Nguyen (Migration)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse to grant Other Family (Residence) (Class BU) visas, specifically Subclass 836 (Carer) visas, to Mrs Thi Nga Nguyen and Mr Tan Quyen Duong. The applicants sought review of the refusal decision made on 14 June 2021. Mrs Nguyen, the primary applicant, applied for the visa on the basis that she is a carer for her father, Mr Albert Quang Tinh Nguyen, an Australian citizen. Mr Duong was included as a secondary applicant as a member of Mrs Nguyen's family unit.

The Tribunal was required to determine whether the applicants met the criteria for a Subclass 836 Carer visa, specifically whether Mrs Nguyen was a 'carer' as defined by regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the sponsor, Mr Albert Quang Tinh Nguyen, had a need for direct assistance that could not reasonably be provided or obtained from other Australian relatives or from welfare, hospital, nursing, or community services in Australia, as required by clause 836.221. The Tribunal also considered the validity of the medical certification provided, which was over two years old, and the implications of the primary decision-maker's finding of insufficient evidence regarding the availability of alternative care.

The Tribunal found that Mrs Nguyen met the requirement of being a 'relative' of the Australian resident, her father. However, the central issue was whether the sponsor's need for assistance could reasonably be met by other means. The delegate had refused the visa on the basis that there was insufficient evidence to demonstrate that the sponsor's care needs could not be met by Australian relatives or services. The Tribunal noted that while the provided medical certification (CVAC) was old, it was not a legislative requirement to obtain a fresh examination, though it was departmental policy to consider it. The Tribunal ultimately affirmed the delegate's decision, concluding that the applicants had not sufficiently demonstrated that the sponsor's care needs could not reasonably be met by other available avenues in Australia. Consequently, the secondary applicant's visa was also refused as he was not a member of the family unit of a person who had satisfied the primary criteria.