Pham (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Migrant) (Class BO) visa, Subclass 116 (Carer), made by a Vietnamese national. The applicant sought to migrate to Australia to care for her elderly Australian citizen mother, who was in receipt of an aged pension. The core of the dispute revolved around whether the applicant met the sponsorship requirements for the visa, specifically concerning the need for care and the inability of other Australian relatives or services to provide it.

The Tribunal was required to determine whether the applicant qualified as a "carer" under regulation 1.15AA of the Migration Regulations 1994. This involved assessing whether the applicant was a relative of the Australian resident, whether the Australian resident had a medical condition causing significant impairment requiring ongoing assistance, and crucially, whether such assistance could not reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also had to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal found that the applicant, as the granddaughter of the Australian resident, met the definition of a "relative" under regulation 1.15AA(1)(a). However, the decision text indicates that the Tribunal did not make a final determination on all the criteria. Instead, it concluded that the matter should be remitted for reconsideration by the Minister, with a direction that the criterion under clause 116.221 of Schedule 2 to the Regulations, relating to the applicant being a carer of the Australian relative, was met. This suggests that while the applicant's relationship was established, further assessment was required on other aspects of the carer criteria, particularly the reasonableness of care provision by others and the availability of community services.