Ghulam (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to migrate to Australia as a carer for their mother, Ms Ghulam, who is an Australian citizen usually resident in Australia. The Administrative Appeals Tribunal was required to determine whether the applicant had met the criteria for the visa, particularly concerning the need for assistance and the inability to obtain such assistance from Australian services.

The primary legal issue before the Tribunal was whether the applicant had satisfied subregulation 1.15AA(1)(e)(ii) of the Migration Regulations 1994, which requires that the assistance needed by the resident (Ms Ghulam) cannot reasonably be obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal also considered whether the applicant met the general definition of a 'carer' as set out in regulation 1.15AA, including the requirement for a medical condition causing impairment and a continuing need for direct assistance.

The Tribunal found that Ms Ghulam, the proposed recipient of care, is an Australian citizen usually resident in Australia, and the applicant is her son, satisfying the familial relationship requirement. A Carer Visa Assessment Certificate had been provided, indicating Ms Ghulam's need for a carer due to a medical condition causing impairment. However, the Tribunal concluded that it lacked sufficient evidence to determine whether the assistance required by Ms Ghulam could not reasonably be obtained from Australian welfare, hospital, nursing, or community services.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that certain criteria, namely clauses 116.211 and 116.221 of Schedule 2 to the Regulations, were met. The reconsideration was to focus on the remaining criteria for the Subclass 116 visa.