Nguyen (Migration)

This matter concerned an application for Class BO Subclass 116 (Carer) visas by three applicants from Vietnam, who sought to care for their Australian citizen sponsor. The sponsor, who arrived in Australia in 2003 and became a citizen in 2017, had a medical condition resulting in legal blindness and general frailty, requiring constant supervision and assistance with daily life. The sponsor had several adult children and grandchildren residing in Australia, some of whom were Australian citizens and one a permanent resident. The Department requested statutory declarations from these Australian relatives explaining why they could not reasonably provide the required care, along with supporting evidence.

The legal issues before the Tribunal were whether the applicants could satisfy the criteria for a Subclass 116 Carer visa, specifically concerning the sponsor's need for care, the inability of other Australian relatives to provide that care, and the unavailability of alternative welfare or community services. The Tribunal was required to consider the evidence submitted by the applicants, including medical reports, statutory declarations from Australian relatives, financial documents, and employment details, in light of the requirements of Regulation 1.15AA of the Migration Regulations 1994.

The Tribunal reasoned that while the sponsor clearly had a medical condition requiring substantial and ongoing assistance, and the applicants were willing and able to provide this care, the crucial question was whether such assistance could reasonably be obtained from other Australian relatives or from community services. The evidence presented indicated that the sponsor's Australian relatives were engaged in business or employment, and some faced their own health or financial challenges. However, the Tribunal found that the submissions did not definitively establish that care could not reasonably be obtained from other sources, nor did they fully address the conditions in aged care facilities.

Consequently, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that specific criteria for a Subclass 116 visa, relating to the first applicant's eligibility and the second and third applicants' eligibility, were to be considered met. The overall decision was to remit the combined application for Carer visas to the Minister for further consideration of the remaining criteria.