Hino (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 their Australian resident mother. The Tribunal was required to determine whether the applicant met the criteria for a carer visa, particularly concerning the availability of suitable facilities or assistance from other family members or providers, and the health and responsibilities of other family members.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of clause 836.221 of the Migration Regulations 1994, which defines a "carer" for the purposes of the visa subclass. This involved assessing whether the applicant was a relative of the Australian resident, whether the resident had a medical condition requiring ongoing assistance, and crucially, whether such assistance could reasonably be provided by other relatives or obtained from community services. The Tribunal also considered the sponsor's cultural preferences and the availability of government-subsidised care.

The Tribunal reasoned that while the applicant was a relative and the sponsor had a medical condition requiring assistance, the critical element was whether that assistance could reasonably be provided by other means. The evidence indicated that the sponsor had been approved for intermediate-level home care and high-level subsidised residential respite care, which covered many of her identified needs. The Tribunal found that the reasons provided by the sponsor's daughters for being unable to provide the remaining necessary assistance were not reasonable, especially given the availability of government support and the fact that some daughters lived with the sponsor. The Tribunal applied the principle that assistance does not need to be provided by a single person and that the combined efforts of relatives or community services could suffice. The sponsor's cultural preference for care from her son was acknowledged but found not to override the reasonableness of accepting other forms of support.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Subclass 836 visa, finding that the applicant did not satisfy the definition of a carer under the regulations because the required assistance could reasonably be obtained from other sources. The Tribunal also briefly considered and dismissed eligibility for Subclass 838 (Aged Dependent Relative) and Subclass 835 (Remaining Relative) visas.