Luu (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, subclass 116 (Carer), made by a nephew (the applicant) for his aunt, an Australian citizen. The applicant sought to migrate to Australia to provide care for his aunt, who suffers from severe and chronic mental health conditions and physical pain, requiring significant assistance with daily living. The Tribunal was required to determine whether the applicant met the criteria for a carer visa, specifically whether the aunt's need for assistance could not reasonably be provided by any other specified relative or obtained from Australian service providers.

The central legal issue before the Tribunal was the interpretation and application of regulation 1.15AA of the Migration Regulations 1994, which defines a "carer" for the purposes of the visa subclass. This regulation requires, among other things, that the need for assistance cannot reasonably be provided by any other eligible relative or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered whether the applicant was a "relative" of the Australian resident and whether the aunt had a medical condition causing impairment and a continuing need for direct assistance.

The Tribunal reasoned that while the applicant was a nephew and thus a "relative" of the Australian aunt, and the aunt's medical condition and need for assistance were established by a Carer Visa Assessment Certificate, the crucial element of regulation 1.15AA(1)(e) was not satisfied. The Tribunal found insufficient evidence to conclude that the aunt could not reasonably receive assistance from other sources. Specifically, there was no evidence of attempts to access assistance through the National Disability Insurance Scheme or other community services. The Tribunal also noted that the current nominee carer no longer wished to provide care and that the aunt had no contact with her only Australian citizen sibling. The Tribunal concluded that the aunt's preference for the visa applicant's specific form of assistance did not constitute a cultural reason or a barrier to obtaining help from other providers, and therefore, the assistance could reasonably be obtained from alternative sources.

Consequently, the Tribunal affirmed the decision not to grant the Other Family (Migrant) (Class BO) visas to the applicant and his family.