Ho (Migration)

This matter concerned an appeal by an applicant for a Subclass 836 (Carer) visa. The applicant sought to demonstrate that they were a "carer" of an Australian resident, as defined by migration regulations. The core of the dispute revolved around whether the assistance required by the resident, who suffered from bilateral shoulder dysfunction and dementia, could reasonably be provided by other specified Australian relatives or obtained from Australian service providers.

The Tribunal was required to determine if the applicant met the criteria for a carer visa, specifically whether the assistance the resident required could not reasonably be provided by other Australian relatives or obtained from welfare, hospital, nursing, or community services. This involved assessing the nature and extent of the resident's functional impairments and the availability and reasonableness of alternative care options.

The Tribunal found that while the resident required significant assistance with daily living activities due to his physical and cognitive impairments, it would not be unreasonable for three specified Australian relatives to provide some level of assistance. Crucially, the Tribunal was not satisfied that reasonable inquiries had been made into the availability and suitability of welfare, hospital, nursing, or community services. Consequently, the Tribunal could not be satisfied that the balance of the required assistance could not be obtained from these services, nor could it consider the resident's wishes regarding alternative care. As the applicant failed to demonstrate that the required assistance could not reasonably be provided by other relatives or obtained from services, the criteria under regulation 1.15AA(1)(e) were not met.

The Tribunal affirmed the decision under review, concluding that the applicant did not meet the definition of a carer for the purposes of the Subclass 836 visa. The Tribunal also considered and rejected an alternative claim for an Aged Dependent Relative visa (Subclass 838), finding the applicant did not meet the age requirements.