What is a “Carer’s Visa”? – Error made by the Department of Immigration

By Lotus Chan 05/02/2018

With healthcare and medicine so advanced in today’s society we are faced with an aging population. The life expectancy in Australia is now between 82 and 83 years old. So we are aging, and the problem is how do we care for the aging population. There simply will not be enough beds or staff in a nursing homes to serve our aging population.

Carer visa is a permanent visa granted to a person who wants to enter or remain in Australia for the purpose of being the carer of an Australian Relative. It helps keep Australians out of a nursing home and allows them to remain in the comfort of their own home surrounded by their family and relatives.

Although the objective of the visa sounds compassionate in reality the visa can be extremely difficult to obtain and even if granted there will be lengthy waiting times.

The Carer visa may be made by an applicant who is already inside Australia (subclass 836) or outside Australia (subclass 116).

Generally, the visa applicant needs to show they provide or intend to provide care and assistance for a relative in Australia who:

  1. Has a long-term medical condition that grossly inhibits them or stops them from being able to look after themselves in their daily life;
  2. Needs permanent or long-term practical support to help them care for a member of their family in their household with the medical condition from which they suffer; and
  3. Satisfy probably the most difficult primary criteria, that is that the Australian relative must show that he/she cannot reasonably obtain the care they need from any other relative/s or from welfare, hospital, nursing or community services in Australia.

So, what does it mean by cannot reasonably “obtain” the care in Australia?

Our success in the Federal Circuit Court of Australia followed by the Full Court of Appeal in the case of Nguyen v Minister for immigration & ANOR [2017] FCCA 339 and Minister of Immigration and Border Protection v Nguyen [2017] FCAFC 149 may give some insight on how the Court interpret the meaning of “reasonably obtain”.

In this case, the applicant, Ms Nguyen, applied for a carer visa to provide assistance to her mother, Ms Hoa, who was an 89 year old Vietnamese woman in the twilight years of her life. Ms Hoa suffers from  bilateral paraplegia. She is significantly disabled and is bedridden. She can be mobilised in a wheelchair but she needs a significant amount of lifting. She prefers to stay at home with her family and be cared for by one of her family. She speaks no English and only speaks Vietnamese. She does not eat western food and only eats Vietnamese food. The visa application was refused by the Department in the first instance, the refusal was affirmed by the Administrative Appeals Tribunal (the first body to which an appeal can be made). The primary basis for the Tribunal’s decision was that the member found that there existed welfare services (such as nursing homes) which were available to provide care or assistance to Ms Hoa. The Member also found that although no one relative of Ms Hoa could provide her with full time care the care could  be provided by  a combination of her Australian relatives.  As a result of these matters the Tribunal found that the Department of Immigration was correct in not granting the visa applicant the Carer Visa.

Our firm then appealed the Tribunal’s decision to the Federal Circuit Court of Australia (FCCA).

The FCCA held that the tribunal had erred in examining whether Ms Nguyen’s mother (Mrs Hoa) could reasonably obtain the care she needs. Essentially, the Court found that the Tribunal only focused on the availability of the welfare facilities but did not adequately explain whether such available welfare facilities could reasonably satisfy Ms Hoa’s special needs. This was consistent with the Court’s findings in the case of Biyiksiz v Minister for Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 814, where Gray J held:

‘[21] factors that are subjective to the person requiring long term assistance will be of relevance in determining whether assistance can reasonably be obtained by that person from sources other than an applicant for the relevant visa.’

Simply put, the decision maker is required to take into account a person’s individual circumstances and her subjective wish to receive the type of care she requires when examining whether he/she “can reasonably obtain” the appropriate care from the available services.

In Ms Nguyen’s case, the Tribunal established that there were residential care facilities available in Forest Lake which could provide assistance for Ms Hoa, however, it was held that Ms Hoa could not reasonably obtain assistance in the Forest Lake facility that matched her special needs,  including a 24-hours care; special dietary requirement; her preference to stay at home and have a carer who speaks Vietnamese and has connection with her. The Court also found the Tribunal’s reasoning that the relatives of Ms Hoa could share the task of taking care of Mrs Hoa was illogical.[1] The relatives of Ms Hoa work full time and they live some 20 kilometres away from Ms Hoa. The Tribunal failed to answer and explain how the relatives could re-juggle their working and family lives to take care of an 89 year old bedridden lady, who requires 24-hours care.[2] The FCCA consequently held that the Tribunal was erred and quashed the Tribunal’s decision.

Although the Minister of Immigration tried to challenge the decision made by FCCA and appeal to the Full Court of Appeal, their appeal was also unsuccessful. The FCA (Full Court) upheld the decision made of the FCCA and further affirmed the ability to obtain reasonable and meaningful assistance is a question of fact and that the Tribunal should have considered all material facts and Ms Hoa’s personal circumstances. It was wrong for the Tribunal to overlook Mrs Hoa’s personal circumstances and only focus on the availability of the care services.

But notwithstanding the above decision a Carer visa is still not as accessible as it may sound. There are voluminous documents which are required to be promptly provided and submitted to the Department of Immigration for its assessment, and the assessment process is time consuming.

Even though our perseverance in Ms Nguyen’s case paid off, it is a clear example of the obstacles that an applicant and sponsor may face even where from first principles it may seem that they have an overwhelming case which should readily lead to an approval.

If you are facing some difficulties in relation to this or any other visa application, we recommend that you obtain competent legal advice.

[1] Nguyen v Minister for Immigration & Anor [2017] FCCA 339, 51.

[2] Nguyen v Minister for Immigration & Anor [2017] FCCA 339, 55.

Lotus joined T Lawyers as a Solicitor in 2017. Lotus graduated from Queensland University of Technology with a Bachelor of Laws (Honours) and completed practical legal training from Australian National University.