Trinh (Migration)

This matter concerned an application for review of a delegate's decision to refuse an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant, Mr Daniel Quang Trinh, sought to be recognised as a carer for his sponsor, Ms Kieu Tuyet Trinh, who is an Australian citizen and claimed to be his sister. The delegate had refused the visa on the basis that the applicant did not meet the criteria under clause 836.221 of Schedule 2 to the Migration Regulations 1994, specifically that the applicant was not a carer of an Australian relative.

The Tribunal was required to determine whether the applicant was a "carer" of an Australian relative as defined by the Regulations. This involved assessing whether the applicant was a "relative" of the sponsor, whether the sponsor had a medical condition causing impairment requiring assistance, and whether such assistance could not reasonably be provided by other relatives or welfare services. The Tribunal also needed to consider whether the applicant was willing and able to provide the necessary substantial and continuing assistance.

The Tribunal found that the applicant and sponsor were siblings, satisfying the requirement that the applicant was a relative of an Australian relative, based on DNA test results. It also accepted that the sponsor had an impairment rating of 30, as evidenced by a Carer Visa Assessment Certificate, and that this impairment necessitated ongoing assistance. Crucially, the Tribunal considered evidence of inquiries made by the applicant to various disability and family violence services, concluding that these services were unable to provide the specific, ongoing, and substantial assistance required by the sponsor. The Tribunal therefore concluded that the criteria for the visa had been met.

The Tribunal remitted the decision for reconsideration, finding that the delegate had erred in not adequately investigating the availability of alternative care and support services for the sponsor and in not being satisfied of the sibling relationship due to a lack of documentary evidence at the time of the initial decision.