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Case Shows Getting a Carer Visa is Hard!

 Is it difficult to get a “Carer” (Subclass 116) visa? 

A recent case decided by the Federal Court, Nguyen v Minister for Immigration and Border Protection (2016) FCA 688 (9 June 2016) tells us that the answer to this question is: “Yes!” 

Trying to satisfy the criteria for grant of a Carer visa can indeed seem as difficult as trying to climb over a brick wall! 

The difficulty, as illustrated by the Nguyen case, is created by the “time of decision” criterion stated in clause 116.221 that the applicant must be a “carer” of the Australian relative who requires care, within the meaning of Regulation 1.15AA. 

Regulation 1.15AA specifies that the person requiring care must be an Australian citizen, permanent resident or eligible New Zealand citizen who has a medical condition that is causing impairment of the person’s ability to attend to the practical aspects of daily life, and who, because of that condition, has and will continue for at least 2 years to need direct assistance with the practical aspects of daily life. 

The real barrier to applicants for Carer visas comes from the further requirement in Regulation 1.15AA that the assistance required by the person requiring care cannot reasonably be provided by any other relative of the person who is an Australian citizen, permanent resident or eligible New Zealand citizen, or obtained from “welfare, hospital, nursing or community services in Australia”. 

The family circumstance in the Nguyen case was that the person who required care (the applicant’s sponsor) was a 71 year old Vietnamese woman who had been assessed as having “cognition impairment, osteoarthritis, food intolerance and anaemia”. 

There were a number of family members who were already in Australia who lived within an 8 – 30 minute travel distance of the sponsor’s residence. 

These relatives in Australia all were coping with a variety of issues which were claimed to prevent each of them from providing the full-time, 24-hour care it was claimed that the sponsor required.  

These included, in the case of the son with whom the sponsor was currently living, the claimed impossibility of caring for his mother and fulfilling his duties as a monk. In the case of the sponsor’s other children who were already living in Australia, they also included a variety of significant health issues which they themselves were suffering from as well as the need to care for young children of their own. 

In this situation, the family sought to get a visa for another son, living in Vietnam, to come over to Australia to be the carer for his mother.  This son (the visa applicant) sought to include his wife and his own small children as secondary applicants in the visa application, as members of his family unit. 

Unfortunately for this family, the visa application was refused by the Department in the first instance, the refusal was affirmed by the Tribunal, and the refusal was confirmed both by the Federal Circuit Court and the Federal Court.  

In a word, neither of the reviewing courts found that the Tribunal’s decision to affirm the refusal of the visa application was defective by reason of “jurisdictional error”.

What were the problems with the application and the supporting material? 

They were two-fold. 

First, the Tribunal took the view that it is “not uncommon in Australian society for children of persons who are incapacitated by age or illness to adjust their work and other living arrangements to meet the needs of the family member requiring assistance”, and that it was not unreasonable to expect that the proposed sponsor’s need for care could be shared among the several children living in Australia (notwithstanding their own individual personal difficulties). 

Secondly, the Tribunal was not satisfied that a full investigation had been made by the family into services available in Australia.  For example, an “Aged Care Assessment Team” (ACAT) assessment had not been done to determine what services might have been available to the sponsor in Australia. Also, the family had not contacted the Commonwealth respite and Carelink Centre to determine whether assistance might be available from other government programs such as the Home and Community Care Program or the National respite for Carers Program. 

It would appear that without evidence of inquiries having been made to determine whether assistance might have been available from these sources, the prospects that the applicant would have been able to show that adequate assistance was not available from welfare or community services organisaitons in Australia would have been minimal. 

In the event, the family’s attempts through the court system to show that the Tribunal had committed jurisdictional error by wrongly affirming the refusal failed. 

The Federal Court held that the Tribunal had not fallen into error by examining whether the family could reasonably be expected to obtain external services to supplement the assistance that they could provide. 

Nor, in the Federal Court’s view, was there error in the Tribunal’s view that if the needed assistance was available from a combination of care from the family and from outside welfare, hospital, nursing or community services that the criteria for the grant of a carer visa could not be met. 

And lastly, the Federal Court held that even if the Tribunal’s assessment that the sponsor’s need for care could be met by a combination of assistance from the family and from community services was disputed by the family, that disagreement was not sufficient grounds for overturning the Tribunal’s decision.  In the Court’s (correct) view, the question of whether or not the sponsor’s needs for assistance could be met without assistance from the applicant was purely a matter of “merit assessment” of the visa application. 

It was therefore simply a matter for determination by the Tribunal. 

So the moral of this case is that if there are already family members in Australia who can share the responsibility for caring for an elderly or incapacitated relative (even if they need to overcome difficulties in their own lives in order to be able to do so) and sufficient inquiries have not been made to find out whether any sources of care might be available, then the application for a carer visa is going to face great obstacles to success.

b2ap3_thumbnail_Concordia_20151013-220725_1.jpgConcordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

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Comments

  • Guest
    Svetlana Gunaratne Wednesday, 22 June 2016

    In my recent practice I had a very complicated case in relation to a carer visa: two unemployed daughters are already living in the house with the mother (sponsor) who is a citizen of Iraq. The sponsor is not settled (less than 18 months at the time of application in Australia).
    The mother is sponsoring a son as a carer.
    After the interview with the visa applicant, the visa application has been placed in a queue on basis of satisfying the core criteria.
    I have backed up my submissions with the case law just in case the matter goes to the tribunal.

  • Guest
    Margaret Mutisya Thursday, 12 October 2017

    Svetlana,
    Can you please contact me? I lost your contact email or it does not come up right. Everytime i sent an email, it comes back.Thanks, margaret mutisya

  • Guest
    baden mcuen Friday, 26 May 2017

    Difficult case evidence is that there are two unemployed daughters in the house assume on centrelink new start?
    The mother needs a full time carer may have merit as the two daughters could share the caring otherwise
    Evidence of how the mother is being cared for now assumed the daughters are busy looking for work and do not want to reduce the brothers chance to emigrate by one daughter going on a carers pension ?

  • Guest
    Johans Thursday, 09 March 2017

    Hi Darren, we already Lodge our application last April 2016... How long will it take to have a decision? The Principal applicant is my wife she will took care of her Nephew who has global Development issue which is approved by the BUPA for a long term care for her nephew's condition, me and my son are the secondary. So you're saying that in our case there are still a possibility for our application to be Denied?
    Thanks!!!

  • Guest
    darren Tuesday, 27 September 2016

    hi svetlana just letting you know i went through a hard time with the carer visa 836 i put my application in the day i got my medical done by bupa in melbourne i waited for 5 days for the result got my result and failed only 15 points i was so angry i rang them up and said they made a very big mistake i am on disabilty requires 20 points very odd i questions the department of immi to my case manager they said do another one ok more money so i did it failed 2nd time put that into immi then got refused i had grounds to go to tribunal after going through the tribunal they offered me another go i passed 140 points had to go bk to answer lots and lots and lots of questions but passed it was remitted bk to the department now we are in a queue another 3 years to wait but i cross my fingers. so its hard belive me .

  • Guest
    darren Tuesday, 27 September 2016

    so your saying all through its placed in a queue it can be refused again even if the tribunal has remitted back to the department yes or no

  • Guest
    Svetlana Gunaratne Monday, 03 October 2016

    It should be ok, as long as at the time of decision the applicant meets the criteria for a visa grant. You will not need to do another assessment with bupa. Kind Regards, Svetlana

  • Guest
    Tina Wednesday, 12 October 2016

    Hi my name Is Tina and my parents have moved back to Australia in March 2016 for my 78 year old Mother's health needs. My Father is her full time carer and he has retired to spend full time with her. She has Parkinson's affecting her cognitive and motor skills as well as dementia. She also has the doctor's medical report stating delerium, depression and social withdrawal. She is in a wheelchair and requires assistance with bathing, dressing, eating, toileting, and other aspects of daily living. She was born in Australia and a citizen. My Father is Canadian. live here with my son and we both have citizenship by descent. I am on disability and he is my carer. My Mother has two sister's in their 70s who are caring for their husbands and both suffer from medical limitations of their own. My Father is the only one able to care for her. She has been evaluated and is awaiting an in depth ACAT assessment we are hoping she qualifies for some affordable respite at a day center so that my Father has some opportunity to maintain his health and do the shopping and other errands. Are there any suggestions for them? We were told by another couple at church that once all the criteria was met there VISA came through very quickly. There was no waiting in a queue. I did not see a place in the application requesting all this information about the relatives. How are the necessary points obtained?

  • Guest
    Svetlana Gunaratne Friday, 14 October 2016

    Hi Tina, Have you lodged a carer visa application already? If you need to discuss the progress or obtain a legal advice, we recommend to book an appointment with a migration agent. we are not allowed to discuss personal details or provide with a legal advice here. My email is svetlana@ausvisasolutions.com.au
    Kind Regards, AUS VISA SOLUTIONS, Svetlana Gunaratne MARN 1466111

  • Guest
    Tina Wednesday, 12 October 2016

    Hi my name Is Tina and my parents have moved back to Australia in March 2016 for my 78 year old Mother's health needs. My Father is her full time carer and he has retired to spend full time with her. She has Parkinson's affecting her cognitive and motor skills as well as dementia. She also has the doctor's medical report stating delerium, depression and social withdrawal. She is in a wheelchair and requires assistance with bathing, dressing, eating, toileting, and other aspects of daily living. She was born in Australia and a citizen. My Father is Canadian. I live here with my son and we both have citizenship by descent. I am on disability and he is my carer. My Mother has two sister's in their 70s who are caring for their husbands and both suffer from medical limitations of their own. My Father is the only one able to care for her. She has been evaluated and is awaiting an in depth ACAT assessment we are hoping she qualifies for some affordable respite at a day center so that my Father has some opportunity to maintain his health and do the shopping and other errands. Are there any suggestions for them? We were told by another couple at church that once all the criteria was met their VISA came through very quickly. There was no waiting in a queue. I did not see a place in the application requesting all this information about the relatives. How are the necessary points obtained?

  • Guest
    darren Friday, 14 October 2016

    hi there tina i was wondering was the subclass visa carer visa 836 or 116 and when did you apply and got aproved i wait your reply thanks

  • Guest
    Jayson Wednesday, 07 December 2016

    Hi are there any changes/proposed changes to the Carer Visa?

    Please advise ...

  • Guest
    margaret Tuesday, 31 January 2017

    The waiting time for a Carer's Visa is very long. On the Department's website, it says they are now processing Visas up to March 2014. I applied in September 2015. It looks like i have to wait for another 2 years before mine is touched. Why can't the government increase the places for family Visas from 500 to 1000 so as to clear the backlog? When someone needs help and they have to wait for years -- very unreasonable.

  • Guest
    Regine Tuesday, 31 January 2017

    Absolutely true margaret, my auntie is terminal ill she diagnose last 2015 having motor neurons desease and its progressive .. at the moment she can even move her whole body and she have a 10year old daughter there are both Australian citizen, I'm currently caring for both of them, we don't have any relatives here In Alice spring Australia NT. My visa right now is just 12 mos. visitor visa. We lodge my carer visa last year may 2016., and they said that carer for teminal ill is not applicable for carer visa, but the most concern now is her daughter she's just 10 year old , and I'm her legal guardian if my auntie will passed away. What we need to apply in this kind of matter. Wait for your reply thank you

  • Guest
    Svetlana Wednesday, 01 February 2017

    Hi Regine, have you applied for an onshore carer visa? In that case at least you can stay on a BVA and care for your aunt.

  • Guest
    Majane Sunday, 11 June 2017

    Hi i am jane and i had my application been qeued last november 2016 but lodged the application since june 2015 for carer 116. How long do you think the visa will be released from the qeue for final processing? We are worried to our aunt..

  • Guest
    Regine Thursday, 09 February 2017

    Hello svetlana , No, it's not onshore, the immigration agent lodge my carer visa in Australian immigration in the Philippines.

  • Guest
    James Friday, 03 February 2017

    I'm in the process of applying for a carers visa for my terminally ill mother and I'd sent off all the required documentation.now I've been asked for family composition,character references and employment and rental history.im fine with everything bar one acrimonious falling out with 1 landlord.will this count heavily against me,or is it a case of gathering necessary documents to be placed in my file for checking once my place in the queue comes up?

  • Guest
    Rita Saturday, 04 February 2017

    Hi Margaret ,
    Hope you are fine !
    Have you already placed on que ?
    And how did you estimate that you are gonna wait two years ?
    Is your your application onshore 836 or outshore 116 ?
    I am on bridging visa A
    I have already applied onshore carer visa on my mom in oct 2015 and they ask me later for xray medical test and i was pregnant so it took 5 months waiting and i submited it last month and i think in the next week i will be in que .
    Thanks in advanced for you reply

  • Guest
    Tat Dat Luu Saturday, 13 March 2021

    HI Rita
    In homeaffairs.gov.au said, carer visa was granted unitl 11/10/2017
    Has your visa been granted yet?
    i am going to application onshore 836, then i will give bridging visa A, it it right? for bridging Visa A, i can work or not?
    If you are in Sydney right now, please leave your phone number, I would like to make a call to you
    Thank you

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