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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.
Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
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Tuesday, 07 February 2017Hi to all
Trust me this visa is very hard to get it. QD Noemvri 2013 still in effect status -
Wednesday, 05 April 2017
My son put every thing and is in a que for his visa as my carer. It was all finalised in November 2014, will they be much longer as his work is awful and they treat him bad, I worry he won't make another year before he breaks down. He is all I have.
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Thursday, 06 April 2017
Hi my son has been through hell, and still is. Everything was finalised in November 2014. Do you think it will be another year as I worry, his job treat him awful but he is to scaired to rock the boat he said. He is all I have and it breaks my heart to watch him turning into the shell of his former self. And all for to look after me. But he is good to his mum and has made me promise on his life that I will not do anything silly. It's so hard to keep that promise. Beware all those going for a carer visa, it's a long and awful road.
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Tuesday, 09 May 2017
is it possible to come on a tourist visa ( 6 months ) to meet family and friends and then apply for a CARER visa .
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Monday, 15 May 2017
My husband and I arrived as self funded retirees in 2007. My mother has MS aged 78 and at the moment my father aged 86 is looking after her. Currently my mother is in hospital after having fallen and has just had a Hip operation. I now want to apply for a Carers Visa however I have read that we need to be offshore to apply. My parents are citizens of Australia. Any advice would be greatly appreciated
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Thursday, 25 May 2017
Hello everybody..I want to apply for a carer visa. My relatives is an Australian Citizen. I am married but separated from my husband.
What kind of supporting document (pls. elaborate) should I attached on my application regarding my separation from my husband. Any advice would be very much appreciated. -
Thursday, 25 May 2017
Hi im michelle and i been here in autralia for 8 times i go here to look after month and come back again she is 78 year old and cannot understand english too well she is alone at home she always forget to have her tablet every day i need to remind her..shes alone at home and i want to look after her i have niece and sister here but they live in different suburb..i want to be here with my mum i want to try if i eligible to apply carer visa for mum pls i need an advice
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Monday, 17 July 2017
Hi i just want ask if it is a must that a carer must to live to the person she needs to assist?as me and my 3 kids live with my mother who is the main sponsor and needs my assist we leave with them for 4yrs now and still waiting for the decision as its in the federal case now.i want to move just close to my mothers house cause we having trouble and misunderstanding with her aussie husband.is it possible for me to move to another house?thanks for any reply.
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Tuesday, 10 October 2017
Hi Marvee may i ask how long you've waited for your application as carer to approved?
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Tuesday, 03 December 2019
hi marvee! would you mind if i ask for the processing time of your carer visa? did you apply it onshore or offshore? your reply would be appreciated.
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Tuesday, 28 April 2020
Hi gia i apply onshore but not yet granted but they already put my application on quee last april2019.
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Monday, 07 August 2017
Ill try to aply for this visa my mums alone and she has a verdigo im always go care for her soo i come here like 8 times since 2009 and my visa is visitor carer for mum now i want to be her carer for good shes getting old now shes 79 i want to be with her soo i can look after her
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Monday, 11 September 2017
i want to know that a australian citizen whos age almost 90 can send sponser to any one in other country for care visa . having not relation
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Monday, 11 September 2017
Can I have a carer who is living in my house. Her would be fiancé deceive us of marrying her. I'm 71 with chronic arthritis and under heart care plan. I was emotional in pain about the undecesive actions of my son.
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Monday, 15 January 2018
Hi,
My 87-year old mother-in-law now needs a carer. She doesn't have a brother or sister or step equivalent, other children, grandchild, aunt, uncle, niece or nephew, or step equivalent in Australia or overseas that we can get to look after her.
However, my sister-in-law - who's also a nurse - is willing to assist us with caring for my mother-in-law. Considering our situation, would she be allowed to come to Australia under the Carer Visa stream?
We really need a carer really soon and just wondering if we could apply her.
Thanks in advance for your input. -
Thursday, 18 January 2018
I was living in Australia since 2010 to 2013 with my family three kids I get mastet civil enginerring Deakin Univetsty Geelong.
Now I live with my family in my country Libya in hard situation civil war, difficult enconomy with nothing liquidty money.
I hope to get visa to move live in Australia with my family -
Friday, 11 May 2018
Hi can u give idea how long take for final processing as carer just Released from que after 4 year
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Thursday, 28 June 2018
has anyone got there carer visa 836 approved yet if so please let me know thanks urgent
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Friday, 16 November 2018
Hi I am a 59 on a disability pension my husband died nearly 2 years ago my mother is unwell and I have an estranged brother I was unable to have children my health has not been good for a lot of years I have no one else except a good friend who is Dutch who is prepared to come and care for me would I have any chance of getting a career visa because I have no family who can assist me
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Hello Tat, I am in Sydney, can you give your number, I am in the same board as you