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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, 20 November 2018Hi Svetlana Gunaratne, how long take for final processing as a carer visa from summit application? Thanks!
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Sunday, 26 May 2019
Hello I had already sent my carer application onshore and they Had sent me the acknowledgement letter that they received it. How will you know if your application is on queue?
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Tuesday, 03 December 2019
They will give you a que date
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Tuesday, 28 May 2019
Hi Bella,
Your application will be first assessed against core criteria, if met, it will be then placed in a queue. You will be notified by the department. Normally, depending on circumstances, an initial assessment can take approximately three to six months.
Kind Regards,
Svetlana Gunaratne
AUS VISA SOLUTIONS
If you have further questions, please do not hesitate to contact me: enquiry@ausvisasolutions.com.au -
Monday, 17 April 2023
Hi Svetlana my mum has been given a queue date for final processing. Do you think they will ask for another Bupa assessment for my daughter who needs the care
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Sunday, 27 October 2019
Hi guys. I kinda have a long question.
My mother and I applied on Carer Visa in 2016 Subclass 116 I was 23 at the time. The carer Visa is to my uncle who has spinal injury and require a full time Care.
After 4 years our case has been considered by the department of home affairs.
They sent us questionary to fill out which we did. I am the Daughter and I am a secondary Visa applicant I'm 27 years of age now. My Mother and I live in the same house hold but I am currently working full time. The department Noted that I am financially independent that means I will not be granted a Visa. But I want to be granted a visa as well what should I do?
Would it help if I quit my job and be dependent on benefits???
I'm stuck I need advice on what should I do?? Please help any advice is appreciated -
Wednesday, 30 October 2019
Hi , m Gurjant ,
M from India but my parents are live in Australia permanently
My dad old 85 year and mother 80
My brother also Australian citizen but he’s not able to care for parents
Because he is open heart surgery,my father also open heart surgery
My mother also lives with me in India she's New Zealand passport
And m also 5 times travel from India to Australia last year and now
M again in Australia to pic my father for India because my brother is
Not able to care him and now I want to stay here.so what’s better fo
Apply visa inshore or out shore
So can I apply carer visa here or India -
Tuesday, 03 December 2019
How long it will take after medical?
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Wednesday, 29 April 2020
Btw we're already here in Australia. Thx for this!
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Saturday, 07 December 2019
Hi to all,
Carer Visa is difficult to get these days considering that there are only 500 spots available each year.
However, one of our clients who applied in 2015, was granted his permanent Visa in 2018. You can see his video testimonial on our website: www.ausvisasolutions.com.au.
In that case there were two family members (Australian permanent residents) already residing in the household who were unable to provide the required care.
You can see that it all depends on how the case is presented.
We can assist you with your application.
Please contact us:
enquiry@ausvisasolutions.com.au
+61 2 9025 3513
AUS VISA SOLUTIONS
MARN 1466111 -
Saturday, 14 December 2019
Son who wanted to take care of the Mother is in Vietnam with his own family, I feel that the mother at 71 should be taken to Vietnam to be looked after by the Son and Family as well as the wider family. Vietnam is a better place to look after an elder than Australia. This is certainly a case of trying to migrate to AUSTRALIA FOR ECONOMIC REASONS. Same applies to Sri Lankan's who are trying to migrate through various loop holes in the Law. The Tribunal is correct in their decision. Its foolish thinking that facilities of care etc are better in Australia than in many parts of Asia. What old disabled people need is care in their place of birth or Village with the greater family and not material standards of caring in developed countries. Where people do not have time to care for the old but is in search of Material needs, be it the son's or daughters etc. Many Australians and Europeans are now living in Sri Lanka, Vietnam, Philippines and Thailand as money is not the only satisfaction in Old age. I lived from 1967 in Australia and is now back from 2009 in my hometown in Galle and Colombo.
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Tuesday, 28 April 2020
Hi my application was on quee april2019 but im on financial hardship i have 3 children with me i apply carer visa 836 my enquiry is..can i apply for work rights as my bridging visa c has no work right?and my eldest is 18 yrs old just finish yr12 here in nsw but im having a hard time to enrol for uni. Or collage can i also apply my daughter for work rights?thank you ms.little ems
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Thursday, 30 April 2020
Hi Ms Little Ems! You can apply for a bridging visa with work rights. You will need to demonstrate a compelling need to work. If you require assistance please do not hesitate to contact us.
We helped many of our clients in similar circumstances.
Kind Regards,
Svetlana Gunaratne
enquiry@ausvisasolutions.com.au
+61 2 9025 3513
AUS VISA SOLUTIONS
MARN 1466111 -
Wednesday, 29 June 2022
Hello everyone! I'm looking for advice about carer visa 116 that I applied for my brother to help me care for my 10yrs old daughter who has mental and physical disability. Non verbal and in a wheelchair. I submitted my application last 15th of Feb 2022.. how long do you think is the waiting period? And can my brother go back to work as a sea fares while waiting for the decisions to be made? At the moment he is in the Philippines and he's thinking of going back to work after 2yrs pandemic.Thank you.
Immigration blog
Hi Cheryl, only a relative can be sponsored under Carer Visa, not a friend.
Kind Regards,
Svetlana Gunaratne
AUS VISA SOLUTIONS
MARN 1466111
email: enquiry@ausvisasolutions.com.au