1916547 (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer) visa. The applicant sought to demonstrate that she met the sponsorship requirements under clause 836.213 and the carer requirements under regulation 1.15AA of the Migration Regulations 1994. The decision under review was made by the Department, which had found that the applicant did not meet the carer requirements because she had not provided a Carer Visa Assessment Certificate that related to the Australian resident with the medical condition, and that the applicant was not a relative of the resident with the medical condition. The Tribunal, constituted by Margie Bourke, was asked to reconsider this decision.

The primary legal issues before the Tribunal were whether the applicant met the sponsorship requirements under clause 836.213 and the carer requirements under regulation 1.15AA. Specifically, the Tribunal had to determine the correct interpretation of "an Australian relative" and "the Australian relative" as used in clauses 836.212 and 836.213, and whether the applicant had provided a valid Carer Visa Assessment Certificate that satisfied the criteria outlined in regulation 1.15AA.

The Tribunal's reasoning was significantly informed by the decision in *Nguyen v MICMSMA* [2020]. This case established that the Australian relative who sponsors the visa applicant for the purposes of clause 836.213 does not need to be the same person as the Australian relative requiring care under clause 836.212. Applying this principle, the Tribunal found that the applicant could meet the requirements of clause 836.213 by being sponsored by her sister, who was an Australian citizen, over 18 years of age, and usually resident in Australia. The Tribunal was satisfied, based on the provided birth certificates and citizenship documents, that the applicant and her sponsor were biological sisters and that the sponsor met the sponsorship criteria. Furthermore, the Tribunal concluded that the applicant could also meet the requirements of clause 836.212 by claiming to be the carer of her mother, who was an Australian relative with a medical condition. The Tribunal found that the applicant was a relative of the Australian resident with the medical condition and that the applicant was willing and able to provide substantial and continuing assistance.

Given these findings, the Tribunal determined that the applicant met the sponsorship requirements under clause 836.213. However, the Tribunal indicated that the Department's original decision had focused on the inadequacy of the Carer Visa Assessment Certificate. Therefore, the Tribunal remitted the application for the visa to the Minister for reconsideration, with the direction that the criteria under clause 836.213 were met. The remaining criteria for the Subclass 836 visa were to be considered by the Minister.