1930072 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The review applicant, who is an Australian citizen usually resident in Australia, claimed that the visa applicant, their child, was their carer. The primary decision maker had not been satisfied that the visa applicant met the criteria for a carer visa. The Administrative Appeals Tribunal was tasked with determining whether the visa applicant qualified as a 'carer' under the Migration Regulations 1994.

The central legal issue before the Tribunal was whether the visa applicant met the requirements of clause 116.221 of Schedule 2 to the Migration Regulations 1994, which defines the criteria for a carer visa. This involved assessing whether the visa applicant was a relative of the Australian resident, whether a medical condition of the Australian resident necessitated ongoing direct assistance, and crucially, whether such assistance could not reasonably be provided by other relatives or obtained from Australian welfare, hospital, nursing, or community services.

The Tribunal considered the evidence presented, including statutory declarations from family members and correspondence from the review applicant's general practitioner, along with photographs. It was satisfied that the review applicant was an Australian citizen usually resident in Australia and that the visa applicant was a relative (child) of the review applicant, meeting the requirements of regulation 1.15AA(1)(a). The Tribunal also noted that the delegate had been satisfied on these points in the primary decision. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that clause 116.221 of Schedule 2 to the Regulations was met.