1823165 (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, Subclass 836 (Carer), brought by the applicant, who sought to care for her niece, an Australian citizen. The dispute centred on whether the applicant could satisfy the criteria that assistance could not reasonably be provided by another relative in Australia or obtained from Australian welfare, hospital, nursing, or community services, and whether the applicant was willing and able to provide substantial and continuing assistance.

The court was required to determine if the applicant met the requirements of Regulation 1.15AA of the Migration Regulations 1994, specifically whether the Australian relative sponsor's daughter, who suffered from multiple significant and complex medical conditions, required care that could not reasonably be provided by another relative who was an Australian citizen, permanent resident, or eligible New Zealand citizen, or obtained from Australian community services. Additionally, the court had to assess if the applicant was willing and able to provide the necessary substantial and continuing assistance.

The court found that the applicant had claimed to be the carer of an Australian relative, satisfying Clause 836.212 of Schedule 2 to the Regulations. The court noted the extensive care needs of the sponsor's daughter, including assistance with mobility, personal care, and supervision, and considered the mother's stress and depression and the father's medical condition. Ultimately, the court concluded that the matter should be remitted for reconsideration, directing that the first named visa applicant met certain criteria related to the provision of care and that the applications of the other named visa applicants should be considered against the relevant criteria.