Phan (Migration)

This matter concerned an application for Other Family (Migrant) (Class BO) visas, specifically Subclass 116 (Carer) visas. The applicant sought to demonstrate they were a "carer" for their father, who had been approved for high-level care. The Tribunal was required to determine whether the applicant met the definition of a carer as prescribed by regulation 1.15AA of the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the applicant satisfied the requirements of regulation 1.15AA(1)(e), which stipulates that the necessary assistance cannot reasonably be provided by any other relative of the Australian resident who is an Australian citizen, permanent resident, or eligible New Zealand citizen, or obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal considered the availability of assistance from the sponsor, Nicole Ngoc Phan, who was the primary carer and worked casually, and her brother, Van Long Phan, who was employed as a homecare assistant providing care to his parents.

The Tribunal reasoned that the sponsor, Nicole Ngoc Phan, was reasonably available to provide substantial assistance to her father, despite her casual employment, as she was available for most of the week and overnight. The Tribunal also considered the assistance provided by Van Long Phan as a homecare assistant. It determined that this employment-based assistance was to be considered as part of the community services available in Australia and did not count towards the assistance he could reasonably provide as a relative. Therefore, the Tribunal concluded that the applicant did not meet the criteria for a Subclass 116 visa, and consequently, other named visa applicants, who were family members, also did not meet the criteria. The Tribunal affirmed the decision not to grant the visas.