Somprayoon (Migration)

This matter concerned an application for review by Mr Thanach Somprayoon of a decision by a delegate of the Minister for Home Affairs to refuse him an Other Family (Residence) (Class BU) visa, subclass 836 (Carer). The visa applicant sought to care for his mother, a 56-year-old Australian citizen residing in Perth, who required significant care, evidenced by a 40% impairment rating. The delegate's refusal was based on the conclusion that the required support could not be provided by approved aged care providers in conjunction with assistance from other family members, meaning the criteria under clause 836.221 of the Regulations were not met. The Administrative Appeals Tribunal heard oral evidence from the visa applicant, his mother, and her de facto partner, all of whom were found to be credible witnesses.

The primary legal issue before the Tribunal was whether the care required by the Australian citizen could reasonably be provided by other family members or care providers, either individually or in combination. This required the Tribunal to assess the availability and capacity of other relatives and service providers to offer the necessary support, particularly considering the specific type and timing of care required by the caree. The Tribunal also had to consider the circumstances of the caree's partner's on-call work and the attempts made to secure out-of-hours care.

The Tribunal concluded that the matter should be remitted for further consideration. This decision was influenced by the fact that the Tribunal received significantly more evidence than was available to the original delegate. This additional evidence included statements from family members detailing the extended family's composition and their inability to provide care, as well as documented evidence of attempts to obtain out-of-hours care. The Tribunal found that these factors, along with the credible evidence presented by the witnesses, warranted a fresh assessment of whether the visa criteria could be met.