Rosayro (Migration)

This matter concerned an appeal by Mr Rosayro against the decision of the Department of Immigration and Border Protection to refuse a Subclass 116 (Carer) visa for his mother. The visa applicant, Mr Rosayro's mother, is an 87-year-old woman residing in Australia who requires assistance with daily living due to Alzheimer's disease, cervical spondylosis, and osteoporosis. The core of the dispute revolved around whether the applicant's mother required the care of Mr Rosayro, who resides in Sri Lanka, and whether other family members in Australia were reasonably able to provide the necessary assistance.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a Subclass 116 (Carer) visa, specifically paragraph (e) of regulation 1.15AA(1). This paragraph requires that the necessary assistance cannot reasonably be provided by any other relative of the resident who is an Australian citizen, permanent resident, or eligible New Zealand citizen, nor obtained from welfare, hospital, nursing, or community services in Australia. The Tribunal had to determine if the evidence established that no other relatives in Australia could reasonably provide the required care, either individually or collectively.

The Tribunal considered extensive evidence detailing the applicant's mother's deteriorating health, including her mobility issues, cognitive decline, and difficulties with personal care and medication management. It also examined the availability and capacity of her adult children residing in Australia to provide care. While several adult children live in Australia, including one in close proximity, the Tribunal noted that they had various commitments, including work and distance, which limited their ability to provide full-time care. Crucially, the Tribunal found that the evidence did not establish that other relatives were unable to provide the necessary assistance, nor that community services were unavailable or inadequate. The Tribunal also noted that the applicant's mother had several adult children in Australia, and the evidence did not demonstrate that these relatives, individually or collectively, could not provide the required care.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Subclass 116 (Carer) visa. The Tribunal concluded that the applicant had not satisfied the requirement that the necessary assistance could not reasonably be provided by other relatives in Australia or obtained from Australian welfare services.