Storogenko (Migration)

This matter concerned an appeal by Ms. Storogenko against a decision of the Administrative Appeals Tribunal (AAT) which affirmed the refusal of her application for a Subclass 116 (Carer) visa. The visa was sought to allow her daughter to provide care and assistance to Ms. Storogenko, who claimed to require significant support due to various physical and mental health conditions.

The primary legal issues before the court were whether the Tribunal had erred in its assessment of Ms. Storogenko's care needs and whether the assistance she required was reasonably obtainable from the Australian public health system or from other relatives. Specifically, the court considered whether the Tribunal was bound by the opinion of a health care provider regarding the necessity of constant overnight assistance from a female relative for intimate hygiene procedures, and whether it had adequately considered the availability of assistance from other family members and the applicant's own preferences regarding the use of carer hours.

The court found that the Tribunal had not adequately considered all relevant evidence regarding Ms. Storogenko's care needs and the availability of alternative forms of assistance. While acknowledging the severity of Ms. Storogenko's impairments, the court noted that the Tribunal appeared to have placed undue weight on certain aspects of the evidence without fully exploring whether the required assistance could be reasonably provided by other relatives or through the public health system. The Tribunal's reasoning regarding the applicant's preferences for food preparation and her reluctance to utilise available services was also scrutinised, with the court indicating that these factors needed to be balanced against the genuine need for care.

Consequently, the court set aside the Tribunal's decision and remitted the matter back to the Tribunal for redetermination, with directions to reconsider the evidence in light of the legal principles discussed.