Le (Migration)

This matter concerned an application for a Subclass 116 (Carer) visa, where the review applicant, Dr Phuc Thien Le, an Australian citizen, sought to sponsor his nephew, Mr Duc Tan Nguyen, to Australia as a carer for Dr Le's son, Mr Thien Ngon Le. Mr Thien Ngon Le, a Vietnamese national, suffers from a long-term mental health condition, variously described as schizophrenia, which has been managed with medication. The core of the dispute revolved around whether the criteria for the carer visa were met, specifically concerning the availability of assistance within Australia.

The Tribunal was required to determine whether the grounds to support the Subclass 116 (Carer) visa were satisfied, as stipulated by Regulation 1.15AA(1)(e) of the Migration Regulations 1994. This regulation mandates that the required assistance cannot reasonably be provided by either any other relative of the Australian citizen who holds Australian citizenship, permanent residency, or eligible New Zealand citizenship, or by welfare, hospital, nursing, or community services available in Australia.

The Tribunal considered the evidence presented, including medical documentation confirming Mr Thien Ngon Le's ongoing mental health issues and impairment rating. It was noted that Dr Le has seven adult children, with three residing in Melbourne, including two daughters who live within a reasonable driving distance and are married with children. Mr Thien Ngon Le lives independently in a government-supported unit. The Tribunal found that the assistance required by Mr Thien Ngon Le could reasonably be provided by his relatives in Australia, specifically his siblings, and that community services were also available. Consequently, the Tribunal concluded that the primary visa applicant did not satisfy the requirements of clause 116.221 of the Migration Regulations.

As a result of the primary visa applicant failing to meet the criteria, the Tribunal affirmed the decision not to grant the Other Family (Migrant) (Class BO) visas to the applicants.