ZHU (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal by a visa applicant against a decision to refuse an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to demonstrate that they were a carer for an Australian relative, providing substantial and continuing care.

The primary legal issue before the Tribunal was whether the visa applicant met the criteria for a carer visa, as defined by regulation 1.15AA of the Migration Regulations 1994. This involved determining if the required assistance could not reasonably be provided by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also considered the applicant's claim of needing care and the availability of care from their spouse.

The Tribunal accepted that the applicant had significant health conditions requiring care, which had deteriorated since an initial assessment. However, the applicant's oral testimony revealed that her 85-year-old husband was providing 24-hour care, including assistance with daily living activities. The applicant also stated that her husband was ageing and becoming weak and impatient, and that his care was sometimes inadequate. Crucially, the Tribunal noted that the applicant had a son living in China, which meant she did not meet the criterion of being a "remaining relative" for a Subclass 115 visa, a separate but related visa category mentioned in the decision.

The Tribunal affirmed the decision not to grant the visa. While acknowledging the applicant's need for care, the Tribunal found that the applicant did not satisfy the specific requirements for a Subclass 116 visa, particularly concerning the availability of care from other sources and the applicant's status as a remaining relative.