Carer Visa Lawyers

Where an Australian citizen or permanent resident requires care to be rendered by their non-citizen relative for long term medical conditions, the relative may qualify for a Subclass 116 visa. However, it must be established that no other person in Australia could reasonably provide necessary care or assistance as required. Applicants must be outside Australia to apply for Subclass 116 visas. If already in Australia, a Subclass 836 visa is the correct avenue.

The person receiving the care must hold a certificate which indicates that they suffer from “extreme functional impairment.” This means that the person being cared for must require significant assistance with most everyday activities, such as dressing, bathing and light housework.

 

Carer Visa Eligibility Criteria

• The applicant must be willing and able to provide ongoing substantial care and support for the sponsoring relative or the family member who will be living with them.
• The sponsoring relative must have obtained or be in the process of obtaining a medical certificate which certifies that he or she has a medical condition which:​
  • causes physical, intellectual or sensory impairment; and
  • means the relative will need help with practical aspects of daily life for at least 2 years.
• The sponsoring relative must agree to provide the applicant and their secondary applicants with housing and financial support for the first 2 years the applicant lives in Australia.

 

Australian Relative

The migration status of the sponsoring relative can only be an Australian citizen or a permanent resident aged 18 or over. The applicants for these carer visas must be related to the sponsor in the following ways:​

• Spouse or de facto partner;
• Parent;
• Sibling or step-sibling;
• Child or step-child;
• Grandparent or step-grandparent;
• Grandchild or step-grandchild;
• Aunt, uncle, step-aunt or step-uncle;
• Niece, nephew, step-niece or step-nephew.

Note that cousins are notably absent from the above list. If you are a carer for your spouse or de facto partner, you may wish to consider applying under the partner visa scheme.

 

Degree of Impairment

The Australian relative will be assessed on their functional capacity, meaning they will be assessed based on the activities they are capable of performing. This is then given a point score under the Disability Support Pension Impairment Tables, requiring an impairment rating of 30 in a single table. This process is technical, however an impairment rating of 30 is regarded as indicating “extreme functional impairment,” meaning that the person is largely unable to perform everyday tasks without significant assistance. Care for persons with mental health issues will be assessed particularly harsh, with mere depression and anxiety being entirely insufficient.

Relevant medical certificates must be obtained from Bupa Medical Visa Services which clearly state that they:

• Have a medical condition; and
• Their medical condition cause impairment in their daily life; and
• Their level of the impairment meets the requisite threshold; and
• The care will be needed for the next 2 years.

 

No Alternative Care Provided

Another challenging requirement relates to availability of the required care. You can only qualify for a Carer visa if the assistance you provide to your Australian relative is not able to be provided by another Australian relative or an Australian health or welfare service. In most cases, the Department of Home Affairs will assume that most medical and disability care services can be obtained through other means.  Where the care can be provided by a different relative or by a welfare, hospital or community service, the visa application would likely be refused.

If the sponsoring relative receiving care has many other relatives who are already settled in Australia, the Department may deem that the care could alternatively be provided by another Australian relative. Relevant factors in this determination may include:

• Number of relatives already in Australia;
• Nature and extent of the assistance required;
• Who is currently providing the required assistance;
• Where the person requiring assistance resides;
• Where any other relatives in Australia live;
• Evidence of ongoing close family relationships;

Reasons provided as to why the relatives in Australia claim to be unwilling or unable to provide the assistance.

 

What if the Australian relative with impairments cannot be a sponsor?

Sometimes, the Australian relative may be unable to act as the sponsor in a Carer visa application. This may be due to an intellectual disability or otherwise being incapable of consenting to sponsorship. In such cases, the person acting as the sponsor can be different from the person in need of care. 

This was settled in the matter of Nguyen MICMSMA [2020] FCA 1732, where the Federal Court found that the sponsor and the person receiving the care can be different people. This construction of the legislative provisions provides much needed protection to the most vulnerable care recipients, allowing their carer’s access to the Carer visa program.

It is important to remember that both the sponsor and the person receiving the care must be Australian relatives of the person applying for the visa. A spouse or de facto partner of the Australian relative may also act as sponsor, provided that they are themselves an Australian citizen or permanent resident over the age of 18 years old.

 

Carer Social Security Payments

Under the Australian social security scheme, payments may be made to persons responsible for the care and support of an Australian suffering from a disability. These support payments recognize the contribution of in-home carers who forgo earning potential in order to provide care to a vulnerable friend or relative.

For most permanent residents, waiting periods often apply to receipt of social security payments. These waiting periods differ depending on the type of social security payment, and may range from one (1) to four (4) years. Fortunately, persons issued a Subclass 116 or 836 visa can immediately qualify for the Australian Carer Payment and Carer Allowance.  

How much can I receive?

Social security law in Australia can be highly complex. A range of factors can potentially affect how much you can receive. Single persons can receive up to $868.30 a fortnight in carer payments and up to $131.90 a fortnight as a carer allowance.

Where can I get more information on social security entitlements?

It is best to receive specialist social security advice regarding your entitlements. We recommend contacting your nearest Community Legal Centre for further advice. 

Further information can be found on the Services Australia website, or the Department of Social Services’ Social Security Guide. You may also wish to investigate the Centrelink website for information on how to apply.

 

Relevant Public Interest Criteria

4001, 4002, 4003, 4004, 4005, 4009, 4010, 4020, 4021, 4019 (if applicable), 4017 and 4018 (if applicable).

 

Relevant Special Return Criteria

5001

 

Visa Conditions

The visa grant must specify the date of first entry, if applicable.

• 8502: The holder of the visa must not enter Australia before the entry to Australia of a person specified in the visa.
  8515: ​The holder of the visa must not marry or enter into a de facto relationship before entering Australia.

 

Application Fee

Subclass 116 is payable in 2 instalments.

First instalment for an applicant:

(a) who appears to the Minister, on the basis of information contained in the application, to be a carer; or

(b) whose application is combined, or sought to be combined, with an application made by that person:

• • • Base application charge: $1,880
    • Additional applicant charge for an applicant who is at least 18: $940
    • Additional applicant charge for an applicant who is less than 18: $470

First instalment for any other applicant:

• • • Base application charge: $4,560
    • Additional applicant charge for an applicant who is at least 18: $2,280
    • Additional applicant charge for an applicant who is less than 18: $1,145

Second instalment for an applicant: Nil

(a) who is a carer; and

(b) in relation to whom the Minister has determined that the second instalment of the visa application charge should not be paid because the Minister is satisfied that payment of the instalment has caused, or is likely to cause, severe financial hardship to the applicant or to the person of whom the applicant is a carer.

Second instalment for any other applicant: $2,065

*The second instalment may be waived if the applicant suffers financial hardship as a result.

 

 

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