Carer Visas

TABLE OF CONTENTS

Introduction

Lin v MIMIA [2004] FCA 606 (13.5.04) concerned the interpretation of reg 1.15(1)(e) which reads:

the assistance cannot reasonably be obtained:

(i)        from any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible NZ citizen; or

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

Here the carer visa applicant was a nephew from China. There were other relatives in Australia. In the decision the court reviewed comments by Madgwick J in Issa v MIMA [2000] FCA 128 (‘Issa v MIMIA’) where he said:

It occurred to me that the Tribunal member may have misdirected herself by focusing on whether the other Australian relatives and/or welfare services could reasonably make their support available to the applicant, rather than whether she could reasonably obtain it from them. This is not mere semantics. There would be many families in which, if they were minded to, the children could provide a high level of care for a parent, but in which in practice they might not be willing to do so. In such a case the applicant might be quite unable to obtain care and support from their children. The bare language used by the Tribunal member is suggestive that she confused these 2 concepts.

In Lin, here is how the Federal Court found the MRT erred:

33 I do not consider that it is to bring an excessively critical eye to the Tribunal’s reasons for decision to conclude, as I do, that in considering the possibility of residential nursing home care being available to Mr Guo, the Tribunal proceeded on the basis that Mr G’s ‘preference in terms of remaining with his wife, and in relation to food’ were irrelevant considerations.. of the Tribunal’s reasons for decision. It is therefore necessary to determine whether, within the meaning of reg 1.15AA, factors of a kind that might broadly be described as cultural may impact on whether assistance from a particular source or sources may be reasonably obtained.

36 The Regulations are intended to impact particularly on non-citizens of Australia. In the context which they provide, in the absence of an indication to the contrary, an assessment of what is reasonable in particular circumstances will, in my view, involve, amongst other considerations, consideration of cultural suitability.

39 However, in my view, the Tribunal made an error of law by treating as an irrelevant consideration for the purposes of reg 1.15AA(1) a consideration raised by the evidence before it, namely the preference of an ill and elderly Chinese person to eat Chinese food. That is, in considering whether the direct assistance in respect of the preparation of meals that Mr G required could reasonably be obtained from a source that would not, or might not, be able to provide food that he found acceptable on cultural grounds.

The significance of this case is the Federal Court’s focus on cultural factors in determining what carte may be reasonably available.