Huang (Migration) - [2025] ARTA 2119

HUANG (MIGRATION) [2025] ARTA 2119 (2 JULY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Xiuzhang Huang
Visa Applicants:  Mr Xiaobin Huang
Miss Elisa Huang
Miss Melisa Huang
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2448805

Tribunal:Kira Raif
Place:Sydney
Date: 2 July 2025
Decision:The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 02 July 2025 at 1:13pm
CATCHWORDS
MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of an Australian relative – impairment rating – recent medical evidence – independence in self-care – NDIS assistance – spouse’s medical conditions – limited family assistance available – care reasonably obtained from welfare, hospital, nursing or community services in Australia – finances for partial paid care services – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, cls 116.221, 116.321; rr 1.03, 1.15
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 28 November 2024 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named applicant (the applicant) is a national of China, born in May 1983. He applied for the visa on 1 March 2023. The application includes his two children. The delegate refused to grant the visas on the basis that cl 116.221 was not met because the delegate was not satisfied the visa applicant was a carer of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.
The review applicant appeared before the Tribunal on 28 April and 23 June 2025 to give evidence and present arguments. The Tribunal received oral evidence from the applicant’s spouse Ms Cai, his sister Ms Huang and carer Ms Luk. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
RELEVANT LAW
At the time the application was made, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A 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 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.221.
Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations.
The issue in the present case is whether the applicant is a carer of the sponsor.
Primary decision
The review applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant made the application for the Carer visa on the basis of being a carer for his father, Mr Xiuzhang Huang. It is noted that the sponsor had been diagnosed with ischaemic stroke in October 2021 and a CVAC dated 5 May 2022 assigned an impairment rating of 70. The delegate notes that the CVAC referred to the sponsor being unable to walk or stand from a sitting position. The sponsor was reported to have moderate functional impact on activities involving mental health function and moderate difficulty with self-care, independent living, task completion and planning. He was not oriented to time or place and there was extreme functional impact on activities using the brain function due to severe cognitive impairment and extreme difficulties in memory and attention.
The delegate noted that the applicant presented more recent medical evidence. Dr Au in his report dated 22 August 2024 reported that the sponsor was reviewed and reported by his NDIS worker to be independent in self-care, able to walk with one stick and that he assists his wife with domestic chores. Dr Au reported that the sponsor denied any symptoms of depression and was able to recall current events. He was observed to be alert, cooperative and oriented to date and place and was observed to have stable overall function.
The delegate noted the significant improvement in the sponsor’s functioning and cognitive capacity and reduced requirement for supervision. The delegate noted Dr Au’s report that the sponsor had ongoing weakness in upper and lower limbs and that he received assistance through NDIS four hours a day, five days a week.
With respect to assistance being available from other sources, the delegate noted a statement from the sponsor’s wife, Ms Meifeng Cai, who stated that due to her own medical issues, she was unable to provide care to her husband and a medical report relating to Ms Cai referred to her diagnoses of diabetes, hypercholesterolaemia and radiculopathy.
The delegate noted that in her declaration of 9 July 2024 Ms Cai stated that the sponsor requires 24/7 care due to permanent cognitive impairment and high falls risk. Ms Cai referred to her own health issues including diabetes, cervical spine spondylosis, vertigo and osteoarthritis and she stated that the demands of caring for her husband, including lifting and transferring, had worsened her health. The delegate acknowledged that evidence, and the medical reports in relation to Ms Cai, but was not satisfied that Ms Cai was unable to offer any assistance to the sponsor. The delegate also noted that Ms Cai’s evidence about the extent of assistance required was not consistent with the more recent medical reports relating to the sponsor. The delegate formed the view that it would not be unreasonable for Ms Cai to provide some assistance to the sponsor.
The delegate considered a statement from Ms Xiuping Huang, the sponsor’s sister, who claimed that she cannot provide the requisite assistance due to her business commitments, care responsibilities in relation to her disabled child and the distance between her and the sponsor. The delegate noted that Ms Huang has not indicated the level of assistance she provided to her son, who had been diagnosed with cerebral palsy, nor had she provided evidence of her involvement in the business. The delegate concluded that it would not be unreasonable for Ms Huang to provide some assistance to the sponsor.
The delegate considered the evidence of the sponsor’s niece Ms Na Dai, who also referred to her business commitments and long working hours, as well as the distance from her uncle. The delegate accepted that Ms Dai may work long hours but the delegate did not consider it unreasonable for Ms Dai to provide some assistance to the sponsor.
The delegate accepted that the sponsor’s nephew Mr Jie Dai has a permanent disability and cannot contribute to the assistance.
With respect to assistance from other sources, the delegate acknowledged that a residential aged care facility would not be appropriate for the sponsor, given his age and the present level of care required.
The delegate noted that the application was accompanied by evidence that the sponsor received 24 hours a week of assistance with community access and in-home support through NDIS. The applicant claimed that this was insufficient, given the 24/7 care required by the sponsor. The delegate notes that in March 2024 Dr Au reported that the sponsor had a carer 22 hours a week and in August 2024 Dr Au reported that the sponsor had an NDIS- funded carer for 20 hours a week.
The applicant provided with the application evidence of the sponsor’s NDIS package approving funding of approximately $300,000 pa in October 2022, of which $230,000 could be used for assistance with personal care and ADLs and the evidence indicated that level of funding would continue until October 2025. The delegate noted that despite claiming the assistance received through NDIS was not adequate, the sponsor had reduced the weekly hours of NDIS workers from 34 to 20 hours. The delegate also noted that the sponsor had access to sufficient NDIS funds to increase the support workers to 34 hours a week that was covered by the original funding.
The delegate also noted there was no evidence of the sponsor approaching any private agencies. The delegate notes that the sponsor’s bank records show regular pension payments and rental income, as well as cash deposits and found that it would not be unreasonable for the sponsor to supplement the hours of care received through NDIS with personally funded care.
The delegate was not satisfied that assistance could not reasonably be provided by a relative, or obtained from welfare, hospital, nursing or community services in Australia. the delegate was not satisfied the visa applicant met r. 1.15AA(1)(e) and cl. 116.221.
Is the applicant a carer of the sponsor?
Regulation 1.15AA(1)(a) requires 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 visa applicant’s father. Evidence of relationship between the applicant and sponsor had been provided with the application. The Tribunal is satisfied the applicant is a child, and a relative of the Australian relative. The Tribunal is satisfied that the sponsor is an Australian permanent resident and is usually resident in Australia.
The applicant meets the requirements of reg 1.15AA(1)(a).
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.
The primary application was accompanied by a BUPA certificate issued in May 2022 and in June 2025 the applicant provided an updated CVAC. The Tribunal is satisfied the certificates meet the requirements of reg 1.15AA(2). According to the certificates, the sponsor has a medical condition causing impairments of his ability to attend to the practical aspects of daily life. It is stated that because of the medical condition, the sponsor has and will continue to have for at least 2 years, a need for direct assistance in attending to the practical aspects of daily life. The Tribunal finds that the certificates provided meet the requirements of reg 1.15AA(2). Further, the certificates address each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.
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 permanent resident. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.
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. When the application was made, it was accompanied by a CVAC which indicated the impairment rating of 70. This rating exceeds impairment rating specified by the relevant instrument. On 25 June 2025 the review applicant provided a new CVAC dated 18 June 2025 which specifies an impairment rating of 60.
Both Certificates contain the ratings which exceed the prescribed impairment ratings. These meet the requirements of reg 1.15AA(1)(c).
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.
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 review applicant provided a written submission to the Tribunal, through his representative, shortly before the commencement of the first scheduled hearing. The review applicant submits that the delegate’s reasoning is ‘unreasonable’, stating that post-stroke recovery is non-linear and unpredictable. The review applicant notes that he is at high risk of falls and has cognitive impairment impeding his judgement and ability to respond to emergencies. The Tribunal acknowledges and accepts these submissions and accepts that the review applicant continues to have a need for assistance despite the improvement since 2022. That need for assistance has not been questioned by the delegate or the Tribunal.
The review applicant refers to his wife’s condition, including diabetes, cervical spondylosis, vertigo and osteoarthritis, limiting her strength, balance and mobility and states that his wife’s physical limitations pose a serious risk to his safety. The review applicant refers to assistance required for transfers, walking and in emergencies. The review applicant submits that his articulated preference is that his son provides the necessary care, emotional and physical support. The review applicant also explains why other relatives in Australia cannot provide the necessary care.
The review applicant states that the NDIS assistance is not adequate as the NDIS provider is only able to provide limited assistance due to resource and funding allocation constraints while he requires 24/7 care. The review applicant states that the carer hours have been reduced due to finding issues. The review applicant provided a statement from MeToU Care outlining the assistance that is being provided, and other statements from care providers.
After the commencement of the first hearing it became apparent that the review applicant was not able to meaningfully engage in the hearing and provide evidence and the hearing was adjourned. Shortly before the commencement of the second hearing the review applicant again provided a number of documents. No explanation is offered by the review applicant – who is represented by a registered migration agent – why voluminous submissions are being provided to the Tribunal mere hours before the review applicant is due to appear at a hearing to give evidence. Such late submission of evidence is very unhelpful, as must be evident to the review applicant and his representative.
In his submission of 20 June 2025 the review applicant provided a statement from a Service Coordinator at MeToU Care dated April 2024 that has been previously provided and which outlines the type of care provided to the sponsor, a copy of Dr Au’s undated report which states that the sponsor requires 24 hour care and supervision for all ADLs due to his physical disability and poor memory, cognition and confusion and refers to falls risk. There is a cop of a declaration from the sponsor’s wife prepared in July 2024, a copy of the sponsor’s NDIS Participant’s plan indicating current approved funds being approximately $430,000, a declaration from the sponsor’s sister Xiuping Huang prepared in April 2024, a statement from the sponsor’s Support Coordinator at Cass Care, several medical reports relating to the sponsor and medical evidence relating to the sponsor’s spouse. There is also evidence of the review applicant’s interactions with BUPA in relation to a new assessment and other materials.
The review applicant presented a report by Dr Au date 18 June 2025 which also states that the sponsor suffers from severe complications from Covid and requires 24 care and supervision with all ADLs due to his physical disability, poor memory and cognition, confusion and emotional lability and falls risk, double incontinence . Dr Au states that the sponsor’s wife has diabetes and is unable to look after his properly and he requires his son to look after him.
Shortly before the commencement of the hearing the representative provided to the Tribunal a lengthy and unsigned ‘rebuttal’ of the delegate’s decision. This appears to be a copy of the submission made by the review applicant previously.
In oral evidence, the review applicant told the Tribunal that his wife helps him with walking and sometimes with cooking (he also cooks sometimes) and washing clothes. The personal hygiene is sometimes done by the wife and sometimes by the carer but he would prefer his son to help. The review applicant said that his sister comes around once a fortnight and helps by cooking or bringing food. He states that his sister lives far from and is responsible for looking after a disabled son so she cannot help more. He sees his niece sometimes when comes around and helps with reading letters and sometimes with cooking but she cannot help more because she is busy with her job.
The review applicant’s wife Ms Cai gave oral evidence to the Tribunal and spoke about the need to look after the sponsor, particularly at night. The Tribunal took oral evidence from the sponsor’s sister Xiuping Huang. Ms Huang states that her son has a disability and she provides care to her son and cannot support her brother. She said that she sometimes visits her brother on weekends and chats with him and she provides some mental support abut not practical support. She states that her daughter cannot help due to her work commitments and the most she can do is translate some letters for the sponsor. Ms Huang referred to her brother’s physical condition and mental health and said that he is eager to reunite with his son.
The Tribunal has considered whether the assistance can be reasonably provided by another Australian relative. The evidence before the Tribunal indicates that the sponsor suffers from a number of conditions that affect his physical health. The Tribunal accepts the evidence of Dr Au who refers to the sponsor’s deteriorating memory and cognition, falls risk, incontinence and emotional lability. Dr Au states that the sponsor requires 24 hour care and the Tribunal accepts that evidence. While the Tribunal accepts that the sponsor’s condition is now different to what it was when the initial BUPA assessment was completed, when the sponsor was recovering from stroke, the evidence indicates that the sponsor is now affected by different ailments that affect his ability to engage in activities of daily living. The Tribunal accepts that he requires extensive care on a daily basis.
The sponsor’s relatives in Australia include his spouse, sister and niece and nephew. The evidence is that the sponsor’s spouse has a number of medical conditions herself which restrict her ability to provide the requisite care. Dr Au in his report states that the sponsor’s spouse has diabetes which prevents her from looking after him ‘properly’. The Tribunal accepts that the spouse is not able to provide the full level of care required, however, the Tribunal is of the view that she is able to contribute to some care and the applicant’s own evidence is that she helps with cooking and some domestic chores such as washing.

The review applicant’s nephew has a significant disability and the Tribunal accepts he is not able to provide any level of care. The review applicant’s sister has indicated that she has a business to manage and also looks after her disabled son and for these reasons, she cannot provide greater assistance to the sponsor. The sponsor told the Tribunal that she sometimes helps with cooking. The Tribunal accepts that Ms Huang is able to provide very limited assistance to the sponsor. With respect to his niece, the sponsor states that she is busy with her own employment and the Tribunal is generally prepared to accept that she cannot provide the requisite degree of care to the sponsor.
The review applicant has no other relatives in Australia. The Tribunal is satisfied that the assistance cannot reasonably be provided by a relative in Australia.
The Tribunal has consider whether the assistance can be obtained from welfare, hospital, nursing or community services in Australia.
The review applicant and his spouse told the Tribunal that they have not considered residential care facility because they have never lived apart. The Tribunal acknowledges that placing the review applicant in a RACF may result in him being separated from his spouse and it may not be a reasonable option.
The evidence indicates that the sponsor is a participant in the NDIS scheme and his package is approximately $430,000. There is evidence about the different level of care that has been provided to the sponsor and the Tribunal has had regard to the statement from the support coordinator and service providers concerning the level of care that has been provided to the sponsor.
The review applicant told the Tribunal that he receives 27 hours of care per week through NDIS, which is about 5 hours a day, 5 days a week. The Plan is due for review later in 2025 and he was told by his NDIS coordinator that the funding for the Plan might increase slightly. Ms Luk, who has been the carer of the sponsor since April 2022, told the Tribunal that the review applicant receives about 5-6 hours a day of NDIS support, 5 days a week plus there are physio sessions. She said is not familiar with the NDIS package and whether it is being fully utilised. Ms Luk suggested that the sponsor has depression and is double incontinent, is a falls risk and that his general health is ‘going down’. As noted above, the Tribunal accepts the medical evidence relating to the sponsor and the fact that he requires extensive assistance.
The Tribunal acknowledges that the NDIS support on its own does not cover the sponsor’s needs. While the level of care seems to have been variable, there is no suggestion that 24 hour care (as suggested being needed by Dr Au) has ever been available to the sponsor or that such level of care can be achieved through NDIS. Thus, the Tribunal does not consider that NDIS on its own, or even with the limited help from the sponsor’s wife and sister, would meet the sponsor’s needs.
The Tribunal explored with the sponsor and his spouse Ms Cai whether a private carer may be able to supplement the care offered through NDIS. The review applicant told the Tribunal that they cannot afford a private carer and that a private carer cannot look after him at nighttime. The Tribunal does not accept that evidence.
The review applicant told the Tribunal that he and his wife live in owned accommodation and have a small mortgage which they repay from his Centrelink payments and savings of about $270,000. The applicant’s spouse Ms Cai told the Tribunal that they have sold a property recently and have a small mortgage of about $100,000 on their current property. Ms Cai said that she receives a rental income from an investment property in China of about AUD $1,500 a month has income of about $500 month from another property in China. They also have a few hundred thousands of dollars in savings in the bank in Australia and these funds belong jointly to her and her husband. She also has over $150,000 in savings in China and these are her own funds.
The sponsor and his wife gave consistent evidence that they have over $200,000 in savings in Australia, which exceed the amount of their debt (mortgage). The sponsor also receives Centrelink payments. Ms Cai indicated she has considerable funds overseas but she does not suggest these are jointly owned and the Tribunal has disregarded these funds. The evidence indicates, however, that the review applicant has a substantial amount of savings which, in the Tribunal’s view, can be utilised towards the payment for a carer who could supplement the care provided by the NDIS (primarily) and the limited care by the sponsor’s wife and sister. The Tribunal does not accept the claim that a paid carer could not look after the sponsor at nighttime. There is no reason why a paid carer could not be hired for night-time work.
The Tribunal has formed the view that the combination of NDIS funded care and a paid carer (with whatever limited assistance can be provided by Ms Cai) could cover the sponsor’s extensive care needs. On the evidence before it, the Tribunal is not satisfied that the assistance cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. The Tribunal is not satisfied that the requirements of reg 1.15AA(1)(e) are met.
It is thus unnecessary to consider whether the visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. The Tribunal is not satisfied the requirements of r. 1.15AA(1)(e) are met. Given these findings the Tribunal concludes that at the time of decision the visa applicant is not] a carer of the Australian relative, being the review applicant, and therefore does not satisfy cl 116.221. The secondary applicants do not meet cl. 116.321.
The visa applicant is not old enough to be granted an Aged Pension and there is no evidence of his dependence on the sponsor. He does not meet the requirements for the grant of the Aged Dependent relative visa. The visa applicant stated on the form that his sister lives in China and the Tribunal is not satisfied he meets the requirements for the grant of the Remaining Relative visa.
Conclusion
For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Other Family (Migrant) (Class BO) visas.
Date(s) of hearing 28 April and 23 June 2025
Representative for the Applicant: Ms Queenie Yu (MARN: 0427214)