• cl 116.211 of Schedule 2 to the Regulations
• cl 116.221 of Schedule 2 to the Regulations
• cl 116.311 of Schedule 2 to the Regulations
• cl 116.321 of Schedule 2 to the Regulations

MIGRATION - Other Family (Migrant) (Class BO) visa - Subclass 116 (Carer) - sponsorship remaining in force - carer of an Australian relative - willing and able to provide substantial and continuing assistance - no time limit on sponsorship document - decision under review remitted

Administrative Review Tribunal Act 2024 (Cth), s 106

Migration Act 1958 (Cth), ss 5, 65

Migration Regulations 1994, Schedule 2, cls 116.211, 116.212, 116.221, 116.222, 116.311, 116.321; rr 1.03, 1.15

Perera v MIMIA [2005] FCA 1120

Xiang v MIMIA [2004] FCAFC 64

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 May 2023 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The visa applicants applied for the visa on 28 May 2018. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations.
3. The delegate refused to grant the visas on the basis that the visa applicants failed to satisfy cl 116.212 and cl 116.222 of Schedule 2 to the regulations on the grounds that the Form 40 sponsorship document was more than two years old and that the review applicant, despite requests from the Department, had failed to provide an updated Form 40 from the sponsor or, "any other information to demonstrate the applicants... sponsorship for this application remains in force at time of decision".
4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

1. The review applicant is Ms Thi Mai Chau and the primary visa applicant is Ms Thi Lieu Nguyen.
2. On 28 May 2018, the visa applicant lodged an application for a Subclass 116 (Carer) visa on the basis providing assistance to the sponsor, namely the review applicant.
3. On 15 May 2023, a delegate of the Minister refused to grant a visa on the grounds that the visa applicants had failed to satisfy cl 116.212 and cl 116.222 of Schedule 2 to the regulations.
4. On 3 October 2023, the review applicant lodged an Application for Review in the Administrative Appeals Tribunal (now the Administrative Review Tribunal), (the Tribunal).
5. The Tribunal has had the benefit of receiving extensive evidence and submissions from the review applicant, which information was unavailable to the delegate. As a result of this, the Tribunal informed the review applicant via email on 15 May 2025, that the Tribunal is satisfied that there was sufficient evidence to make a decision on the papers.
6. Section 106 of the Administrative Review Tribunal Act 2024 (the ART Act) outlines circumstances in which the Tribunal may reach a decision without a Hearing. Pursuant to s.106 (1):

"The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the Hearing of the proceeding if any of subsections (2) to (5) applies."

(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the Hearing of the proceeding; and

(b) either:

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the Hearing of the proceeding; and

(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding."

1. The Tribunal is satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

Whether the primary visa applicant has claimed to be a 'carer'

1. Clause 116.211(1) of the Regulations requires that the primary visa applicant claims to be a carer of an Australian relative. In the present case, the visa application was made on the basis that the primary visa applicant is a carer of the review applicant's son, who is the primary visa applicant's nephew.
2. For the purposes of the Carer visa, 'Australian relative' is defined as a relative of the visa applicant who is an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen: cl 116.211(2). The terms 'relative', 'Australian permanent resident' and 'eligible New Zealand citizen' are defined in reg 1.03 of the Regulations.
3. The Tribunal is satisfied that both the review applicant and her son are Australian citizens and hence the primary visa applicant satisfies cl 116.211. Therefore, at the time of application, the primary visa applicant claimed to be a carer of an Australian relative and satisfies the requirements of cl 116.211.

Whether the primary visa applicant is a 'carer'

1. Clause 116.221 requires that at the time of decision, the primary visa applicant is a carer of the Australian relative (or 'resident'). The term 'carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.

Applicant is a relative of the resident - reg 1.15AA(1)(a)

1. Regulation 1.15AA(1)(a) requires the applicant is a 'relative' of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a 'close relative' or other specified relation). In the present case, the Australian relative is identified as the primary visa applicant's nephew.
2. As the primary visa applicant is the aunt of the Australian relative, the primary visa applicant is a 'relative' of the resident within the meaning of reg 1.03, and meets the requirements of reg 1.15AA(1)(a).

1. Regulation 1.15AA(1)(b) requires that a certificate, which meets requirements of reg 1.15AA(2), states that: the Australian relative (resident) or a member of the family unit has a medical condition; that the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to practical aspects of daily life; that the impairment has a rating (under the impairment tables) that is specified in the certificate; and that because of the condition, the person has and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life.
2. For a certificate to meet reg 1.15AA(2) it must be signed and issued in relation to a medical assessment carried out on behalf of a health provider specified by the Minister.
3. The Tribunal finds that the certificate provided does meet the requirements of reg 1.15AA(2). Further, the certificate addresses each of the matters mentioned in reg 1.15AA(1)(b)(i)-(iv). Accordingly, the requirements of reg 1.15AA(1)(b) are met.

Residency status of person with medical condition - reg 1.15AA(1)(ba)

1. Regulation 1.15AA(1)(ba) requires that the person who has the medical condition is an Australian citizen, Australian permanent resident or eligible New Zealand citizen.
2. In the present case, the person with the medical condition is an Australian citizen. Accordingly, the requirements of reg 1.15AA(1)(ba) are met.

1. Regulation 1.15AA(1)(c) states that the impairment rating must be equal to or exceed the impairment rating specified by the relevant legislative instrument.
2. In the present case, the impairment rating specified in the certificate is "30". This rating exceeds the impairment rating specified by the relevant instrument and therefore meets the requirements of reg 1.15AA(1)(c).

Assistance cannot be reasonably obtained / provided - reg 1.15AA(1)(e)

1. Regulation 1.15AA(1)(e) requires that the assistance cannot reasonably be provided by: any other relative of the Australian relative who is an Australian citizen, permanent resident or an eligible NZ citizen; or obtained from welfare, hospital, nursing or community services in Australia.
2. Having carefully considered all the evidence including, but not limited to: the fact that the review applicant's husband is aged 69 years and has a high impairment to his lower limb resulting in significant disability; the Tribunal is satisfied that the assistance cannot reasonably be provided by a relevant relative, or obtained from welfare, hospital, nursing or community services in Australia and therefore the requirements of reg 1.15AA(1)(e) are met.

1. Regulation 1.15AA(1)(f) requires that the primary visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed. In this context, it should be noted that 'willingness' is concerned with the visa applicant's state of mind. In contrast, the issue of ability is an objective inquiry as to whether the visa applicant is a person who is suitable or fit to provide the assistance: Xiang v MIMIA [2004] FCAFC 64.
2. The term 'substantial and continuing assistance' has not been directly considered in this context, but has been the subject of judicial consideration in the context of the definition of 'special need relative' in the Regulations. In Perera v MIMIA [2005] FCA 1120, the Court held that the term 'substantial' is directed to the level of assistance and the term 'continuing' is directed at the duration of the assistance and that it is a composite phrase, in the sense that its two elements are cumulative. Although the comments in this case were not made in the context of the definition of 'carer, the Tribunal considers them to be of assistance when considering that definition.
3. The Tribunal has carefully considered the evidence and is satisfied that the primary visa applicant is willing and able to provide to the Australian relative substantial and continuing assistance of the kind needed and meets the requirements of reg 1.15AA(1)(f).

1. Given these findings the Tribunal concludes that at the time of decision the primary visa applicant is a carer of the Australian relative, being the review applicant's son, and therefore satisfies cl 116.221.
2. The secondary applicants included in this application are the primary visa applicant's husband and children. The Tribunal notes that for the secondary applicants to be granted a Subclass 116 visa they must meet the secondary criteria which includes cl.116.311 and cl.116.321.
3. The Tribunal has found that the primary visa applicant meets cl.116.21. The Tribunal therefore finds that the secondary applicants are members of the family unit of, and made a combined application with, a person who satisfies the primary criteria in subdivision 116.21. The secondary applicants therefore meet cl.116.311.
4. The Tribunal finds that the secondary applicants continue to be members of the family unit of a person who is the holder of a Subclass 116 visa. On the evidence before the Tribunal the visa applicant's husband and children continue to be members of the family unit of the visa applicant. The secondary applicants therefore meet cl.116.321.

1. Clause 116.212 requires that at the time of application the primary visa applicant is sponsored by the Australian relative, or the spouse (or de facto partner, where applicable) of the Australian relative, who has turned 18. If sponsored by the spouse or de facto partner, the spouse or de facto partner must cohabit with the Australian relative and must be an Australian citizen, permanent resident or eligible New Zealand citizen. For these purposes, 'relative', 'Australian permanent resident' and 'eligible New Zealand citizen' are defined in reg 1.03 of the Regulations. 'Spouse' is defined in reg 1.15A (for visa applications made before 1 July 2009) and s 5F of the Act (for visa applications made after that date, whilst 'de-facto' partner is defined in s 5CB of the Act).
2. As referred to in paragraph 3 above, the delegate refused to grant the visas on the basis that the visa applicants failed to satisfy cl 116.212 and cl 116.222 of Schedule 2 to the regulations on the grounds that the Form 40 sponsorship document was more than two years old and that the review applicant, despite requests from the Department, had failed to provide an updated Form 40 from the sponsor or, "any other information to demonstrate the applicants... sponsorship for this application remains in force at time of decision".
3. The Tribunal has considered the submission from the review applicant's representative that the form 40 sponsorship application form does not need to be renewed as it is a once only document that is submitted with the initial carer visa application. The Tribunal agrees with the submission presented and finds that at the time of application the primary visa applicant was sponsored as required by the legislation and satisfies cl 116.212 in that regard.

1. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 116 visa.

1. The Tribunal remits the applications for Other Family (Migrant) (Class BO) visas for reconsideration, with the direction that the following criteria for a Subclass 116 (Carer) visa are met:
   • cl 116.211 of Schedule 2 to the Regulations
   • cl 116.221 of Schedule 2 to the Regulations
   • cl 116.311 of Schedule 2 to the Regulations
   • cl 116.321 of Schedule 2 to the Regulation

Migration Regulations 1994

1.15AA (1) An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

(a) the applicant is a relative of the resident; and

(b) according to a certificate that meets the requirements of subregulation (2):

(i) a person (being the resident or a member of the family unit of the resident) has a medical condition; and

(ii) the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

(iii) the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

(iv) because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

(ba) the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

(c) the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

(d) if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

(e) the assistance cannot reasonably be:

(i) provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii) obtained from welfare, hospital, nursing or community services in Australia; and

(f) the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

(2) A certificate meets the requirements of this subregulation if:

(a) it is a certificate:

(i) in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

(ii) signed by the medical adviser who carried it out; or

(b) it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

(3) The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.