Nguyen (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), by Mr. Nguyen, who sought to migrate to Australia to care for his mother, Ms. Anh Thi Nguyen. Ms. Nguyen, an elderly widow residing in Australia, has multiple physical health conditions and requires assistance with the practical aspects of daily life. The dispute centred on whether Mr. Nguyen met the criteria to be considered a "carer" under the Migration Regulations 1994, specifically whether the required assistance could not reasonably be provided by other relatives or obtained from service providers in Australia.

The Tribunal was required to determine if the applicant, Mr. Nguyen, qualified as a carer for his mother, Ms. Nguyen, under regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether Ms. Nguyen had a medical condition causing physical impairment that necessitated direct assistance with daily life for at least two years. Crucially, the Tribunal had to consider whether this assistance could not reasonably be provided by any other relative of Ms. Nguyen who was an Australian citizen, permanent resident, or eligible New Zealand citizen, or whether it could be obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal reasoned that while Ms. Nguyen had multiple physical health conditions and was partially dependent on assistance, the evidence regarding the inability to obtain care from other sources was insufficient. Ms. Nguyen had two daughters in Australia, one of whom worked on a fly-in, fly-out basis in a remote location, and the other who worked and cared for her own children. The Tribunal noted a lack of evidence of thorough inquiries made to service providers, with information suggesting care would be limited to a maximum of four hours. The Tribunal found a preference for family care rather than a demonstrated inability to access external assistance. Consequently, the Tribunal affirmed the decision not to grant the visa.