He (Migration)

This matter concerned an appeal by the visa applicant against a decision regarding an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The dispute centred on whether the applicant qualified as a 'carer' for an Australian relative. The decision was made by Senior Member Michael Cooke of the Tribunal.

The Tribunal was required to determine whether the visa applicant met the criteria to be considered a 'carer' under the Migration Regulations 1994. This involved assessing whether the Australian relative had a medical condition causing impairment in daily life, whether this need for assistance was ongoing, and crucially, whether this assistance could not reasonably be provided by other relatives in Australia or obtained from available welfare, hospital, nursing, or community services. The Tribunal also had to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal reasoned that the delegate's decision did not adequately consider all the evidence presented regarding the availability and suitability of aged care services in Australia. While the relative had been approved for various care packages, there were indications of long waiting lists and potential limitations in service provision, particularly concerning cultural and language barriers. The applicant's submission highlighted the relative's preference for culturally appropriate care and her lack of confidence in Australian nursing homes due to these differences. The Tribunal noted the significant findings of the Aged Care Royal Commission, suggesting that assumptions about the adequacy of aged care services should be made with caution. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.

The Tribunal remitted the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with a direction that the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Migration Regulations 1994 be met.