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File number: 1602507

Tribunal: Senior Member Kira Raif

The visas of three parties were refused by a delegate of the Minister for Immigration and Border Protection. On 8 December 2017 the Administrative Appeals Tribunal affirmed the decision. 

The applicant seeking review in this case was the sponsor, an Australian resident, who sought an Other Family (Migrant) (Class BO) Subclass 116 Visa for his sister as his carer and her husband and their child as dependents.

Clause 116.221 of Schedule 2 to the Migration Regulation 1994 (the Regulations) requires that at the time of the decision, the visa applicant is the carer of the Australian relative. To determine whether a person is a carer in this context, the requirements of Regulation 1.15AA of the Regulations must be met.

The key requirement in issue was Regulation 1.15AA(1)(e) which requires that the assistance cannot reasonably be provided by any other relative of the applicant who is an Australian citizen; or obtained from welfare, hospital, nursing or community services in Australia.

The applicant lived with his wife and his two children. The applicant claimed his wife was not willing to provide assistance to him any longer as they were separated and that his children, both over the age of eighteen, could not provide assistance because of their own responsibilities. The applicant claimed he had sought assistance from the local Council, Centrelink and a range of other service providers including NDIS.

The Tribunal was not satisfied the applicant could not obtain the required assistance from his family or from welfare, hospital or nursing or community services.The Tribunal did not accept some of the evidence provided by the applicant. He provided a letter from a GP as evidence for his separation which the Tribunal found inappropriate and unhelpful. Further contradiction to this claim was identified when the couple did not appeal a decision made by Centrelink that they were not separated.  The Tribunal also found no evidence that the children couldn’t provide some degree of assistance. The Tribunal was not satisfied that at least some degree of assistance cannot be obtained from various organisations in Australia.  The applicant provided no evidence of contact with the organisations above other than a list of the organisations’ names.

The Tribunal formed the view that assistance from a combination of the various sources above could meet the applicant’s needs. Therefore the requirements of Regulation 1.15AA were not met and the visas were refused.