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.
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