1909806 (Migration)

This matter concerned an application for a Subclass 836 (Carer) visa. The applicants sought review of a decision that had restricted the assessment to specific sub-clauses of regulation 1.15AA of the Migration Regulations 1994. The Australian relative, Mr A, was unable to attend a hearing due to serious ill health, which also prevented him from being assessed in person for a CVAC certificate. The sponsor, Mr A, had previously withdrawn his sponsorship twice but later indicated a desire to continue sponsoring the applicants.

The primary legal issue before the Tribunal was to determine the scope of its review in light of the applicant's inability to fully meet the requirements of regulation 1.15AA, particularly concerning the medical assessment of the Australian relative, Mr A. The Tribunal was required to consider whether it could proceed with the assessment of the remaining criteria for the visa, given the circumstances of Mr A's ill health and the limitations on obtaining the necessary certification.

The Tribunal reasoned that the delegate had incorrectly restricted the assessment to only certain sub-clauses of regulation 1.15AA. It acknowledged that the serious ill health of Mr A, the Australian relative, had prevented a full assessment of the criteria under regulation 1.15AA, including the requirement for a certificate meeting the specifications of subregulation (2). The Tribunal considered that, in the interests of procedural fairness to the applicants, it should limit the scope of its review to the extent necessitated by Mr A's condition.

Consequently, the Tribunal remitted the applications for Other Family (Residence) (Class BU) visas for reconsideration by the Minister. The remittal was made with the direction that the criteria under regulation 1.15AA(1)(b) and (c), and subregulation (2), for the purposes of clause 836.221 of Schedule 2 to the Regulations, were to be considered met.