Yang (Migration)

This matter concerned an application for review of a decision not to grant a Subclass 116 (Carer) visa to Ms Tsui-Ying Chen Yang, the visa applicant. The applicant claimed to be the carer of her mother, Ms Chung, an Australian citizen who required assistance. The core dispute revolved around whether the assistance Ms Chung needed could reasonably be obtained from welfare, hospital, nursing, or community services in Australia, as required by Regulation 1.15AA(e)(ii) of the Migration Regulations 1994.

The legal issue before the Tribunal was to determine if the assistance required by Ms Chung could reasonably be obtained from Australian services. This required considering whether the services were obtainable by Ms Chung, rather than merely available, and whether any cultural factors prevented reasonable obtainment, distinguishing this from a mere preference for a particular service. The Tribunal also had to assess whether the applicant met the requirement of claiming to be the carer of an Australian relative, as stipulated in Clause 116.211 of Schedule 2 to the Regulations.

The Tribunal reasoned that while it accepted Ms Chung had the claimed medical conditions and care needs, it was not satisfied that she had sufficiently investigated the availability of appropriate services. Specifically, the Tribunal noted that Ms Chung had not undergone an ACAT assessment since 2010, making it unclear what cost-effective out-of-home or in-home assistance could reasonably be obtained. Although the Tribunal acknowledged the difficulty in finding Hakka-speaking staff, it found that an aged care facility with such staff had been identified, and limited investigation had occurred into whether assistance could be reasonably provided by Hakka speakers in Ms Chung's home at a manageable cost.

Consequently, the Tribunal affirmed the decision not to grant the visa. The Tribunal was not satisfied that Ms Chung’s refusal to obtain hospital, nursing, or community services was reasonable, and therefore, the visa applicant did not meet the criteria for the Subclass 116 visa. This also meant that any secondary visa applicants did not meet the criteria.