1731505 (Migration)

The Administrative Appeals Tribunal considered an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to be recognised as a carer for an Australian relative, who was identified as the sponsor. The dispute centred on whether the applicant and the secondary applicants met the relevant criteria for the visa.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 836.212 of Schedule 2 to the Regulations, which requires the applicant to claim to be the carer of an Australian relative. This, in turn, required the Tribunal to determine if the sponsor qualified as an "Australian relative" as defined in clause 836.111 and rule 1.03 of the Regulations, and if the applicant was a "relative" of the sponsor according to the definition in rule 1.03. A further issue was whether the secondary applicants met clause 836.321 as members of the family unit of the primary applicant. The Tribunal also considered, in the alternative, whether the applicants met the criteria for an Aged Dependent Relative (Subclass 838) or Remaining Relative (Subclass 835) visa.

The Tribunal found that while the applicant claimed to be a carer, the relationship between the applicant and the sponsor was that of cousins. The definition of "relative" in rule 1.03 of the Regulations does not include cousins. Consequently, the sponsor did not meet the definition of an "Australian relative" for the purposes of the Carer visa. As the primary applicant did not meet the criteria for the Subclass 836 visa, the secondary applicants also failed to meet the criteria as members of the family unit. The Tribunal also determined that the applicants did not meet the criteria for Subclass 838 or Subclass 835 visas, as there was no evidence of dependency for the former, and the sponsor was not a prescribed relative for the latter.

Despite affirming the decision not to grant the visa, the Tribunal considered that the circumstances warranted a referral to the Minister for intervention. The Tribunal affirmed the decision not to grant the applicants the Other Family (Residence) (Class BU) visas.