contrast, the issue of ability is an objective inquiry as to whether the applicant is a person who is suitable or fit 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 its 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 evidence before the Tribunal is that the applicant has faithfully, and with dedication, been providing comprehensive care assistance to the sponsor for the past 7 years. The oral evidence from her and the sponsor is wholly consistent about this and supported by various Statutory Declarations and references to her accompanying the sponsor to health appointments, including the CVAC assessment. It accepts that the sponsor is committed to continue to financially support her as he has done to date to allow her to continue to care for him. Having regard to the caselaw guidance and the evidence before it, including the applicant’s and sponsor’s testimony at hearing, the Tribunal is satisfied that the applicant is willing and able, in the sense contemplated by those terms, to provide the sponsor substantial and continuing assistance of the kind needed.
Therefore, the applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).
Given these findings, at the time of decision the applicant is a carer of the Australian relative, being the sponsor, and therefore satisfies cl 836.221.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 836 visa.
DECISION
The Tribunal remits the application for an Other Family (Residence) (Class BU) visa for reconsideration, with the direction that the following criteria for a Subclass 836 (Carer) visa are met:
·cl 836.213 of Schedule 2 to the Regulations; and
·cl 836.221 of Schedule 2 to the Regulations.
Date(s) of hearing: 10 July 2025
Representative for the Applicant: Mr Arthur James Heron