1934787 (Migration)

This matter concerned an application for an Other Family (Migrant) (Class BO) visa, specifically a Subclass 116 (Carer) visa. The primary visa applicant sought to demonstrate that he was a carer for his Australian citizen father, who was usually resident in Australia. The central dispute revolved around whether the primary applicant met the criteria for being a "carer" as defined by the Migration Regulations 1994, particularly in relation to the need for assistance and the availability of alternative support. The decision was made by Justine Clarke.

The legal issues before the Tribunal were whether the primary visa applicant met the requirements of clause 116.221 of Schedule 2 to the Regulations, which defines a carer. This involved determining if the applicant was a relative of the Australian resident, if a valid medical certificate established a qualifying medical condition and need for assistance, and crucially, whether such assistance could reasonably be provided by other relatives in Australia or obtained from Australian welfare, hospital, nursing, or community services. The Tribunal also had to consider if the applicant was willing and able to provide substantial and continuing assistance.

The Tribunal found that the primary visa applicant was indeed a relative of the Australian resident and that the resident was an Australian citizen usually resident in Australia. While a medical certificate dated 31 March 2015 was considered, the Tribunal did not make a definitive finding on whether all the requirements of regulation 1.15AA(1)(b) and (2) were met. However, the Tribunal concluded that the primary applicant was a carer of the Australian relative, implying that the criteria under cl 116.221 were satisfied. The Tribunal noted that updated medical information, the absence of other relatives in Australia, and cultural and language barriers were relevant considerations in assessing the need for substantial and continuing assistance.

Consequently, the Tribunal remitted the applications for the Other Family (Migrant) (Class BO) visas for reconsideration by the Minister. The remittal was made with the direction that the criterion under cl 116.221 of Schedule 2 to the Regulations, concerning the applicant being a carer, was met.