Australian Immigration Daily News

How hard is it to get an application for a Carer visa (Subclass 116) granted? 

Extremely! 

That is in large part due to the fact that under regulation 1.15AA(e), it is necessary to show that the assistance that is sought from the proposed carer cannot reasonably be provided by any other relative of the resident who is already an Australian citizen, permanent resident or eligible New Zealand citizen, and that assistance also cannot reasonably be obtained from “welfare, hospital, nursing or community services in Australia”. 

Despite the obstacles created by these requirements, a recent decision of the Federal Circuit Court, Kheir & Ors v Minister for Immigration (2016) FCCA 1577 (6 July 2016) does show that there may be a window of hope, however small it may be, for families who find themselves in the situation of needing a helping hand from another family member to assist with a frail, elderly relative’s needs. 

In this case, Justice Buchanan “quashed” a decision of the Administrative Appeals Tribunal that had affirmed a delegate’s decision to refuse the application for the Carer visa, and sent the case back to the AAT for re-determination. 

On the face of the situation, it looked like this application could be very difficult. 

The underlying story was that the sponsoring person who was in need of care was a woman who was 65 years old at the time that her case was before the AAT, in 2014.  

She suffered from a variety of medical conditions including back pain and arthritis. It was claimed that she needed assistance with basic daily activities such as showering, dressing and using the toilet. 

The problem was that the sponsor had several relatives already living in Australia. These included the members of her immediate household, her husband, one of her daughters, her daughter’s husband, four other children living in Melbourne, as well as three sisters and five other nieces and nephews also in Victoria. 

It was the Tribunal’s view that the required assistance could be provided by the sponsor’s other children and relatives, and that the various members of the family could adjust their schedules and commitments to provide the sponsor with the necessary assistance.  The Tribunal also found that assistance could be obtained from the local council with assistance with caring for the sponsor at home. 

So what did turn the tide in this case? 

It was claimed that the sponsor wished to have a female carer, and that the Tribunal had not properly addressed this claim in its reasoning.  It had been claimed by the sponsor’s husband that due to his own ill health and increasing frailty, that he was no longer able to provide the full time care that his wife needed, and that he could not support her if she fell.  It was also put to the Tribunal that the sponsor had very strong objections to being assisted with the intimate functions of her daily life by any male person other than her husband.  While the Minister argued that there had been no evidence in support of this claim before the Tribunal, Justice Buchanan gave this argument “short shrift”, observing that it was only consistent with basic common sense and ordinary human experience that a 65 year old woman would not be comfortable being assisted with private daily activities by any male person other than her husband. 

In the end, Justice Buchanan observed that, having regard to all the evidence that had been before the Tribunal, the case was “finely balanced” – in other words, it was a “close call” as to whether “jurisdictional error” had been committed which justified quashing the Tribunal’s decision. 

What was determinative was that Justice Buchanan found that the sponsor had made a clear claim about the necessity of the required care being provided by a female, and that the Tribunal had failed to specifically and directly assess and deal with this claim. 

So, what is the lesson that can be taken away from this decision? It seems to be that even when a decision by the Tribunal rests on “factual questions”, that if the Tribunal does not take up and separately deal with a factual issue that might be key to deciding the case, that a jurisdictional error might be found.  In other words, that it may well be possible to salvage a case that was lost at the Tribunal stage by critically reading the Tribunal’s decision and through that process discovering that the Tribunal failed to fulfill its review function by not dealing with the particulars and specifics of issues directly relevant to the application.

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.