Nguyen (Migration)

This matter concerned an appeal by visa applicants against the affirmation of a decision to refuse them a Subclass 116 (Carer) visa. The primary applicant was the daughter of the Australian relative, and the second applicant was her spouse. The dispute centred on whether the primary applicant met the criteria for being a "carer" under regulation 1.15AA of the Migration Regulations 1994, specifically whether the required assistance could not reasonably be provided by other relatives or obtained from Australian service providers.

The Tribunal was required to determine if the visa applicant qualified as a carer, as defined by regulation 1.15AA(1), and whether the assistance needed by the Australian relative could not reasonably be provided by any other specified relative or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered the caree's significant medical condition and her ongoing need for direct assistance with daily living.

The Tribunal found that the Australian relative, aged 87, suffered from severe, long-standing, and progressive dementia, requiring full-time, 24-hour care for her safety, hygiene, and nutrition. While the primary applicant, her daughter, was attempting to provide this care, she had other work and family commitments, meaning the care was not consistently 24 hours. The Tribunal accepted that the applicant was finding the care efforts exhausting and difficult. Crucially, the Tribunal noted that the applicant had not sufficiently explored obtaining services from providers, having only made one enquiry without viewing facilities or obtaining an ACAT assessment, and therefore had not demonstrated that assistance could not reasonably be obtained from such services.

Consequently, the Tribunal affirmed the decision not to grant the visa applicants the Subclass 116 visa, as they did not meet the prescribed criteria.