1822388 (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant, who is the aunt of the sponsor, sought to provide care for the sponsor's daughter, who suffers from 18q deletion syndrome. The central dispute revolved around whether the applicant met the criteria for being a "carer" under the Migration Regulations 1994, particularly concerning the need for assistance and the validity of the provided carer visa assessment certificate. The decision was made by Deputy J.l Redfern Psm P.

The primary legal issue before the court was whether the applicant satisfied the requirements of regulation 1.15AA(1) of the Migration Regulations 1994, which defines a "carer" for the purposes of the visa. This involved determining if the sponsor's daughter had a qualifying medical condition causing significant impairment, if this need for assistance would continue for at least two years, and crucially, whether such assistance could not reasonably be provided by another Australian relative or obtained from Australian welfare, hospital, nursing, or community services. The court also had to consider if the applicant was willing and able to provide the necessary substantial and continuing care.

The court found that the applicant was a relative of the Australian permanent resident sponsor and that the provided Carer Visa Assessment certificate, issued by Bupa Medical Visa Services, on its face met the requirements of regulation 1.15AA(2). This certificate indicated that the sponsor's daughter had 18q deletion syndrome, resulting in global developmental delay and other impairments, and a need for direct assistance for at least two years. However, the certificate was over six years old at the time of the decision, a delay attributed to the protracted processing and review stages, including pandemic-related hearing delays. Despite the age of the certificate, the Deputy President was satisfied that the applicant was a "carer" as defined by clause 836.221 of Schedule 2 to the Regulations.

Consequently, the Tribunal remitted the application for reconsideration with a direction that the criteria for the Subclass 836 (Carer) visa, specifically clauses 836.212, 836.213, and 836.221 of Schedule 2 to the Regulations, were met.