1928722 (Migration)

This matter concerned an application for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa). The applicant, Ms A, sought to be recognised as the carer of her sister, Ms B, who is an Australian citizen usually resident in Australia. The central dispute revolved around whether Ms A met the criteria to be considered a carer under the Migration Regulations 1994, particularly in relation to the provision of a Carer Visa Assessment Certificate and the necessity of her assistance. The decision was made by Justine Clarke.

The court was required to determine whether the applicant, Ms A, was a "relative" of the Australian resident, Ms B, as defined by the regulations. It also needed to ascertain if the Carer Visa Assessment Certificate provided met the requirements stipulated in regulation 1.15AA(2). Furthermore, the court had to consider whether Ms B's needs for assistance could reasonably be met by other Australian relatives or obtained from Australian welfare, hospital, nursing, or community services, and crucially, whether Ms A was willing and able to provide the necessary substantial and continuing assistance.

The Tribunal found that the applicant, Ms A, was indeed the sister of the Australian resident, Ms B, satisfying the "relative" requirement under regulation 1.15AA(1)(a). The Tribunal also concluded that an updated Carer Visa Assessment Certificate provided met the requirements of regulation 1.15AA(2), confirming Ms B's medical condition, the resulting impairment, and the ongoing need for assistance. Crucially, the Tribunal determined that Ms B's needs could not reasonably be provided by other relatives or obtained from Australian services, and that Ms A was willing and able to provide the required assistance.

Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the criterion under clause 836.221 of Schedule 2 to the Regulations, concerning the applicant being a carer, was met.