1913470 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The applicant sought to be recognised as a carer for their aunt, who was an Australian citizen. The dispute centred on whether the applicant met the criteria to be considered a 'carer' under the Migration Regulations 1994. The decision was made by Senior Member Michael Cooke of the Migration Review Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether the visa applicant had claimed to be a 'carer' of an Australian relative at the time of application, as required by clause 116.211 of the Regulations. Secondly, the Tribunal had to assess whether the visa applicant was, in fact, a 'carer' of the Australian relative at the time of the decision, in accordance with clause 116.221 of the Regulations and the definition of 'carer' in regulation 1.15AA.

The Tribunal reasoned that the applicant satisfied the requirements of clause 116.211 because they had applied on the basis of being a carer for their aunt, who was an Australian citizen and thus an 'Australian relative'. Regarding clause 116.221, the Tribunal found that the applicant was a 'relative' of the Australian relative, as defined in regulation 1.03, and that the aunt was an Australian citizen usually resident in Australia. The Tribunal concluded that the applicant met the criteria for being a carer under regulation 1.15AA, specifically that the applicant was a relative of the resident.

Given these findings, the Tribunal remitted the applications for the Subclass 116 (Carer) visa for reconsideration by the Minister, with a direction that the criteria under clauses 116.211 and 116.221 of Schedule 2 to the Regulations had been met.