MOUSSA (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) Carer (Subclass 836) visa, which was refused by the Department of Home Affairs. The applicant, born in Lebanon in 1962, sought to be the carer for her mother, the sponsor, who was born in Lebanon in 1937. The sponsor has several children and other relatives residing in Australia. The case was heard by Member Helena Claringbold of the Tribunal.

The central legal issue before the Tribunal was whether the assistance required by the sponsor could not reasonably be provided by any other relative of the sponsor who is an Australian citizen, permanent resident, or eligible New Zealand citizen, or alternatively, whether such assistance could not reasonably be obtained from welfare, hospital, nursing, or community services in Australia, as stipulated by regulation 1.15AA(1)(e) of the Migration Regulations. This required an assessment of the applicant's claim to be the sole and necessary carer for her mother's serious medical conditions and the unavailability of alternative support.

The Tribunal considered the evidence presented, including the applicant's assertions that she was the only available and committed individual to assist the sponsor, who suffered from serious medical conditions, required assistance with hygiene, food preparation, and medication, and was unable to communicate in English. While acknowledging that care may be provided collectively by multiple relatives, the Tribunal noted the applicant's previous statements and the sponsor's inability to obtain assistance from nursing homes or other sources. However, the Tribunal also noted that community services could not provide assistance seven days a week. Ultimately, the Tribunal concluded that the applicant had not demonstrated that the assistance could not reasonably be provided by other relatives or obtained from Australian services, and therefore affirmed the decision to refuse the visa.