1908762 (Migration)

The Administrative Appeals Tribunal considered the case of applicants seeking Other Family (Residence) (Class BU) visas, specifically Subclass 836 (Carer) visas. The primary dispute revolved around whether the applicants met the criteria for a Carer visa, particularly in relation to the Australian relative who was the sponsor. The applicants also sought consideration for Subclass 838 (Aged Dependent Relative) and Subclass 835 (Remaining Relative) visas, and requested a referral to the Minister for intervention.

The Tribunal was required to determine if the applicants satisfied the criteria for a Subclass 836 visa, specifically whether the first-named applicant was a carer of the Australian relative at the time of the delegate's decision. Additionally, the Tribunal had to assess if the applicants met the criteria for Subclass 838 visas, considering their ages and eligibility for an age pension. The Tribunal also examined whether valid applications for Subclass 835 visas had been made and, in light of the circumstances, whether a referral to the Minister for intervention under section 351 of the Migration Act 1958 was warranted.

The Tribunal affirmed the delegate's decision not to grant the Subclass 836 visas because the Australian relative and sponsor had passed away prior to the Tribunal's decision. This meant the first-named applicant could no longer be considered a carer of the deceased relative, and consequently, neither applicant could meet the primary or secondary criteria for the visa. Regarding the Subclass 838 visas, the Tribunal found that neither applicant met the definition of an 'aged dependent relative' as they were not old enough to be granted an age pension. Furthermore, the Tribunal determined that valid applications for Subclass 835 visas had not been made, as the correct visa application charge had not been paid. Despite these findings, the Tribunal considered the applicants' circumstances, including the first-named applicant's long residence in Australia, her integration into Australian society, and her desire to remain, to be exceptional. Therefore, the Tribunal concluded that it would be appropriate to make a referral to the Minister for consideration of his intervention powers.

Ultimately, the Tribunal affirmed the decision not to grant the applicants Other Family (Residence) (Class BU) visas. However, the Tribunal decided to refer the matter to the Minister for possible intervention due to the exceptional circumstances presented.