Tran (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The primary applicant, a Vietnamese national, sought to migrate to Australia to provide care for his mother, an Australian citizen, who in turn cared for her husband, the applicant's father. The applicant's father suffered from multiple health conditions, including long-term depression, dementia, and gouty arthritis, resulting in a 50% impairment rating and a recommendation for a Home Care Package Level 3, involving 8 hours of services per week. The applicant's mother expressed a preference for personal care to be provided by a close family member. The decision under review was made by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the visa applicant met the criteria for a Subclass 116 (Carer) visa, particularly concerning the requirement that assistance could not reasonably be provided by other relatives in Australia or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also needed to consider the applicant's willingness and ability to provide substantial and continuing assistance.

The Tribunal reasoned that the evidence presented, including a Carer Visa Assessment Certificate, specialist reports, statutory declarations from the applicant's brother and sponsor, and an ACAT assessment recommending a Home Care Package Level 3, indicated that the applicant's father had significant health issues requiring ongoing care. The Tribunal noted the sponsor's preference for family-provided personal care and the applicant's stated willingness and ability to provide such care. Crucially, the Tribunal found that the criteria under cl 116.221 of Schedule 2 to the Migration Regulations 1994 were met.

Consequently, the Tribunal remitted the applications for the Other Family (Migrant) (Class BO) visas for reconsideration by the Minister, with a direction that the criteria for a Subclass 116 (Carer) visa, specifically cl 116.221, were satisfied.