Ta (Migration)

This matter concerned an application for a Subclass 116 (Carer) visa by Lan Thi Tuyet Ta. The applicant sought to care for her nephew, Phuoc, who is an Australian resident with autism spectrum disorder and significant developmental problems requiring a high level of support and supervision. The decision under review was made by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied the requirements of Regulation 1.15AA(1)(f) and consequently Regulation 116.221 of the Migration Regulations 1994, which define the criteria for a 'carer' visa. This involved determining if the applicant was a relative of the Australian resident, if the resident had a qualifying medical condition with a specified impairment rating, and crucially, if the applicant was willing and able to provide the necessary substantial and continuing assistance that could not reasonably be obtained from other sources in Australia.

The Tribunal found that the applicant, who had been living in Australia and providing daily care for her nephew for approximately 19 months, was familiar with his condition and needs. She had undertaken relevant training, was able to drive, and was improving her English language skills. A certificate from Dr P Conroy dated 10 November 2014 confirmed Phuoc's autism spectrum disorder, his need for a high level of support, and an impairment rating of 30, indicating a continuing need for direct assistance for at least two years. The Tribunal concluded that the applicant met the criteria under clauses 116.221 and 116.321 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the applications for the visa to the Minister for reconsideration, with the direction that the specified criteria for a Subclass 116 (Carer) visa were met.