Carer Visa: Proving Care Is Not Reasonably Available

Proving care is not reasonably available for a Carer visa means showing, in writing, that no other relative in Australia who is a citizen, permanent resident or eligible New Zealand citizen can reasonably meet the relative's need for direct help, and that no welfare, hospital, nursing or community service in Australia can reasonably meet it either, as regulation 1.15AA(1)(e) of the Migration Regulations 1994 (Cth) requires. The Federal Court has held that relatives and services are weighed together, so the family has to show that no suitable combination of the two covers the need (Nguyen v Minister for Immigration and Border Protection [2016] FCA 688).

Source of care	Counted by the law?	What to obtain	What the decision-maker looks for
Each other relative of the resident in Australia who is a citizen, permanent resident or eligible New Zealand citizen	Yes, reg 1.15AA(1)(e)(i)	A signed statement from each, covering work, health, their own dependants and distance	Whether each could give some help, alone or together with others
Relatives in Australia on temporary visas	Not under (e)(i)	Name them on Form 47OF anyway; question 69 asks about all relatives in Australia	Complete and correct answers (Migration Act 1958 s 101)
The carer, if applying from inside Australia	Excluded	Nothing	Form 47OF question 70 asks about relatives "other than yourself if you are applying onshore"
Aged-care services	Yes, reg 1.15AA(1)(e)(ii)	An aged care assessment through My Aged Care, and any offer or waitlist	Whether an assessment was sought at all
Hospital and community nursing	Yes	A letter on what is and is not provided, and for how long	Whether help is available long term (Form 47OF question 71)
Disability and other community services	Yes	A letter from each service approached	Which services were approached, not a general claim
Private paid care	Yes	Written quotes for the hours needed	Proper care at a cost that is not exorbitant

What does no reasonable access to care mean for a Carer visa?

No reasonable access to care means the direct help the relative needs cannot reasonably be provided by any other relative of the resident who is a citizen, permanent resident or eligible New Zealand citizen, and cannot reasonably be obtained from welfare, hospital, nursing or community services in Australia. It is the second half of the third link in regulation 1.15AA.

In Nguyen, Justice Buchanan put the question plainly: "The end point of the enquiry is whether adequate assistance is already reasonably available in Australia" (at [31]).

The Department of Home Affairs' subclass 836 page paraphrases the test as care from "another relative or welfare, hospital or community nursing service", and speaks of a family member "who lives with you". The Regulations are wider on services, set no living-together test, and govern.

What evidence shows care is not reasonably available?

Care is shown to be not reasonably available by a set of signed documents, each from the person or service it concerns. The Department's sponsor instructions ask for "written evidence that you don't have reasonable access to care options in Australia", and the evidence below is what fills that request.

Document	Who signs it	What it must show
Statement from each relative in Australia	That relative	Work hours, health, their own dependants and travel time, and what help they can and cannot give
Statement from the resident	The resident, or their cohabiting partner	The care arrangements now, and why they cannot continue
Aged care assessment outcome	The assessing organisation	What was assessed and what services were approved or waitlisted
Letters from services	Each service approached	What they can and cannot provide, and for how long
Private care quotes	Each provider	Hours covered and cost

Could another relative in Australia give the care?

Another relative in Australia counts, in law, only if they are a relative of the resident and an Australian citizen, permanent resident or eligible New Zealand citizen. Relatives on temporary visas are not counted by regulation 1.15AA(1)(e)(i). Who is a "relative" follows regulation 1.03: close relatives, grandparents, grandchildren, aunts, uncles, nieces, nephews and their step equivalents.

"Relative" includes the plural, so several relatives are looked at together (Nguyen at [15]). The Tribunal asked whether each of them could give "some level of support", so that the total met the need. The Federal Court found no error in that approach, or in the Tribunal not spelling out exactly what each relative should do (at [8], [38] and [40]).

In Nguyen, the sponsor, then 71, had five children and an adult granddaughter in Sydney, all living 8 to 30 minutes away. The refusal was upheld even though none of them could give full-time care alone.

Why don't welfare, hospital, nursing or community services meet the need?

Welfare, hospital, nursing or community services fail to meet the need, for a Carer visa, only where the evidence shows at least one of four gaps.

Not available. The relative has been assessed and found ineligible, or has been waitlisted.
Not the right kind of help. The service does not cover the direct help that the certificate records. In Nguyen, the sponsor told the Tribunal that her home-care package gave three hours of visits a week, with general help but none with medication.
Not at a reasonable cost. The Court said that "no assumption can be made that the services in question will be free", and that services at an exorbitant cost do not count (Nguyen at [35]). Private services count as well as public ones.
Not available long term. Form 47OF question 71 asks, for each organisation approached, whether the relative can obtain long-term assistance from it.

For government-funded aged care, the first step is an aged care assessment. My Aged Care takes applications online, by phone on 1800 200 422, or in person at a Services Australia centre. In Nguyen, the delegate noted that no assessment of that kind had been provided.

What should letters from care services say?

Letters from care services should say five things, each on the service's letterhead, dated and signed.

Who asked, and when. The person or relative who approached the service, and the date.
What was assessed or offered. The service type, or the outcome of an assessment.
Hours against need. How many hours of help are available, compared with the need the certificate records.
How long. Whether the help can continue long term, the question Form 47OF asks.
Cost. What the family would pay.

The first point matters most. In Nguyen, the delegate said there was "no evidence of which services have been approached", and no copies of any dealings with them (at [4]).

Where does Form 47OF ask about other care?

Form 47OF asks about other care in Part L, questions 69 to 71: whether the relative needing care has other relatives in Australia, whether any of them are reasonably able to help, and which welfare organisations, doctors, hospitals, nursing homes or other community services have been approached. The carer answers these questions as the applicant, and signs the form.

A "No" to question 71 needs a reason in Part N, the additional-information section. A "Yes" needs the name of each organisation, an answer on long-term help, and supporting evidence attached. Form 47OF (design date 07/26) is the paper form the Department of Home Affairs uses for all Other Family visas, and it is on the Department's form listing.

What does the Nguyen decision show about this test?

The Nguyen decision shows three things: relatives and services are weighed together, private paid services count, and a family must show what it tried, not only what it prefers.

The facts:

A subclass 116 application was lodged on 21 May 2013.
A delegate refused it on 9 July 2014.
The Administrative Appeals Tribunal (since replaced by the Administrative Review Tribunal) affirmed the refusal on 11 August 2015.
The Federal Circuit Court dismissed the judicial review, and Justice Buchanan dismissed the appeal on 9 June 2016.

The holdings:

The family's role in arranging outside services is relevant ([24], [29]).
Relatives and services are "concurrent (and, if necessary, combined) fields of enquiry" ([31]–[32]).
Private services count, at a reasonable cost ([35]).
The Tribunal need not allocate each relative's share ([40]).

The judgment is on the Federal Court's website.

Which records prove other care is unavailable?

Three kinds of record prove other care is unavailable, and together they answer both halves of regulation 1.15AA(1)(e).

Signed statements from people. The resident and each relative in Australia set out what they can and cannot do. The usual form is a Commonwealth statutory declaration, and the guide to statutory declarations for a visa application explains who can witness one. Which relatives have to be covered depends on who counts as a relative under regulation 1.03.
Written outcomes from services. The assessment result, each service's letter and any private quotes, each dated.
The forms themselves. The carer's answers in Part L of Form 47OF, and the resident's sponsorship on Form 40, must tell the same story as the statements and letters.

Weak evidence on other care is one of the common refusal grounds for a Carer visa. A family can have a registered practitioner to review your Carer visa case before lodgement, or send an enquiry about your Carer visa case through this guide's form. This test is one link of three; the guide that lets you check the three links in order covers the rest, and the overview of both subclasses is on the Carer Visa Australia home page.

A registered professional makes a grant more likely

Unlike the medical rating, this criterion is decided by the Department on the family's own evidence, and the Nguyen case shows that a file without proof of the services approached fails even when the need is real. A registered migration agent or an Australian legal practitioner who plans which relatives and services to document before lodgement makes a grant more likely, never certain.

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