Nguyen (Migration)

This matter concerned an application for a Subclass 116 (Carer) visa by Mr. Vu, who sought to be the carer for his Australian citizen mother, Mrs. Nguyen. Mr. Vu's wife and two daughters were secondary applicants. The Tribunal was required to determine whether Mr. Vu met the primary criteria for the visa, specifically focusing on whether the assistance Mrs. Nguyen required could not reasonably be provided by other relatives or obtained from Australian community services, and whether Mr. Vu was willing and able to provide substantial and continuing assistance.

The Tribunal considered the definition of "carer" under regulation 1.15AA of the Migration Regulations 1994. It accepted that Mr. Vu was a relative of Mrs. Nguyen and that Mrs. Nguyen had a medical condition causing impairment and a need for direct assistance for at least two years, satisfying subregulations 1.15AA(1)(a), (b), and (c). The central issue was whether subregulation 1.15AA(1)(e) was met, which requires that the necessary assistance cannot reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal noted that further evidence had been provided since the Department of Home Affairs' initial decision, including reports from a psychologist, GP, and statements from Mrs. Nguyen's daughters regarding their inability to provide care and attempts to source external care. The Tribunal also considered information regarding a Level 2 Home Care Package and residential aged care fees. While the Tribunal found that Mr. Vu met the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Regulations, it did not make a final determination on the remaining criteria under r.1.15AA(1)(e) and (f).

Consequently, the Tribunal remitted the applications for Other Family (Migrant) (Class BO) visas for reconsideration by the Minister, with the direction that the criteria under cl.116.211 and cl.116.221 of Schedule 2 to the Regulations were met. The visa applications of the secondary applicants were also remitted for reconsideration.