1607581 (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant claimed to be the carer of her sister, who is an Australian resident. The initial basis for the application was that the sponsor's daughter suffered from a medical condition requiring care. However, the person requiring care subsequently changed to another of the sponsor's daughters. The Administrative Appeals Tribunal considered whether the applicant met the definition of a "carer" under Regulation 1.15AA of the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the applicant was a "carer" of the Australian resident sponsor, as defined by Regulation 1.15AA, and whether the change in the specific family member requiring care between the time of application and the time of decision affected the applicant's eligibility. Specifically, the Tribunal had to determine if the applicant was a relative of the sponsor and if the sponsor, or a member of her family unit, had a medical condition causing a significant impairment requiring direct assistance that could not be reasonably provided by other means, and if the applicant was willing and able to provide such assistance.

The Tribunal reasoned that Regulation 1.15AA(1)(b)(i) requires that "a person (being the resident or a member of the family unit of the resident) has a medical condition." It found that the identity of the specific family member with the medical condition could change between the application and decision points, provided the Australian relative (the sponsor) remained the same. The Tribunal confirmed that the applicant was a relative of the sponsor, satisfying Regulation 1.15AA(1)(a). The Tribunal concluded that, based on the evidence before it, the criterion in clause 836.221 of Schedule 2 to the Regulations was met.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criterion in clause 836.221 of Schedule 2 to the Regulations was met.